Stevens v. Organon USA, Inc. et al

Filing 21

ORDER GRANTING MOTION TO STAY AND DENYING MOTION TO REMAND AND VACATING HEARING by Judge William Alsup [granting 12 Motion to Stay; dismissing 16 Motion to Remand]. (whasec, COURT STAFF) (Filed on 1/13/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TAMMY L. STEVENS,

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For the Northern District of California

United States District Court

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Plaintiff,

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No. C 13-05713 WHA

v.
ORGANON USA INC., ORGANON
PHARMACEUTICAL USA INC., ORGANON
INTERNATIONAL INC., ORGANON
BIOSCIENCES NV, AKZO NOBEL NV,
SCHERING PLOUGH CORPORATION,
MERCK & COMPANY, INC., MCKESSON
CORPORATION and DOES 1 - 100,

ORDER GRANTING
MOTION TO STAY
AND DENYING MOTION
TO REMAND AND
VACATING HEARING

Defendants.
/

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In this pharmaceutical products-liability action, defendants move to stay all proceedings

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pending potential transfer to an MDL and plaintiff moves to remand back to state court. For the

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reasons stated below, defendants’ motion to stay is GRANTED and plaintiff’s motion to remand

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is DENIED. The hearing on January 23, 2014 is hereby VACATED.

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Plaintiff filed a complaint on December 2013 in the San Francisco County Superior Court

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for allegedly suffering severe and life threatening injuries from use of NuvaRing®, an implant

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contraceptive. Among other out-of-state defendants, plaintiff sued McKesson Corporation, a

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California-based pharmaceutical distributor. Following removal on the basis of fraudulent

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joinder grounds, defendants filed the instant motion to stay all proceedings in this action pending

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conditional transfer to the NuvaRing® MDL in the United States District Court for the Eastern

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District of Missouri. In response, plaintiff filed a motion to remand, but failed to file a timely

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opposition to defendants’ motion to stay.

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

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a motion to remand before determining whether to stay the proceedings. “Courts in the Northern

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District[, however] . . . have made clear that courts are not bound to preliminarily consider the

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merits of a remand motion before considering a motion to stay.” Addison v. Bristol-Myers

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Squibb Co., No. 13-2166, 2013 U.S. Dist. LEXIS 87688, at *3 (N.D. Cal. June 21, 2013)

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(citations omitted).

identical NuvaRing® actions pending a potential transfer to the MDL. Buyak v. Organon, et al.,

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For the Northern District of California

Judges in this district, including the undersigned judge, have stayed proceedings in

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United States District Court

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No. 13-03128, 2013 U.S. Dist. LEXIS 115057, at *4 (N.D. Cal. Aug. 14, 2013); Gonzalez, et al.,

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v. Organon, et al., No. 12-06161, 2013 U.S. Dist. LEXIS 24686, at *3 (N.D. Cal. Feb. 22, 2013)

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(Judge Phyllis J. Hamilton); Asche v. Organon, et al., No. 13-04986, 2013 U.S. Dist. LEXIS

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170497, at *3 (N.D. Cal. Dec. 3, 2013) (Judge Claudia Wilken); Garza v. Organon, et al.,

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No. 13-04988, 2013 U.S. Dist. LEXIS 172904, at *6 (N.D. Cal. Dec. 9, 2013) (Judge Richard

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Seeborg); Tucker v. Organon, et al., No. 13-728, 2013 U.S. Dist. LEXIS 72793, *5 (N.D. Cal.

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May 22, 2013) (Judge Sandra Armstrong). The defendants in all of these actions all raise the

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issue of fraudulent joinder. This jurisdictional issue will likely be raised in every other action

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involving McKesson at the MDL. For judicial efficiency and consistency, that issue should be

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decided by the MDL.

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Plaintiff’s reliance on Marble v. Organon USA Inc., is misplaced. The Marble action

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was remanded because "this is the first time . . . that any NuvaRing® plaintiffs have joined

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McKesson or any other distributor as a defendant in NuvaRing® litigation,” thus “there is no

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economy in sending this action to MDL for resolution.” Marble v. Organon USA Inc.,

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No. 12-02212, 2012 U.S. Dist. LEXIS 83520, at *8–10 (N.D. Cal. June 15, 2012). Not so today.

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As shown above, several judges in this district alone have stayed identical actions pending

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conditional transfer to the MDL because they all raise the same fraudulent joinder issue.

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For the reasons stated above, defendants’ motion to stay the action pending transfer to the

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MDL is GRANTED and plaintiff’s motion to remand is DENIED. The hearing on January 23,

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2014 is hereby VACATED.

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IT IS SO ORDERED.

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Dated: January 13, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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