Hood v. Bristol-Myers Squibb Company et al

Filing 51

MEMORANDUM OPINION re 50 Order on Motion to Stay. Signed by Glen H. Davidson on 1/2/2013. (dlh)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

JIM HOOD, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI,

ex reI. THE STATE OF MISSISSIPPI

v.

PLAINTIFF

CIVIL ACTION NO. 1:12-CV-00179-GHD-DAS

BRISTOL-MYERS SQUIBB COMPANY;

SANOFI-AVENTIS U.S. L.L.C.; SANOFI-AVENTIS, U.S., INC.;

SANOFI-SYNTHELABO, INC.; and DOES 1 to 100, Inclusive

DEFENDANTS

MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO STAY

PROCEEDINGS PENDING DECISION BY JUDICIAL PANEL ON MULTIDISTRICT

LITIGATION

Presently before the Court is Defendants' motion to stay proceedings pending a decision
by the Judicial Panel on Multidistrict Litigation [43]. Plaintiff has filed an opposition to the
motion, Defendants have filed a reply, and the matter is now ripe for review.

Upon due

consideration, the Court finds that the motion to stay [43] is well taken.

A. Factual and Procedural Background
On June 29, 2012, Plaintiff, the Attorney General of the State of Mississippi ("Plaintiff"),
filed suit in the Circuit Court of Chickasaw County, Mississippi against Defendants BristolMyers Squibb Company; Sanofi-Aventis U.S., LLC; Sanofi-Aventis U.S., Inc.; and SanofiSynthelabo, Inc. (collectively, "Defendants"). Plaintiff alleges that Defendants unfairly, falsely,
and deceptively labeled and promoted the prescription drug Plavix® (clopidogrel bisulfate) to
consumers and healthcare providers.

Plaintiff seeks civil penalties under the Mississippi

Consumer Protection Act and disgorgement in equity for Defendants' alleged unjust enrichment,
as well as an injunction against Defendants' alleged acts of unfair methods of competition and/or

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unfair and deceptive trade practices in the promotion and sale of Plavix® through false and
misleading advertising of the drug.
On August 17, 2012, Defendants removed the suit to federal court alleging the following
bases for the Court's subject matter jurisdiction: diversity jurisdiction, federal question
jurisdiction, and jurisdiction under the Class Action Fairness Act ("CAF A") pursuant to 28
U.S.C. § 1332(d). On September 17,2012, Plaintiff filed a motion to remand [22] the action to
state court. Discovery was stayed pending resolution of the motion to remand. Defendants filed
a response in opposition to the motion to remand. Then, on October 15, 2012, Defendants
notified this Court of their filing with the United States Judicial Panel on Multidistrict Litigation
(the "Panel") a renewed motion to transfer the action to a single judge for coordinated or
consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. 1 Defendants had filed a prior
motion to transfer with the Panel relating to other Plavix® litigation; that transfer motion was
denied by the Panel on December 14, 2011. The Attorney General filed an opposition to the
renewed transfer motion with the Panel. Subsequently, Defendants filed this motion to stay
proceedings in this Court pending the Panel's transfer decision [43].

B. Motion to Stay Proceedings
An action is not automatically stayed upon the filing of a motion to transfer action to
MDL. However, "[t]he District Court has broad discretion to stay proceedings as an incident to
its power to control its own docket," and "[t]he proponent of a stay bears the burden of
establishing its need." Clinton v. Jones, 520 U.S. 681, 706, 117 S. Ct. 1636, _ _ (1997
(internal citation omitted); see also Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th
Cir. 1983).
1 The matter pending before the Panel is MDL Docket No. 2418, In Re Plavix® Marketing, Sales Practice
and Prods. Liab. Litig. (No. II).

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Defendants argue that the Court should stay all proceedings in this case, including the
Court's consideration of the pending remand motion, until such time as the Panel issues a
decision on transfer to the MDL. Defendants argue that a stay would promote uniformity of
decisions and avoid unnecessary duplication of efforts, particularly with respect to jurisdictional
issues, such as those presented in the remand motion. Defendants also contend that the stay
would be short in duration, and thus would not prejudice the Attorney General, because the Panel
typically rules on transfer motions in approximately three months.
The Attorney General strongly opposes a stay of the proceedings, contending that a stay
would mean the remand motion would not be ruled on until after the decision on the transfer
issue, and that even if a transfer is granted, the parties would be required to litigate the remand
question before a hypothetical MDL transferee court. The Attorney General maintains that the
Court should answer the jurisdictional question before it, because a pending transfer decision by
the Panel is no justification for staying the matter. The Attorney General argues that "[t]he issue
of subject matter jurisdiction is more fundamental than wholly unrelated considerations of
efficiency or fairness that are moot if there is no federal subject[] matter jurisdiction over this
action." AG's Resp. Opp'n ~ 3. Next, the Attorney General argues that this case is unique from
the other cases pending against Plavix®, as this case is "the only consumer protection 'Plavix'
case brought by a state attorney general that is believed to be currently on file in federal court"
and "the State [is suing] Defendants exclusively under Mississippi law for civil penalties and
injunctive relief only stemming from violations of the [Mississippi Consumer Protection Act]."

Id.

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4. Finally, the Attorney General argues that the law governing the remand question is not

uniform across the various circuits and thus that it is most efficient for this Court to answer the
remand question.

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The Court finds that the proceedings in this case should be stayed, given that a stay
would promote judicial economy, and the Attorney General would not suffer prejudice from a
stay only in effect until the MDL panel issues its transfer decision.
C. Conclusion

Therefore, Defendants' motion to stay proceedings pending a decision by the Judicial
Panel on Multidistrict Litigation [43] is GRANTED, and the proceedings in the case sub judice
are stayed pending transfer decision by the Judicial Panel on Multidistrict Litigation.

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A separate order in accordance with this opinion shall issue this day.

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THIS, the""

day of Dee........, 2912.

SENIOR JUDGE

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