Rose v. Behr Process Corp. et al

Filing 47

ORDER re: 46 Stipulated MOTION to Stay Case. Case is STAYED pending a decision on the motion for preliminary approval in Bishop, et al., v. Behr Process Corporation, et al., Case No. 1:17- cv- 04464 (N.D. Ill.), and, if preliminary approval is granted, through a decision on any forthcoming motion for final approval. Behr shall file a Status Report by July 13, 2018, and every 60 days thereafter, reporting on the progress of preliminary approval, notice, and final approval. Signed by Judge Marsha J. Pechman. (PM)

Honorable Marsha J. Pechman

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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LINNE ROSE, individually and on behalf of
all others similarly situated,
Plaintiffs,

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NO. 2:17-cv-01754-MJP
STIPULATED MOTION AND
ORDER TO STAY CASE

v.
BEHR PROCESS CORP., BEHR PAINT
CORP., MASCO CORP., THE HOME
DEPOT, INC., and HOME DEPOT U.S.A.,
INC.,,

NOTE ON MOTION CALENDAR
May 29, 2018

Defendants.

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I.

STIPULATION

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Subject to approval of this Court, Plaintiff Linne Rose and Defendants Behr Paint Corp.,

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Behr Process Corporation, Masco Corporation (collectively, “Behr”), The Home Depot, Inc.

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and Home Depot U.S.A., Inc. (collectively, “Home Depot”), by and through their attorneys,

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hereby stipulate and request an order staying this case, including all deadlines for discovery and
other matters, pending a decision on the motion for preliminary and final approval of a class

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action settlement involving three related actions before other district courts (Anderson v. Behr
Process Corp., Case No. 1:17-cv-08735 (N.D. Ill.); Bishop v. Behr Process Corp., Case No.

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1:17-cv-04464 (N.D. Ill.); and In re Behr, Case No. 8:17-cv-01016 (C.D. Cal.)) (“Settled

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Cases”).

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II.
BACKGROUND
On May 1, 2018, plaintiffs in Bishop filed an amended complaint that incorporated the

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named plaintiffs in In re Behr and Anderson. See Am. Compl. (Bishop Dkt. #60) at ¶¶ 7-39.

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Shortly thereafter, on May 3, 2018, plaintiffs in Bishop filed a motion for preliminary approval
of a class action settlement. See Mot. for Preliminary Approval (Bishop Dkt. #61) at passim.

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If the settlement agreement in Bishop is granted preliminarily approval, it would resolve

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all claims against all Defendants in this action. See Behr Mem. in Opp. to Mot. for Transfer
and Consolidation, In re: Behr DeckOver Marketing and Sales Practices Litigation, MDL No.
2821 (Dkt. #30) at 1-2; Order Denying Transfer (MDL Dkt. #53) at 1.

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Defendants expect that the court in Bishop will consider the motion for preliminary
approval on June 27, 2018. See Order (Bishop Dkt. #78).

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III.
AUTHORITY
The Court “may, with propriety, find it is efficient for its own docket and the fairest

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course for the parties to enter a stay of an action before it, pending resolution of independent

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proceedings which bear upon the case.” Levya v. Certified Grocers of California, 593 F.2d

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857, 863 (9th Cir. 1979). In considering whether a stay is appropriate, a district court should

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consider (1) the possible damage that may result from granting a stay, (2) the hardship or

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inequity a party may suffer in being required to go forward, and (3) the orderly course of justice

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measured in terms of the simplifying or complicating of issues, proof, and questions of law

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expected to result from a stay. See id. at 864; CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.
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1962).

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Courts in the Ninth Circuit and across the country routinely stay actions pending the

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review and approval of class settlements in other district courts that would resolve all claims

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brought in those actions. See Annunziato v. eMachines Inc., 2006 U.S. Dist. LEXIS 97020,

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*15-16 (C.D. Cal. 2006); see also Albert v. Blue Diamond Growers, 232 F. Supp. 3d 509

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(S.D.N.Y. 2017); Ali v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 26670, *7-9
(W.D.Okla. 2014); Lindley v. Life Investors Ins. Co. of America, 2009 U.S. Dist. LEXIS 94623,

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*11 (N.D.Okla. 2009); In re RC2 Corp. Toy Lead Paint Products Liability Litigation, MDL No.
1893, 2008 U.S. Dist. LEXIS 14121, *13-14 (N.D.Ill. 2008). If this case is stayed pending

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consideration of the Bishop Settlement, no Party will suffer any hardship. Plaintiff and all

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members of the proposed class in this case have the right to participate in the settlement or opt

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out of it to pursue his or her own litigation. And, any stay would be limited for any Plaintiff or

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any member of the proposed class who opts out of the Bishop Settlement. See Amchem Prods.

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v. Windsor, 521 U.S. 591, 597 (1997).
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In contrast, if this litigation continues, all Parties would face the prospect of incurring

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substantial and unnecessary litigation costs. See Annunziato, 2006 U.S. Dist. LEXIS 97020,

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*15-16 (“[I]f the Ohio state court approves the preliminary settlement, [litigants] would be

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saved from hundreds of hours spent on discovery and briefing in proceeding with this case….

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this Court finds efficiency is best achieved by granting a … stay.”). The Parties also

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acknowledge that the settlement will help resolve this litigation. Thus, the Parties agree that a

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stay of this action is appropriate, pending a decision on the motion for preliminary approval in
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Bishop, and, a decision on any forthcoming motion for final approval.

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The Parties agree to keep this Court informed regarding the status of the settlement of

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the Bishop case by having Behr file a Status Report by July 13, 2018, and every 60 days

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thereafter, reporting on the progress of preliminary approval, notice, and final approval of the

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settlement.
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IV.
CONCLUSION
Based on the above, the Parties hereby stipulate, agree and move, subject to the Court’s
approval, that:
1. This case should be stayed pending a decision on the motion for preliminary
approval in Bishop, et al., v. Behr Process Corporation, et al., Case No.

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1:17- cv- 04464 (N.D. Ill.), and, if preliminary approval is granted, through a
decision on any forthcoming motion for final approval;

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2. Behr shall file a Status Report by July 13, 2018, and every 60 days thereafter,

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reporting on the progress of preliminary approval, notice, and final approval.

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Stipulated and presented this 29th day of May, 2018.

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TERRELL MARSHALL LAW GROUP MILLS MEYERS SWARTLING P.S.
PLLC
By: /s/ Beth E. Terrell
Beth E. Terrell, WSBA No. 26759
Eric Riley Nusser, WSBA No. 51513
WHITFIELD BRYSON & MASON, LLP
Daniel K. Bryson Pro Hac Vice
Patrick M. Wallace Pro Hac Vice
Scott C. Harris Pro Hac Vice

By s/ Caryn Geraghty Jorgensen
Caryn Geraghty Jorgensen WSBA No. 27514
Email: [e-mail]
John Fetters WSBA No. 40800
Email: [e-mail]
Mills Meyers Swartling
1000 2nd Avenue, 30 FL
Attorneys for Plaintiff and the Proposed Seattle, WA 98104
Class
Phone: [phone]
Fax: [phone]
Attorneys for Defendants Home Depot, Inc. and
Home Depot U.S.A., Inc.

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WHITFIELD BYSON & MASON, LLP

MORRIS MANNING & MARTIN

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By s/ Daniel K. Bryson
Daniel K. Bryson, Pro Hac Vice
E-mail: [e-mail]
Patrick M. Wallace, Pro Hac Vice
Scott C. Harris, Pro Hac Vice
900 W. Morgan Street
Raleigh, NC 27603
Main Telephone: [phone]
Direct Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff and the Proposed
Class

By s/ Jeffrey Douglass
Jeffrey Douglass, Pro Hac Vice
Robert Alpert, Pro Hac Vice
1600 Atlanta Financial Center
3343 Peachtree Road, NE
Atlanta, GA 30326, USA Phone: [phone]
800-849-0970
Fax: [phone]
Attorneys for Defendants Home Depot, Inc.
and Home Depot U.S.A., Inc.

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CARNEY BADLEY SPELLMAN, P.S.

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By s/ Emilia L. Sweeney
Emilia L. Sweeney, WSBA No. 23371
Email: [e-mail]
Jason M. Kettrick, WSBA No. 35459
Email: [e-mail]
Elliot C. Copenhaver, WSBA No. 46909
Email: [e-mail]
701 Fifth Avenue, Suite 3600
Seattle, WA 98104-7010
Telephone: [phone]
Facsimile:[phone]
Attorneys for Defendants Behr Processing
Corporation, Behr Paint Corp and Masco
Corporation

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LATHAM & WATKINS LLP

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By s/ Kathleen P. Lally
Kathleen P. Lally
One of the Attorneys for Defendant
Behr Process Corporation
Mark S. Mester
[e-mail]
Kathleen P. Lally
[e-mail]
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Telephone: [phone]

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STIPULATed motion and order to stay case – 5
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V.

ORDER

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It is so ordered.
Dated this 30th day of May, 2018.

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A

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The Honorable Marsha J. Pechman
United States Senior District Court Judge

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CERTIFICATE OF SERVICE
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I hereby certify that on this 29th day of May, 2018, I electronically filed the foregoing

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with the Clerk of the Court using the CM/ECF system which caused all CM/ECF participants
to be served by electronic means.
DATED this 29th day of May, 2018.

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CARNEY BADLEY SPELLMAN, P.S.

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By: s/ Andrea Williams
Andrea Williams, Legal Assistant

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