Dunson et al v. Cordis Corporation

Filing 69

ORDER by Judge Edward M. Chen Denying Defendant's Motion to Stay. (emcsec, COURT STAFF) (Filed on 11/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JERRY DUNSON, et al.,
Plaintiffs,

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For the Northern District of California

United States District Court

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v.
CORDIS CORPORATION, et al.,
Defendants.

Case No. 16-cv-03076-EMC
AND RELATED CASES
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.
Case No.

16-cv-03080-EMC
16-cv-03082-EMC
16-cv-03083-EMC
16-cv-03085-EMC
16-cv-03086-EMC
16-cv-03087-EMC
16-cv-03088-EMC
16-cv-04012-EMC
16-cv-04409-EMC
16-cv-04608-EMC
16-cv-04819-EMC
16-cv-05055-EMC
16-cv-05199-EMC
16-cv-05455-EMC
16-cv-05934-EMC

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ORDER DENYING DEFENDANT’S
MOTION TO STAY

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For the reasons stated on the record during the October 27, 2016 hearing, the Court

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DENIES Defendant Cordis Corporation‟s motion to stay these proceedings pending appeal of the

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Court‟s prior Order remanding these related cases to state court for lack of subject matter

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jurisdiction. This order is intended to memorialize and supplement that ruling.

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Supreme Court case law has “distilled” the legal principles that guide courts‟ discretion in

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issuing stays “into consideration of four factors: „(1) whether the stay applicant has made a strong

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showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably

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injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties

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interested in the proceeding; and (4) where the public interest lies.‟” Nken v. Holder, 556 U.S.

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418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors

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of the traditional standard are the most critical.” Id.
In applying these factors, the Ninth Circuit employs a “sliding scale” approach whereby

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weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

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Cir. 2011); see also Leiva-Perez v. Holder, 640 F.3d 962, 964-66 (9th Cir. 2011) (noting that the

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sliding scale test for preliminary injunctions described in Alliance for the Wild Rockies is the

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“essentially the same” as the test used in the stay context, and holding that this approach “remains

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in place” following the Supreme Court‟s decision in Nken). In other words, “the required degree

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of irreparable harm increases as the probability of success decreases.” Nat. Res. Def. Council, Inc.

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For the Northern District of California

“the elements of the . . . test are balanced, so that a stronger showing of one element may offset a

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United States District Court

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v. Winter, 502 F.3d 859, 862 (9th Cir. 2007).
As an initial matter, the Court notes that Cordis misstates the applicable test. Cordis

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argues that it is required to show either “a probability of success on the merits and the possibility

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of irreparable injury” or “that serious legal questions are raised and that the balance of hardships

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tips sharply in its favor.” Docket No. 63 (“Reply”) at 6 (quoting Golden Gate Rest. Ass'n v. City

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& Cty. of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008)). In fact, the Golden Gate test

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upon which Cordis relies is no longer good law. As the Ninth Circuit has since explained, the

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Supreme Court‟s decision in Nken overruled prior Ninth Circuit law “that permitted a stay to issue

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upon the petitioner „simply showing some possibility of irreparable injury.‟” Leiva-Perez v.

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Holder, 640 F.3d 962, 968 (9th Cir. 2011) (quoting Nken, 556 U.S. at 434) (emphasis added in

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Leiva-Perez). Thus, while the sliding scale approach remains applicable (such that the robustness

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of the showing on the merits varies with how sharply the balance of hardship tips), “to obtain a

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stay . . . [a movant] must [in any event] demonstrate that irreparable harm is probable if the stay is

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not granted.”1 Id.

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Both Leiva-Perez and Nken arose in the context of noncitizens seeking stays of removal orders
pending appeal. Accordingly, the decisions at times refer to the burden on “an alien” to obtain a
“stay of removal.” Both cases make clear, however, that the standards they set out apply to the
issuance of stays pending appeal generally, not just in the immigration context.
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A.

Likelihood of Success on the Merits
Cordis asserts that under Leiva-Perez, “all that must be shown to justify a stay is a „fair

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prospect‟ of success, „a substantial case on the merits,‟ or that „serious legal questions are raised.”

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Reply at 4 (quoting Leiva-Perez, 640 F.3d at 966-68). That is not entirely accurate, as it does not

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take into account the sliding scale balancing with the irreparable harm prong. In fact, the language

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that Cordis quotes represents Leiva-Perez‟s articulation of “the minimum quantum of likely

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success necessary to justify a stay.” Leiva-Perez, 640 F.3d at 967 (emphasis added). In other

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words, to justify a stay on a showing merely of a “fair prospect” of success on appeal, a movant

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must show that the balance of hardship tips sharply in its favor. In any event, the Court finds that

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Cordis argues that it is likely to succeed on appeal for two reasons. First, Plaintiff

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For the Northern District of California

United States District Court

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Cordis cannot satisfy either standard.

reiterates the arguments it made previously that the Quinn consolidation motion constituted a

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request for a joint trial. Motion at 7-8. This argument fails for the reasons discussed in the

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Court‟s remand order including, most significantly, that Plaintiffs explicitly stated that they sought

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consolidation for pretrial purposes only. Cordis continues to insist that Plaintiffs never explicitly

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stated that they sought consolidation for pretrial purposes only. See Reply at 5 n.7. This

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contention is largely based on what can only be characterized as a willful misreading of the

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language of the petition. Cordis also continues to point to Plaintiffs request for a “bellwether trial

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process.” But despite this Court‟s discussion in its remand order, Cordis still fails to recognize

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that unless the parties provide otherwise, a bellwether trial is a “pretrial” proceeding for every case

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other than the bellwether itself, as it functions typically only to provide information that will

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facilitate settlement, not to bind all subsequent cases. With respect to the Ninth Circuit‟s

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statement that “a bellwether trial is not, without more, a joint trial within the meaning of CAFA,”

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Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1051 (9th Cir. 2015), Cordis argues that what

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constitutes sufficiently “more” remains unsettled, presenting a “serious legal question.” See

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Leiva-Perez, 640 F.3d at 966-68. But no such question is presented by this case. Plaintiffs clearly

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and explicitly stated that they sought consolidation only for pretrial purposes; whatever “more”

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might suffice to create an implicit request for a joint trial of other cases was not present in this
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case.
Second, Cordis argues that it is likely to succeed on appeal because a motion for

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consolidation pursuant to Cal. Civ. Proc. Code § 1048 – the provision under which the Quinn

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Plaintiffs sought consolidation – is per se a request for a joint trial. See Motion at 8-10; Reply at

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5. Cordis never raised this argument in its briefing on the jurisdictional question, and only made a

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brief reference to it during the hearing. It thus waived the argument. In any case, Cordis does not

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have a “fair prospect” of success with this argument on the merits. Most significantly, it

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contravenes the clear text of the statute. Section 1048 provides:

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For the Northern District of California

United States District Court

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When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of
any or all the matters in issue in the actions; it may order all the
actions consolidated and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
Cal. Civ. Proc. Code § 1048(a) (emphasis added).

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The statute explicitly provides for consolidation for the purpose of a “hearing” (as opposed to a

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“trial”) on “any” (as opposed to “all”) of the matters at issue. This plainly authorizes limited

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consolidation short of a full trial.

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Cordis‟s argument to the contrary relies entirely on a single statement from the California
Supreme Court. In Hamilton v. Asbestos Corp., the court stated that:
Code of Civil Procedure section 1048, subdivision (a), authorizes
the trial court, when appropriate, to “order a joint hearing or trial” or
to “order all the actions consolidated.” Under the statute and the
case law, there are thus two types of consolidation: a consolidation
for purposes of trial only, where the two actions remain otherwise
separate; and a complete consolidation or consolidation for all
purposes, where the two actions are merged into a single proceeding
under one case number and result in only one verdict or set of
findings and one judgment. Hamilton v. Asbestos Corp., 998 P.2d
403, 415 (Cal. 2000).
In context, it is apparent that the Court‟s reference to “consolidation for purposes of trial

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only” refers to the portion of the statute that allows a court to “order a joint hearing or trial.” It

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was not necessary for the Court to decide whether the statute allows consolidation for pretrial

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purposes, because the parties in that case agreed that consolidation had at least been requested for

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trial. This stray comment, which did not focus or used to address the issue presented here, cannot
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be construed to contravene the clear statutory text.2 The Court concludes that Cordis does not

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raise even a “serious legal question” on this point.

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B.

Irreparable Harm
A movant‟s “burden with regard to irreparable harm is higher than it is on the likelihood of

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success prong, as she must show that an irreparable injury is the more probable or likely

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outcome.” Leiva-Perez, 640 F.3d at 968. As the Supreme Court has explained, the “key word in

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this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and

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energy necessarily expended in the absence of a stay, are not enough.” Sampson v. Murray, 415

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U.S. 61, 90 (1974).
Cordis asserts that it faces irreparable harm only because, if a stay is denied, it may have to

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spend some amount of time litigating concurrently in both state and federal court. Motion at 10-

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For the Northern District of California

United States District Court

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11. This would create the possibility that Cordis would be forced to making filings that would

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ultimately “have served no purpose,” as well as “add[ing] unnecessary expense for both sides.”

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Id. at 11. But this is the sort of mere injury “in terms of money, time and energy necessarily

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expended” that the Supreme Court has found insufficient to constitute an irreparable harm. It is

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true that some district courts have nonetheless found these concerns sufficient to warrant a stay.

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See Reply at 6-7. But significantly, as Cordis itself notes, “[b]ecause 28 U.S.C. § 1453(c)(2)

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provides for expedited [appellate] review, any delay would be short lived.” Reply at 7. Courts

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have accordingly denied stays on the ground that “no irreparable harm will result since review is

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expedited.” Manier v. Medtech Prod., Inc., 29 F. Supp. 3d 1284, 1288 (S.D. Cal. 2014); see also

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Smith v. Am. Bankers Ins. Co. of Florida, No. 2:11-CV-02113, 2011 WL 6399526, at *2 (W.D.

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Ark. Dec. 21, 2011). Any harm to Cordis would be similarly limited. This is especially true since

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there will be no further proceeding in the federal district court. The only parallel proceeding is

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briefing of Cordis‟s appeal to the Ninth Circuit. Cordis thus cannot meet its burden to show

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Cordis also relies on a statement from a student Note that California law “do[es] not permit
consolidation [under § 1048(a)] purely for pretrial purposes.” S. Amy Spencer, Note, Once More
Into The Breach, Dear Friends: The Case for Congressional Revision of the Mass Action
Provisions in the Class Action Fairness Act of 2005, 39 Loy. L.A. L. Rev. 1067, 1096 (2006). But
the only source cited in the Note for this statement is the statute itself; as explained above, the text
of the statute strongly indicates that the opposite is true.
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irreparable harm in the absence of a stay. Nor has it shown the balance of hardship tips sharply or

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otherwise in its favor. The plaintiffs in this case have already seen their efforts to seek redress for

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their injuries substantially delayed by Cordis‟s removal. Adding further delay would only

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compound their injuries.

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C.

Injury to Plaintiffs and Public Interest
As noted above, the Supreme Court has explained that the first two factors in the

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traditional stay test are the most important. Indeed, a Court need not consider the third and fourth

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factors unless it concludes that the moving party has made an adequate showing on the first two.

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See Nken, 556 U.S. at 435 (“Once an applicant satisfies the first two factors, the traditional stay

Because Cordis cannot carry its burden with respect to either of the first two prongs, it is

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For the Northern District of California

inquiry calls for assessing the harm to the opposing party and weighing the public interest.”).

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United States District Court

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unnecessary for the Court to reach these additional issues. In any event, Cordis has failed to

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articulate any real injury to the public in failing to stay the matter.

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For the foregoing reasons, the Court DENIES Cordis‟s motion for a stay pending appeal 3

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in the cases listed below.

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C-16-3076

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C-16-4012

C-16-3080

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C-16-4409

C-16-3082

C-16-4608

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C-16-3083

C-16-4819

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C-16-3085

C-16-5055

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C-16-3086

C-16-5199

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C-16-3087

C-16-5455

C-16-3088

C-16-5934

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: November 8, 2016
______________________________________
EDWARD M. CHEN
United States District Judge

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The parties dispute whether the Court, having already remanded these cases, may properly
exercise jurisdiction to consider a stay. But because the Court denies the request on the merits, it
is unnecessary to decide this unsettled issue. The Court therefore assumes, without deciding, that
jurisdiction is appropriate for the purpose of this motion.
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