Fox v. DePuy Orthopaedics, Inc. et al
MEMORANDUM OPINION by Judge Charles R. Simpson, III on 12/2/2011; re 8 motion to remand, 9 motion for expedited hearing, and 7 motion to stay; an order consistent with this opinion will be entered this date.cc:counsel (TLB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:11-cv-387-CRS
DEPUY ORTHOPAEDICS, INC. et al.
This matter is before the court on motions of the plaintiff, Joyce Fox (“Plaintiff”) to remand
this action to Jefferson County Circuit Court (DN 8), for an expedited hearing on Plaintiff’s motion
to remand (DN 9), and motion of the defendants, Depuy Orthopaedics, Inc., Depuy, Inc., Johnson
& Johnson Services, Inc., and Johnson & Johnson1 (collectively, “Defendants”), to stay all
proceedings pending transfer to MDL No. 2197 (DN 7). For the following reasons, Defendants’
motion to stay will be granted.
Plaintiff brought this products liability action in Jefferson County Circuit Court alleging
theories of strict liability, negligence, breach of implied warranty of merchantability, and violations
of the Kentucky Consumer Protection Act, involving an allegedly defective ASR Hip Implant
device. Defendants removed this action to federal court pursuant to 28 U.S.C. §§ 1332 and 1441,
alleging diversity of citizenship existed between the parties because Orthopaedic Partners, LLC was
fraudulently joined by Plaintiff.
Incorrectly captioned as Johnson & Johnson, Inc.
The Judicial Panel on Multidistrict Litigation (“MDL Panel”) issued a conditional transfer
order transferring this action pursuant to 28 U.S.C. § 1407. In the lawsuit entitled Bringham v.
DePuy Orthopaedics, Inc., et al. (N.D. Cal., Case No. 3:10-cv-3886), the plaintiff filed a motion
with the MDL Panel for consolidation of pretrial proceedings. The MDL Panel entered an order
assigning DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation to the Honorable
David A. Katz of the United States District Court for the Northern District of Ohio. Defendants
provided the MDL Panel with notice of this action pursuant to the “tag-along” procedure and the
MDL Panel issued the conditional transfer order transferring this action to Judge Katz. Plaintiffs
have filed a motion to remand (DN 8) and objection to Defendant’s motion to stay all proceedings
(DN 9), arguing that this court should rule on her remand motion before a MDL Panel final transfer
decision is made.
Whether to grant a stay of proceedings pending a final ruling of the MDL Panel on the
transfer of a case is within the inherent power of the court and is discretionary. Tolley v. Monsanto
Co., 591 F.Supp.2d 837 (S.D. W.Va. 2008); Paul v. Aviva Life & Annuity Co., No. 09-1038, 2009
U.S. Dist. LEXIS 64420, *2 (N.D. Ill. July 27, 2009); see also Landis v. N. Am. Co., 299 U.S. 248,
254 (1936) (the power to stay proceedings is “incidental to the power inherent in every court to
control the disposition of the causes in its docket with economy of time and effort for itself, counsel
and for litigants”); Ohio Environment Council v. U.S. Dist. Court, Southern Dist. Of Ohio, Easter
Div., 565 F.2d 393, 396 (6th Cir. 1977). While some courts choose to rule on pending motions to
remand prior to the MDL Panel’s decision on transfer, other courts choose to grant a stay, even if
a motion to remand has been filed. Tolley, 591 F.Supp.2d at 844. A motion to dismiss or to remand,
if it “rais[es] issues unique to a particular case, may be particularly appropriate for resolution before
the [MDL] Panel acts on the motion to transfer. Id. (citing Manual for Complex Litigation (Fourth)
20.131 at 221). However, “judicial economy is served by a stay pending transfer if the issues
involved in the remand motion are likely to arise in the cases that have been or will be transferred
to the MDL transferee court.” Ayers v. ConAgra Foods, Inc., 2009 WL 982472, *1 (S.D. Tex.
2009). “Once transferred, the jurisdictional objections can be heard and resolved by a single court
and reviewed at the appellate level in due course.” In re Ivy, 901 F.2d 7, 9 (2d Cir. 1990).
The MDL Panel has already issued a Transfer Order transferring eight products liability
cases pending in this district against Defendants and Orthopaedic Partners to Judge Katz. Each case
had remand motions pending involving the same issue raised in Plaintiff’s motion to remand,
namely, whether Orthopaedic Partners had been fraudulently joined under Kentucky law.2 In those
cases, the plaintiffs objected to the transfer, but the MDL Panel rejected the objections, stating that
“Plaintiffs in these actions can present their motions for remand to the transferee judge.” In re:
DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, MDL No. 2197, DN 732
at 1 (J.P.M.L. August 9, 2010) (citing In re Ivy, 901 F.2d 7 (2d Cir. 1990); In re Prudential Ins. Co.
of Am. Sales Practices Litig., 170 F.Supp.2d 1346, 1347-48 (J.P.M.L. 2001)). Most recently, Judge
McKinley stayed all proceedings and declined to decide a plaintiff’s motion to remand in another
action against Defendants in the Western District of Kentucky, because a conditional transfer order
was pending before the MDL Panel. See Vincent v DePuy Orthopaedics, Inc., et al, Case No. 1:11-
See Johnson v. DePuy Orthopaedics, Inc., et al, Case No. 5:11-cv-45 (W.D. Ky.); Carnes
v. DePuy Orthopaedics, Inc., et al, Case No. 5:11-cv-46 (W.D. Ky.); McElwayne v. DePuy
Orthopaedics, Inc., et al, Case No. 5:11-cv-47 (W.D. Ky.); Lacey v. DePuy Orthopaedics, Inc., et
al, Case No. 5:11-cv-48 (W.D. Ky.); Humphrey v. DePuy Orthopaedics, Inc., et al, Case No. 5:11cv-49 (W.D. Ky.); Thomas v. DePuy Orthopaedics, Inc., et al, Case No. 5:11-cv-50 (W.D. Ky.);
Kimbro v. DePuy Orthopaedics, Inc., et al, Case No. 5:11-cv-51 (W.D. Ky.); Bryson v. DePuy
Orthopaedics, Inc., et al, Case No. 5:11-cv-52 (W.D. Ky.).
cv-102 (W.D. Ky.). The case involved the same fraudulent joinder at issue here and Judge
McKinley held that “staying the present action pending the MDL Panel’s final transfer decision
[would] prevent inconsistent pretrial rulings and promote judicial efficiency.” Id.
It would unnecessarily duplicate work and potentially lead to inconsistent results if this court
were to rule on Plaintiff’s motion to remand before the MDL Panel’s final decision. With at least
eight pending motions for remand involving the exact same fraudulent joinder issue under Kentucky
law currently pending in MDL No. 2197, “it is clear that the transferee court will be well-equipped
to make an informed and uniform decision on all of these motions to remand” to the Kentucky state
court. Camara v. Bayer Corp., 2010 WL 902780, *2 (N.D. Cal. March 9, 2010). Therefore, the
court concludes that all proceedings should be stayed pending the MDL Panel’s final transfer
An order consistent with this opinion will be entered this date.
December 2, 2011
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