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Case3:13-cv-03097-JSW Document21 Filed07/30/13 Page1 of 4

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SYLVIA J. SUMMA, et al.,

Plaintiffs,

v.
MCKESSON CORPORATION, et al.,

/

Defendants.

No. C 13-03097 JSW
ORDER GRANTING MOTION TO
STAY AND VACATING
HEARING ON MOTION TO
REMAND PENDING RULING
FROM MDL
(Docket Nos. 9, 10)

INTRODUCTION

This matter comes before the Court upon consideration of the Motion to Stay All

Proceedings Pending Transfer by the Judicial Panel on Multidistrict Litigation to MDL 1871
(E.D. Pa.), filed by Defendant Glaxosmithkline LLC (“GSK”) (Docket No. 10), which was
originally noticed for a hearing before Magistrate Judge Spero. The matter has been re-
assigned to the undersigned. GSK has not yet re-noticed the motion to stay for a hearing on this
Court’s calendar. However, the motion is ripe for resolution.

The Court has considered the parties’ papers, relevant legal authority, and the record in
this case, and it finds the motion suitable for disposition without oral argument. See N.D. Civ.
L.R. 7-1(b). The Court GRANTS GSK’s motion to stay. In light of this ruling, the Court
VACATES the hearing scheduled for November 8, 2013, on Plaintiffs’ motion to remand
(Docket No. 9), which the Court shall reschedule, if necessary.
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Case3:13-cv-03097-JSW Document21 Filed07/30/13 Page2 of 4

BACKGROUND

On or about October 16, 2007, the Judicial Panel on Multidistrict Litigation (“JPML”)

established a multidistrict litigation regarding product liability cases involving the drug
Avandia®, In re Avandia Marketing, Sales Practices, and Products Libility Litigation, MDL-
1871 (“In re Avandia”). (Docket No. 10-2, Declaration of Steven J. Boranian (“Boranian
Decl.”), ¶¶ 2-3, Ex. A.)

On June 26, 2013, the Plaintiffs filed their Complaint against GSK and McKesson

Corporation in the Superior Court of the State of California for the County of San Francisco
(“San Francisco Superior Court”), and asserted a number of state law claims based on injuries
they allegedly suffered as a result of using Avandia®. (See generally Notice of Removal, Ex. A
(Complaint).) This case is one of many cases filed in San Francisco Superior Court by
Plaintiffs’ counsel. (Id., Ex. D.)1

other cases filed by Plaintiffs’ counsel - to this Court. GSK asserts that, because McKesson has
been fraudulently joined, the Court has diversity jurisdiction. (Notice of Removal ¶ 17.) GSK
also contends that this case qualifies as a “mass action” under the Class Action Fairness Act
(“CAFA”), pursuant to 28 U.S.C. Section 1332(d)(11). (Id. ¶ 5.) At the time of removal, GSK
had not been served with the Complaint. (Id. ¶ 6.)

On July 3, 2013, GSK removed this action - and many, if not all, of the thirty-seven

On July 6, 2013, GSK notified the JPML that this action was pending, and it seeks to

stay this case pending transfer to In re Avandia. (Boranian Decl., ¶ 5.) Plaintiffs have opposed
GSK’s transfer motion before the JPML, oppose a stay in this case, and have filed a separate
motion to remand this case to San Francisco Superior Court.

ANALYSIS

“[T]he power to stay proceedings is incidental to the power inherent in every court to

control disposition of the cases on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “The exertion of

The undersigned has at least seven of these cases pending on its docket.

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Case3:13-cv-03097-JSW Document21 Filed07/30/13 Page3 of 4

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this power calls for the exercise of sound discretion.” CMAX, Inc. v. Hall, 300 F.2d 265, 268
(9th Cir. 1962). Accordingly, it is within this Court’s discretion to determine whether a stay is
warranted. The competing interests that a district court must weigh in deciding whether to grant
a stay include: (1) “possible damage which may result from granting a stay, (2) the hardship or
inequity which a party may suffer in being required to go forward, and (3) the orderly course of
justice measured in terms of the simplifying or complicating of issues, proof, and questions of
law which could be expected to result from a stay.” Id. (citing Landis, 299 U.S. at 254-55).

In the context of a motion to stay pending a motion to consolidate cases before the

JPML, district courts should consider the following factors: (1) potential prejudice to the non-
moving party; (2) hardship and inequity to the moving party if the action is not stayed; and (3)
the judicial resources that would be saved by avoiding duplicative litigation if the cases are in
fact consolidated. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997).
“Generally, jurisdiction is a preliminary matter that should be resolved before all

others.” Leeson v. Merck & Co., Inc., 2006 WL 3230047, *2 (E.D. Cal. Jan. 27, 2006); see also
Villarreal v. Chrysler Corp.,, 1996 WL 116832, at *1 (N.D. Cal. Mar.12, 1996) (“Judicial
economy will best be served by addressing the remand issue [before a party’s motion to stay]
because a determination on this issue will facilitate litigation in the appropriate forum.”). Some
courts, however, have held that “the calculus changes somewhat when deference to a MDL
court will further ‘the uniformity, consistency, and predictability in litigation that underlies the
MDL system.’” Leeson, 2006 WL 3230047, *2 (quoting Conroy v. Fresh Del Monte Produce
Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal.2004)).

Plaintiffs’ motion to remand raises issues that are similar to issues raised in motions to

remand in the cases that are assigned to the undersigned Judge as well the cases assigned to
other judges in this District. Further, the presiding judge in In re Avandia has addressed many
of these same issues, including fraudulent joinder, fraudulent misjoinder of plaintiffs, the forum
defendant rule, and questions relating to removal by defendants who have not yet been served.
See, e.g., In re Avandia, 624 F. Supp. 2d 396, 418-20 (E.D. Pa. 2009). Therefore, a stay will
promote judicial economy, uniformity and consistency in decision making. Further a short stay

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Case3:13-cv-03097-JSW Document21 Filed07/30/13 Page4 of 4

will not prejudice Plaintiffs, because they can renew their motion to remand in MDL 1871. If
the case is not transferred, this Court will resolve the motion to remand expeditiously. Finally,
a brief stay will avoid duplicative litigation. Indeed, several other judges within this District
have granted motions to stay in Avandia cases filed by Plaintiffs’ counsel, and in at least one of
those cases, the plaintiffs had filed a motion to remand. (See Boranian Decl., Ex. C; Docket No.
18-1, Declaration of Steven J. Boranian in Support of GSK Reply, Ex. A.)

Accordingly, the Court GRANTS the motion to stay pending a ruling by JPML on

whether this case will be transferred to In re Avandia, MDL 1871. The parties shall file a joint
notice with the Court within seven (7) days of any such ruling.

IT IS SO ORDERED.

Dated: July 30, 2013


JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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