Stone v. Walgreen Company

Filing 8

ORDER granting (Doc. 1467, filed in MDL-2096) Motion to Dismiss. ORDERED Dismissing Stone v. Walgreen Co., No. CV-11-0948, with prejudice. Signed by Judge Frederick J Martone on 7/6/11. (MAP) (Origianl Order filed in MDL-2096, Doc. 1492)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 IN RE: Zicam Cold Remedy Marketing,) Sales Practices, and Products Liability) ) Litigation. _________________________________ ) ) ) THIS DOCUMENT RELATES TO: ) ) Britteny N. Stone v. Walgreen Co., ) No. CV-11-0948 ) No. 09-md-2096-PHX-FJM ORDER 14 15 The court has before it defendant Walgreen Co.’s motion to dismiss Stone v. 16 Walgreen Co., CV-11-0948 (doc. 1467). Plaintiff has not responded, and the time to do so 17 has passed. Defendant argues that plaintiff’s complaint should be dismissed either because 18 it is duplicative of a previous action, or because it is an improper attempt to circumvent our 19 scheduling orders. 20 On March 11, 2010, plaintiff filed a complaint in the Virginia Circuit Court for the 21 City of Hampton against Matrixx Initiatives, Inc. and Zicam, LLC, alleging that her use of 22 Zicam nasal gel caused her to lose her sense of smell, and asserting products liability claims. 23 See Stone v. Matrixx Initiatives, Inc., et al., No. CV-10-1196, Notice of Removal, ex. 1, 24 “Complaint.” Defendants removed the action to the United States District Court for the 25 Eastern District of Virginia, and it was consolidated with this MDL on June 7, 2010. 26 On April 7, 2011, plaintiff filed another complaint in the Hampton Circuit Court, this 27 time against Walgreen Co., alleging that the Zicam nasal gel she purchased at a Walgreen 28 store caused her to lose her sense of smell, and asserting claims for products liability and 1 breach of warranties. See Stone v. Walgreen Co., No. CV-11-0948, Notice of Removal, ex. 2 1, “Complaint.” Defendant removed the action, and it was consolidated with the MDL on 3 May 12, 2011. 4 We may dismiss an action as duplicative if the “causes of action and relief sought, as 5 well as the parties or privies to the action, are the same.” Adams v. California Dept. of 6 Health Servs., 487 F.3d 684, 689 (9th Cir. 2007). To determine whether the causes of action 7 are the same, we use the “transaction test,” and consider four criteria: “(1) whether rights or 8 interests established in the prior judgment would be destroyed or impaired by prosecution 9 of the second action; (2) whether substantially the same evidence is presented in the two 10 actions; (3) whether the two suits involve infringement of the same right; and (4) whether the 11 two suits arise out of the same transactional nucleus of facts.” Id. 12 All four factors demonstrate that the causes of action in the two complaints are the 13 same. The rights and interests at stake in the claim against Matrixx could be impaired by 14 inconsistent determinations in the second action about whether the product caused plaintiff’s 15 alleged injury. The same evidence about plaintiff’s medical condition, causation and 16 damages would be presented in both actions. Both actions implicate plaintiff’s right to be 17 free of injury from the Zicam product. Both actions arise out of the same facts: plaintiff’s 18 purchase and use of the Zicam product. The relief sought, monetary damages, is also the 19 same. 20 Defendants Matrixx, Zicam, and Walgreen Co. are in privity. Parties may be in 21 privity when one “virtually represents” the other. “The necessary elements of virtual 22 representation are an identity of interests and adequate representation. Additional features 23 of a virtual representation relationship include ‘a close relationship, substantial participation, 24 and tactical maneuvering.’” Adams, 487 F.3d at 691 (quoting Kourtis v. Cameron, 419 F.3d 25 989, 996 (9th Cir. 2005)). Defendants Matrixx, Zicam, and Walgreen Co. have identical 26 interests. Walgreen Co. could only be liable for distributing a defective product if Matrixx 27 and Zicam were found liable for manufacturing and selling the product. Additionally, 28 Matrixx and Zicam have indemnified Walgreen Co., and are defending the action on the -2- 1 retailer’s behalf. See Declaration of K. Cosner, ¶ 3 (doc. 1468). Therefore, adequate 2 representation between the parties exists, and they are in privity. 3 Because we conclude that plaintiff’s second action is duplicative, we need not reach 4 defendant’s argument that plaintiff has attempted to circumvent our deadline for filing 5 amended complaints. 6 7 8 IT IS ORDERED GRANTING defendant’s motion to dismiss (doc. 1467). IT IS ORDERED DISMISSING Stone v. Walgreen Co., No. CV-11-0948, with prejudice. DATED this 6th day of July, 2011. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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