Brattain v. Santa Fe Natural Tobacco Company, Inc. et al

Filing 38

ORDER GRANTING 37 STIPULATION to Stay All Case Proceedings Pending MDL Determination. Signed by Judge Jeffrey S. White on 1/22/16. (jjoS, COURT STAFF) (Filed on 1/22/2016)

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Benjamin M. Lopatin, Esq. (CA Bar No. 281730)
Email: [e-mail]
EGGNATZ, LOPATIN & PASCUCCI, LLP
2201 Market Street, Suite H
San Francisco, CA 94114
Office: [phone]
Fax: [phone]

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Attorney for Plaintiff and the Proposed Class

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David C. Kiernan (State Bar No. 215335)
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
+1.415.626.3939
Facsimile:
+1.415.875.5700

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Attorneys for Defendants
Santa Fe Natural Tobacco Company
and Reynolds American Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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RUSSELL BRATTAIN, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
SANTA FE NATURAL TOBACCO
COMPANY, INC., REYNOLDS
AMERICAN, INC., and DOES 1 through 59,
Defendants.

Case No. 4:15-cv-04705-JSW
STIPULATION AND [PROPOSED]
ORDER TO STAY ALL CASE
PROCEEDINGS PENDING MDL
DETERMINATION
CLASS ACTION
Jury Trial Requested by Plaintiff
Complaint Filed October 9, 2015
No Trial Date Assigned Presently

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Stipulation and [Proposed] Order to Stay All Case
Proceedings Pending MDL Determination
Case Number 4:15-cv-04705-JSW

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WHEREAS, on October 9, 2015, Plaintiff filed a complaint on behalf of himself and a
proposed class alleging violations of law by Defendants regarding the advertising, marketing and
sale of Natural American Spirit cigarettes;
WHEREAS, Defendants have filed a Motion to Dismiss [Dkt. No. 22], Request for
Judicial Notice [Dkt. No. 23], Amended Request for Judicial Notice [Dkt. No. 26], and Motion
for Leave to File Amended Motion to Dismiss [Dkt. No. 36], each of which remain pending and
for which the time for Plaintiff to respond has not yet passed;
WHEREAS, on January 6, 2016, Plaintiffs in the case Ceyhan Haksal et al. v. Santa Fe
Natural Tobacco Company, Inc., et al. 1:15-cv-001163 (D.N.M.) (collectively the “Haksal
Plaintiffs”), brought by Plaintiffs on behalf of themselves and a proposed class alleging violations
of law by Defendants regarding the advertising, marketing and sale of Natural American Spirit
cigarettes, filed a Motion for Transfer of Actions to the District of New Mexico for Consolidation
of All Pretrial Proceedings Pursuant to 28 U.S.C. § 1407 [MDL No. 2695] (the “MDL Motion”);
WHEREAS, the following five actions, including this one, are pending in district courts
in California, New Mexico, New York, and Florida, are listed as Scheduled Actions in the MDL
Motion and are subject to the Haksal Plaintiffs’ MDL Motion: (1) Haksal v. Santa Fe Natural
Tobacco Co., Inc., No. 1:15-cv-001163 (D.N.M.); (2) Dunn v. Santa Fe Natural Tobacco Co,.
Inc., No. 1:15-cv-01142 (D.N.M.); (3) Rothman v. Santa Fe Natural Tobacco Co., No. 7:15-cv08622 (S.D.N.Y.); (4) Brattain v. Santa Fe Natural Tobacco Co., No. 4:15-cv-04705 (N.D. Cal.);
and (5) Sproule v. Santa Fe Natural Tobacco Co., No. 0:15-cv-6204 (S.D. Fla.); and a sixth
action, filed after the MDL Motion, (6) Cuebas v. Santa Fe Natural Tobacco Co., No. 7:16-cv00270 (S.D.N.Y.), has been identified to the MDL Panel as a possible tag-along action;
WHEREAS, subject to Defendants’ right to oppose the MDL Motion, the parties here
have met and conferred and agree that a stay in this matter pending resolution of the MDL Motion
will not prejudice any of the parties, is made in good faith and in the interests of justice, is not for
the purposes of delay and will conserve judicial resources, especially because the court has not
yet had to consider the pending motion to dismiss or expend resources establishing a pretrial

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Stipulation and [Proposed] Order to Stay All Case
Proceedings Pending MDL Determination
Case Number 4:15-cv-04705-JSW

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scheduling order, and;
WHEREAS, “it is well-settled that district courts have the inherent power to stay
proceedings” where a motion before the MDL panel is pending.

Silverthorn v. Lumber

Liquidators, Inc., 2015 WL 2356485, 2015 U.S. Dist. LEXIS 64807, No. 15-cv-01428-JST (May
15, 2015 N.D. Cal.) (granting motion to stay over plaintiff’s opposition, including stay of pending
motions, until MDL panel resolved issue of whether to centralize cases). And it is equally settled
that “the power to stay proceedings is incidental to the power inherent in every court to control
disposition of the cases on its docket with economy of time and effort for itself, for counsel, and
for litigants.” Butler v. McKesson Corp., 2013 WL 4104093, 2013 U.S. Dist. LEXIS 113524,
No. C13-03154-JSW (Aug. 12, 2013 N.D. Cal.) (White, J.) (granting motion to stay in potential
tag-along case pending contested motion to transfer to MDL) (quoting Landis v. North America
Co., 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936)). See also Rivers v. Walt Disney
Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (granting motion to stay pending resolution of
MDL motion)
WHEREAS, “[w]hen evaluating a motion to stay proceedings pending a transfer to a
MDL court, a primary factor to consider is the preservation of judicial resources. Staying an
action pending transfer can help prevent duplicative litigation and inconsistent rulings.” Couture
v. Hoffman-La Roche, Inc., 2012 WL 3042994, at *2, 2012 U.S. Dist. LEXIS 104023 (N.D. Cal.)
(citing Rivers, 980 F. Supp. 1360-61) (granting motion to stay in potential tag-along action
pending motion to transfer to MDL);
WHEREAS, by staying this action judicial resources could be conserved in at least two
ways, first, “if MDL centralization is ordered and transfer is made to a court other than this one,
this Court will have needlessly expended its energies familiarizing itself with the intricacies of a
case that would be heard by another judge. And second, any efforts by this Court concerning
case management will most likely have to be replicated by the judge that is assigned to handle the
consolidated litigation . . .. Therefore, there is a great deal of this Court’s time and energy that
could be saved by staying the instant case pending the MDL Panel decision.” Id.;

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Stipulation and [Proposed] Order to Stay All Case
Proceedings Pending MDL Determination
Case Number 4:15-cv-04705-JSW

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WHEREAS, while a stay pending resolution of an MDL motion is not automatic and
calls for the exercise of sound discretion, “it appears that a majority of courts have concluded that
it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and
consolidate is pending with the MDL Panel because of the judicial resources that are conserved.”
Rivers, 980 F. Supp. at 1362 (citations omitted). See also Good v. Prudential Ins. Co., 5 F.
Supp.2d 804, 809 (N.D. Cal. 1998) (“courts frequently grant stays pending a decision by the
MDL panel regarding whether to transfer a case”) (granting stay pending decision on MDL
decision on potential tag-along case); Coture, 2012 WL 3042994, at *2, 2012 U.S. Dist. LEXIS
104023 (“other courts, including courts within the Northern District, have granted motions to stay
to preserve judicial resources [even where potentially dispositive motions or motions regarding
the court’s jurisdiction are pending]) (citing Freitas v. McKesson Corp., 2012 U.S. Dist. LEXIS
6992, 2012 WL 161211, 2012 U.S. Dist. LEXIS 6992 (N.D. Cal. Jan. 10, 2012) (a potential "tag
along" case was stayed pending the decision of the MDL Panel because interests of judicial
economy favored a stay, plaintiffs would not have suffered undue hardship or prejudice if the
case was stayed, a stay prevented the court from needlessly duplicating work or creating
inconsistent rulings); McCrerey v. Merck & Co., 2005 WL 6124182, 2005 U.S. Dist. LEXIS
36803 (S.D. Cal. Mar. 3, 2005) (court granted stay pending decision by MDL panel because
judicial economy and consistency would be best served, and also neither party would be
prejudiced).
WHEREAS, the court in one of the actions subject to the pending MDL Motion has sua
sponte issued an order to show cause why that case should not be stayed pending resolution of the
MDL Motion. Sproule v. Santa Fe Natural Tobacco Co., No. 0:15-cv-6204 (S.D. Fla.) [Dkt. No.
28, Jan. 15, 2016];
WHEREAS, the Parties expect the MDL Motion to be resolved promptly (responses to
the MDL Motion are due in less than one week, on January 27, 2016 and though oral argument is
not yet assigned the next MDL Panel hearing after January is March 31, 2016);
WHEREAS, judicial economy favors a stay pending transfer to MDL court, to avoid

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Stipulation and [Proposed] Order to Stay All Case
Proceedings Pending MDL Determination
Case Number 4:15-cv-04705-JSW

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duplicative litigation and prevent inconsistent rulings, the Parties agree that the current case
should be stayed pending the outcome of the MDL Motion:
NOW, THEREFORE the Parties hereby agree, stipulate, and respectfully request that:
1.

The Court stay all proceedings in this action pending resolution of the MDL

Motion, and the Hearing on Defendants’ Motion to Dismiss and Amended Request for Judicial
Notice currently set for February 26, 2016 be continued. vacated and reset, if necessary by further order.
2.

The Parties be directed to notify the Court within five (5) business days after the

panel rules on the pending MDL Motion.
3.

If the MDL Motion is denied or this action is otherwise not made a part of any

MDL ordered as a result of the MDL Motion, the Parties be directed to propose a scheduling
order regarding the conclusion of briefing on pending motions to ensure further that no party is
prejudiced by the requested stay.
IT IS SO STIPULATED.
Dated: January 21, 2016
Respectfully Submitted,
EGGNATZ, LOPATIN & PASCUCCI, LLP
By: /s/ Benjamin M. Lopatin
Benjamin M. Lopatin
2201 Market Street, Suite H
San Francisco, California 94114
Telephone: [phone]
Facsimile: 415-520-2262
Attorneys for Plaintiff Russell Brattain and
the Proposed Class

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-and-

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Stipulation and [Proposed] Order to Stay All Case
Proceedings Pending MDL Determination
Case Number 4:15-cv-04705-JSW

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JONES DAY

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By:

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/S/ David C. Kiernan
David C. Kiernan

Attorneys for Defendants
Santa Fe Natural Tobacco Company and
Reynolds American Inc.

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CERTIFICATION OF COUNSEL

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Pursuant to L.R. 5-1(i), I, David C. Kiernan, attest that the concurrence in the filing of this

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document has been obtained from Benjamin M. Lopatin, and as a result, Mr. Lopatin’s electronic

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signature shall serve in lieu of a hand signature.

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By: /s/ David C. Kiernan
David C. Kiernan

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IT IS SO ORDERED.

January 22, 2016
DATED:_____________________
_______________________________

________________________________
THE HONORABLE JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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Stipulation and [Proposed] Order to Stay All Case
Proceedings Pending MDL Determination
Case Number 4:15-cv-04705-JSW