Hoholek et al v. AbbVie Inc. et al

Filing 24

OPINION AND ORDER: The Motion to Stay 6 is GRANTED, the Motion to Withdraw Appearances 20 is GRANTED, and the Motion for Extension of Time 21 is GRANTED nunc pro tunc. Defendants answers shall be due twenty (20) days after the stay is lifted, or, should the case be transferred to In reTestosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, according to the schedule issued by the MDL court. Signed by Judge Rudy Lozano on 12/17/2014. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THE ESTATE OF RONALD HOHOLEK,
deceased, by CHERYL HOHOLEK,
individually, and as Personal
Representative of the ESTATE
OF RONALD HOHOLEK,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
ABBVIE, INC., ABBOTT
)
LABORATORIES, INC., UNNAMED
)
HEALTHCARE PROVIDER PHYSICIAN )
“A,” UNNAMED HEALTHCARE
)
PROVIDER PHYSICIAN “B,” and
)
UNNAMED HEALTHCARE PROVIDER
)
PHYSICIAN “C,”
)
)
Defendants.
)

CAUSE NO. 2:14-CV-405

OPINION AND ORDER
This matter is before the Court on: (1) the Motion to Stay All
Proceedings, filed by AbbVie, Inc. and Abbott Labratories, Inc.
(collectively “Defendants”), on November 7, 2014 (DE #6); (2) the
Motion to Withdraw Appearances, filed by Andrea Roberts Pierson,
Victoria R. Calhoon, and the law firm of Faegre Baker Daniels LLP
on December 9, 2014 (DE #20); and (3) the Motion for Extension of
Time to Respond to Complaint, filed by Defendants on December 11,
2014.

(DE #21.)

For the reasons set forth below, the Motion to

Stay (DE #6) is GRANTED, the Motion to Withdraw Appearances (DE
#20) is GRANTED, and the Motion for Extension of Time (DE #21) is

GRANTED nunc pro tunc.

Defendants’ answers shall be due twenty

(20) days after the stay is lifted, or, should the case be
transferred to In re Testosterone Replacement Therapy Prods. Liab.
Litig., MDL No. 2545, as scheduled by the MDL court.

BACKGROUND
Defendants filed a Notice of Removal on November 6, 2014,
premised on diversity jurisdiction.

(DE #1.)

In it, they assert

that the Estate of Ronald Hoholek and Cheryl Hoholek (collectively
“Plaintiffs”) are citizens of Indiana, Defendants are citizens of
Illinois and Deleware, and that the unnamed physicians’ citizenship
is irrelevant for removal purposes pursuant to 28 U.S.C. section
1441(b)(1).

The subsequently filed Motion to Stay All Proceedings

points out that transfer to In re Testosterone Replacement Therapy
Prods. Liab. Litig., MDL No. 2545 (the “MDL”) is likely and that
the stay will promote judicial economy by allowing the MDL judge to
handle common and overlapping issues.

(DE #6, p. 1.)

Defendants

state that this case, like the 476 other cases currently pending in
the

MDL,

“focuses

on

the

alleged

increased

risks

[of

using

testosterone replacement therapy] and failed to disclose them to
the medical community and consumers.”

(Id. at 3.)

Defendants

argue that a stay would conserve judicial resources and promote
judicial economy because of the likely transfer, that Defendants
would be prejudiced by having to reargue the same issues in

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numerous courts and would be denied the benefit of the “highly
organized process already underway in the MDL proceeding” if the
stay is denied, and that the prejudice to Plaintiffs would be
minimal if the stay is granted because they have expended limited
resources to date and because discovery has not yet begun. (Id. at
5-7.)

A conditional transfer order (“CTO”) was filed on November

10, 2014, conditionally transferring this action to the MDL.

(See

DE #7-1.)
On November 13, 2014, Plaintiffs filed an Objection and
Response in Opposition to Defendants’ Notice of Removal.

(DE #8.)

Plaintiffs argue that because the unnamed physician defendants’
names are both easily and readily available to Defendants, they
should not be deemed “fictitious” for diversity purposes.
pp. 2-3.)

(DE #8,

Plaintiffs have also filed a Notice of Opposition to

Conditional Transfer Order in the MDL itself.

(DE #11-1.)

On

November 14, 2014, Plaintiffs filed an Objection and Response in
Opposition to Defendants’ Motion to Stay Proceedings stating that
Defendants’ motion is premature because it is “solely predicated
upon [Defendants’] optimistic ‘likely’ transfer to the MDL,” that
the transfer is merely conditional at this point, that Defendants’
assertion of diversity jurisdiction is being challenged, and that
the case is inappropriate for inclusion in the MDL because of the
addition of the unnamed healthcare provider physicians.
pp. 1-2.)

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(DE #13,

On November 18, 2014, Defendants filed a Reply in Support of
Defendants’ Motion to Stay All Proceedings. (DE #14.) In it, they
argue that a stay would not be premature or inappropriate because
courts routinely grant motions to stay even when a plaintiff
objects to the CTO and/or removal.

(DE #14, p. 1.)

On December 9, 2014, Andrea Roberts Pierson, Victoria R.
Calhoon, and the law firm of Faegre Baker Daniels LLP filed a
Motion to Withdraw Appearances as counsel for Abbott Labratories,
Inc. because Alice M. Morical and Allyson E. Emley of the law firm
Hoover Hull LLP have filed a Notice of Appearance on behalf of
Abbott Labratories.

(DE’s #19 & #20.)

Finally, on December 11, 2014, Defendants filed a Motion for
Extension of Time to Respond to Complaint.

(DE #21.)

In it, they

state that the United States Judicial Panel on Multidistrict
Litigation (the “JPML”) is expected to issue a ruling regarding the
MDL transfer at any time, that Defendants’ answers were due the day
the Motion for Extension was filed, and that Plaintiffs do not
object to an extension.

(Id. at 2.)

ANALYSIS
A CTO is not effective until it is filed with the clerk of the
transferee district court. Ill. Mun. Retirement Fund v. Citigroup,
Inc., 391 F.3d 844, 850 (7th Cir. 2004) (citing JPML Rule 7.4(e)).
Until that time, pretrial proceedings and orders by the initial

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district court are not limited or curtailed.
Rule 1.5).
district

(Id.) (citing JPML

The Seventh Circuit has indicated that an initial

court

may,

but

is

not

required

to,

rule

on

issues

affecting its own jurisdiction while a transfer decision from the
JPML is pending.

(Id. at 852.)

The decision to grant or deny a

stay rests within the court’s sound discretion.

See Brooks v.

Merck & Co., 443 F.Supp.2d 994, 997 (S.D. Ill. 2006).

Under the

framework set forth in Meyers v. Bayer AG, 143 F.Supp.2d 1044 (E.D.
Wis. 2001), when determining whether to defer ruling on a motion to
remand while a transfer issue is pending before the JPML, a
district court’s “first step should be to make a preliminary
assessment of the jurisdictional issue.”

Id. at 1048.

If the

preliminary assessment suggests that removal was improper, then the
court may consider the motion to remand.

Id. at 1048–49.

Here, this Court’s initial assessment of Plaintiffs’ Objection
to Defendants’ Notice of Removal is that removal was proper in this
case.

See 28 U.S.C. § 1441(b)(1) (“In determining whether a civil

action is removable on the basis of the jurisdiction under section
1332(a) of this title, the citizenship of defendants sued under
fictitious names shall be disregarded.”); Thornburg v. Stryker
Corp., No. 1:05-CV-1378RLY-TAB, 2006 WL 211952, *1-2 (S.D. Ind.
Jan. 27, 2006) (discussing removal statute in conjunction with the
Indiana Medical Malpractice Act and holding that removal was proper
because the unnamed doctor and medical group remained anonymous at

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the time the motion to remand was filed); but see Caywood v.
Anonymous Hosp., 856 F.Supp.2d 1001, 1002 (motion to remand granted
where the plaintiff attached a number of exhibits to her motion
that clearly identified the Hospital and its citizenship). Because
the unnamed healthcare provider physicians in this case have not
yet been identified, the Court finds no reason to presume that
removal was improper. Therefore, the Court declines to rule on the
jurisdictional

questions

presented

at

this

time1

and

chooses

instead, in its discretion, to stay this case pending the transfer
ruling by the JPML.
Judicial economy weighs in favor of a stay.

There are

currently 476 cases pending in the MDL, and a decision on whether
this case will also be transferred is expected shortly.

Should

this case be transferred, judicial resources will be saved by
avoiding duplicative litigation of common issues.

Furthermore,

inconsistent rulings on common issues, including those related to
removal and remand, may be prevented by staying this matter.
Finally, the potential prejudice to Defendants if they are required
to re-argue the same issues before various courts is greater than
the potential prejudice Plaintiffs may face as a result of a slight
delay because of the issuance of a stay.

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Therefore, on balance,

The Court notes that this preliminary jurisdictional assessment is not
a final determination of the matter. Should the transfer be granted, the MDL
court will rule upon this issue; if the transfer is denied, this Court will
address the issue in depth upon the lifting of the stay.

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the Court finds that a stay is appropriate, and Defendants’ Motion
to Stay is GRANTED. However, for purposes of clarity of the docket
and record moving forward, the Court hereby GRANTS the Motion to
Withdraw Appearances and Motion for Extension of Time prior to the
actual commencement of the stay.

CONCLUSION
For the reasons set forth above, the Motion to Stay (DE #6) is
GRANTED, the Motion to Withdraw Appearances (DE #20) is GRANTED,
and the Motion for Extension of Time (DE #21) is GRANTED nunc pro
tunc.

Defendants’ answers shall be due twenty (20) days after the

stay is lifted, or, should the case be transferred to In re
Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545,
according to the schedule issued by the MDL court.

DATED: December 17, 2014

/s/RUDY LOZANO, Judge
United State District Court

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