Osborne v. Menu Foods Inc

Filing 7

Attachment 1
MOTION to Stay by Menu Foods Inc.Responses due by 5/10/2007 (Attachments: # 1 Memorandum in Support # 2 Not. Manual Filing - Exh. A-D# 3 Exh. E - Notice of Hearing Session# 4 unpublished cases)(Conway, Matthew)

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Osborne v. Menu Foods Inc Doc. 7 Att. 1 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 1 of 11 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT LAURI A. OSBOURNE, Individually and On Behalf of All Similarly Situated, Plaintiff, v. MENU FOODS, INC. Defendant, ) ) ) ) ) ) ) ) Civil Action No. 3:07-cv-00469 (RNC) Class Action April 19, 2007 MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO STAY I. BACKGROUND FACTS Currently, there are at least fifty-nine (59) actions that seek relief for individuals who purchased allegedly contaminated pet food from the defendant. Specifically, the pending cases allege that the defendant (and various named affiliates) sold contaminated pet food to the general public and individuals whose pets consumed this pet food sustained injuries and/or death. The pending cases seek to certify a class of United States' residents who purchased allegedly contaminated pet food and seek to compensate them for all damages incurred as a result of the defendant's conduct. None of the pending cases are advanced and no discovery has been conducted. The actions are currently pending in the Western District of Washington, Eastern District of Tennessee, Northern District of Illinois, Western District of Wisconsin, Western District of Arkansas, District of New Jersey, Northern District of Florida, Southern District of Florida, District of Connecticut, Central District of California, District of Rhode Island, District of Maine, Northern District of California, District of Nevada, District of Idaho and Northern 0 Dockets.Justia.com Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 2 of 11 District of Ohio. Federal courts have original jurisdiction over these state and common law based actions pursuant to the Class Action Fairness Act of 2005. 28 U.S.C. 1332(d). A. Pending MDL Motions On March 30, 2007, three (3) separate motions for transfer and coordination or consolidation pursuant to 28 U.S.C. 1407 were filed by three (3) different plaintiffs ("MDL motion"). Plaintiff Shirley Sexton filed the first MDL motion, seeking to transfer her case and numerous other cases involving alleged injuries and/or death arising out of the purchase and/or consumption of pet food manufactured by the defendant to the Central District of California. See Plaintiff Sexton's MDL Motion attached hereto as Exhibit "A." Plaintiff Christina Troiano filed the second MDL motion, seeking transfer to the Southern District of Florida. See Plaintiff Troiano's MDL Motion attached hereto as Exhibit "B." Plaintiffs Tom Whaley, Stacey Heller, Toinette Robinson, David Rapp, Cecily and Terrance Mitchelle, Suzanne E. Johnson, Craig R. Klemann, Audrey Kornelius, Barbara Smith, Michelle Suggett and Don James, filed their MDL motion to transfer the cases to the Western District of Washington. See Plaintiff Whaley's MDL Motion attached hereto as Exhibit "C." Lastly, plaintiffs Jayne Pittsonberger, David Carter, and Jim Bullock, filed their motion to transfer the cases to the District of New Jersey. See Plaintiff Pittsonberger's MDL Motion attached hereto as Exhibit "D." The defendant will be filing its MDL response on or before April 19, 2007, and agrees that MDL consolidation is appropriate. On April 12, 2007, the Judicial Panel on Multidistrict Litigation ("JPML") issued a Notice of Hearing Session for May 31, 2007 to consider the MDL motions ("Collectively known as MDL 1850 - In re Pet Food Products Liability Litigation). See April 12, 2007 Notice of Hearing Session attached hereto as Exhibit "E." 1 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 3 of 11 B. Instant Case On March 27, 2007, plaintiff in this matter filed a products liability action in the District of Connecticut, alleging that plaintiff's pets sustained injuries and/or death as a result of the purchase and/or consumption of pet food manufactured by the defendant. (See Plaintiff's Complaint, Doc. # 1.) The defendant respectfully requests this Court to stay all proceedings pending a transfer decision by the JPML and a determination of class certification by the transferee court. II. GOVERNING LAW AND ARGUMENT Numerous courts have stayed proceedings pending determinations by the MDL Panel of the appropriateness of coordination under Section 1407. See, e.g., Gonzalez, v. American Home Products, Corp., 223 F.Supp.2d 803 (S.D.Tex. 2002); U.S. Bank, Nat'l Ass'n v. Royal Indem. Co., 2002 WL 31114069 (N.D. Tex. Sept.23, 2002); Moore v. Wyeth-Ayerst Laboratories, 236 F.Supp.2d 509, 511 (D. Md. 2002); Kohl v. American Home Prods. Corp., 78 F. Supp. 2d 885 (W.D. Ark. 1999); Republic of Venezuela v. Philip Morris Companies, Inc., et. al., 1999 WL 33911677 (S.D. Fla. 1999); Rivers v. The Walt Disney Co., 980 F. Supp. 1358 (C.D. Cal. 1997); American Seafood, Inc. v. Magnolia Processing, 1992 WL 102762 (E.D. Pa. May 7, 1992); Arthur-Magna, Inc. v. Del-Val Fin Corp., 1991 WL 13725 (D. N.J. Feb. 1, 1991); Rosenfeld v. Hartford Fire Ins. Co., 1988 WL 49065 (S.D. N.Y. May 12, 1988); Portnoy v. Zenith Laboratories, 1987 WL 10236 (D.D.C. Apr. 21, 1987). It is "incidental to the power inherent in every court to control the disposition of the cases on its docket with the economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936); Hikers Industries Inc. v. William Stuart Industries 640 F.Supp 175, 177 (1986). Guided 2 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 4 of 11 by the "policies of justice and efficiency," this Court should exercise its discretion to stay all further proceedings in this action pending the MDL Panel's action. Boudreaux v. Metropolitan Life Ins. Co., 1995 WL 83788, *1 (E.D. La. Feb. 24, 1995). District courts in this circuit have looked to five factors in deciding motions to stay: "(1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest." Kappel v. Comfort, 914 F.Supp. 1056, 1058 (S.D.N.Y.1996) (citing Volmar Distributors v. New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y.1993)). In this case, each enumerated factor favors a stay. A. The Balance of Equities Weighs Heavily in Favor of a Stay as Plaintiff Will Suffer No Prejudice, While the Defendant Will Suffer Undue Hardship Absent a Stay The interests of the plaintiff and defendant are both served by staying these proceedings pending the Judicial Panel's rapidly approaching determination. In Moore v. Wyeth-Ayerst Laboratories, a patient who took a prescription diet drug brought a products liability action against the drug manufacturer. Moore, 236 F.Supp.2d at 511. The court in that case held that the potential prejudice to the drug manufacturer warranted a stay of proceedings pending the decision of Judicial Panel for transfer and consolidation. Id. Specifically, the court held that "[c]entralization is...necessary in order to eliminate duplicative discovery, prevent inconsistent or repetitive pretrial rulings...and conserve the resources of the parties, their counsel, and the judiciary." Id. The defendant in the present action would be substantially prejudiced by duplicative discovery and motion practice if a stay is not put in place. American Seafood, 1992 WL 102762 3 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 5 of 11 at *2 (holding that "[t]he duplicative motion practice and discovery proceedings demonstrate that judicial economy and prejudice to the defendants weigh heavily in favor of a stay"). Without a stay, the defendant may continue to be served with discovery requests, deposition notices and various motions resulting in duplicative and costly responses and replies being prepared multiple times in different jurisdictions. This burden is a clear, definable hardship weighing in favor of staying this action until the MDL Panel renders its decision. A stay will not, however, unduly prejudice the plaintiff in this matter. In Republic of Venezuela v. Philip Morris Companies, Inc., et. al., The Republic of Venezuela sought damages from the defendants due to, inter alia, costs allegedly incurred as a result of paying for "medical care, facilities, and services" for Venezuelan residents injured as a result of the use of tobacco. Republic of Venezuela 1999 WL 33911677, *1. The Court in granting Defendant's motion to stay held that "upon consideration of what effect a brief stay may have on [Plaintiff], the Court finds that Plaintiff will not be prejudiced by the granting of a stay pending the JPML's decision." Id. Here, there has been no discovery in the case at bar or any of the pending actions. Since all the actions are in the beginning stages of litigation, no prejudice or inconvenience will result from transfer, coordination and/or consolidation. Any slight delay that plaintiff may experience in this case will be minimal and the prejudice to defendant would far surpass any harm to plaintiff. See Arthur-Magna, 1991 WL 13725 at *1 (noting that even if a temporary stay can be characterized as a delay prejudicial to plaintiffs, there are considerations of judicial economy and hardship to defendants that are compelling enough to warrant such a delay). Indeed, if the Judicial Panel consolidates the cases into an MDL, all of the parties - including the plaintiff here - will benefit through increased efficiency and coordinated pretrial case management. Further, 4 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 6 of 11 the defendant is not asking this Court to stay the proceedings indefinitely. The Judicial Panel will be hearing the MDL motions on May 31, 2007. See Exhibit "E." The defendant is only asking the Court to issue a stay while the transfer decision by the Judicial Panel and determination of class certification is pending. As such, any potential delay is outweighed by the potential efficiencies available in a coordinated MDL proceeding Since all the actions are in the beginning stages of litigation and the Judicial Panel will be hearing the MDL motions on May 31, 2007, no prejudice or inconvenience will result from entry of a stay. See Exhibit "E." On the other hand, absent a stay, the defendant will be substantially prejudiced if it is required to duplicate efforts and expend significant resources defending multiple cases in jurisdictions around the country. Therefore, the benefits of staying this proceeding far outweigh any minimal inconvenience to the plaintiff. Thus, the granting of a stay is necessary and appropriate. B. Judicial Economy Mandates a Stay Pending a Transfer Decision by the Judicial Panel and Determination of Class Certification The public and the Court would also be well-served by staying the Court's involvement in the intricacies of a matter that may be transferred to another court. First, the express language of 28 U.S.C. 1407 provides that civil actions may be transferred for coordinated or consolidated pretrial proceedings to "promote the just and efficient conduct of such actions." 28 U.S.C. 1407. Second, it is well settled that in the class action context that when similar actions are proceeding in different courts, courts may stay proceedings pending the outcome of the other case. Wright, Miller & Kane, Federal Practice and Procedure: Civil 3D 1792 (2005); Knearem v. Bayer Corp, 2002 WL 1173551, 1 (D. Kan. 2002) (granted motion to stay to purported class action which was one of more than two hundred pending federal cases, nearly 5 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 7 of 11 half of which were purported class actions). Here, a stay of proceedings pending a transfer decision by the MDL and class certification is necessary and appropriate to achieve the judicial economies that underlie 1407 and class actions. The defendant reasonably anticipates that the Judicial Panel will grant an MDL for the following reasons. First, courts have consistently held that the Judicial Panel will transfer cases to eliminate the possibility of inconsistent class determinations. In re CertainTeed Corp. Roofing Shingle Prods Liab. Lit., 2007 WL 549356; In re Guidant Corp. Implantable Defibrillators Prods. Liab. Lit., 398 F. Supp. 2d 1371 (Jud. Pan. Mult. Lit. 2005); In re Ford Motor Co. Speed Control Deactivation Switch Prods. Liab. Lit. 398 F. Supp.. 2d 1365 (Jud. Pan. Mult. Lit. 2005); In re Roadway Exp. Inc. Employ. Pract. Lit., 384 F. Supp. 612 (Jud. Pan. Mult. Lit. 1974). Absent a transfer of these cases to a single forum for coordinated and consolidated pretrial proceedings, there is a substantial risk of inconsistent and/or conflicting pretrial rulings on discovery and other key issues, such as class certification. Second, discovery with respect to the defendant's conduct in each of the actions proposed for consolidation will be substantially similar and will involve the same and/or similar documents and witnesses. Third, efficiency in the administration of justice will be served by consolidation, because one judge rather than multiple judges can supervise all pretrial proceedings and render rulings that are consistent. Fourth, based on the nationwide distribution of defendant's pet food, many additional cases may be filed before the statute of limitations expires. Absent a stay, the Court will lose the potential efficiencies that would be gained by having pretrial issues, particularly with respect to issues of class certification, decided by a single court. In Gonzalez v. American Home Products, Corp., consumers brought a product liability action against manufacturers and distributors of phenylpropanolamine (PPA) to recover for 6 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 8 of 11 physical injuries sustained as a result of exposure to PPA. Gonzalez, 223 F.Supp.2d at 804. In granting defendant's motion to stay pending a decision of the MDL Panel, the Court held that "[j]udicial economy and consistency of result dictate that this key issue be decided once, not countless times." Gonzales, 223 F.Supp.2d at 805. Like Gonzalez, the interests of judicial economy and consistency warrant a stay here. Without a stay, this Court will be required to expend its time and resources supervising and issuing rulings on pretrial matters and familiarizing itself with the intricacies and complexities of this complicated products liability litigation that may, in the near future, be transferred to another court. Alternatively, if the Judicial Panel assigns the case to this Court, each ruling and action taken by this Court may affect other cases without giving the attorney handling those cases an opportunity to provide input to the Court. Clearly, if these cases are not stayed, many issues particularly with respect to class certification, will have to be revisited by the Court assigned to the cases by the Judicial Panel. Thus, the continuation of this case will result in duplicative and unnecessary efforts by this Court and the parties if this action proceeds forward before the Judicial Panel has an opportunity to rule. Additionally, if a stay is not granted and this case proceeds forward, the Court's rulings potentially could be reconsidered after coordination. "The pretrial powers of the transferee court include the powers to modify, expand, or vacate earlier discovery orders." In re Plumbing Fixture Cases, 298 F. Supp. 484, 489 (J.P.M.L. 1968). In Kohl v. American Home Prods. Corp., a consumer brought a products liability action against manufacturers, distributors and sellers of the pharmaceutical drugs, fenfluramine and phentermine, to recover for injuries allegedly caused by the drugs. Kohl, 78 F. Supp. 2d at 887. In granting the defendant's motion to stay pending 7 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 9 of 11 the transfer of the case to the MDL Panel, the Court held that judicial economy would be best served if litigation was facilitated in the appropriate forum. Kohl, 78 F. Supp. 2d at 888. "If the MDL motion is granted, all of the Court's time, energy and acquired knowledge regarding the action and its pretrial procedures will be wasted." U.S. Bank National Association v. Royal Indemnity Co. , 2002 WL 31114069 (N.D. TX September 23, 2002). This Court, like the district court in Kohl, should not expend its limited resources "familiarizing itself with the intricacies of a case that would be heard [for pre-trial purposes] by another judge." Rivers, 980 F. Supp. at 1360. Moreover, this Court should abstain from scheduling additional status conferences and/or issuing additional discovery orders because "any efforts on behalf of this Court concerning case management will most likely have to by replicated by the judge that is assigned to handle the consolidated litigation." Id. Furthermore, to avoid the risk of inconsistent substantive legal rulings, pretrial proceedings in this matter and other actions should proceed in an orderly, coordinated fashion, as directed by the single court selected by the Judicial Panel. Accordingly, a stay in this case is appropriate as it will further the just and efficient conduct of this litigation. 8 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 10 of 11 III. CONCLUSION For all of the foregoing reasons, it is appropriate for this Court to exercise its sound discretion to stay these proceedings pending the decision of the Judicial Panel and a determination of class certification by the transferee court. A stay would further the interests of judicial economy, and promote just and efficient conduct of this litigation, while denying a stay would unnecessarily waste the efforts and resources of this Court and all parties. Without the stay, the defendant will suffer undue hardship and inequity, and the purpose for coordination and consolidation pursuant to 28 U.S.C. 1407 will be undermined. DEFENDANT, /s/ Matthew G. Conway BY:_____________________ Matthew G. Conway Fed. Bar. No. ct09612 Jennifer Katz Fed. Bar. No. ct26887 Conway & Stoughton, LLP 818 Farmington Avenue West Hartford, CT 06119 (860) 523-8000 (860) 523-8002 (fax) 9 Case 3:07-cv-00469-RNC Document 7-2 Filed 04/19/2007 Page 11 of 11 CERTIFICATION I hereby certify that on the April 19, 2007, a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court's CM/ECF System. /s/ Matthew G. Conway _______________________________ Matthew G. Conway 10

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