Racies v. Quincy Bioscience, LLC

Filing 78

ORDER TO SHOW CAUSE WHY THE COURT SHOULD NOT CONSOLIDATE THE RACIES AND MUSGRAVE CASES. Show Cause Response due by 1/25/2016. Signed by Judge Haywood S. Gilliam, Jr. on 1/20/2016. (ndrS, COURT STAFF) (Filed on 1/20/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RICK MUSGRAVE, 7 Plaintiff, 8 v. 9 QUINCY BIOSCIENCE, LLC, et al., 10 ORDER TO SHOW CAUSE WHY THE COURT SHOULD NOT CONSOLIDATE THE RACIES AND MUSGRAVE CASES Defendants. 11 United States District Court Northern District of California Case No. 15-cv-04505-HSG PHILLIP RACIES, 12 Case No. 15-cv-00292-HSG Plaintiff, 13 v. 14 QUINCY BIOSCIENCE, LLC, 15 Defendant. 16 17 18 Before the Court are the actions entitled Racies v. Quincy Bioscience, LLC, et al., Case No. 19 15-cv-00292, and Musgrave v. Quincy Bioscience, LLC, et al., Case No. 15-cv-04505. The Racies 20 action was reassigned to the Court on February 23, 2015, and the Musgrave action was reassigned 21 to the Court on October 8, 2015. The Racies case is a putative class action alleging violations of 22 California’s consumer protection laws on behalf of a multi-state or, alternatively, California-only 23 class of persons who purchased Defendants’1 Prevagen line of products. The Musgrave case is 24 also a putative class action alleging violations of California’s consumer protection laws on behalf 25 of a California-only class of persons who purchased Defendants’ Prevagen line of products. Both 26 27 28 1 Quincy Bioscience, LLC is a named defendant in both actions, while Quincy Bioscience Holding Co. is a named defendant only in the Musgrave action. For ease of reference, the Court refers to them collectively as “Defendants” in this Order. 1 2 complaints allege that Defendants misrepresented the efficacy of the Prevagen products. “If actions before the court involve a common question of law or fact, the court may: (1) 3 join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) 4 issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). The “district 5 court has broad discretion under this rule to consolidate cases pending in the same district,” 6 Investors Research Co. v. U.S. Dist. Ct. for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir. 7 1989), and may exercise that authority sua sponte, see Golden Gate Bridge, Highway & Transp. v. 8 Golden Gate Bridge, Highway & Trans. Dist., No. 13-cv-05875, 2014 WL 6706827, at *2 (N.D. 9 Cal. Nov. 24, 2014) (sua sponte consolidation). “In determining whether or not to consolidate cases, the Court should weigh the interest of judicial convenience against the potential for delay, 11 United States District Court Northern District of California 10 confusion and prejudice.” Zhu v. UCBH Holdings, Inc., 682 F. Supp. 2d 1049, 1052 (N.D. Cal. 12 2010) (internal quotation omitted). 13 The Racies and Musgrave actions appear to warrant sua sponte consolidation under Rule 14 42(a). Both Plaintiffs allege that Defendants violated California’s consumer protection laws 15 through misrepresentations made while selling the Prevagen line of products, although Plaintiff 16 Musgrave’s complaint includes additional allegations under California’s False Advertising Law. 17 In fact, Defendants filed a notice of pendency of other action on the docket in the Musgrave action 18 regarding the Racies action, Dkt. No. 10 (“Notice”), stating that the actions were “substantively 19 indistinguishable” because Plaintiff Phillip Racies “purchased the identical product” as Plaintiff 20 Rick Musgrave “from the same defendant” and their actions are “based upon the same arguments, 21 claims, and purported science.” Not. at 1. Despite these statements, Defendants did not file an 22 administrative motion to relate the cases, as required under Civil Local Rule 3-12(a), or move for 23 consolidation. And during the initial case management conference in the Musgrave action, 24 Plaintiff also seemed to acknowledge that the actions were legally and factually related. 25 For the reasons set forth above, the Court hereby ORDERS the parties in both the Racies 26 and Musgrave actions to show cause why these seemingly overlapping cases should not be sua 27 sponte consolidated under Rule 42(a). The parties should address the factors set forth in Zhu (and 28 any other relevant case law) and discuss whether the Musgrave action should also be subject to the 2 1 pending summary judgment motion in the Racies action. The parties must submit their briefs 2 within five days of this Order and are subject to a five-page limit. Briefs are to be submitted on 3 the parties’ respective dockets. This Order has been filed in both cases. 4 5 6 IT IS SO ORDERED. Dated: January 20, 2016 7 8 HAYWOOD S. GILLIAM, JR. United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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