Burton v. Organon USA Inc. et al
Filing
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ORDER by Judge Hamilton granting 15 Motion to Stay; terminating 17 Motion to Remand (pjhlc1, COURT STAFF) (Filed on 5/10/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JUANITA BURTON,
Plaintiff,
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v.
ORDER GRANTING DEFENDANTS’
MOTION TO STAY
ORGANON USA INC., et al.,
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For the Northern District of California
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United States District Court
No. C 13-1535 PJH
Defendants.
_______________________________/
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Before the court is defendants’ motion to stay the above-entitled action pending the
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determination by the Judicial Panel on Multidistrict Litigation (“JPML”) regarding the transfer
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of this case to MDL 1964 in the Eastern District of Missouri (“the NuvaRing® MDL”).
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Plaintiff Juanita Burton filed no opposition to the motion. Having read defendants’ papers
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and carefully considered their arguments and the relevant legal authority, the court hereby
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GRANTS the motion to stay.
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Plaintiff filed this action in the Superior Court of California, County of San Francisco,
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on March 15, 2013. Defendants Organon USA, Inc., Organon Pharmaceuticals USA Inc.
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LLC, Organon International, Inc., and Merck & Co., Inc. (“the Merck defendants”) removed
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the case on April 5, 2013, alleging diversity jurisdiction.1 On April 11, 2013, the Merck
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defendants notified the JPML of a number of tag-along actions, including this matter,
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awaiting transfer to the NuvaRing® MDL. Also on April 11, 2013, the Merck defendants
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filed the present motion to stay pending transfer, and plaintiff filed a motion to remand,
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arguing that the court lacks subject matter jurisdiction over this case because she and
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defendant McKesson Corporation are both citizens of California. Defendants filed an
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Defendant McKesson Corporation did not join in the notice of removal.
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opposition to the motion to remand, but plaintiff did not file a reply to the opposition.
On April 12, 2013, the JPML issued Conditional Transfer Order 183, conditionally
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transferring the tag-along actions, including this matter. On April 19, 2013, plaintiff filed a
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Notice of Opposition to CTO 183. The Merck defendants oppose plaintiff’s attempt to
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vacate CTO 183.
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The JPML has the authority to transfer “civil actions involving one or more common
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questions of fact [which] are pending in different districts . . . to any district for coordinated
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or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). To date, more than 1200
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NuvaRing® actions have been transferred to MDL No. 1964. When evaluating a motion to
stay, a primary factor the court should consider is the preservation of judicial resources.
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For the Northern District of California
United States District Court
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Rivers v. Walt Disney Co., 980 F.Supp. 1358, 1360-61 (C.D. Cal. 1997). Staying an action
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pending transfer can help prevent duplicative litigation and inconsistent rulings. Id.
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Other courts, including courts within the Northern District, have granted motions to
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stay in order to preserve judicial resources, even where motions to remand are also
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pending. See J.W. v. Pfizer, Inc., 2013 WL 1402962 at *2 (N.D. Cal. Apr. 5, 2013); Freitas
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v. McKesson Corp., 2012 WL 161211 (N.D. Cal. Jan.10, 2012); Nichols v. DePuy
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Orthopaedics, Inc., 2011 WL 5335619 (N.D. Cal. Nov. 2, 2011); McCrerey v. Merck & Co.,
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2005 WL 6124182 (S.D. Cal. Mar. 3, 2005). There is nothing to preclude the MDL court
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from considering the jurisdictional issues after the transfer. Here, staying the case and the
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eventual transfer of the case would promote judicial economy because the cases raising
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the same issues regarding NuvaRing® would be consolidated for discovery and pretrial
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proceedings.
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The question whether McKesson Corporation is a proper defendant in the
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NuvaRing® cases should be decided by one court, because the result otherwise would be
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potential inconsistency in judicial rulings. Plaintiffs in numerous other NuvaRing®-related
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cases in California have named McKesson as a defendant, including in Gonzalez v.
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Organon, C-12-6161 PJH (N.D. Cal.); Axelrod v. Organon, C-13-0117 YGR (N.D. Cal.);
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Baldwin v. Organon, C-13-1720 TEH (N.D. Cal.); Burgueno v. Organon, C-12-10883 MWF
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(C.D. Cal.); Chinchilla v. Organon, C-13-0039 MWF (C.D. Cal.); Vazquez v. Organon, C-
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13-0055 MWF (C.D. Cal.), Smith v. Organon, C-13-0130 MWF (C.D. Cal.), and Hackett v.
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Organon, C-13-0077 MWF (C.D. Cal.), all of which have been transferred to the MDL; and
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in Wilson v. Organon, C-13-0705 CW (N.D. Cal.); Benson v. Organon, C-13-1195 MWF
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(C.D. Cal.); Acquaviva v. Organon, C-13-1035 MWF (C.D. Cal.); and Caesar v. Organon,
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C-13-13-1149 MWF (C.D. Cal.), which have been stayed pending transfer to the MDL.
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Since the question whether McKesson is a proper defendant in the NuvaRing® cases is
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now before the MDL, the court finds that judicial economy would be better served by
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staying this case pending the transfer, rather than by considering the motion to remand.
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Accordingly, for the foregoing reasons, the court finds that defendants’ motion to
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For the Northern District of California
United States District Court
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stay must be GRANTED. The May 22, 2013 hearing date is VACATED.
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IT IS SO ORDERED.
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Dated: May 10, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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