Israel v. Johnson & Johnson, Inc. et al

Filing 22

MEMORANDUM. Signed by Judge James K. Bredar on 12/19/12. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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SUSAN T. ISRAEL,

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Plaintiff

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v.

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JOHNSON & JOHNSON, et al.,

CIVIL No. 12-cv-2953-JKB

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Defendants
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MEMORANDUM
Susan T. Israel (“Plaintiff”) brought this action against Johnson & Johnson,1 DePuy
Orthopaedics, Inc. and Chesapeake Surgical, Ltd. (“Defendants”) alleging state law claims for
injuries caused by a defective hip replacement implant. Now pending before the Court are
Plaintiff’s motion for relief under FED. R. CIV. P. 60(b)(1) from the Court’s order granting a stay
of the proceedings (ECF No. 14) and Plaintiff’s motion to remand the case to the state court
(ECF No. 15). The issues have been briefed and no hearing is required. Local Rule 105.6. For
the reasons set forth below, Plaintiff’s motion for relief under FED. R. CIV. P. 60(b)(1) (ECF No.
14) will be DENIED and the Court will defer consideration of the Plaintiff’s motion to remand
(ECF No. 15), which remains pending.
I.

BACKGROUND

On August 30, 2012, Plaintiff filed this action in the Circuit Court of Maryland for
Baltimore City. (See Compl., ECF No. 2.) The complaint alleges that Plaintiff was harmed by a
prosthetic hip implant device, which was “developed, manufactured, promoted, distributed and
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Plaintiff incorrectly identified this Defendant as Johnson & Johnson, Inc.

sold” by Defendants. (See Compl. ¶ 2.) There are over 6,000 suits related to this hip replacement
implant, and as a result, it is subject to Multidistrict Litigation (“MDL”). (Notice of Removal at
2, ECF No. 1; see also Pl. Remand Br. at 6, ECF No. 15-1.)
Defendants removed the action to this Court on October 5, 2012, invoking this Court’s
diversity jurisdiction. (ECF No. 1.) On the same day, Defendants filed a motion to stay the
proceedings pending transfer by the Judicial Panel on MDL; the Court granted that motion on
October 17, 2012. (ECF Nos. 5, 12.) On October 18, 2012, Plaintiff filed the two motions that
are currently before the Court: (1) a motion for relief under FED. R. CIV. P. 60(b)(1) from the
Court’s order granting the stay (ECF No. 14); and (2) a motion to remand the case to the state
court (ECF No. 15).
II.

LEGAL STANDARD

It is well established that “the power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). Courts should consider three factors when ruling on a motion to stay: “(1) the interests
of judicial economy; (2) hardship and equity to the moving party if the action is not stayed; and
(3) potential prejudice to the non-moving party.” Johnson v. DuPuy Orthopaedics, Inc., No. 12
Civ. 2274 (JFA), 2012 WL 4538642, *2 (D.S.C. Oct. 1, 2012) (quoting Meyers v. Bayer AG, 143
F. Supp. 2d 1044, 1049 (E.D. Wis. 2001)).
Generally, an action brought in a state court may be removed only if the district court
would have had original jurisdiction over the action. See 28 U.S.C. § 1441(a). “The burden of
establishing federal jurisdiction is placed upon the party seeking removal.”

Mulcahey v.

Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Federal courts “must strictly

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construe removal jurisdiction,” because it “raises significant federalism concerns.” Id. “If at any
time before final judgment it appears that the district court lacks subject matter jurisdiction, the
case shall be remanded.” 28 U.S.C. § 1447(c).
III.

ANALYSIS

Plaintiff argues that a stay of the proceedings in this matter is inappropriate because it
will not promote uniformity or preserve judicial resources. Plaintiff also argues that it would be
inappropriate for the Court to defer the litigation of subject matter jurisdiction to the MDL court,
because of the fundamental nature of the Court’s subject matter jurisdiction.

The Court

disagrees. “The Judicial Panel on Multidistrict Litigation has held that a district court judge has
the authority to either wait for a transfer order without ruling on a motion to remand, or to rule
on the motion before a transfer order has been issued.” Moore v. Wyeth-Ayerst Labs., 236 F.
Supp. 2d 509, 511 (D. Md. 2002) (citing In re Asbestos Prods. Liab. Litig., 170 F. Supp. 2d
1348, 1349 n.1 (Jud. Pan. Mult. Litig. 2001)); see also Yearwood v. Johnson & Johnson, Inc.,
No. 12 Civ. 1374 (RDB), 2012 WL 2520865, *3 (D. Md. June 27, 2012). Deferring this decision
to the transferee judge can be appropriate where it will prevent repetitive pretrial rulings,
encourage consistency among those rulings, and preserve the resources of the parties, their
counsel and the judiciary. Id.
The first factor to be considered in determining whether to grant a stay is the interests of
judicial economy. The nature of the jurisdictional dispute in this case and the many similar cases
suggests that a stay would promote judicial efficiency and consistent adjudication. Defendants
argue that their removal of this case was appropriate because Defendant Chesapeake Surgical
was fraudulently joined. Defendants further argue that any state law claims against Chesapeake
Surgical are preempted by federal law, citing PLIVA, Inc. v. Mensing, 564 U.S. ---, 131 S. Ct.

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2567, 2577 (2011). Plaintiff disagrees and asserts that Defendants could have complied with
federal law and Maryland state law at the same time. In order to resolve this jurisdictional
dispute, the Court must thoroughly analyze the relevant federal laws and regulations, relevant
Maryland law, the Mensing decision, and evidence of Defendants’ knowledge and actions.
It appears likely that the same issue will arise in other cases with similar motions to
remand before the MDL court. See, e.g., Benfield v. DePuy Orthopaedics, Inc., No. 12 Civ.
1601 (RWT), ECF No. 40 (D. Md. Sept. 5, 2012); Wood v. Johnson & Johnson, No. 12 Civ.
1572 (WDQ), 2012 WL 3240934 (D. Md. Aug. 3, 2012).

Plaintiff argues that allowing the

MDL court to resolve this issue will not preserve judicial resources, because each case requires
an individualized assessment of such jurisdictional issues. It may be true that some issues will
differ across cases, but the most critical and difficult issues in relation to preemption—e.g., what
is required of Defendants by relevant federal laws and regulations; the scope of the Mensing
decision—are common to all of these motions. Allowing the MDL court to resolve this issue
would be efficient and avoid the possibility of conflicting decisions.
The two remaining factors to be considered in determining whether to stay proceedings
are the hardship to the Defendants if the action is not stayed and the prejudice to Plaintiff if the
action is stayed. There is a real risk that Defendants will face hardship and prejudice if a stay is
not granted. Absent a stay, Defendants will be forced to duplicate its litigation efforts and
perhaps face inconsistent decisions in the different courts.

See, e.g., Freisthler v. DePuy

Orthopaedics, Inc., No. 11 Civ. 6580 (DSF), 2011 WL 4469532, *2 (C.D. Cal. Sept. 21, 2011).
In addition, and as other district courts have found when faced with similar motions, Plaintiff
will not face substantial prejudice if the case is stayed. See, e.g., id. Although it is possible, as
Plaintiff argues, that Plaintiff will face some delay as a result of the MDL process, Plaintiff has

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not established that any such delay would be prejudicial. “[T]here is no evidence that the JPML
is delaying resolution of whether this case should be transferred to the MDL court, nor is there
any evidence that the pending MDL . . . is proceeding slowly.” Brewer v. DePuy Orthopaedics,
Inc., No. 12 Civ. 1473 (TEH), 2012 WL 1595083, *2 (N.D. Cal. May 4, 2012). For these
reasons, the balance of the parties’ interests tips in favor of a stay.
IV.

CONCLUSION

Accordingly, an order shall issue DENYING Plaintiff’s motion for relief under FED. R.
CIV. P. 60(b)(1) (ECF No. 14) and DEFERRING CONSIDERATION of Plaintiff’s motion to
remand (ECF No. 15), which remains pending.

Dated this 19th day of December, 2012

BY THE COURT:

/s/
James K. Bredar
United States District Judge

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