State of Hawaii v. Bristol-Myers Squibb Company

Filing 46

ORDER Denying Defendants' 39] Motion to Stay. Signed by JUDGE HELEN GILLMOR on 8/5/14. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII, ex rel. DAVID
M. LOUIE, ATTORNEY GENERAL,
Plaintiff,
vs.
BRISTOL-MYERS SQUIBB COMPANY;
SANOFI-AVENTIS U.S. LLC;
SANOFI US SERVICES INC.,
FORMERLY KNOWN AS SANOFIAVENTIS U.S. INC.;
SANOFI-SYNTHELABO INC.;
DOE DEFENDANTS 1-100,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civ. No. 14-00180 HG-RLP

ORDER DENYING DEFENDANTS’ MOTION TO STAY (ECF NO. 39)
The district court granted Plaintiff State of Hawaii, ex
rel. David M. Louie, Attorney General’s Motion to remand
proceedings to Hawaii State Court.

Defendants Bristol-Myers

Squibb Company, Sanofi-Aventis U.S. LLC, Sanofi US Services Inc.,
and Sanofi-Synthelabo Inc. filed a Motion to Stay.

Defendants

move to have the district court stay the remand to Hawaii State
Court until the Ninth Circuit Court of Appeals reviews the
decision granting Plaintiff’s Motion for Remand on appeal.
Defendants are not likely to succeed on the merits of the
appeal.

There is no indication the Defendants will suffer

irreparable harm if proceedings are remanded to state court

1

before the Ninth Circuit Court of Appeals renders a decision on
appeal.
DEFENDANTS BRISTOL-MYERS SQUIBB COMPANY, SANOFI-AVENTIS U.S.
LLC, SANOFI US SERVICES INC., AND SANOFI-SYNTHELABO INC.’S MOTION
FOR STAY OF [DOC. #38] MINUTE ORDER, FILED JULY 8, 2014 is
DENIED.

PROCEDURAL HISTORY
On March 19, 2014, Plaintiff State of Hawaii, by its
Attorney General David M. Louie, filed a Complaint in the Circuit
Court of the First Circuit, State of Hawaii.

(Complaint,

attached as Ex. A. to Defendants’ Notice of Removal, ECF. No. 11).
On April 16, 2014, Defendants Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and SanofiSynthelabo Inc. removed the action to the United States District
Court, District of Hawaii.

(ECF No. 1).

On May 5, 2014, Plaintiff filed PLAINTIFF’S MOTION FOR
REMAND.

(ECF No. 23).

On June 16, 2014, a Hearing on PLAINTIFF’S MOTION FOR REMAND
(ECF No. 23) was held.

(ECF No. 34).

On July 8, 2014, the Court issued a Minute Order granting
Plaintiff’s Motion for Remand and indicating a written order
would be filed at a later date.

(ECF No. 38).

2

On July 9, 2014, Defendants filed a MOTION FOR STAY OF
MINUTE ORDER, FILED JULY 8, 2014.

(ECF No. 39).

On July 15, 2014, the Court issued a written ORDER GRANTING
PLAINTIFF’S MOTION FOR REMAND.

(ECF No. 40).

On July 18, 2014, Defendants filed with the United States
Court of Appeals for the Ninth Circuit a Petition for Permission
to Appeal.

(ECF No. 43).

On July 21, 2014, Plaintiff filed PLAINTIFF STATE OF
HAWAII’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO STAY
REMAND TO STATE COURT PENDING APPEAL.

(ECF No. 41).

On July 22, 2014, Plaintiff filed an Amendment to its
Opposition.

(ECF No. 42).

On July 28, 2014, Defendants filed their REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION FOR STAY.

(ECF No. 44).

On August 1, 2014, Plaintiff filed a Second Amendment to its
Opposition.

(ECF No. 45).

Pursuant to Local Rule 7.2(e), the Court elected to decide
Defendants’ Motion to Stay (ECF No. 39) without a hearing.
BACKGROUND
The parties and the Court are familiar with the background
of this case.

For a recounting of the relevant history, see July

15, 2014 Order Granting Plaintiff’s Motion For Remand, Background
at pp. 5-7, ECF No. 40.

3

ANALYSIS
A stay of a judgment pending appeal is an exercise of
judicial discretion that is dependent upon the circumstances of
the particular case.
(2009).

Nken v. Holder, 556 U.S. 418, 433-34

The court considers four factors in determining whether

to grant a stay pending appeal:
(1)

whether the party seeking the stay is likely to succeed
on appeal;

(2)

whether the party seeking the stay will suffer
irreparable harm if the matter is not stayed;

(3)

whether the issuance of the stay will substantially
injure the other interested parties; and,

(4)

where the public interest lies.

Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011)
(citing Nken, 556 U.S. at 434; Hilton v. Braunskill, 481 U.S.
770, 776 (1987)).
critical.
1.

The first two stay factors are the most

Id.
Likelihood of Success on the Merits

The first consideration focuses on whether the party seeking
the stay for the purposes of appeal is likely to succeed on the
merits of the appeal.

Leiva-Perez, 640 F.3d at 966-67.

The

party seeking the stay must make a “strong showing” that he is
likely to succeed on the merits.

Id.
4

This means that the moving

party must show that it is “more likely than not that they will
win on the merits.”

Id.

28 U.S.C. § 1447(d) provides that an order remanding a case
to state court is generally not reviewable on appeal.

The Class

Action Fairness Act (“CAFA”) allows for an exception to the rule.
28 U.S.C. § 1453(c) authorizes federal courts of appeals to
exercise their discretion to accept an appeal from a remand order
pursuant to CAFA notwithstanding section 1447(d).

28 U.S.C. §

1453(c)(1).
Defendants seek to stay the remand of proceedings to Hawaii
State Court until the Ninth Circuit Court of Appeals can render a
decision on appeal pursuant to CAFA.
Section 1453(c)(2) provides that “[i]f the court of appeals
accepts an appeal under paragraph (1), the court shall complete
all action on such appeal, including rendering judgment, not
later than 60 days after the date on which such appeal was filed,
unless an extension is granted under paragraph (3).”

28 U.S.C. §

1453(a)(2).
The Ninth Circuit Court of Appeals has held that an appeal
pursuant to CAFA requires the party seeking appeal to file a
petition for permission to appeal pursuant to Federal Rule of
Appellate Procedure 5.

Amalgamated Transit Union v. Laidlaw

Transit Services, Inc., 435 F.3d 1140, 1145 (9th Cir. 2006).

The

60 day period begins to run after the entry of the order granting

5

permission to appeal is filed.

Lewis v. Verizon Comms., Inc.,

627 F.3d 395, 396 (9th Cir. 2010).
On July 18, 2014, the Defendants filed a petition for
permission to appeal pursuant to CAFA.

(ECF No. 43).

The Ninth

Circuit Court of Appeals has not yet ruled on Defendants’
petition for permission to appeal.
Defendants have not demonstrated that they are likely to
succeed on the merits of their petition.

There is no support for

Defendants’ position that any parens patriae action brought by
the Attorney General of Hawaii is a class action removable
pursuant to CAFA.

On August 1, 2014, the Ninth Circuit Court of

Appeals foreclosed Defendants’ argument in State of Hawaii ex
rel. Louie v. HSBC Bank Nevada, N.A., --- F.3d --–-, 2014 WL
3765697, at *8-11 (9th Cir. Aug. 1, 2014).

The appellate court

found that parens patriae actions filed by the Attorney General
of Hawaii that unambiguously disclaimed class action status were
not class actions “filed under” Rule 23 or a state law
equivalent.

Id. at *9.

The appellate court concluded that

“[f]ailure to request class status or its equivalent is fatal to
CAFA jurisdiction.”

Id.

The Ninth Circuit Court of Appeals held

that the parens patriae actions filed by the Attorney General
were not removable pursuant to CAFA.

Id. at *11.

Just as in Hawaii v. HSBC Bank Nevada, N.A., the Attorney
General of Hawaii disclaimed class action status in the Complaint

6

here.

There is no indication that the Ninth Circuit Court of

Appeals will likely find federal jurisdiction in this case in
light of the clear precedent.
The United States Supreme Court and the Ninth Circuit Court
of Appeals have consistently held that parens patriae cases
brought by States’ attorneys general are not removable pursuant
to CAFA.

State of Mississippi ex rel. Hood v. AU Optronics

Corp., 134 S.Ct. 736, 739 (2014); Nevada v. Bank of America
Corp., 672 F.3d 661, 667 (9th Cir. 2012); Washington v. Chimei
Innolux Corp., 659 F.3d 842, 849 (9th Cir. 2011).
The District Judge overseeing the Multi District Litigation,
In re Plavix Product Liability and Marketing Litigation, MDL No.
2418, has found that parens patriae cases filed by attorneys
general against the Defendants for their promotion and marketing
of Plavix are not removable pursuant to CAFA.

West Virginia ex

rel. McGraw v. Bristol Myers Squibb Co., 2014 WL 793569, *7-9 (D.
N.J. Feb. 26, 2014); (ECF No. 42, Pla.’s Ex. D, State of
Mississippi ex rel. Hood v. Bristol Myers Squibb Co., et al.,
Civ. No. 13-5910, ECF No. 100, MDL No. 2418 (D. N.J. Jul. 22,
2014)).
Defendants have not cited any case upholding the removal of
a parens patriae action filed by an attorney general pursuant to
CAFA.

The Defendants have not put forward any compelling legal

argument or reason why the Ninth Circuit Court of Appeals would

7

likely reverse the Remand Order.
The first stay factor strongly weighs against staying the
remand to the Hawaii State Court pending appeal.

2.

Irreparable Harm

Defendants must demonstrate that irreparable harm is
probable if a stay is not granted.

Nken, 556 U.S. at 430.

Defendants claim they will face “significant” harm if they are
forced to litigate proceedings in state court while the appeal is
reviewed by the federal appellate court.
Here, there is no indication that irreparable harm is
probable.

The Ninth Circuit Court of Appeals’ review of

Defendants’ appeal is expedited based on the procedures outlined
in CAFA.

See 28 U.S.C. § 1453(c)(2).

The expedited procedures

ensure that Defendants will not be subject to a protracted review
on appeal.

The expedited procedures minimize any potential harm

Defendants may face by litigating in state court.

Manier v.

Medtech Prods., Inc., --- F.Supp.2d ----, 2014 WL 2919304 *3, *4
(S.D. Cal. June 26, 2014).
It is not probable that litigating in state court will
create irreparable harm to Defendants.

Any discovery obtained in

state court would be relevant and applicable to the merits of the
case, even in the unlikely event that proceeding were removed
back to federal court.

Id.; Maui Land & Pineapple Co. v.

8

Occidental Chemical Corp., Civ. No. 97-01607ACK, 24 F.Supp.2d
1083, 1087 (D. Haw. Oct. 19, 1998) (finding potential discovery
obtained in state court while a federal appeal is pending does
not waste the parties’ resources and does not constitute
irreparable harm).
The irreparable harm factor weighs in favor of denying the
Defendants’ request for a stay of the Remand Order.
3.

Injury to Other Parties

The Court evaluates the third stay factor by analyzing
whether a stay will substantially injury the other parties
interested in the proceeding.

Lair v. Bullock, 697 F.3d 1200,

1215 (9th Cir. 2012).
This factor tips in favor of Plaintiff.

If the Court grants

Defendants’ request for a stay, Plaintiff would be prevented from
moving forward with discovery.

Maui Land & Pineapple Co., 24

F.Supp.2d at 1088 (denying the defendant’s request for a stay, in
part, because a stay would harm the plaintiff’s ongoing discovery
efforts).

Proceedings have already been delayed by more than

four months since Plaintiff filed the Complaint in March 2014.
Plaintiff has been subject to Defendants’ attempt to remove
proceedings to federal court and are now subject to the appeal
before the Ninth Circuit Court of Appeals.

Plaintiff has also

been subject to Defendants’ attempt to transfer the proceeding to

9

Multi District Litigation, MDL No. 2418, which remains pending.
Defendants have not demonstrated that the balance of harm tips in
their favor.
The third stay factor favors denying Defendants’ request for
a stay.

4.

Public Interest

The Court must weigh the public interest at stake against
Lair, 697 F.3d at 1215.

any harm to the opposing party.

Here, the public interest favors denying Defendants’ motion
to stay.

Public interest does not support continued interference

with state court proceedings.

Maui Land & Pineapple Co., 24

F.Supp.2d at 1087.
All four factors weigh in favor of denying the Defendants’
request for a stay pending appeal.

There is little likelihood of

the Defendants successfully appealing the Remand Order.

There is

no indication the Defendants will suffer irreparable harm while
the expedited appeal is pending.

The harm to the parties and

public interest factors do not support granting the Defendants’
request for a stay.
CONCLUSION
Defendants’ MOTION FOR STAY OF MINUTE ORDER, FILED JULY 8,
2014 (ECF No. 39) is DENIED.
10

The case and all files herein are REMANDED to the Circuit
Court of the First Circuit, State of Hawaii for further
proceedings.

IT IS SO ORDERED.

DATED: August 5, 2014, Honolulu, Hawaii.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

State of Hawaii, ex rel. David M. Louie, Attorney General, v.
Bristol-Myers Squibb Company; Sanofi-Aventis U.S. LLC; Sanofi US
Services Inc., formerly known as Sanofi-Aventis U.S. Inc.;
Sanofi-Synthelabo Inc.; Doe Defendants 1-100; Civ. No. 14-00180
HG-RLP; ORDER DENYING DEFENDANTS’ MOTION TO STAY (ECF NO. 39).
11