Kunz et al v. Aoki et al
Filing
19
ORDER signed by District Judge Troy L. Nunley on 9/7/2021 GRANTING Plaintiffs' Ex Parte Application to Stay (ECF No. 15 ). (Krueger, M)
Case 2:21-cv-01502-TLN-CKD Document 19 Filed 09/07/21 Page 1 of 5
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12
13
MELANIE J. KUNZ; MEDEDCO, LCC;
CHUI FAISING; TIMOTHY TIGHT;
MICHAEL MCCARTHY; GLENN
WILSON; JOHN MULLEN; and
RICHARD GIRARD,
14
17
18
19
ORDER
Plaintiffs,
15
16
No. 2:21-cv-01502-TLN-CKD
v.
THOMAS T. AOKI; AOKI DIABETES
RESEARCH INSTITUTE; JOANNA R.
MENDOZA; SCOTT MICHAEL
PLAMONDON; DUYEN NGUYEN;
FRANK F. SOMMERS; and SOMMERS
& SCHWARTZ, LLP,
Defendants.
20
This matter is before the Court on Plaintiffs Melanie J. Kunz, MedEdCo, LLC, Chui
21
22
Faising, Timothy Tight, Michael McCarthy, Glenn Wilson, John Mullen, and Richard Girard
23
(collectively, “Plaintiffs”) Ex Parte Application to Stay. (ECF No. 15.) Defendants Thomas T.
24
Aoki (“Aoki”), Aoki Diabetes Research Institute (“ADRI”), Joanna R. Mendoza, Scott Michael
25
Plamondon, Duyen Nguyen, Frank F. Sommers, and Sommers & Schwartz, LLP’s (collectively,
26
“Defendants”) filed an opposition. (ECF No. 18.) For the reasons set forth below, the Court
27
hereby GRANTS Plaintiffs’ Ex Parte Application to Stay. (ECF No. 15.)
28
///
1
Case 2:21-cv-01502-TLN-CKD Document 19 Filed 09/07/21 Page 2 of 5
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
2
On July 13, 2021, Plaintiffs filed the instant action in Sacramento County Superior Court
3
alleging a claim for malicious prosecution. (See ECF No. 1-1.) Aoki and ADRI filed a complaint
4
against Plaintiffs in October 2011 — asserting claims for patent infringement, copyright
5
infringement, false advertising, trade secret misappropriation, and unfair competition — which
6
“made numerous unequivocal statements of wrongdoing” against Plaintiffs. (Id. at 7.) Plaintiffs
7
allege “Defendants made the statements, and failed to correct the statements, when Defendants
8
knew or should have known the statements were false” and “that Defendants did not conduct a
9
reasonable investigation into the alleged wrongdoings” prior to filing that complaint. (Id. at 8.)
10
On August 20, 2021, Defendants removed the action to this Court. (ECF No. 1.) On
11
August 31, 2021, Plaintiffs filed a motion to remand (ECF No. 11) and Defendants filed a motion
12
to strike Plaintiffs’ Complaint (ECF No. 13). On the same day, Plaintiffs filed the instant ex parte
13
application to stay any law and motion pending the ruling on Plaintiffs’ motion to remand. (ECF
14
No. 15.) On September 1, 2021, Defendants filed an opposition. (ECF No. 18.)
15
II.
16
A district court has the inherent power to stay its proceedings. This power to stay is
17
“incidental to the power inherent in every court to control the disposition of the cases on its
18
docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am.
19
Co., 299 U.S. 248, 254 (1936); see also Fed. Sav. & Loan Ins. Corp. v. Molinaro (Molinaro), 889
20
F.2d 899, 902 (9th Cir. 1989) (“A court may decide to stay the civil case when required by the
21
interests of justice.”); Little v. Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (“The district court has
22
wide discretion in controlling discovery.”).
23
STANDARD OF LAW
“In exercising this discretion, the Court considers possible damage to the non-moving
24
party, the hardship or inequity on the moving party if it is required to go forward, and the orderly
25
course of justice.” Travelers Prop. Cas. Co. of Am. v. Seirus Innovative Accessories, Inc.
26
(Travelers), No. 19cv829-LAB (MDD), 2020 WL 8922918, at *2 (E.D. Cal. Mar. 9, 2020) (citing
27
CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); Landis, 299 U.S. at 254–55); see also
28
Zurich Am. Ins. Co. v. Omnicell, Inc., No. 18-CV-05345-LHK, 2019 WL 570760, at *3 (N.D.
2
Case 2:21-cv-01502-TLN-CKD Document 19 Filed 09/07/21 Page 3 of 5
1
Cal. Feb. 12, 2019). “Where it is proposed that a pending proceeding be stayed, the competing
2
interest which will be affected by the granting or refusal to grant a stay must be weighed.”
3
Travelers, 2020 WL 8922918, at *2 (citing CMAX, 300 F.2d at 268). “The moving party ‘must
4
make out a clear case of hardship or inequity in being required to go forward, if there is even a
5
fair possibility that the stay for which he prays will work damage to someone else.’” Id. (citing
6
CMAX, 300 F.2d at 268; Landis, 299 U.S. at 255).
7
III.
ANALYSIS
8
In requesting a stay on all further law and motion pending the ruling on their motion to
9
remand, Plaintiffs maintain the short briefing schedule for Defendants’ motion to strike is
10
prejudicial to them — namely, the short time frame within which they must submit their
11
opposition. (ECF No. 15 at 2.) Specifically, Plaintiffs argue: (1) Defendants’ motion to strike
12
(ECF No. 13) is procedurally defective because it is a consolidation of numerous anti-SLAPP
13
motions therefore requiring more than a single motion; (2) staying the motion to strike will save
14
judicial resources because it is likely the Court will grant the motion to remand; and (3) Plaintiffs’
15
counsel is a solo practitioner with no support staff who will experience serious hardship if the
16
motion to strike is heard in the near future. (See ECF No. 15.)
17
In opposition, Defendants assert: (1) filing the anti-SLAPP motion in federal court gives
18
Plaintiffs’ counsel more time to file an opposition than he would have had in state court; (2)
19
Defendants gave Plaintiffs more than 28 days’ notice of the motion to strike and California law
20
provides that such a motion be scheduled not more than 30 days after the service of the motion;
21
and (3) Plaintiffs have the initial burden of proof to demonstrate a probability of prevailing on the
22
claim under the framework of the anti-SLAPP statute.1 (See ECF No. 18.)
23
Plaintiffs have termed Defendants’ motion an “anti-SLAPP motion.” (See ECF No. 15.)
24
“California’s anti-SLAPP statute allows a defendant to move to strike a plaintiff’s complaint if it
25
26
27
28
Defendants also assert Plaintiffs’ motion to remand is incorrect that the malicious
prosecution claim “only tangentially involves issues of patent and copyright law” (see ECF No.
15 at 3), as their Complaint alleges one of them “is the owner of [P]atent [N]o. US 8394766,
which is a treatment for diabetics using the pulsing of insulin over a period of time.” (ECF No.
18 at 6.) The Court does not address this argument in the instant Order.
1
3
Case 2:21-cv-01502-TLN-CKD Document 19 Filed 09/07/21 Page 4 of 5
1
‘aris[es] from any act of that person in furtherance of the person’s right of petition or free speech
2
under the United States or California Constitution in connection with a public issue.’” Vess v.
3
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (quoting Cal. Civ. Proc. Code §
4
425.16(b)(1)). Anti-SLAPP motions can be raised in federal court to target state law claims. U.S.
5
ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999).
6
Specifically, California Civil Procedure Code § 425.16(f) provides that the special motion to
7
strike “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at
8
any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the
9
court for a hearing not more than 30 days after service of the motion unless the docket conditions
10
of the court require a later hearing.” The Ninth Circuit has held the provision of § 425.16(f) that
11
requires the anti-SLAPP motion to be filed within 60 days of the filing of the complaint, or at the
12
court’s discretion, at any later date, cannot apply in federal court because it “directly collide[s]”
13
with the Federal Rules of Civil Procedure. Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846
14
(9th Cir. 2001); see also Planned Parenthood of Am., Inc. v. Ctr. for Medical Progress, 890 F.3d
15
828, 833 (9th Cir. 2018). The Ninth Circuit has not addressed the 30-day provision of §
16
425.16(f).
17
Here, Defendants have not adequately persuaded the Court the 30-day provision of §
18
425.16(f) should apply. However, even if § 425.16(f) were to apply, the provision allows the
19
Court to hold a hearing on the anti-SLAPP motion more than 30 days after service of the motion
20
if “the docket conditions of the court require a later hearing.” Chief Judge Kimberly J. Mueller
21
testified before the House Judiciary Committee earlier this year on the need for new federal court
22
judgeships and noted the Eastern District of California’s average caseload per judgeship is 1,224,
23
compared to a national average of 734. Hearing on The Need for New Lower Court Judgeships,
24
30 Years in the Making, 117th Cong. 2–3 (2021) (statement of Kimberly J. Mueller, Chief Judge,
25
U.S. District Court, Eastern District of California), available at
26
http://www.caed.uscourts.gov/caednew/assets/File/Chief%20Judge%20Kimberly%20J_%20Muel
27
ler's%20Written%20Statement_2_21.pdf (last accessed Sept. 7, 2021). Chief Judge Mueller also
28
remarked the Eastern District has qualified for judicial emergency status for at least 20 years,
4
Case 2:21-cv-01502-TLN-CKD Document 19 Filed 09/07/21 Page 5 of 5
1
showing the need for more judgeships. Id. In short, the docket conditions of this Court are such
2
that a stay on all further law and motion is in the interest of judicial economy. Additionally, the
3
Court finds possible damage to Defendants to be minimal and sees no reason not to believe
4
Plaintiffs’ counsel that he will face serious hardship if the motion to strike is heard in the near
5
future. Travelers, 2020 WL 8922918, at *2.
Accordingly, Plaintiffs’ ex parte application to stay any law and motion pending the
6
7
ruling on Plaintiffs’ motion to remand is GRANTED. (ECF No. 15.) The Court will issue an
8
order on Plaintiffs’ motion to remand soon after the motion is fully briefed.
9
IV.
Based on the foregoing, Plaintiffs’ Ex Parte Application to Stay is GRANTED. (ECF No.
10
11
12
13
CONCLUSION
15.)
IT IS SO ORDERED.
Dated: September 7, 2021
14
15
16
17
Troy L. Nunley
United States District Judge
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?