Butler et al v. McKesson Corporation et al
Filing
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ORDER GRANTING 14 Motion to Stay All Proceedings Pending Transfer by the Judicial Panel on Multidistrict Litigation to MDL 1871, VACATING Hearing on 15 Motion to Remand; and VACATING Case Management Conference. Signed by Judge Jeffrey S. White on August 12, 2013. (jswlc3, COURT STAFF) (Filed on 8/12/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BOBBY BUTLER, et al.,
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For the Northern District of California
United States District Court
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No. C 13-03154 JSW
Plaintiffs,
ORDER GRANTING MOTION TO
STAY AND VACATING
HEARING ON MOTION TO
REMAND PENDING RULING
FROM MDL AND CASE
MANAGEMENT CONFERENCE
v.
MCKESSON CORPORATION, et al.,
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Defendants.
/
(Docket Nos. 14, 15)
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INTRODUCTION
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This matter comes before the Court upon consideration of the Motion to Stay All
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Proceedings Pending Transfer by the Judicial Panel on Multidistrict Litigation to MDL 1871
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(E.D. Pa.), filed by Defendant Glaxosmithkline LLC (“GSK”) (Docket No. 14). The Court has
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considered the parties’ papers, relevant legal authority, and the record in this case, and it finds
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the motion suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The
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Court VACATES the hearing scheduled for November 15, 2013, and it GRANTS GSK’s
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motion to stay. In light of this ruling, the Court VACATES the hearing scheduled for
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November 15, 2013, on Plaintiffs’ motion to remand (Docket No. 15), and the case management
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conference scheduled for November 8, 2013. The Court shall reschedule these hearings, if
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necessary.
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BACKGROUND
On or about October 16, 2007, the Judicial Panel on Multidistrict Litigation (“JPML”)
established a multidistrict litigation regarding product liability cases involving the drug
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Avandia®, In re Avandia Marketing, Sales Practices, and Products Libility Litigation, MDL-
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1871 (“In re Avandia”). (Docket No. 14-2, Declaration of Steven J. Boranian (“Boranian
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Decl.”), ¶¶ 2-3, Ex. B.)
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On June 27, 2013, the Plaintiffs filed their Complaint against GSK and McKesson
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Corporation in the Superior Court of the State of California for the County of San Francisco
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(“San Francisco Superior Court”), and asserted a number of state law claims based on injuries
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they allegedly suffered as a result of using Avandia®. (See generally Notice of Removal, Ex. A
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(Complaint).) This case is one of many cases filed in San Francisco Superior Court by various
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attorneys, and is one of several cases pending before the undersigned.
On July 9, 2013, GSK removed this action, and others, to this Court. GSK asserts that,
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For the Northern District of California
United States District Court
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because McKesson has been fraudulently joined, the Court has diversity jurisdiction. (Notice of
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Removal ¶ 17.) GSK also contends that this case qualifies as a “mass action” under the Class
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Action Fairness Act (“CAFA”), pursuant to 28 U.S.C. Section 1332(d)(11). (Id. ¶ 5.) At the
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time of removal, GSK had not been served with the Complaint, but stated that, on information
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and belief, McKesson was served on or about July 2, 2013. (Id. ¶ 6.)
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On July 16, 2013, GSK notified the JPML that this action was pending, and it seeks to
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stay this case pending transfer to In re Avandia. (Boranian Decl., ¶ 4.) The JPML has issued a
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conditional transfer order, but Plaintiffs oppose that transfer order. Plaintiffs oppose a stay in
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this case, and they have filed a separate motion to remand this case to San Francisco Superior
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Court.
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ANALYSIS
“[T]he power to stay proceedings is incidental to the power inherent in every court to
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control disposition of the cases on its docket with economy of time and effort for itself, for
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counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “The exertion of
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this power calls for the exercise of sound discretion.” CMAX, Inc. v. Hall, 300 F.2d 265, 268
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(9th Cir. 1962). Accordingly, it is within this Court’s discretion to determine whether a stay is
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warranted. The competing interests that a district court must weigh in deciding whether to grant
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a stay include: (1) “possible damage which may result from granting a stay, (2) the hardship or
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inequity which a party may suffer in being required to go forward, and (3) the orderly course of
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justice measured in terms of the simplifying or complicating of issues, proof, and questions of
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law which could be expected to result from a stay.” Id. (citing Landis, 299 U.S. at 254-55).
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In the context of a motion to stay pending a motion to consolidate cases before the
moving party; (2) hardship and inequity to the moving party if the action is not stayed; and (3)
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the judicial resources that would be saved by avoiding duplicative litigation if the cases are in
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fact consolidated. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997).
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“Generally, jurisdiction is a preliminary matter that should be resolved before all
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others.” Leeson v. Merck & Co., Inc., 2006 WL 3230047, *2 (E.D. Cal. Jan. 27, 2006); see also
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For the Northern District of California
JPML, district courts should consider the following factors: (1) potential prejudice to the non-
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United States District Court
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Villarreal v. Chrysler Corp.,, 1996 WL 116832, at *1 (N.D. Cal. Mar.12, 1996) (“Judicial
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economy will best be served by addressing the remand issue [before a party’s motion to stay]
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because a determination on this issue will facilitate litigation in the appropriate forum.”). Some
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courts, however, have held that “the calculus changes somewhat when deference to a MDL
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court will further ‘the uniformity, consistency, and predictability in litigation that underlies the
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MDL system.’” Leeson, 2006 WL 3230047, *2 (quoting Conroy v. Fresh Del Monte Produce
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Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal.2004)).
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Plaintiffs’ motion to remand raises issues that are similar to issues raised in motions to
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remand in the cases that are assigned to the undersigned Judge as well the cases assigned to
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other judges in this District. Further, the presiding judge in In re Avandia has addressed many
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of these same issues, including fraudulent joinder, fraudulent misjoinder of plaintiffs, the forum
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defendant rule, and questions relating to removal by defendants who have not yet been served.
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See, e.g., In re Avandia, 624 F. Supp. 2d 396, 418-20 (E.D. Pa. 2009). Therefore, a stay will
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promote judicial economy, uniformity and consistency in decision making. Further a short stay
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will not prejudice Plaintiffs, because they can renew their motion to remand in MDL 1871. If
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the case is not transferred, this Court will resolve the motion to remand expeditiously. Finally,
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a brief stay will avoid duplicative litigation. Indeed, this Court already has granted motions to
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stay in the Avandia cases pending on its docket. The same is true for other courts within this
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District. (See Boranian Decl., Ex. A; Docket No. 19-1, Declaration of Steven J. Boranian in
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Support of GSK Reply, Ex. A.)
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Accordingly, the Court GRANTS the motion to stay pending a ruling by JPML on
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whether this case will be transferred to In re Avandia, MDL 1871. The parties shall file a joint
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notice with the Court within seven (7) days of any such ruling.
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IT IS SO ORDERED.
Dated: August 12, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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