Jones v. Bristol-Myers Squibb Company et al

Filing 19

ORDER by Judge Hamilton finding as moot 11 Motion to Remand; granting 12 Motion to Stay (pjhlc1, COURT STAFF) (Filed on 7/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HOWARD JONES, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,

No. C 13-2415 PJH

v.

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BRISTOL-MYERS SQUIBB CO., et al.,

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ORDER GRANTING DEFENDANT'S
MOTION TO STAY PROCEEDINGS
PENDING TRANSFER

Defendants.
_______________________________/

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Before the court is the motion of defendant Brystol-Myers Squibb Company ("BMS")

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to stay proceedings pending a transfer by the Judicial Panel on Multidistrict Litigation

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("JPML") to MDL 2418 in the District of New Jersey ("the Plavix® MDL" or "the MDL").

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Having reviewed the parties' papers and carefully considered their arguments and the

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relevant legal authority, the court hereby GRANTS the motion.

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BACKGROUND
On April 29, 2013, plaintiff Howard Jones, along with fifty-five others (“plaintiffs”) filed

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this action in the Superior Court of California, County of San Francisco, against BMS,

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McKesson Corporation ("McKesson") and Doe defendants 1 through 100. Plaintiffs’ claims

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arose from injuries sustained from their use of Plavix®, an FDA-approved prescription drug

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used to prevent heart attacks and strokes by inhibiting blood clotting.

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Plaintiffs assert thirteen causes of action against BMS, the New York based

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manufacturer, and McKesson, a California distributor of the drug. These claims are based

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on strict products liability, negligence, breaches of express and implied warranty, negligent

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misrepresentation, fraud by concealment, loss of consortium, wrongful death, and several

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California statutory violations.1
On May 29, 2013, BMS removed the action to this court on the basis of diversity

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jurisdiction, alleging that McKesson (a citizen of California) was fraudulently joined and that

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two New York plaintiffs were fraudulently misjoined in order to destroy complete diversity.

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On February 12, 2013, the JPML established a multidistrict Plavix® litigation in the

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District of New Jersey, assigned to the Hon. Freda Wolfson. See In re Plavix Mktg., Sales

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Practices & Prods. Liab. Litig. (No. II), MDL No. 2418, 2013 WL 565971 (J.P.M.L. 2013).

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Since then, the JPML has conditionally transferred twenty-six actions in this district to the
Plavix® MDL, including the instant one. See Conditional Transfer Order No. 8, In re Plavix

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For the Northern District of California

United States District Court

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(No. II), MDL No. 2418 (J.P.M.L. 2013). Twenty-four2 of those cases have been stayed

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and one is pending before the Hon. Saundra Brown Armstrong. See Douglas et al. v.

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Bristol-Myers Squibb Co., No. 13-2331 (N.D. Cal. 2013).

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On June 5, 2013, plaintiffs filed a motion to remand the case to state court and BMS
filed the present motion to stay.

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DISCUSSION
A.

Legal Standard
Under 28 U.S.C. § 1407, the JPML has the authority to transfer “civil actions

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involving one or more common questions of fact [which] are pending in different districts

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. . . to any district for coordinated or consolidated pretrial proceedings.” 28 U.S.C.

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§ 1407(a). In relation, a conditional transfer order “does not affect or suspend orders and

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pretrial proceedings in any pending federal district court action and does not limit the

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pretrial jurisdiction of that court.” J.P.M.L.R. 2.1(d). As such, a district court still has the

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Specifically, plaintiffs allege violation of the following California statutes: Cal. Civ. Code
§§ 1709, 1710 (deceit and concealment); Cal. Bus. & Prof. Code §§ 17200 (unfair
competition), 17500 (untrue or misleading advertising), and the Consumer Legal Remedies
Act, Cal. Civ. Code §§ 1750 et. seq.
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One of these actions was stayed by agreement of the parties. See Norrise v. Kaiser
Found. Hosps. & Health Plan, Inc. et al., No. 12-6456 (N.D. Cal. Feb. 15, 2013).
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discretion to control its docket and stay proceedings. See Landis v. North Am. Co., 299

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U.S. 248, 254-55 (1936). When a stay is requested because of pending proceedings that

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bear on the case, the court may grant a stay in a variety of circumstances in the interests of

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the efficiency of its own docket and fairness to the parties. Leyva v. Certified Grocers of

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Cal. Ltd., 593 F.2d 857, 863 (9th Cir.1979).

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When considering a motion to stay pending a JPML transfer, courts evaluate factors

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such as: “(1) potential prejudice to the non-moving party; (2) hardship and inequity to the

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moving party if the action is not stayed; and (3) the judicial resources that would be saved

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by avoiding duplicative litigation if the cases are in fact consolidated.” Rivers v. Walt
Disney Co., 980 F.Supp. 1358, 1360 (C.D. Cal. 1997) (citation omitted).

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For the Northern District of California

United States District Court

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In addition, deference to the MDL court for resolution of a motion to remand often

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provides “the opportunity for uniformity, consistency, and predictability that underlies the

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MDL system.” Nielsen v. Merck & Co., 2007 WL 806510 at *1 (N.D. Cal. Mar. 15, 2007)

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

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2004)).

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B.

Defendant's Motion

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1.

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BMS contends that staying the proceedings will save judicial resources and promote

Conserving Judicial Resources and Avoiding Duplicative Litigation

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judicial efficiency and uniformity. Plaintiffs oppose BMS’s motion on two main grounds.

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First, they argue that the court should consider the merits of plaintiffs’ motion to remand

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before entertaining a stay of the proceedings. Second, plaintiffs accuse BMS of being

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disingenuous in its appeal to judicial efficiency, alleging that BMS is the one who has

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burdened this court by improperly removing the action from state court, and that BMS’s

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“procedural tactics” have already caused them prejudice and undue delay.

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Preservation of judicial resources is a primary factor to consider in evaluating a

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motion to stay proceedings pending a transfer to an MDL court. See Rivers, 980 F.Supp.

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at 1360-61. A stay is appropriate when it would avoid the needless duplication of work and

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the possibility of inconsistent rulings. Freitas v. McKesson Corp., 2012 WL 161211 at *2
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(N.D. Cal., Jan. 10, 2012) (citing Rivers, 980 F.Supp. at 1360–61). In Rivers, the court

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explained that judicial efficiency can be served by granting a motion to stay where the court

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would otherwise have to engage in the “intricacies” of a case, which ultimately an MDL

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judge may have to duplicate. 980 F.Supp. at 1360-61. Courts in this district, including this

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court, have granted motions to stay in order to preserve judicial resources, even where

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jurisdictional questions and motions to remand are at issue. See Freitas, 2012 WL

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161211; see also Couture v. Hoffman-La Roche, Inc., 2012 WL 3042994 (N.D. Cal., July

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25, 2012).

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Here, the court finds that staying the proceedings pending transfer to the Plavix®
MDL would foster judicial economy. The JPML has already conditionally transferred

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For the Northern District of California

United States District Court

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twenty-six of this district’s Plavix® actions to the MDL, concluding that “[c]entralization will

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eliminate duplicative discovery, prevent inconsistent pretrial rulings, . . . and conserve the

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resources of the parties, their counsel, and the judiciary.” In re Plavix (No. II), MDL No.

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2418 at *3. Likewise here, a stay would prevent duplicative pretrial practice in the likely

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event that the case is definitively transferred to the Plavix® MDL.

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More importantly, other courts in this district have found that the same fraudulent

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joinder issue BMS raises here, “will likely be raised in every other action involving

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McKesson,” and should be decided by the MDL. Addison v. Bristol-Myers Squibb Co.,

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2013 WL 3187859 at *1 (N.D. Cal., June 21, 2013); see also Kinney v. Bristol-Meyers

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Squibb Co., No. 12-4477 at 2 (N.D. Cal. Apr. 12, 2013). Thus, the court finds that granting

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BMS’s motion to stay the proceedings would promote judicial economy and uniformity by

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avoiding the possibility of inconsistent rulings within the Northern District, conserving

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judicial resources and allowing the MDL to consistently address the issues before it.

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Furthermore, plaintiffs have failed to argue that a stay of proceedings in this case

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would not conserve judicial resources. Instead, they focus on BMS’s alleged bad faith in

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removing the action from state court, causing the unnecessary expenditure of this court’s

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resources. Plaintiffs maintain that the motion to stay is no more than a distraction from

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what they claim is the primary issue at hand – improper removal.
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However, the court finds these arguments unpersuasive. Merely presenting

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conclusory allegations about BMS’s reasons for removing the case is not a persuasive

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argument for purposes of the instant motion. See Rivers, 980 F.Supp. at 1361. Moreover,

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what the court considers in its evaluation of this factor is how a case should proceed going

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forward, and not how the case was brought before the court. As such, plaintiffs fail to

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present any compelling reasons for the court to treat the instant case differently from the

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twenty-three similarly situated Plavix® cases already stayed by eleven judges in this

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district.

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Potential Hardship to BMS

Another factor to consider when evaluating a motion to stay is the potential “hardship

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For the Northern District of California

United States District Court

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and inequity to the moving party if the action is not stayed.” Rivers, 980 F.Supp. at 1360.

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Courts within the Northern District have recognized that “the potential burden of engaging

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in duplicative litigation weighs heavily in favor of staying . . . proceedings pending MDL

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transfer.” Blalock v. DePuy Orthopaedics, Inc., 2011 WL 6217540 at *2 (N.D. Cal., Dec.

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14, 2011); see also Nielsen, 2007 WL 806510 at *2 (“absent a stay, [defendant] would

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suffer prejudice from being forced to litigate the same jurisdictional issues in multiple

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forums”). This risk of hardship has been specifically recognized in this district’s Plavix®

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actions. See Arnold v. Bristol-Meyers Squibb Co., No. 12-6426 at *2 (N.D. Cal. Apr. 3,

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2013); Arenberg v. Bristol-Meyers Co., No 12-6207 at *2-3 (N.D. Cal. Apr. 22, 2013).

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Here, similarly to Arnold, Arenberg, and Blalock, the court finds that BMS will face

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significant hardship if its motion to stay the proceedings is not granted. If this court denies

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plaintiffs’ motion, and the case is later transferred, the MDL court could revisit the issue,

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thus forcing BMS to relitigate it. Arnold, No. 12-6426 at *2. If, on the other hand, this court

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grants the remand motion and the MDL later decides that removal in similar cases was

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proper, BMS would be prejudiced by having to litigate the case in state court instead of

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before the MDL. Id. Should this court deny the motion to stay, BMS would be left with two

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unfavorable alternatives that expose it to a significant risk of duplicative litigation and

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prejudice.
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Potential Prejudice to Plaintiffs

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Plaintiffs claim that they will be prejudiced if this case is stayed pending transfer to

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the MDL. Alleging that BMS improperly removed the matter, plaintiffs further assert that

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the instant motion is part of BMS’s “procedural tactics” to prolong the proceedings and

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prevent the court from considering their remand motion. Pls.’ Opp’n at 5. Plaintiffs contend

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that staying the matter would be “egregious” because BMS has already caused a delay by

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filing an “entirely unfounded notice of removal” and an “equally meritless motion for a stay

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of the proceedings.” Id.

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The third factor to consider when evaluating a motion to stay pending a transfer to
an MDL court is “potential prejudice to the non-moving party.” Rivers, 980 F.Supp. at 1360.

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For the Northern District of California

United States District Court

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In other Plavix® cases raising fraudulent joinder issues, courts in this district have

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reasoned that a stay will not prejudice plaintiffs, as a remand motion can just as easily be

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presented to and decided by the transferee judge, especially when it turns on a question of

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federal law. See Kinney, No 12-4477 at *2; see also Arnold, No.12-6426 at *2.

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Here, the court finds that plaintiffs will not suffer prejudice because, as in Kinney, the

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issues of fraudulent joinder and misjoinder implicate federal law, and can be easily and

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adequately addressed by the MDL court. Additionally, staying the case would not result in

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undue delay of the proceedings. The JPML has already conditionally transferred this

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matter to the Plavix® MDL and a stay is not likely to be long in duration.

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Furthermore, plaintiffs fail to demonstrate to the court how a stay of the proceedings

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would prejudice them. Instead, they focus on the propriety of BMS’s removal of the matter,

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and ask the court to “discipline” BMS by denying its allegedly ill-advised motion to stay. As

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a result, plaintiffs neglect to identify the potential prejudice they would suffer if BMS's

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motion is granted. Because the MDL court can adequately address plaintiffs’ motion to

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remand, and because plaintiffs have failed to identify potential prejudice from a stay, the

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court finds that plaintiffs will not suffer prejudice if the motion to stay is granted.

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4.

Motion to Stay Versus Motion to Remand

Plaintiffs’ main argument in opposition to BMS's motion to stay is that the court
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must first preliminarily consider the merits of the remand motion before entertaining a stay

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of the proceedings. See Meyers v. Bayer A.G., 143 F.Supp.2d 1044 (E.D. Wis. 2001). In

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relation, plaintiffs argue that the Hon. Edward Chen’s decision to remand a similar Plavix®

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case, see Caouette v. Bristol-Meyers Squibb Co., 2012 WL 3283858 (N.D. Cal. 2012),

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makes clear that the instant action was improperly removed, and therefore staying the

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proceedings would be an inappropriate exercise of jurisdiction.

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When confronted with a motion to stay proceedings pending transfer to an MDL

Conroy, 325 F.Supp.2d at 1053 (N.D. Cal. 2004) (citing Meyers, 143 F.Supp.2d at 1048-

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49). Courts first give "preliminary scrutiny to the merits of the motion to remand” and then

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For the Northern District of California

court, as well as a motion to remand, courts may engage in a three-step inquiry. See

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United States District Court

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proceed to evaluate jurisdictional issues. Id. If this evaluation suggests that "the

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jurisdictional issue is both difficult and similar or identical to those in cases transferred or

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likely to be transferred, the court should stay the action.” Id. Importantly however, the

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Ninth Circuit Court of Appeals “has not yet addressed whether courts must first decide the

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merits of a motion to remand before determining whether to stay the proceedings.”

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Addison v. Bristol-Meyers Squibb Co., 2013 WL 3187859 at *2 (N.D. Cal. June 21, 2013);

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see also Nielsen, 2007 WL 806510 at *2 (“this Court has previously observed that the

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Meyers approach has not been explicitly adopted by the Ninth Circuit”). As such, judges in

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the Northern District “have made clear that courts are not bound to preliminarily consider

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the merits of a remand motion before considering a motion to stay.” Freitas, 2012 WL

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161211 at *2 (emphasis in original); see also Nielsen, 2007 WL 806510 at *2.

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As mentioned above, this court is not bound to follow the Meyers approach

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because the Ninth Circuit has not expressly adopted it. Additionally, the cases cited by

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plaintiffs are not binding on this court. Most importantly, judges have stayed other Plavix®

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cases in this district, rejecting the same arguments plaintiffs present here. See Addison,

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2013 WL 3187859; see also Guinn v. Bristol-Meyers Squibb Co., 2013 WL 1964937 at *1

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(N.D. Cal. May 10, 2013) (finding Conroy to be inapposite and that "the weight of authority

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in [the Northern] district favors a stay”). Thus, granting BMS’s motion to stay is not only
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within the discretion of this court, but it would also reduce the risk of inconsistent rulings

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within the Northern District.

warranted. The court finds that the issues in this case are similar to other Plavix® actions

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in this district currently awaiting transfer to the MDL. Kinney, Addison, and Guinn all

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present similar jurisdictional issues as the one raised in this matter, namely the fraudulent

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joinder of McKesson. Additionally, Judge Chen acknowledged that the fraudulent joinder

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issue is “not a simple question.” Kinney, Apr. 11, 2013, Tr. at 4:11. Moreover, plaintiffs

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exaggerate the significance of Judge Chen’s decision to remand Caouette. As the Hon.

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William Alsup explained, there was no competing motion to stay in Cauoette, and even

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For the Northern District of California

Moreover, even if the court were to apply the Meyers approach here, a stay is still

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United States District Court

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more importantly, Judge Chen has “since ordered a stay of proceedings in identical cases.”

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Addison, 2013 WL 3187859 at *1. Because the court finds that the instant case raises

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jurisdictional issues that are both complex and similar to those in other MDL-bound cases,

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application of the Meyers approach also favors a stay.

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CONCLUSION

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Based on the applicable legal standards, as well as the Northern District’s strong

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preference for staying similar cases, the court hereby GRANTS defendant BMS's motion to

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stay the proceedings pending transfer to the Plavix® MDL.

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IT IS SO ORDERED.

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Dated: July 8, 2013
_____________________________
PHYLLIS J. HAMILTON
United States District Judge

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