Kona Ice, Inc. v. Bumgarner
ORDER that all pretrial proceedings, including requirements under the Local Civil Rules and Local Patent Rule, are STAYED pending resolution of the Motion to Transfer now pending before the JPMDL. Signed by District Judge Max O. Cogburn, Jr on 2/13/18. (Pro se litigant served by US Mail.)(mga)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:17-cv-00563-MOC-DCK
KONA ICE, INC.,
THIS MATTER is before the Court on a request for status made by the Clerk of Court
concerning what appears to be a copy of the Motion for Transfer and Consolidation of Actions to
the Southern District of Florida Pursuant to 28 U.S.C. § 1407 (#17), a pleading which may or may
not be pending before the Judicial Panel on Multi District Litigation (“JPMDL”).
The Court notes some irregularities with such filing, including the lack of any JPMDL case
number on the copy of the Motion to Transfer or any indicia thereon indicating that it was filed
with the JPDML, such as a file stamp. In the past, the Court has seen true teste copies of motions
to transfer transmitted to this Court by the JPMDL. In addition, the document was submitted to
this district by attorneys and parties who have not entered their appearance and who do not appear
to be members of the Bar of this Court. Putting aside those concerns, the Court has reviewed the
JPMDL docket and determined that a case has been opened, In re: Liquid Toppings Dispensing
System ('447) Patent Litigation, MDL No. 2832 (JPMDL Feb. 5, 2018), that the Motion to Transfer
has been accepted for filing, id. at (#2), and that a Briefing Schedule, id. at (#4) has been entered.
Thus, the Court concludes based on the suggestion upon this Court’s docket and
confirmation by review of the JPMDL docket that a Motion to Transfer has been filed. With that
confirmation, the request for status by the Clerk of Court is both appropriate and timely because
once an Answer is filed, a number of deadlines are triggered and notices are transmitted by the
Clerk of Court, including advising the parties of the requirement of conducting an Initial Attorneys
Conference (“IAC”) as provided in the Local Civil Rules as well as Local Patent Rule 2.1.
With a Motion to Transfer now pending before the JPMDL, the Court concludes that it
would likely be a waste of judicial and litigant resources to move forward with the IAC and
discovery. Indeed, such activity in this Court would, to some extent, be counter to the cost-savings
envisioned by § 1407 as well as the 2015 revisions to Rule 1, Federal Rules of Civil Procedure. In
so finding, this Court does not presume that the Motion to Transfer will be granted; however, its
reading of the Motion to Transfer convinces the Court that transfer is plausible.
In light of the purposes of § 1407 and the recent revisions to Rule 1, the Court will stay
this action pending resolution of the Motion to Transfer now pending before the JPMDL. As this
decision has been made sua sponte based on the Clerk’s inquiry into status, any party may move
to lift the stay and therein show reasons why pretrial proceedings should be allowed to move
forward in this action.
IT IS, THEREFORE, ORDERED that all pretrial proceedings, including requirements
under the Local Civil Rules and Local Patent Rule, are STAYED pending resolution of the Motion
to Transfer now pending before the JPMDL.
Signed: February 13, 2018
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