American Sales Company, LLC v. Warner Chilcott Public Limited Company et al

Filing 18

OPINION AND ORDER denying 6 Motion to Stay; Reset Deadlines: Answer Deadline for All Defendants. So Ordered by Judge William E. Smith on 8/6/13. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
WARNER CHILCOTT PUBLIC LIMITED
)
COMPANY; WARNER CHILCOTT COMPANY, )
LLC; WARNER CHILCOTT HOLDINGS
)
COMPANY III, LTD; WARNER CHILCOTT )
CORPORATION; WARNER CHILCOTT (US), )
LLC; WARNER CHILCOTT SALES (US),
)
LLC; WARNER CHILCOTT LABORATORIES )
IRELAND LIMITED; WARNER CHILCOTT
)
COMPANY INC.; WATSON
)
PHARMACEUTICALS, INC.; WATSON
)
LABORATORIES, INC.; ACTAVIS, INC.; )
LUPIN LTD; and LUPIN
)
PHARMACEUTICALS INC.,
)
)
Defendants.
)
___________________________________)
AMERICAN SALES COMPANY, LLC, on
behalf of itself and all others
similarly situated,

C.A. No. 13-347 S

OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
I.

Background
This

antitrust

suit,

filed

May

14,

2013,

arises

from

Defendants’ alleged scheme to delay the introduction of generic
versions

of

Loestrin®

24

Fe,

a

drug

pregnancy in women, into the market.
complaints

pending

substantially

in

similar

federal

for

prevention

of

There are several other

district

allegations.

the

courts

containing

Accordingly,

Defendants

filed

a

motion

Litigation

with

(“JPML”)

the

to

Judicial

consolidate

Panel

the

on

actions

Multidistrict
for

pre-trial

proceedings in the District of New Jersey pursuant to 28 U.S.C.
§ 1407.

In its response, Plaintiff agreed that the cases should

be consolidated, but suggested the District of Rhode Island and
the Eastern District of Pennsylvania as more desirable forums.
The JPML’s next session will be held on September 26, 2013, but
the schedule for that session has yet to be set.

For this

reason, it is unclear when Defendants’ motion will be heard.
the

meantime,

no

responsive

pleadings

or

dispositive

In

motions

have been filed and no discovery has been conducted in any of
the pending cases.
On July 2, 2013, Defendants Warner Chilcott Sales (US),
LLC; Lupin Pharmaceuticals Inc.; and Lupin LTD moved this Court
to stay further proceedings pending a determination by the JPML
on the motion to consolidate.

(ECF No. 6.)

Alternatively,

Defendants requested that the Court extend the time to respond
to

the

complaint

denying a stay.
its

ruling

on

to

forty-five

days

from

the

Court’s

order

The Court granted Defendants an extension until
the

motion.

Defendants

Actavis,

Inc.;

Watson

Pharmaceuticals, Inc.; and Watson Laboratories, Inc. joined in

the motion (ECF No. 10), 1 and Plaintiff filed an opposition (ECF
No. 12).
II.

Discussion
“[T]he 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.”
248, 254-55 (1936).

Landis v. N. Am. Co., 299 U.S.

However, “the suppliant for a stay must

make out a clear case of hardship or inequity in being required
to go forward, if there is even a fair possibility that the stay
for which he prays will work damage to some one else.”
255.

Id. at

In the specific context of the JPML:
The pendency of a motion, order to show cause,
conditional transfer order or conditional remand order
before the Panel pursuant to 28 U.S.C. § 1407 does not
affect or suspend orders and pretrial proceedings in
any pending federal district court action and does not
limit the pretrial jurisdiction of that court.

J.P.M.L. R. 2.1(d).

In deciding whether to issue a stay pending

the JPML’s ruling on a motion to transfer, courts consider the
following factors:

“(1) potential prejudice to the non-moving

party; (2) hardship and inequity to the moving party without a
stay; and, (3) judicial economy.”
624

F.

purpose
1

Supp.
of

a

2d

132,

134

(D.

Me.

§

1407

transfer

is

Good v. Altria Grp., Inc.,
2009).
“to

Indeed,

eliminate

the

very

duplicative

Not all of the named Defendants have yet been served in
this case.

discovery, prevent inconsistent pretrial rulings . . . , and
conserve the resources of the parties, their counsel and the
judiciary.”

Id. at 135 (internal citation and quotation marks

omitted).
In

the

present

case,

granting

the

requested

stay

would

cause some prejudice to Plaintiff in the form of delay.
pending

transfer

motion

will

be

heard,

at

the

earliest,

The
on

September 26, 2013, months after the filing of the complaint and
the service of at least some Defendants.
Moreover, Defendants’ request for a stay is not, at the
present

time,

justified

by

any

possibility

of

prejudice.

Several district courts have denied similar motions where, as
here, the defendants had not yet filed any responsive pleading
or begun discovery.

See Guerrero v. Target Corp., No. 12-21115-

CIV, 2012 WL 2054863, at *1 (S.D. Fla. June 7, 2012) (“Defendant
must respond to the complaint regardless of whether the case is
ultimately transferred to an MDL.”); Sunrise Rentals Enters. v.
BP, PLC, Civil Action No. 10-0261-WS-M, 2010 WL 2266772, at *2
(S.D. Ala. June 4, 2010) (“[T]here is no reason in the world why
defendants cannot file responsive pleadings prior to the MDL’s
determination

on

the

pending

transfer

and

consolidation

issues.”); Billy’s Seafood, Inc. v. Transocean Holdings, Inc.,
Civil Action No. 10-0215-WS-B, 2010 WL 2104610, at *2 (S.D. Ala.
May 25, 2010) (“Regardless of whether and where the MDL Panel

ultimately

transfers

this

action

for

consolidated

and

coordinated pretrial proceedings, defendants will need to file
answers or responsive pleadings.”); Jozwiak v. Stryker Corp.,
No. 6:09-cv-1985-Orl-19GJK, 2010 WL 147143, at *3 (M.D. Fla.
Jan. 11, 2010) (“Even if this case is consolidated within 60 to
90 days, the Moving Defendants would suffer little prejudice if
the action is not stayed because this case has just begun to
develop.”).
Because the Court will have little involvement in this case
until Defendants respond to the complaint, the third factor,
judicial economy, also weighs in favor of denying a stay at this
point in the proceedings.
Many cases cited by Defendants are distinguishable in that
they

involved

motions.

stays

granted

after

the

filing

of

substantive

See, e.g., Good, 624 F. Supp. 2d at 135 (motion to

certify questions of state law); Thomas v. Ameriquest Mortg.
Co., CIV.A. 07-0652WSC, 2007 WL 3287842, at *1 (S.D. Ala. Nov.
5, 2007) (motions to dismiss); D’Amico v. Guidant Sales Corp.,
C.A. No. 07-301 S, 2007 WL 3003181, at *2 (D.R.I. Oct. 11, 2007)
(motion to remand).
an answer.

Others involved stays after the filing of

See, e.g., Ramos-Martir v. Astra Merck, Inc., No.

CIV. 05-2038(PG), 2005 WL 3088372, at *1 (D.P.R. Nov. 17, 2005).
In

these

circumstances,

a

stay

may

serve

to

prevent

inconsistency and conserve resources.

Defendants’ motion in the

present case, however, is premature.
III. Conclusion
For the foregoing reasons, Defendants’ motion to stay is
DENIED,

without

prejudice

responsive pleadings.
pleading

within

to

renew

after

the

filing

of

Each Defendant must file a responsive

twenty-one

days

of

this

order

or

the

time

contemplated by Rule 12 of the Federal Rules of Civil Procedure,
whichever comes later.

See Fed. R. Civ. P. 12(a)(1).

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: August 6, 2013