IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

KENNETH BELL, et al., on §

behalf of themselves and all §

others similarly situated, §

§

Plaintiffs, §

§

v. § Case No. 1:20-CV-00461-RP

§

CAL-MAINE FOODS, et al., §

§

Defendants. §

PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT

Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Plaintiffs 

hereby move this Court to amend the judgment of dismissal and grant them leave to 

file the attached Amended Complaint. As the Court noted in its order dismissing the 

case without prejudice (Doc. 169), Plaintiffs did not formally seek leave to amend 

the complaint in their objection to the Magistrate Judge’s Report and 

Recommendation (Doc. 163), though they did state in that objection that, “if the 

Court prefers, Plaintiffs stand ready to amend the complaint” with the additional 

facts concerning the amount-in-controversy included in the objection itself. (Doc.

164 at 9). Plaintiffs believe that these additional facts make it clear that, with respect 

to Defendants Cal-Maine Foods, Centrum Valley Farms, Trillium Farm Holdings, 

LLC, and Lucerne, these Defendants participated together in the distribution of the 

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eggs purchased by Plaintiffs, and that a potential class exists that meets the amount 

in controversy under the Class Action Fairness Act.

A. The Magistrate Judge’s Recommendation and the Court’s Order

Magistrate Judge Mark Lane recommended that the case be dismissed on the 

narrow ground that Plaintiffs did not sufficiently allege the amount in controversy. 

Under the Class Action Fairness Act, federal subject matter jurisdiction exists where

“the matter in controversy exceeds the sum or value of $5,000,000, exclusive of 

interest and costs,” for the class as a whole. 28 U.S.C. § 1332(d)(2). As Magistrate 

Judge Lane noted, the amount in controversy may be aggregated among multiple 

Defendants “if the defendants are jointly liable to the plaintiff.” (Doc. 163 at 4 

(quoting Hollinger v. Home State Cty. Mut. Ins. Co., No. 5:09-CV-118, 2010 WL 

11530632 at *8 (E.D. Tex. Aug. 5, 2010))). Plaintiffs originally alleged that all 

Defendants engaged in the manipulation of an egg-pricing tool called the UrnerBarry Index, but Magistrate Judge Lane rejected this theory, and reasoned that the 

First Amended Complaint did not allege an amount in controversy greater than 

$5,000,000 for any individual Defendant.

As the Plaintiffs explained in their objection, the Report & Recommendation 

did not analyze whether, without reference to the Urner-Barry Index, the allegations 

in the complaint are sufficient to allege five million dollars in controversy with 

respect to the four Defendants who were directly involved in selling eggs to the 

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Plaintiffs. In our objection, Plaintiffs stated additional facts that make it clear that 

much more than five million dollars is in controversy with respect to the eggs sold 

in Texas by those four Defendants (even limiting that class to eggs sold at the stores 

at which Plaintiffs purchased Defendants’ eggs). In accepting the Report & 

Recommendation, the Court rightly pointed out that Plaintiffs had not pled many of 

these facts, thought it did not analyze whether they could be inferred from what was 

pled. In any case, Plaintiffs respectfully move the Court to allow them to plead those 

facts now.

B. The Proposed Second Amended Complaint.

Attached as Exhibit A is Plaintiffs’ proposed Second Amended Complaint. 

This proposed complaint will add allegations explaining why the four remaining 

Defendants, all of whom participated in the distribution of eggs purchased by 

Plaintiffs, are subject to joint and several liability under the Texas Deceptive Trade 

Practices Act. Furthermore, the Complaint will allege the facts underlying 

Claimant’s arguments in the objection, which demonstrate that there are not five 

million, but nearly forty million dollars in controversy. These allegations will make 

it abundantly clear that the threshold of CAFA jurisdiction is met. 

Rule 15 of the Federal Rules of Civil Procedure states that “[t]he court should 

freely give leave [to amend] when justice so requires.” Fed. R. Civ. Proc. 15(a)(2). 

In Foman v. Davis, the U.S. Supreme Court expounded on this requirement:

Case 1:20-cv-00461-RP Document 171 Filed 10/18/21 Page 3 of 6
In the absence of any apparent or declared reason—such as undue 

delay, bad faith or dilatory motive on the part of the movant, repeated 

failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the 

amendment, futility of amendment, etc.—the leave sought should, as 

the rules require, be ‘freely given.’

371 U.S. at 182. (quoting Fed. R. Civ. P. 15(a). None of these factors are present in 

this case, and the amendment should be allowed. The current operative complaint is 

the First Amended Complaint, and it is the only one that has been ruled on. Thus, no 

repeated failure to cure exists, nor has there been any undue delay. No bad faith or 

dilatory motive exists, as the purpose of this amendment is to cure the specific 

deficiency regarding subject matter jurisdiction identified by the Court. Likewise, 

no prejudice to the Defendant exists, as allowing this Amendment will allow the 

Court to have jurisdiction over this case and decide it on the merits.

C. Conclusion

Plaintiffs respectfully request that this Court modify its judgment to allow 

them to file the attached Second Amended Complaint. This Complaint will cure the 

failure of subject matter jurisdiction identified by the Court and allow this case to 

proceed.

Respectfully submitted this 18th day of October, 2021, 

/s/ Wesley W. Barnett

Attorney for Plaintiffs

Case 1:20-cv-00461-RP Document 171 Filed 10/18/21 Page 4 of 6
OF COUNSEL:

Wesley W. Barnett

DAVIS & NORRIS, LLP

2154 Highland Avenue South

Birmingham, Alabama 35205

Telephone: 205.930.9900

Facsimile: 205.930.9989

Email: wbarnett@davisnorris.com

THE CARLSON LAW FIRM

100 E. Central Texas Expy

Killeen, Texas 76541

Telephone: 254.526.5688

Facsimile: 254.526.8204

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing was electronically filed 

with the Clerk of Court via the CM/ECF system of the United States District Court 

for the Western District of Texas on October 18, 2021, and served on all counsel of 

record who are registered for electronic service. In addition, on October 18, 2021, a 

true and correct copy of the foregoing document was served on Christopher Ondeck 

and Stephen Chuk via electronic mail.

/s/ Wesley W. Barnett

Attorney for Plaintiffs

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