Brewer et al v. DePuy Orthopaedics, Inc. et al

Filing 24

STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT (L.R.6-1). Signed by Judge Thelton E. Henderson on 04/25/2012. (tmi, COURT STAFF) (Filed on 4/25/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA (San Francisco)

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SUSAN BREWER, a individual; ADLAI
BELL, a individual; WILLIAM BURR, a
individual; JANICE COATES, a
individual; FRANK DICICCO, a
individual; JACQUELYN SIMMONS, a
individual; JOHN M. FERIN, a individual;
EDWARD DUGGAN, a individual;
DENNIS D. PHILLIPS, a individual; EVA
SCOTT, a individual,
Plaintiff(s),

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CASE NO. 3:12-cv-1473 CD
[PROPOSED] ORDER TO EXTEND TIME
TO RESPOND TO COMPLAINT (L.R. 6-1)
Complaint served: February 22, 2011
Removal Date: March 23, 2012
Current Response Date: April 29, 2012
Agreed Response Date: After ruling on
pending motions

v.
DEPUY ORTHOPAEDICS, INC.;
JOHNSON & JOHNSON SERVICES,
INC.; JOHNSON & JOHNSON, INC.;
THOMAS P. SCHMALZRIED, M.D., A
PROFESSIONAL CORPORATION; and
DOES 1 through 20, inclusive,
Defendants.

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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Defendant Thomas P. Schmalzried, M.D., A Professional Corporation (“Defendant”)

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hereby requests, and Plaintiffs Susan Brewer, Adlai Bell, William Burr, Janice Coates, Frank

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DiCicco, Jacquelyn Simmons, John M. Ferin, Edward Duggan, Dennis D. Phillips, and Eva

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Scott, (“Plaintiffs”) hereby agree to Defendant’s request, for an extension of time for Defendant

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to file a response to Plaintiffs’ Complaint as follows:

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WHEREAS, Plaintiffs’ Complaint was filed in state court on February 21, 2012 and
Defendant was served on or about February 22, 2012;

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WHEREAS, this matter was removed to this court by the other defendants on March 23,
2012;
WHEREAS, Defendant and Plaintiffs previously stipulated to a 30-day extension of time
for Defendant to respond up to April 29, 2012;
WHEREAS, since the above noted stipulation was filed, the following has occurred in
this matter:
1)

A Conditional Transfer Order regarding the transfer of this matter to MDL

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No. 2244, In Re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation,

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was filed on April 4, 2012, which order was opposed by Plaintiffs on April 10, 2012. Plaintiffs’

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motion to vacate this order was filed on April 11, 2012. DePuy will oppose this motion and its

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response is due May 16, 2012.

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2)

On April 4, 2012, DePuy filed a Motion to Stay pending transfer to MDL No.

2244, which motion Plaintiffs have opposed. The stay motion is set for hearing on June 4, 2012.
3)

On April 11, 2012, Plaintiffs filed a Motion to Remand this action to the Superior

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Court for the County of San Francisco. DePuy will oppose the remand motion, which is also set

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for hearing on June 4, 2012.

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WHEREAS, all of the issues described above remain unresolved at present, leaving

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doubt as to which court this matter will ultimately be litigated in and what manner of response

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would be consistent with the rules and procedures of that court. Given the pending motions and

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conditional transfer order, it appears this matter will not be litigated in the Northern District of

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California in any case.

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WHEREAS, Defendant requests an extension of time to respond to Plaintiffs’ complaint

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until such time as the venue and jurisdiction of this matter is resolved, and Plaintiffs have agreed.

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This will avoid unnecessary confusion and additional complication while the pending motions

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and issues are addressed and resolved, as well as avoid duplicative law and motion, since

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Defendant will respond with a Rule 12(b) motion to dismiss if forced to respond currently, which

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motion would address many of the same issues already addressed by Plaintiffs’ Motion to

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Remand and DePuy’s opposition thereto. As such, this extension will allow the parties sufficient

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time and opportunity to further meet and confer on the claims and causes of action asserted in the

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complaint with the goal of potentially avoiding future motions by Defendant, particularly in light

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of the resolution of the issues already pending. Thus, this extension of time allows the Court to

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resolve these issues of jurisdiction and venue before Defendant responds to the Complaint.

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THEREFORE, the parties agree that the response of Defendant Thomas P. Schmalzried,

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A Professional Corporation to the Complaint shall be due at the earlier of these two potential

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days:
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20 days after the United States Judicial Panel on Multidistrict Litigation rules on

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whether to transfer this matter to MDL No. 2244, In Re: DePuy Orthopaedics,

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Inc., Pinnacle Hip Implant Products Liability Litigation; or,

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2.

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30 days after this Court grants Plaintiffs’ Motion to Remand, if such a ruling
occurs.

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IT IS SO ORDERED.

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R NIA

FO

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JUDGE OF THE UNITED STATES DISTRICT COURT
son
Hender
elton E.
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Judge T

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04/25/2012

UNIT
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DATED:

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