The Estate of Bruce Brockel, Deceased, by and through Donna Brockel, as Personal Representative v. Purdue Pharma L.P. et al
Filing
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ORDER denying 23 Motion to Stay as set out. Signed by Chief Judge Kristi K. DuBose on 1/3/18. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THE ESTATE OF BRUCE BROCKEL,
Deceased, by and through DONNA
BROCKEL, as Personal Representative,
Plaintiff,
v.
PURDUE PHARMA L.P., et al.,
Defendants.
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CIVIL ACTION 17-00521-KD-MU
ORDER
This action is before the Court on Defendant Purdue Pharma L.P (Purdue) and the “Endo
Defendants” (Endo) (for purposes of this order, defendants)’ joint Motion to Stay (Doc. 23),
Plaintiff’s response (Doc. 25) and defendants’ Reply (Doc. 40).
I.
Background
On October 25, 2017, this case was filed in the Circuit Court of Mobile County Alabama
against a number of defendants (The Estate of Bruce Brockel v. John Patrick Couch, et al,
02-CV-2017-902787.00).
(Doc. 1-1).
to this Court.
On December 5, 2017, Plaintiff filed a motion to remand (based on
(Doc. 1).
fraudulent joinder). (Doc. 20).
On November 27, 2017, defendants removed this case
On December 13, 2017, defendants filed a motion to stay this
case (all deadlines, rulings, etc. and briefing on the motion to remand) pending a final decision
by the Judicial Panel on Multidistrict Litigation (JPML) on whether to transfer this case to the
multidistrict litigation in the Northern District of Ohio (MDL) (In re: National Prescription
Opiate Litigation, Case No. 1:17CV2804, before Judge Polster).
(Doc. 23). Defendants seek
entry of a stay of all rulings (including on Plaintiff’s pending motion to remand) and deadlines in
this case pending the MDL proceedings, arguing that such is needed to conserve the court and
the parties’ resources as well as to avoid duplicative, costly and potentially irrelevant dispositive
motion practice and litigation.
On September 25, 2017, a group of plaintiffs filed a motion to transfer and consolidate 66
substantially similar federal actions filed on behalf of counties, cities or other governmental
entities in 11 various federal courts, alleging wrongful conduct by the defendants in the chain of
manufacture/distribution of prescription opioid painkillers, as well as tag-along cases filed in the
future.
(Docs. 25-1; 25-2).
On December 5, 2017, a Judicial Panel on Multidistrict Litigation
(JPML) formed the subject multidistrict litigation (MDL) in the Northern District of Ohio, and
transferred 62 actions to the MDL for consolidation as those cases “concern the alleged improper
marketing of and inappropriate distribution of various prescription opiate medications into cities,
states and towns across the country” and plaintiffs in those cases “are cities, counties and states.”
(Doc. 25-3, MDL NO. 2804). No individuals were part of this original transfer order. The
JMPL added, however, that while the cases before it involved claims “by political subdivisions,
we have been notified of potential tag-along cases brought by individuals, consumers, hospitals
and third party payors…this litigation might evolve to include additional categories of plaintiffs
and defendants, as well as different types of claims.”
(Id. at 4-5).
On December 6, 2017, the
MDL Panel conditionally transferred 117 additional actions to the MDL, and all plaintiffs but
two (2) appear to be brought by governmental entities, hospitals or third party payors. (Doc.
25-4, MDL NO. 2804, CTO-1).
On December 12, 2017, the MDL Panel conditionally transferred 11 additional actions to
the MDL, including this case, and all but the present case appear to be brought by plaintiffs
which are governmental entities, hospitals or third party payors.
(Doc. 25-6 – CTO 2).
On
December 13, 2017, the MDL judge suggested there were 3 categories of cases before him: 1)
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government plaintiffs (cities, counties, states); 2) institutional plaintiffs (ERISA pension, health
and pension, welfare funds, etc.); and 3) “some cases filed by individuals or groups of
individuals[.]”
(Doc. 40-1 at 4-5; Doc. 25-7 at 5-6 -- 12/13/17 hearing). The Judge stated that
he would have to decide “whether I am going to keep the non government cases in this
MDL…or whether…they need to go back….The issue in my mind, it is an open question on
the….individual plaintiffs [whether they would stay in the MDL].” (Doc. 25-7 at 5, 22-23).
The Judge referenced pending motions to remand “around the country” based on
diversity/fraudulent joinder: “[m]y thought is to just leave them hanging for a while[]” to see if
there is “some framework for some resolution[]” as “I have limited time and limited staff, and I
just don’t want to be tied up on individual remand motions…. “ (Doc. 25-7 at 16, 22; see also
Doc. 25-10 at 3 12/14/17 order).
The drug manufacturer defendants’ counsel acknowledged
“some of the personal injury type cases are a little different than the others. We recognize
that….”
(Doc. 25-7 at 27-28).
individual cases that may arise.
The Judge asked counsel to provide suggestions for any
(Doc. 25-10 at 4).
On December 19, 2017, Plaintiff filed a timely Notice of Opposition to the transfer.
(Doc. 25-8; Doc. 390 MDL). The JPML set a schedule, for motions to vacate the conditional
transfer order, with briefing to conclude by January 24, 2018.
(Doc. 35 at 2; Doc. 400 MDL).
Plaintiff states it will file a motion to vacate the conditional transfer order on January 3, 2018.
II.
Discussion
A.
Relevant Law
As set forth by this Court in Maiben v. CSX Transp., Inc., 2009 WL 1211186, *1 (May 1,
2009) (footnote omitted):
“The District Court has broad discretion to stay proceedings as an incident to its power to
control its own docket.” Clinton v. Jones, 520 U.S. 681, 706…(1997).[] …“How this can
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best be done calls for the exercise of judgment, which must weigh competing interests
and maintain an even balance.” Landis v. North American Co., 299 U.S. 248, 254–
55…(1936).…“the court, in its sound discretion, must assess and balance the nature and
substantiality of the injustices claimed on either side.” Feld Entertainment, Inc. v.
A.S.P.C.A., 523 F.Supp.2d 1, 3 (D.D.C.2007) (citations omitted).
Concerning requests for stays, as explained in Hess v. Volkswagen Group of Am., Inc., 2016
WL 3483166, *3-4 (N.D. Ala. Jun. 27, 2016) (emphasis added):
“The inherent discretionary authority of the district court to stay litigation pending the
outcome of [a] related proceeding in another forum is not questioned.” CTI-Container
Leasing v. Uiterwyk Corp., 685 F.2d 1284, 1288 (11th Cir. 1982)….Rule 18 of the Rules
of the Judicial Panel on Multidistrict Litigation indicates that pendency of a
conditional transfer order to an MDL does not limit the pretrial jurisdiction of the
district court that is potentially the transfer court; accordingly “a district judge
should not automatically stay discovery, postpone rulings on pending motions, or
generally suspend further rulings upon a parties' motion to the MDL Panel for
transfer and consolidation.” Rivers v. Walt Disney Co., 980 F. Supp. 1348, 1360 (C.D.
Cal. 1997) (citing Manual for Complex Litig., Third, at 252 (1995))…..
Courts should consider three factors…..: “(1) potential prejudice to the non-moving
party; (2) hardship and inequity to the moving party if the action is not stayed; and (3) the
judicial resources that would be saved by avoiding duplicative litigation if the cases are in
fact consolidated.” Rivers, 908 F. Supp. at 1360; see also Jozwiak v. Stryker Corp., 2010
WL 147143, at *2 (M.D. Fla. Jan. 11, 2010)….
Additionally, per City of Bham Retirement & Relief Fund v. Citigroup, Inc., 2003 WL
22697225, *1 (N.D. Ala. Aug. 12, 2003): “a decision of the JPML ‘does not affect or suspend
orders’ by the district court to remand or transfer….” And as expressed by an MDL Panel In re
Asbestos Prod. Liab. Ltgtn., 170 F.Supp.2d 1348 at note 1 (J.P.M.L. 2001) (emphasis added):
We note that: 1) as a practical matter, there is a lag time of at least three or four months
from the filing of an action, its identification as a potential tag-along action, issuance of a
conditional transfer order, stay of transfer when a party timely objects to the conditional
transfer, briefing on the question of transfer, the Panel hearing session, and the issuance
of the Panel's subsequent order; 2) Panel Rule 1.5, R.P.J.P.M.L., 199 F.R.D. at 427,
expressly provides that the pendency of a conditional transfer order does not in any
way i) suspend orders and pretrial proceedings in the district court in which the
action that is the subject of the conditional transfer order is pending, or ii) limit the
pretrial jurisdiction of that court; and 3)…those courts wishing to address such
motions have adequate time in which to do so, those courts concluding that such
issues should be addressed by the transferee judge need not rule on them….
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See also e.g., In re Prudential Co. of Am. Sales Pract. Litigation, 170 F.Supp.2d 1346,
1347-1348 (J.P.M.L. 2001) (same).
See also Rivers v. The Walt Disney Co., 980 F.Supp. 1358,
1360 (C.D. Cal. 1997) “[t]he pendency of a….conditional transfer order….before the Panel
concerning transfer or remand of an action pursuant to 28 U.S.C. § 1407 does not affect or
suspend orders and pretrial proceedings in the district court in which the action is pending and
does not in any way limit the pretrial jurisdiction of that court[]”).
automatic with a conditional MDL transfer order.
In sum, entry of a stay is not
Courts still assess if a stay is “better
calculated to vindicate the interests of judicial economy, consistency of result, and minimization
of prejudice to the parties.” Betts v. Eli Lilly and Co., Inc., 435 F.Supp.2d 1180, 1182 (S.D. Ala.
2006).
B.
Application
Defendants seek entry of a stay of this case (all rulings, deadlines, etc.) in light of the
conditional transfer order issued by the MDL panel to avoid piecemeal litigation, conserve
judicial resources and the like.
Defendants reference “32 similar lawsuits” that have been
transferred or conditionally transferred to the MDL resulting in a stay of the federal district court
case.
(Doc. 23 at 5 at note 4).
Defendants assert that without a stay, they will be required to
expend significant time and resources in litigating the case in this court only to have to file
duplicative pleadings in the MDL, which is an unfair burden to impose on them, whereas
Plaintiff will not be prejudiced by a stay.
(Doc. 23 at 7).
First, the potential prejudice to the non-moving party, Plaintiff, appears significant.
Plaintiff’s claims are individual claims.
Those are inevitably distinct from the claims of
government and/or institutional plaintiffs.
Additionally, Plaintiff contends that removal of her
state case to this Court was improper due to fraudulent joinder, such that leaving her motion to
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remand pending, if the MDL proceeds, would be highly prejudicial.
Defendants suggest that
there is no prejudice to Plaintiff and the remand motion should be resolved in the MDL because
the same “overlapping jurisdictional issues” are likely to arise in other actions in the MDL
transferee court.
(Doc. 40 at 4-5). The Court cannot agree.
Plaintiff asserts that her motion
to remand is based on underlying Alabama law, not the law of Ohio where the MDL exists, and
that there are no other individual Alabama plaintiffs litigating in the MDL proceedings.
Thus,
even though fraudulent jurisdiction may have been raised in other remand motions in other cases
in other jurisdictions, those motions are not rooted in Alabama law nor are there rooted in an
individual plaintiff (versus a government or institutional) claim, like this case.
not shown otherwise.
Defendants have
The Court finds Plaintiff’s contentions persuasive.
Second, Defendants have not established undue hardship and/or inequity if the action is
not stayed.
This is particularly true as it pertains to the court determining whether remand is
appropriate.
Third, Defendants have not sufficiently established that judicial resources will be saved
and/or that Plaintiff’s individual case is necessarily “duplicative” when compared to those of the
government and/or institutional plaintiffs.
Moreover, it does not appear that entry of a stay of this case will vindicate the interests of
judicial economy, serve to aid in the consistency of results and/or minimize prejudice to
defendants.
Instead, there appears to be the potential for extensive litigation as to whether the
case should be transferred.
Some cases’ conditional transfer orders have already been vacated
and Plaintiff intends to file a motion to vacate the conditional transfer order, which currently
includes her individual case.
Indeed, the propriety of individual cases in the MDL Panel –
versus government entity cases – is already in dispute, and notably in the mind of the presiding
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MDL judge.
Further, the JPML rules do not support entry of a stay, as per Rule 2.1(d) “the pendency
of a….conditional transfer order does not affect or suspend orders and pretrial proceedings in
any pending federal district court action and does not limit the pretrial jurisdiction of that court.”
See also In re: Payment Card Interchange Fee & Merchant Discount Antitrust Litig., MDL No.
1720, 2017 WL 4582708 at *1 (J.P.M.L. Aug. 2, 2017) (“Section 1407 does not empower the
MDL Panel to decide questions going to the jurisdiction or the merits of a case, including issues
relating to a motion to remand[]”).
Finally, there is support for proceeding with resolving the motion to remand (assessing
diversity jurisdiction and fraudulent joinder) at this juncture especially given the sitting Judge’s
preference to let them “hang[] for a while” instead of ruling on them in the MDL.
Betts, 435
F.Supp.2d at 1182 and 1184 (internal quotations and citations omitted) (“fraudulent joinder
issues are particularly poor candidates for reflexive deferral[]” and “this Court has already
adopted a standard for gauging motions to defer ruling on a pending motion to remand…[a]
court should first give preliminary scrutiny to the merits of the motion to remand[]…if this
preliminary assessment suggests that removal was improper, the court should promptly complete
its consideration and remand the case to state court[]…”).
And as recently expressed by the very MDL court to which this case has been conditional
transferred, In re: National Prescription Opiate Litigation, MDL NO. 2804, 2017 WL 6031547,
*2 (J.P.M.L. Dec. 5, 2017) (emphasis added): “it may become apparent that certain types of
actions or claims could be more efficiently handled in the actions' respective transferor
courts. Should the transferee judge deem remand of any claims or actions appropriate (or,
relatedly, the subsequent exclusion of similar types of claims or actions from the centralized
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proceedings), then he may accomplish this by filing a suggestion of remand to the Panel. See
Panel Rule 10.1. As always, we trust such matters to the sound judgment of the transferee
judge.”
III.
Conclusion
Accordingly, upon consideration, it is ORDERED that Defendant Purdue Pharma L.P
(Purdue) and the “Endo Defendants” (Endo)’s joint Motion to Stay (Doc. 23) is DENIED.
DONE and ORDERED this the 3rd day of January 2018.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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