Blalock et al v. DePuy Orthopaedics, Inc.

Filing 40

ORDER by Judge ARMSTRONG denying 24 Motion to Remand; granting 5 Motion to Stay (lrc, COURT STAFF) (Filed on 12/14/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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DONNA BLALOCK; JAMES BLALOCK;

Case No: C 11-04746 SBA

6 WENDELL BROWN; DENNIS GODWIN;

JAMES HANCOCK; SHIRLEY HANCOCK;
7 THOMAS JAMES; MARY JAMES; TERRY

KEIBLER; RITA KEYS; DAN KEYS;
8 WILLIAM LINDSEY; LISA LINDSEY;

BRIAN LOBB; JAMES LOVELL;

ORDER GRANTING
DEFENDANT’S MOTION FOR
STAY AND DENYING
PLAINTIFFS’ MOTION TO
REMAND

9 EDWARD MOORE; and JULIUS RIDDICK,

Dkt. 5, 24
Plaintiffs,

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vs.

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12 DEPUY ORTHOPAEDICS, INC.; THOMAS

P. SCHMALZRIED, M.D., P.C.; and DOES
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Defendants.

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Plaintiffs Donna Blalock, James Blalock, Wendell Brown, Dennis Godwin, James

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Hancock, Shirley Hancock, Thomas James, Mary James, Terry Keibler, Rita Keys, Dan

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Keys, William Lindsey, Lisa Lindsey, Brian Lobb, James Lovell, Edward Moore and Julius

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Riddick (collectively “Plaintiffs”) bring the instant products liability action against DePuy

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Orthopaedics, Inc. (“DePuy”) and Thomas P. Schmalzried, M.D., a professional

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corporation (“Schmalzried”). The parties are presently before the Court on: (1) DePuy’s

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Motion for Stay, Dkt. 5, and (2) Plaintiffs’ Motion to Remand, Dkt. 24. Having read and

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considered the papers filed in connection with this matter, and being fully informed, the

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Court hereby GRANTS Defendant’s Motion for Stay and DENIES Plaintiffs’ Motion to

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Remand. The Court, in its discretion, finds these matters suitable for resolution without

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oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b).

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I.

BACKGROUND
On August 24, 2011, Plaintiffs filed a Complaint in the San Francisco County

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Superior Court alleging that they suffered personal injuries as a result of Pinnacle

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Acetabular Cup System implants manufactured and sold by DePuy. Notice of Removal

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¶¶ 1-2, Dkt. 1, Ex. 4, Complaint. Depuy removed the action on September 22, 2011, on the

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basis of diversity jurisdiction. Id. ¶ 5. Although two of the Plaintiffs and Schmalzried are

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not diverse, Depuy alleged that Schmalzried was fraudulently joined and that his

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citizenship should therefore be disregarded for purposes of removal jurisdiction.

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Prior the commencement of this lawsuit, the Judicial Panel on Multidistrict

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Litigation (“the MDL Panel”) established MDL No. 2244 to coordinate federal actions

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sharing “factual questions as to whether DePuy’s Pinnacle Acetabular Cup System, a

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device used in hip replacement surgery, was defectively designed and/or manufactured, and

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whether defendants failed to provide adequate warnings concerning the device.” In re

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DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prods. Liab. Litig., 787 F. Supp. 2d 1358,

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1360 (J.P.M.L. 2011).1 On September 27, 2011, DePuy moved to stay all proceedings in

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this action “pending its likely transfer” to the designated MDL court. The MDL panel

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issued a Conditional Transfer Order identifying this case as a tag along action on October

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11, 2011.

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Plaintiffs have filed an opposition to Depuy’s motion to stay and separately filed a

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motion to remand. In their motion, Plaintiffs dispute Depuy’s allegations of fraudulent

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joinder, and argue that removal jurisdiction is a preliminary matter that should be

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adjudicated by this Court. Depuy, however, contends that the issue of whether Schmalzried

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was fraudulently joined will be resolved in the MDL proceeding, and that the Court should

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therefore decline to resolve the issue in this action.

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MDL No. 2244 is pending before the Honorable James E. Kinkeade of the United
States District Court for the Northern District of Texas.
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II.

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LEGAL STANDARD
“[T]he power to stay proceedings is incidental to the power inherent in every court

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to control the disposition of the causes on its docket with economy of time and effort for

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itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In

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MDL cases, the Court is not required to stay an action pending a transfer order by the MDL

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Panel. J.P.M.L., R. 2.1(d), 28 U.S.C. foll. § 1407. Rather, the decision to grant a stay is

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within the district court’s discretion. See In re iPhone App. Litig., No. C 10-5878 LHK,

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2011 WL 2149102, at *2 (N.D. Cal. May 31, 2011). In determining whether to stay

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proceedings, the district court should consider three factors: (1) conserving judicial

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resources and avoiding duplicative litigation; (2) hardship and inequity to the moving party

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if the action is not stayed; and (3) potential prejudice to the non-moving party if the action

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is stayed. Id. at *2; see also Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.

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1997).

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III.

DISCUSSION

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A.

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A stay is generally granted pending transfer when it would avoid the needless

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duplication of work and the possibility of inconsistent rulings. See Rivers, 980 F. Supp. at

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1360-1361. Deference to the MDL Panel is especially appropriate where the remand

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motion “raises issues likely to arise in other actions pending the in the MDL transferee

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court.” Conroy v. Fresh Del Monte Produce, Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal.

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2004); Nielson v. Merck & Co., No. C 07-0076 MJJ, 2007 WL 806510, at *2 (N.D. Cal.

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Mar. 15, 2007) (granting motion to stay to allow the MDL to consider similar motions to

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remand filed in other MDL cases).

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Judicial Economy

Here, the Court finds that the interests of judicial economy and avoiding inconsistent

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rulings favor staying the instant action to permit the MDL to resolve the issue of whether

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Schmalzried is a fraudulently joined defendant. To date, over 200 cases involving DePuy

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and the Pinnacle Cup System have been transferred to MDL No. 2244, and at least 36 cases

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have been stayed by district courts pending transfer. Mot. to Stay at 3. Schmalzried is a
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named defendant in seventeen of the cases that have been transferred to MDL No. 2244,

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and Judge Kinkeade has set a briefing schedule on a remand motion in at least one of those

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cases, Greenberg v. DePuy Orthopaedics, Inc. See Reply at 4, Ex. 5, Electronic Order

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Setting Deadlines. As such, it is apparent that Plaintiffs’ remand motion “raises issues

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likely to arise in other actions pending the in the MDL transferee court.” Conroy, 325 F.

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Supp. 2d at 1053. Notably, other district courts in California considering the issue of

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Schmalzried’s fraudulent joinder have chosen to impose a stay and allow the remand issue

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to be resolved in the MDL proceeding. See Freisthler v. DePuy Orthopaedics, Inc., No. CV

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11-6580 DSF, 2011 WL 4469532, at *1 (C.D. Cal. Sept. 21, 2011); Nichols v. DePuy

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Orthopaedics, Inc., No. C 11-4748 JW, 2011 WL 5335619, at *1 (N.D. Cal. Nov. 2, 2011);

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Lingle v. DePuy Orthopaedics, Inc., No. 11cvl486 L(MDD), 2011 WL 5600539, at *1

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(S.D. Cal. Nov. 17, 2011).2

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B.

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The remaining two factors germane to a stay request also weigh in favor of staying

Hardship and Prejudice

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the action. Plaintiffs do not specifically allege that they will be prejudiced or suffer any

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particular hardship from a stay pending resolution on the transfer. In addition, since the

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MDL Panel has issued a Conditional Transfer Order, any delay and corresponding

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prejudice in resolving the remand issue will be minimal. In contrast, the potential burden

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of engaging in duplicative litigation weighs heavily in favor of staying these proceedings

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pending MDL transfer. See Barnes v. Equinox Group, Inc., C 10-03586 LB, 2010 WL

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5479624, at *3 (N.D. Cal. Dec. 30, 2010); Nielson, 2007 WL 806510, at *2 (“absent a stay,

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[defendant] would suffer prejudice from being forced to litigate the same jurisdictional

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issues in multiple forums”). Accordingly, the Court finds that the potential hardship to

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DePuy from proceeding with the action outweighs the potential prejudice to Plaintiffs

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resulting from a stay.

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Plaintiffs cite this Court’s decision in Conroy as support for their contention that
preliminary scrutiny should be given to their motion to remand. Opp’n at 3. Unlike the
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presented were identical to those being raised in the MDL. Thus, Conroy is inapposite.
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IV.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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1.

DePuy’s Motion for Stay is GRANTED. All proceedings in this action are

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STAYED and all current deadlines are VACATED pending transfer of the action to MDL

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No. 2244.

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2.

Plaintiffs’ Motion to Remand is DENIED without prejudice.

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3.

This Order terminates Dockets 5 and 24.

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IT IS SO ORDERED.

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Dated: December 13, 2011

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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