Gaus et al v. Lumber Liquidators, Inc. et al
Filing
23
MEMORANDUM OPINION AND ORDER GRANTING 7 DEFENDANTS' MOTION TO STAY, DEFERRING 11 PLAINTIFFS' MOTION TO REMAND, AND DEFERRING 4 DEFENDANTS' MOTION TO DISMISS. It is ORDERED that this civil action is STAYED pending the Judicial Pa nel on Multidistrict Litigations (JPML) resolution of Plaintiffs' Opposition to Conditional Transfer Order (CTO) 40 transferring this case to MDL 2627. Signed by Senior Judge Frederick P. Stamp, Jr. on 1/29/2018. (copy to counsel via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRYAN GAUS and DANIELLE GAUS,
his wife,
Plaintiffs,
v.
Civil Action No. 5:17CV177
(STAMP)
LUMBER LIQUIDATORS, INC. and
LUMBER LIQUIDATORS HOLDINGS, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION TO STAY,
DEFERRING PLAINTIFFS’ MOTION TO REMAND,
AND DEFERRING DEFENDANTS’ MOTION TO DISMISS
This civil action arises out of plaintiffs’ purchase of
allegedly defective flooring from Lumber Liquidators for their
home. In this civil action, plaintiffs assert claims for breach of
express
warranty,
negligence,
fraud,
misrepresentation,
and
violations of the West Virginia Consumer Credit and Protection Act
(“WVCCPA”).1
Now before the Court are three fully briefed motions: (1)
defendants’ motion to dismiss (ECF No. 4); (2) defendants’ motion
to stay (ECF No. 7); and (3) plaintiffs’ motion to remand.
For the reasons set forth below, this Court grants defendants’
motion to stay (ECF No. 7), defers defendants’ motion to dismiss
(ECF No. 4), and defers plaintiffs’ motion to remand (ECF No. 11).
1
West Virginia Code Sections 46A-1-101, et seq.
Plaintiffs filed their complaint2 in the Circuit Court of Ohio
County, West Virginia, and this case was removed to this Court
pursuant to 28 U.S.C. § 1332.
ECF No. 1.
Defendants Lumber Liquidators, Inc. and Lumber Liquidators
Holdings, Inc. (collectively, “Lumber Liquidators”) then filed a
motion to dismiss for failure to state a claim.
ECF No. 4.
Defendants also filed a motion to stay all proceedings in the
action
filed
(collectively,
Multidistrict
by
plaintiffs
“plaintiffs”),
Litigation’s
Bryan
Gaus
pending
(“JPML”)
the
and
Danielle
Judicial
resolution
of
Panel
Gaus
on
Plaintiffs’
Opposition to Conditional Transfer Order (“CTO”) 40 transferring
this
case
to
MDL
2627:
In
re:
Lumber
Liquidators
Chinese-Manufactured Flooring Products Marketing, Sales Practices
and Products Liability Litigation.
ECF No. 7.
Plaintiffs, pursuant to 28 U.S.C. §1446, filed a motion to
remand3 (ECF No. 11) this case to the Circuit Court of Ohio County,
West Virginia asserting that defendants have “failed to satisfy
their
burden
requirement.”
of
proving
the
$75,000
amount-in-controversy
ECF No. 11 at 1.
2
Circuit Court of Ohio County, West Virginia Civil Action No.
17-C-306, referred to by defendants in the notice of removal as
plaintiffs’ “Second Complaint” (ECF No. 1 at 4).
3
This Court notes that plaintiffs have mistakenly indicated,
on the face of the motion to remand “(Bailey).” ECF No. 11 at 1.
2
This civil action is subject to a Conditional Transfer Order
(CTO-40, Document No. 579) as entered by the United States Judicial
Panel on Multidistrict Litigation on December 11, 2017.
By way of background, the plaintiffs Bryan Gaus and Danielle
Gaus, previously filed suit in the Circuit Court of Ohio County,
West Virginia, on February 28, 2017, against the defendants.
That
civil action4 was removed to the United States District Court for
the Northern District of West Virginia pursuant to 28 U.S.C. § 1332
before
United
States
District
Judge
John
Preston
Bailey.5
Defendants sought transfer of the action to the United States Court
for the Eastern District of Virginia for inclusion in MDL No. 2627,
pointing out that the factual allegations of the first complaint
shared extensive common questions of fact with the cases already
pending in the MDL, and moved to stay the action pending in the
Northern District of West Virginia until the Judicial Panel on
Multidistrict Litigation (“JPML”) ruled upon the transfer of the
action to the MDL.
Judge Bailey entered an order granting defendants’ motion to
stay6 pending the Judicial Panel on Multidistrict Litigation’s
resolution of plaintiffs’ opposition to conditional transfer order
4
Circuit Court of Ohio County, West Virginia Civil Action No.
17-C-71, referred to by defendants in the notice of removal as
plaintiffs’ “First Complaint” (ECF No. 1 at 4).
5
ECF No. 1 in Civil Action No. 5:17CV40 (Bailey).
6
ECF No. 14 in Civil Action No. 5:17CV40 (Bailey).
3
29 transferring the case to MDL 2627: In re: Lumber Liquidators
Chinese-Manufactured Flooring Products Marketing, Sales Practices
and Products Liability Litigation. Judge Bailey noted in the order
that plaintiffs’ motion to remand was also pending before the
Court, and deferred ruling on the motion to remand pending action
from the MDL Panel.7
On August 2, 2017, the first action was transferred to the
United States Court for the Eastern District of Virginia for
inclusion in the MDL assigned to Judge Anthony John Trenga.
The
JPML denied plaintiffs’ objections to transfer, finding that the
action had extensive factual overlap with the approximately 125
cases pending in the MDL, and transferred the case to the MDL over
plaintiffs’ objections.
Here, as a threshold matter, while plaintiffs’ arguments may
be different, this Court finds that this instant action involves
the same plaintiffs8, the same defendants, and arises out of the
same operative facts as the first action brought by plaintiffs
which was previously pending before Judge Bailey in the Northern
District of West Virginia and then transferred to the MDL in the
Eastern District of Virginia.
This Court agrees with Judge
Bailey’s analysis and finds that the same reasoning is applicable
7
See Id. at 1, n.1.
8
Plaintiffs, in this action, have not included their minor
children in the caption as plaintiffs.
4
here.
This Court is also fully of the opinion, like Judge Bailey,
that staying this case pending the MDL Panel’s decision on the
conditional transfer order will serve the interests of judicial
economy and efficiency as well as avoid the needless duplication of
work and the possibility of inconsistent rulings.
Rules of Procedure of the United States Judicial Panel on
Multidistrict Litigation Rule 2.1(d) states:
Pendency of Motion or Conditional Order. 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. An order to transfer or remand pursuant
to 28 U.S.C. § 1407 shall be effective only upon its
filing with the clerk of the transferee district court.
JPML Rule 2.1(d).
While this Court finds that this rule does not limit the
pretrial jurisdiction of this Court to rule on the plaintiffs’
pending motion to remand, this Court finds that the policies of
efficiency and consistency in pretrial rulings are furthered by a
stay of this civil action pending the MDL panel’s decision, and
that the transferee judge will have the power to determine the
question of remand if transferred.
For good cause shown, the defendants’ motion to stay (ECF No.
7) this civil action pending the decision of the Judicial Panel on
Multidistrict Litigation as to the Conditional Transfer Order (CTO40, Document No. 579) is GRANTED.
this
civil
action
is
STAYED
Accordingly, it is ORDERED that
pending
5
the
Judicial
Panel
on
Multidistrict
Litigation’s
(“JPML”)
resolution
of
Plaintiffs’
Opposition to Conditional Transfer Order (“CTO”) 40 transferring
this case to MDL 2627.
Further, defendants’ motion to dismiss for
failure to state a claim (ECF No. 4) is DEFERRED and plaintiffs’
motion to remand (ECF No. 11) is DEFERRED, pending action from the
MDL panel.
The Clerk is directed to transmit a copy of this order to all
counsel of record herein.
DATED:
January 29, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?