Sims et al v. Menu Foods Income Fund et al

Filing 13

Sims et al v. Menu Foods Income Fund et al

Doc. 13

Case 5:07-cv-05053-JLH

Document 13

Filed 05/02/2007

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT W E ST E RN DISTRICT OF ARKANSAS F A YE T TE V IL L E DIVISION C H AR L ES RAY SIMS and PAMELA SIMS, I n di v id u al l y and on behalf of all o t he r s similarly situated v. M E NU M E NU M E NU M E NU MENU C i vi l No. 07-5053

P L AI N TI F FS

FOODS INCOME FUND, FOODS MIDWEST CORPORATION, FOODS SOUTH DAKOTA INC., FOODS, INC., FOODS HOLDINGS, INC. ORDER

D E FE N DA N TS

N o w on this 2nd day of May, 2007, comes on for consideration d e fe n da n ts ' Motion To Stay, document #7, and from said motion, and the r e sp o ns e thereto, the Court finds and orders as follows: 1. Plaintiffs make claims of strict products liability, fraud,

b r ea c h of warranty, and negligence, said to arise out of the sale by d e fe n da n ts of defective pet food. Plaintiffs seek to recover on their o w n behalf, and to represent a class of similarly situated plaintiffs. 2. D e fe n da n ts move the Court to stay the litigation, pending

d e ci s io n s on three motions to transfer similar cases to Multi-District L i ti g at i on Panel courts and certify a class. They contend that a

s t ay will "promote judicial economy and avoid undue prejudice to the p a rt i es . " Plaintiffs counter that little in the way of judicial resources w i ll be expended at this early stage of the case, and that they should n o t be prevented from commencing discovery. 3. T r an s fe r to the Judicial Panel on Multidistrict Litigation

i s governed by 28 U.S.C. §1407, and by the Rules of Procedure of the

Dockets.Justia.com

Case 5:07-cv-05053-JLH

Document 13

Filed 05/02/2007

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J u di c ia l Panel on Multidistrict Litigation. p r ov i de s that

Rule 1.5 of those rules

[t]he pendency of a motion, order to show cause, c o nd i ti o na l transfer order or conditional remand order b e fo r e the Panel concerning transfer or remand of an cation p u rs u an t to 28 U.S.C. §1407 does not affect or suspend o r de r s and pretrial proceedings in the district court in w h ic h the action is pending and does not in any way limit t h e pretrial jurisdiction of that court. A transfer or r e ma n d pursuant to 28 U.S.C. §1407 shall be effective when t h e transfer or remand order is filed in the office of the c l er k of the district court of the transferee district. T h e wisdom of this rule is self-evident: when a motion for

t r an s fe r is made, there is no way of knowing whether it will be g r an t ed or not. If a case were to be automatically stayed until the

d e ci s io n regarding transfer were made, many cases which do not end up b e in g transferred would be needlessly delayed. So it is in this case: there is no way of knowing whether it

w i ll be transferred to the MDL panel. While valid arguments are made o n both sides of the issue, the Court is persuaded that the best c o ur s e of action is to abide by the wisdom of Rule 1.5, and the motion w i ll , therefore, be denied. IT IS THEREFORE ORDERED that defendants' Motion To Stay

( d oc u me n t #7) is denied. I T IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N IT E D STATES DISTRICT JUDGE

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