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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 TAMMY L. STEVENS, 11 For the Northern District of California United States District Court 10 Plaintiff, 12 13 14 15 16 17 18 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. / 19 In this pharmaceutical products-liability action, defendants move to stay all proceedings 20 pending potential transfer to an MDL and plaintiff moves to remand back to state court. For the 21 reasons stated below, defendants’ motion to stay is GRANTED and plaintiff’s motion to remand 22 is DENIED. The hearing on January 23, 2014 is hereby VACATED. 23 Plaintiff filed a complaint on December 2013 in the San Francisco County Superior Court 24 for allegedly suffering severe and life threatening injuries from use of NuvaRing®, an implant 25 contraceptive. Among other out-of-state defendants, plaintiff sued McKesson Corporation, a 26 California-based pharmaceutical distributor. Following removal on the basis of fraudulent 27 joinder grounds, defendants filed the instant motion to stay all proceedings in this action pending 28 conditional transfer to the NuvaRing® MDL in the United States District Court for the Eastern 1 District of Missouri. In response, plaintiff filed a motion to remand, but failed to file a timely 2 opposition to defendants’ motion to stay. 3 Our court of appeals has not yet addressed whether courts must first decide the merits of 4 a motion to remand before determining whether to stay the proceedings. “Courts in the Northern 5 District[, however] . . . have made clear that courts are not bound to preliminarily consider the 6 merits of a remand motion before considering a motion to stay.” Addison v. Bristol-Myers 7 Squibb Co., No. 13-2166, 2013 U.S. Dist. LEXIS 87688, at *3 (N.D. Cal. June 21, 2013) 8 (citations omitted). identical NuvaRing® actions pending a potential transfer to the MDL. Buyak v. Organon, et al., 11 For the Northern District of California Judges in this district, including the undersigned judge, have stayed proceedings in 10 United States District Court 9 No. 13-03128, 2013 U.S. Dist. LEXIS 115057, at *4 (N.D. Cal. Aug. 14, 2013); Gonzalez, et al., 12 v. Organon, et al., No. 12-06161, 2013 U.S. Dist. LEXIS 24686, at *3 (N.D. Cal. Feb. 22, 2013) 13 (Judge Phyllis J. Hamilton); Asche v. Organon, et al., No. 13-04986, 2013 U.S. Dist. LEXIS 14 170497, at *3 (N.D. Cal. Dec. 3, 2013) (Judge Claudia Wilken); Garza v. Organon, et al., 15 No. 13-04988, 2013 U.S. Dist. LEXIS 172904, at *6 (N.D. Cal. Dec. 9, 2013) (Judge Richard 16 Seeborg); Tucker v. Organon, et al., No. 13-728, 2013 U.S. Dist. LEXIS 72793, *5 (N.D. Cal. 17 May 22, 2013) (Judge Sandra Armstrong). The defendants in all of these actions all raise the 18 issue of fraudulent joinder. This jurisdictional issue will likely be raised in every other action 19 involving McKesson at the MDL. For judicial efficiency and consistency, that issue should be 20 decided by the MDL. 21 Plaintiff’s reliance on Marble v. Organon USA Inc., is misplaced. The Marble action 22 was remanded because "this is the first time . . . that any NuvaRing® plaintiffs have joined 23 McKesson or any other distributor as a defendant in NuvaRing® litigation,” thus “there is no 24 economy in sending this action to MDL for resolution.” Marble v. Organon USA Inc., 25 No. 12-02212, 2012 U.S. Dist. LEXIS 83520, at *8–10 (N.D. Cal. June 15, 2012). Not so today. 26 As shown above, several judges in this district alone have stayed identical actions pending 27 conditional transfer to the MDL because they all raise the same fraudulent joinder issue. 28 2 1 For the reasons stated above, defendants’ motion to stay the action pending transfer to the 2 MDL is GRANTED and plaintiff’s motion to remand is DENIED. The hearing on January 23, 3 2014 is hereby VACATED. 4 5 IT IS SO ORDERED. 6 7 Dated: January 13, 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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