SHERTZER v. STRYKER CORPORATION et al

Filing 29

ORDER on 9/26/08 Initial Pretrial Conference: The parties appeared by counsel for an initial pretrial conference. Argument was held regarding deft's motion to stay 26 . For the reasons set forth at the conference, and as set forth below, the Court granted the motion and set certain deadlines also noted in this order (See Order for established deadlines). The proposed CMP 28 is denied. Signed by Magistrate Judge Tim A. Baker on 10/6/08. (SWM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION JULIE SHERTZER Plaintiff, vs. STRYKER CORPORATION, et al., Defendants. ) ) ) ) ) ) ) ) )

1:08-cv-0856-RLY-TAB

ORDER ON SEPTEMBER 26, 2008, INITIAL PRETRIAL CONFERENCE The parties appeared by counsel on September 26, 2008, for an initial pretrial conference. Argument was held regarding Defendant's motion to stay discovery. [Docket No. 26.] For the reasons set forth at the conference, and as set forth below, the Court granted the motion and set certain deadlines also noted in this order. Defendants seek a stay of discovery for a variety of reasons. [Docket No. 26.] Defendants' reasons are well taken. In brief, Plaintiff filed what Defendants rightly characterized as a 10-count "scattershot" complaint, followed by what can fairly be characterized as overbroad discovery despite the failure to engage in the conference required by Fed. R. Civ. P. 26(f). Plaintiff was given an opportunity at the conference to specify what discovery, if any, was needed to respond to the motion to dismiss and the motion for summary judgment Defendants filed [Docket Nos. 10, 13], but was unable to do so. The pending motion for summary judgment presents a substantial question as to preemption of some or all of Plaintiff's claims in light of Riegel v. Medtronic, __ U.S. __, 128 S.Ct. 999 (2008). Plaintiff's main argument in support of discovery was that she needed discovery to

respond to two documents submitted in support of the motion to dismiss. These documents, however, are publicly available documents of the U.S. Food and Drug Administration, and Plaintiff does not contest their authenticity. As a result, the submission of these documents does not support Plaintiff's request for discovery. See Horne v. Novartis Pharms. Corp., 541 F. Supp.2d 768, 777 (W.D.N.C. 2008) (records appropriate for judicial notice in a Rule 12(b)(6) motion to dismiss include FDA documents). Accordingly, Defendants' motion to stay discovery [Docket No. 26] is granted. Plaintiff shall have until October 27, 2008, to respond to the pending motion to dismiss and for summary judgment. In addition, Plaintiff shall file a notice with the Court no later than October 14, 2008, indicating whether Plaintiff will dismiss Defendant Stryker Corporation from this case, as it appears that Stryker did not manufacture or sell the product in question. If Plaintiff does not intend to dismiss Stryker, Plaintiff shall cure any defects in service on Stryker by October 14, 2008. The proposed Case Management Plan [Docket No. 28] is denied. Dated: 10/06/2008

_______________________________ Tim A. Baker United States Magistrate Judge Southern District of Indiana

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Copies to: Douglas B. Bates STITES & HARBISON, LLP [e-mail] Stephen B. Caplin CAPLIN PARK TOUSLEY & MCCOY [e-mail] Robert M. Connolly STITES & HARBISON PLLC [e-mail] Bruce Benjamin Paul STITES & HARBISON, LLP [e-mail]

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