Musgrave v. Quincy Bioscience, LLC et al

Filing 26

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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICK MUSGRAVE,

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Plaintiff,

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v.

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QUINCY BIOSCIENCE, LLC, et al.,

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ORDER TO SHOW CAUSE WHY THE
COURT SHOULD NOT CONSOLIDATE
THE RACIES AND MUSGRAVE CASES

Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-04505-HSG

PHILLIP RACIES,

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Case No. 15-cv-00292-HSG

Plaintiff,

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v.

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QUINCY BIOSCIENCE, LLC,

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Defendant.

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Before the Court are the actions entitled Racies v. Quincy Bioscience, LLC, et al., Case No.

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15-cv-00292, and Musgrave v. Quincy Bioscience, LLC, et al., Case No. 15-cv-04505. The Racies

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action was reassigned to the Court on February 23, 2015, and the Musgrave action was reassigned

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to the Court on October 8, 2015. The Racies case is a putative class action alleging violations of

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California’s consumer protection laws on behalf of a multi-state or, alternatively, California-only

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class of persons who purchased Defendants’1 Prevagen line of products. The Musgrave case is

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also a putative class action alleging violations of California’s consumer protection laws on behalf

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of a California-only class of persons who purchased Defendants’ Prevagen line of products. Both

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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.

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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)

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join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3)

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issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). The “district

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court has broad discretion under this rule to consolidate cases pending in the same district,”

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Investors Research Co. v. U.S. Dist. Ct. for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir.

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1989), and may exercise that authority sua sponte, see Golden Gate Bridge, Highway & Transp. v.

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Golden Gate Bridge, Highway & Trans. Dist., No. 13-cv-05875, 2014 WL 6706827, at *2 (N.D.

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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,

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United States District Court
Northern District of California

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confusion and prejudice.” Zhu v. UCBH Holdings, Inc., 682 F. Supp. 2d 1049, 1052 (N.D. Cal.

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2010) (internal quotation omitted).

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The Racies and Musgrave actions appear to warrant sua sponte consolidation under Rule

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42(a). Both Plaintiffs allege that Defendants violated California’s consumer protection laws

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through misrepresentations made while selling the Prevagen line of products, although Plaintiff

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Musgrave’s complaint includes additional allegations under California’s False Advertising Law.

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In fact, Defendants filed a notice of pendency of other action on the docket in the Musgrave action

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regarding the Racies action, Dkt. No. 10 (“Notice”), stating that the actions were “substantively

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indistinguishable” because Plaintiff Phillip Racies “purchased the identical product” as Plaintiff

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Rick Musgrave “from the same defendant” and their actions are “based upon the same arguments,

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claims, and purported science.” Not. at 1. Despite these statements, Defendants did not file an

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administrative motion to relate the cases, as required under Civil Local Rule 3-12(a), or move for

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consolidation. And during the initial case management conference in the Musgrave action,

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Plaintiff also seemed to acknowledge that the actions were legally and factually related.

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For the reasons set forth above, the Court hereby ORDERS the parties in both the Racies

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and Musgrave actions to show cause why these seemingly overlapping cases should not be sua

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sponte consolidated under Rule 42(a). The parties should address the factors set forth in Zhu (and

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any other relevant case law) and discuss whether the Musgrave action should also be subject to the
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pending summary judgment motion in the Racies action. The parties must submit their briefs

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within five days of this Order and are subject to a five-page limit. Briefs are to be submitted on

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the parties’ respective dockets. This Order has been filed in both cases.

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IT IS SO ORDERED.
Dated: January 20, 2016

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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