Medicine To Go Pharmacies, Inc. v. Impax Laboratories, Inc.

Filing 44

ORDER granting 38 Motion to Stay until 14 days after a ruling on the motion for preliminary approval in the Family Medicine Action. Medicine to Go's request for discovery in the interim concerning the scope and terms of the Family Medicine Action settlement is denied as unnecessary. Signed by District Judge William H. Steele on 9/15/17. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MEDICINE TO GO PHARMACIES, INC., )
)
Plaintiff,
)
)
v.
)
)
IMPAX LABORATORIES, INC.,
)
)
Defendant.
)

CIVIL ACTION 17-0310-WS-MU

ORDER
This matter comes before the Court on defendant’s Motion to Stay (doc. 38).
As is well documented in the court file, this case is one of two putative nationwide class
actions pending in this District Court against Impax Laboratories, Inc. and alleging violations of
the Telephone Consumer Protection Act based on Impax’s purported transmission of unsolicited
fax advertisements. The earlier of the two actions is styled Family Medicine Pharmacy, LLC v.
Impax Laboratories, Inc., Civil Action No. 17-0053-WS-MU, and was filed in this District Court
on January 30, 2017 (the “Family Medicine Action”). The case at bar, by contrast, was initially
filed by Medicine to Go Pharmacies, Inc. (“Medicine to Go”) in the U.S. District Court for the
District of New Jersey on February 14, 2017, and was subsequently transferred to this District
Court for consolidation with the Family Medicine Action.1
Less than three weeks after the transfer was completed, however, and before any
consolidation of the two matters had taken place, the parties to the Family Medicine Action
announced on July 24, 2017 that they had “reach[ed] an agreement in principle regarding class
1

The transfer order entered by the District of New Jersey on July 5, 2017 reasoned
that transferring the Medicine to Go Action to this District Court would “advance the interests of
judicial economy and efficient use of resources by all Parties by eliminating the possibility of: (i)
having two overlapping class action cases pending in two different federal courts (in different
circuits), which involve identical TCPA claims against the same defendant; (ii) subjecting
Defendant to overlapping and unnecessarily duplicative discovery in two different venues; and
(iii) inconsistent rulings and/or verdicts.” (Doc. 19, at 1-2.)

settlement, including the total settlement fund and amount of attorney’s fees,” at a mediation
session in Birmingham. (Civil No. 17-0053, doc. 46 at ¶ 5.) In light of that development, the
undersigned announced in an Order dated July 24, 2017 that “[t]he Court will not sua sponte
consolidate these two cases pursuant to Rule 42(a), Fed.R.Civ.P.” (Civil No. 17-0053, doc. 47).
Last week, Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement
and Certification of Settlement Class was filed in the Family Medicine Action. The Motion for
Preliminary Approval remains pending before the undersigned at this time.
An important question, of course, is what is to become of the Medicine to Go Action now
that the first-filed Family Medicine Action has settled on a classwide basis (subject, of course, to
judicial approval). For its part, Impax filed a Motion to Stay this action, reasoning that Medicine
to Go “is a member of the Family Medicine settlement class,” that moving forward with the
Medicine to Go Action in these circumstances would result in “duplicative litigation and
purposeless discovery,” and that Medicine to Go would not be harmed by a stay because it would
still have “a full and fair opportunity to evaluate the settlement and decide whether to opt out of
it or object to it.” (Doc. 38, at 3-4.) In response, Medicine to Go balks that it has been unable to
determine whether it is a member of the Family Medicine settlement class and has not had a full
and fair opportunity to evaluate the settlement. Nonetheless, Medicine to Go indicates that it
does not oppose Impax’s Motion to Stay “provided that it is permitted an opportunity to obtain
discovery regarding the settlement and to determine whether its class claims are encompassed by
the settlement.” (Doc. 42, at 1.)
Medicine to Go has made no showing that any discovery regarding the Family Medicine
settlement is necessary or appropriate at this time. The details of the proposed settlement in the
Family Medicine Action are readily available via PACER in public filings in that case. (Civil
No. 17-0053, docs. 48 & 49.) Medicine to Go has not identified any aspect of the scope or terms
of the proposed Family Medicine settlement about which it reasonably requires information at
this time that is not set forth in the public filings in the Family Medicine Action. At any rate, the
Court has no intention of taking any dispositive action regarding Medicine to Go’s Complaint
without affording Medicine to Go a full and fair opportunity to be heard and to evaluate its
options vis a vis participating in, opting out of, or objecting to the Family Medicine Action
settlement. The only relief that Impax is requesting – and the only relief that is appropriate at
this time – is that this action be stayed pending a ruling on the motion for preliminary approval in

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the Family Medicine Action. Such a temporary stay would advance the interests of judicial
economy and efficient use of resources for the Court and litigants alike, without any
countervailing prejudice to Medicine to Go’s interests. For that reason, and in the exercise of the
undersigned’s discretion, the Motion to Stay (doc. 38) is granted. This action is stayed until 14
days after a ruling on the motion for preliminary approval in the Family Medicine Action, at
which time the stay will be lifted and Medicine to Go will be ordered to notify the Court and
Impax within a reasonable time as to whether it intends to proceed with this action or not.
Medicine to Go’s request for discovery in the interim concerning the scope and terms of the
Family Medicine Action settlement is denied as unnecessary.
DONE and ORDERED this 15th day of September, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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