MEIJER INC. et al v. RANBAXY, INC. et al

Filing 15

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/15/17. 6/15/17 ENTERED AND COPIES MAILED, EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MEIJER INC., and MEIJER
DISTRIBUTION, INC.,
Plaintiffs,

MISCELLANEOUS ACTION

v.
NO. 17-91
RANBAXY INC., RANBAXY
LABORATORIES, LTD, RANBAXY
U.S.A., INC., and SUN
PHARMACEUTICAL INDUSTRIES LTD.,
Defendants.
MEMORANDUM OPINION
This is a miscellaneous action brought by Meijer, Inc. and Meijer Distribution, Inc.
(“Meijer”) to transfer a motion to compel a response to subpoenas duces tecum served on generic
drug manufacturers Endo Health Solutions, Inc. and Endo Pharmaceuticals (“Endo”) –
companies based in Malvern, Pennsylvania – in the matter of Meijer, Inc. v. Ranbaxy, Inc., No.
15-cv-11828 (D. Mass.), an antitrust and RICO litigation pending in United States District Court
for the District of Massachusetts. The issuing court is the court where the underlying action is
pending – in this case, the District of Massachusetts. Fed. R. Civ. P. 45(a)(2). The Endo parties
are based in Malvern, Pennsylvania and, thus, the court where compliance is required is the
Eastern District of Pennsylvania. See Fed. R. Civ. P. 45(c).
By way of background, subpoenas were served by Meijer on Endo, as well as sixteen
other generic manufacturers and two brand-name drug manufacturers. The subpoenas seek a
wide range of documents which, the Meijer Plaintiffs contend, are relevant to their case in that
they bear on the issues of causation, antitrust impact, damages, and the identity of class
members. Plaintiffs represent that they have been engaged in a meet and confer process with
each of the entities they subpoenaed to negotiate the production of documents. They contend

that Endo has taken the position that, for the most part, the documents are not relevant to
Meijer’s claims and have refused to produce the documents. Meijer asks, if this Court does not
transfer their motion to the District of Massachusetts, that it compel Endo to respond to the
subpoenas.
Under Rule 45(f) of the Federal Rules of Civil Procedure, ‘[w]hen the court where
compliance is required did not issue the subpoena, it may transfer a motion under this rule to the
issuing court if the person subject to the subpoena consents or if the court finds exceptional
circumstances.” Here, Endo has not consented to the transfer, thus the question presented is
whether there are “exceptional circumstances” warranting a transfer.
Although Rule 45 itself does not contain a definition of what is meant by the term
“exceptional circumstances,” the Advisory Committee Notes provide guidance. They first
explain that the rule is to protect local nonparties by providing that disputes over subpoenas
should generally be resolved in the court in which compliance is required. Nevertheless,
“transfer to the court where the action is pending is sometimes warranted,” i.e. in exceptional
circumstances. Fed. R. Civ. P. 45 advisory committee’s note (2013 amd.). The prime concern
should be avoiding burdens on local nonparties subject to subpoenas – in this case Endo. And,
while it should not be assumed that the issuing court is in a superior position to resolve
subpoena-related motions, there may be some circumstances where transfer is warranted in order
to avoid disrupting the issuing court’s management of the underlying litigation. The Advisory
Committee Note goes on to provide examples of such instances as when that court has already
ruled on issues presented by the motion or the same issues are likely to arise in discovery in
many districts. Transfer is appropriate, however, only if such interests outweigh the interests of
the nonparty served with the subpoena in obtaining local resolution of the motion. The

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proponent of transfer (in this case Meijer) bears the burden of showing that such circumstances
are present.
The Endo parties argue that it would be significantly more burdensome for them to travel
to the District of Massachusetts rather than to the Eastern District of Pennsylvania given that
they are headquartered in Malvern, Pennsylvania. The Meijer defendants counter that Endo’s
counsel – who accepted service on behalf of his client, and engaged in discussions with Meijer’s
counsel about objections and responses to the subpoena – is based in Hartford, Connecticut, so
Plaintiff’s travel burden argument is specious given that Hartford is significantly closer to
Boston than to Philadelphia.
These opposing contentions must be viewed through the lens of what actions Endo will
be required to take responding to the subpoena and whether those actions would entail its travel
to Boston if the motion is transferred. Many of those actions have already occurred. In a
declaration in support of Meijer’s Motion to Transfer, their attorney declares under penalty of
perjury that he sent subpoenas to Endo and that, on November 7, 2016, Endo’s counsel, by way
of e-mail or telephone call, agreed to accept service of the subpoenas. Several weeks later,
Endo’s counsel served on Meijer by mail and e-mail Objections and Responses to the
Subpoenas. Subsequently, Endo’s counsel and Meijer’s counsel engaged in a meet and confer
process over a period of several months, all of which took place over the phone or in e-mails.
Endo produced some documents – which it sent to Meijer’s counsel during that process – but has
declined to produce other documents responsive to each of the subpoena’s requests. The briefs
do not indicate whether production was done electronically or through hard copy documents –
but there is no suggestion that anyone from Endo had to travel anywhere outside of Malvern to
make that production or that they may be required to do so in the future. From that, it can be

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concluded that, thus far, there has been no need for anyone from Endo to travel outside of this
Court’s jurisdictional boundaries to respond to the subpoenas. There is no reason to believe that
would change if Plaintiff’s motion is transferred.
Given that there is now a dispute as to what further documents Endo should produce, if
any, the question arises whether, if this Court grants Meijer’s Motion to Transfer, anyone from
Endo in Malvern would have to travel to Boston to attend an argument on the motion. As a
preliminary matter, this Court notes that Judge Gorton, who is presiding over the matter in the
District of Massachusetts, makes it very clear in his Civil Case Management Policies and
Procedures that he discourages “discovery motions in the first place,” that he regards “most
discovery motions [as] unnecessary,” and that if he “determines that either or both counsel are
obstreperous, [he] may impose sanctions.” Thus, one would think, there is powerful incentive
for Endo and Meijer to redouble their efforts to negotiate a successful conclusion to their dispute
without the need for Judge Gorton’s intervention. Furthermore, even if Judge Gorton were to
hear arguments on the motion, Endo’s attorney is based in Hartford, which is a good deal closer
to Boston than to Philadelphia – thus making the burden of travel lighter on Endo should the
matter be transferred to Trimountaine rather than remain here in the City of Brotherly Love.
That is, of course, if Judge Gorton were to require Endo’s counsel to participate in person rather
than by telephone – a method of participation which the Advisory Committee Note to Rule 45(f)
specifically contemplates in order to minimize the burden a transfer imposes on nonparties.
Given the above, the burden on Endo if Meijer’s motion to compel were transferred to
Judge Gorton’s docket would be slight and is outweighed by reasons in support of transfer as set
forth below.

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While it is not to be assumed that the issuing court is in a superior position to resolve
subpoena-related motions, this is a case where, given the complex nature of the underlying
litigation and Judge Gorton’s focused management of the matter – as evidenced by a February
23, 2017 scheduling order which includes more than thirty deadlines by which the parties must
complete specific tasks in the litigation – engagement by this Court is likely to disrupt that
calibration.
It also appears likely that the discovery issues presented in Meijer’s motion to compel are
likely to arise again. Another non-party generic manufacturer who received a subpoena objected
to its scope and, although not based in Massachusetts, has consented to transfer the matter to
Judge Gorton’s docket. Meijer has also filed a motion to compel a second generic manufacturer
to respond to a subpoena and has sought to transfer that motion from the compliance court to the
District of Massachusetts. Counsel for Meijer also represented at argument in open court that
they are currently in discussion with other manufacturers about the scope of productions which
may eventually require court intervention. The risk of any decision by this Court on Meijer’s
motion to compel differing from Judge Gorton’s decision on a similar motion regarding a
different party in a case which he is managing – and this Court is not – counsels for transfer. See
Parks, LLC v. Tyson Foods, Inc., No. 15-mc-634, 2015 WL 5008255, at *2 (W.D. Pa. Aug. 20,
2015) (“[The issuing] court’s familiarity, and the risk that this court will reach a ruling that is
inconsistent with the [issuing court’s] ruling on already pending discovery motions, are
exceptional circumstances that warrant transfer of this matter to that court.”). While there are
currently only two other disputes teed up before a judge over the current crop of subpoenas, in
view of Judge Gorton’s current scheduling order which provides that there are still four more
months left for fact discovery, it is not unreasonable to conclude that there may be some

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additional discovery disputes of the same nature as that at issue here in the intervening months, a
fact which also counsels in favor of transfer. See United States ex rel. Simpson v. Bayer Corp.,
No. 16-mc-207, 2016 WL 7239892, at *2 (E.D. Pa. Dec. 15, 2016) (“[T]he fact that the issuing
court has not yet ruled on any motions to quash does not eliminate the likelihood that it will soon
face a flurry of such motions.”).
Accordingly, I will grant Plaintiff’s Motion to Transfer their Motion to Compel to the
United States District Court for the District of Massachusetts.
An order will follow.

Dated: June 15, 2017
BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________
WENDY BEETLESTONE, J.

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