Buyak et al v. Organon USA Inc et al

Filing 22

ORDER GRANTING MOTION TO STAY AND VACATING HEARING by Judge William Alsup [granting 16 Motion to Stay]. (whasec, COURT STAFF) (Filed on 8/14/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DESIRAE BUYAK, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,

No. C 13-03128 WHA

v.
ORGANON USA INC., a corporation, ORGANON
PHARMACEUTICAL USA INC., a corporation,
ORGANON BIOSCIENCES N.V., a Netherlands
corporation, AKZO NOBEL N.V., a Netherlands
corporation, SCHERING PLOUGH CORPORATION,
a corporation, MERCK & COMPANY, INC., a
corporation, McKESSON CORPORATION, a
corporation, and DOES 1-100, inclusive,

ORDER GRANTING
MOTION TO STAY
AND VACATING
HEARING

Defendants.
/

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In this pharmaceutical products-liability action, defendant moves to stay proceedings

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pending a possible transfer to an MDL. For the reasons stated below, defendant’s motion to

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stay is GRANTED. The hearing on September 12, 2013, is VACATED.

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Plaintiffs filed a complaint in the Superior Court of the State of California for the County

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of San Francisco in June 2013 for alleged injuries from the use of NuvaRing, an implantable

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pharmaceutical product. Among other defendants, plaintiffs filed suit against McKesson

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Corporation, a California-based pharmaceutical distributor. Defendants Organon USA Inc.

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and Merck & Co, Inc. removed the action to federal court on fraudulent joinder grounds and

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now move to stay this action pending a conditional transfer to the NuvaRing MDL pending

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in the United States District Court for the Eastern District of Missouri. Plaintiffs then filed a

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motion to remand, arguing that this Court should first consider the merits of its remand motion

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before entertaining any stay of these proceedings.

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Our court of appeals has not yet addressed whether courts must first decide the merits

a stay is warranted if this would serve judicial economy. See, e.g., In re Iphone Application

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Litig., No. 10-5878, 2011 WL 2149102, at *2 (N.D. Cal. May 31, 2011) (Judge Lucy Koh).

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In the NuvaRing litigation, some judges in this district have granted a stay pending transfer

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to the MDL. Tucker v. Organon, No. 13-728, 2013 WL 2255884 (N.D. Cal. May 22, 2013)

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(Judge Sandra Armstrong); Burton v. Organon, No. 13-1535, 2013 WL 1963954 (N.D. Cal.

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For the Northern District of California

of a motion to remand before determining whether to stay the proceedings. Generally speaking,

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United States District Court

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May 10, 2013) (Judge Phyllis Hamilton); and Clarke v. Organon, No. 13-2290, 2013 WL

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3475948 (N.D. Cal. July 10, 2013) (Judge Claudia Wilken).

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Plaintiffs nonetheless contend that a stay should be denied. They rely mainly on Marble,

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a prior decision by the undersigned judge in which an action involving NuvaRing was remanded

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and stay was denied. Marble v. Organon USA, Inc., No. 12-2213, 2012 WL 2237271 (N.D. Cal.

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June 15, 2012). Marble, however, was the first NuvaRing case in which McKesson was a

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defendant. It held that “[b]ecause no other case in the MDL thus far has presented the

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McKesson issue, there is no economy in sending this action to MDL for resolution.” Marble,

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2012 WL 2237271 at *3.

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Circumstances have since changed. Numerous actions involving NuvaRing in which

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McKesson was a named defendant have now been transferred to the MDL. The question of

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whether McKesson is a proper defendant is being considered by the MDL. Decisions

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concerning that question by other courts could lead to inconsistency in judicial rulings.

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This order therefore finds that judicial economy and consistency would be served by a stay

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pending transfer to the MDL.

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Plaintiffs will not be greatly prejudiced by this brief stay pending the determination to

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transfer by the Judicial Panel on Multidistrict Litigation. If transferred, the MDL can efficiently

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deal with jurisdictional issues such as fraudulent joinder; if not, then this Court can.
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For these reasons, defendants’ motion is GRANTED. The present action and plaintiffs’

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motion to remand are stayed pending the JPML’s decision on transferring the case. The hearing

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on September 12, 2013, is VACATED.

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IT IS SO ORDERED.

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Dated: August 14, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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