Tucker et al v. Organon USA, Inc. et al

Filing 27

ORDER by Judge ARMSTRONG denying 19 Motion to Remand; granting 12 Motion to Stay (lrc, COURT STAFF) (Filed on 5/22/2013)

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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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6 BRANDI TUCKER, et al.,

Plaintiffs,

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vs.

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9 ORGANON USA, INC., et al.,

Defendants.

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Case No: C 13-00728 SBA
ORDER GRANTING
DEFENDANTS’ MOTION TO STAY
AND DENYING PLAINTIFFS’
MOTION TO REMAND WITHOUT
PREJUDICE
Docket 12, 19

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The parties are presently before the Court on Defendants’ Motion to Stay All

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Proceedings Pending a Decision on Transfer by the Judicial Panel on Multidistrict

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Litigation and Plaintiffs’ Motion to Remand to State Court. Dkt. 12, 19. 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 Defendants’ motion to stay and DENIES Plaintiffs’ motion for

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remand without prejudice, for the reasons stated below.1

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I.

BACKGROUND

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On February 4, 2013, Plaintiff Brandi Tucker and various other individuals

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commenced the instant action against Organon USA Inc., Organon Pharmaceuticals USA

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Inc. LLC (f/k/a Organon Pharmaceuticals USA Inc.), Organon International Inc., Merck &

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Co., Inc. (f/k/a Schering-Plough Corporation) and McKesson Corporation (“McKesson”),

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alleging injuries arising out of the use of a prescription hormonal contraceptive known as

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NuvaRing®. Compl., Dkt. 1. On February 15, 2013, Defendants removed the case to this

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Court based on diversity jurisdiction, 28 U.S.C. § 1332(a). See Notice of Removal, Dkt. 1.

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Although McKesson is a local defendant, Defendants contend that McKesson was

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The Court, in its discretion, finds this matter suitable for resolution without oral
argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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fraudulently joined and that its citizenship should be ignored for purposes of determining

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diversity jurisdiction.

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Due to the number of NuvaRing® products liability actions filed, the Judicial Panel

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on Multidistrict Litigation (“MDL Panel”) has established an MDL court in the United

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States District Court for the Eastern District of Missouri. See In re NuvaRing® Prods.

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Liab. Litig., MDL No. 1964 (“NuvaRing® MDL”). Defendants filed a tag-along notice to

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transfer this action to the NuvaRing® MDL. On February 25, 2013, the Judicial Panel on

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Multidistrict Litigation (“MDP Panel”) issued a Conditional Transfer Order (“CTO”) which

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conditionally transfers this action to the NuvaRing® MDL. Plaintiffs have moved to vacate

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the CTO which is opposed by Defendants. The hearing on Plaintiffs’ motion is set for May

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30, 2013.

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In the instant action, Defendants now move to stay the action pending its transfer to

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the NuvaRing® MDL. Plaintiffs have filed a motion to remand. At issue in the motion to

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remand is whether non-diverse defendant McKesson was fraudulently joined by Plaintiffs

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to destroy diversity. Both motions are fully briefed and are ripe for adjudication.

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II.

DISCUSSION

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Federal district courts have the inherent power to stay ongoing proceedings. This

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power “is incidental to the power inherent in every court to control the disposition of the

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causes on its docket with economy of time and effort for itself, for counsel, and for

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litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). A district court’s decision to

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grant or deny a stay is a matter of discretion. Dependable Highway Express, Inc. v.

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Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007).

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In determining whether to stay proceedings pending a motion before the MDL

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Panel, the factors to consider include: (1) conserving judicial resources and avoiding

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duplicative litigation; (2) hardship and inequity to the moving party if the action is not

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stayed; and (3) potential prejudice to the non-moving party. In re iPhone Application

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Litig., No. C 10-5878 LHK, 2011 WL 2149102, *2 (N.D. Cal. 2011); see also Rivers v.

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Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997). The Court finds that these
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factors weigh in favor of a stay.

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As an initial matter, a stay will conserve judicial resources and promote judicial

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consistency. There are over a 1,000 NuvaRing® cases pending in the MDL. As such,

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staying the case and permitting the eventual transfer of the action will promote judicial

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economy because the actions raise common issues that can be handled more efficiently

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through consolidated for discovery and pretrial proceedings. In addition, the issue of

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whether McKesson is a fraudulently-joined defendant is at issue in numerous other cases,

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and will be decided in the NuvaRing® MDL. Permitting that Court to resolve the issue of

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fraudulent joinder globally, as opposed to adjudicating the issue prior to transfer, promotes

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judicial consistency and avoids conflicting judgments. See Burton v. Organon USA, Inc.,

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No. C 13-1535 PJH, 2013 WL 1963954, *2 (N.D. Cal. May 10, 2013). In contrast, there is

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no evidence that Plaintiffs will be unduly prejudiced or inconvenienced by a temporary

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stay, which in any event is likely to be brief given that the conditional transfer issue will be

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decided by the MDL Panel on or after May 30, 2013.2

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III.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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1.

Defendants’ motion to stay is GRANTED.

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2.

Plaintiffs’ motion to remand is DENIED without prejudice to renewal in the

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event the action is not transferred to the NuvaRing® MDL.
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This action is STAYED until the pending dispute over the CTO is resolved

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by the MDL Panel. The parties shall inform the Court within seven (7) days from the date

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this matter is resolved.

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4.

The Case Management Conference scheduled for May 22, 2013 is

VACATED.

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Other courts in this and other California districts have granted motions to stay in
similar cases where motions to remand were pending. See Burton, 2013 WL 1963954, *128 *2 (citing cases).
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5.

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IT IS SO ORDERED.

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This Order terminates Docket 12 and 19.

Dated: May 21, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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