1 y 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MELISSA MORRISON, an individual; Case No.: 22-cv-1074-GPC-MSB 11 KELLIE VALENCIA, an individual; and KARIE KUEHL, an individual, ORDER GRANTING DEFENDANTS’ 12

MOTION TO STAY

Plaintiffs, 13 v. [ECF No. 7] 14

TEVA BRANDED

15

PHARMACEUTICAL PRODUCTS

16 R&D, INC., f/k/a Teva Global Respiratory Research, LLC.; TEVA 17

PHARMACEUTICALS USA, INC.;

18 ALZA CORPORATION; JANSSEN

RESEARCH & DEVELOPMENT LLC

19 f/k/a Johnson & Johnson Research & 20 Development, LLC; ORTHO-MCNEIL

PHARMACEUTICAL, LLC; JANSSEN

21 PHARMACEUTICALS, INC. d/k/a 22 Ortho-McNeil- Janssen Pharmaceuticals, Inc. f/k/a Janssen Pharmaceutica Inc.; 23

JANSSEN ORTHO LLC; JOHNSON &

24 JOHNSON; DR. C. LOWELL PARSONS, MD, an individual; and 25

DOES 1-20,

26 Defendants. 27 1 2 Before the Court is Defendants’ Motion to Stay all proceedings pending a ruling by 3 the Judicial Panel on Multidistrict Litigation (“JPML”) on transfer to an MDL court. ECF 4 No. 7. Plaintiffs filed an Opposition on September 30, 2022. ECF No. 16. Defendants 5 filed a Reply on October 7, 2022. ECF No. 19. For the reasons below, the Court 6 GRANTS Defendants’ Motion to Stay and VACATES the hearing scheduled for 7 October 21, 2022. The hearing on Plaintiffs’ Motion to Remand, (ECF No. 9), currently 8 set for December 2, 2022, is VACATED. 9 BACKGROUND 10 Plaintiffs filed a putative class action in the Superior Court of California, County 11 of San Diego on or around June 15, 2022. ECF No. 1-2. Plaintiffs allege that Elmiron, a 12 prescription drug marketed to treat Interstitial Cystitis and manufactured by some of the 13 named Defendants, caused them “severe physical and emotional injuries as well as severe 14 symptoms including . . . [b]lurred vision, difficulty adapting to dim lighting or darkness, 15 difficulty seeing at night, and sensitivity to light.” ECF No. 1, Exhibit A (“Complaint”) ¶ 16 28. Plaintiffs also allege that they were given inadequate warnings regarding the risk of 17 these injuries. Id. ¶ 8. Plaintiffs seek “compensatory damages, statutory damages, 18 punitive damages, attorneys’ fees, costs and all other available remedies and damages 19 allowed by law.” Id. ¶ 11. 20 Defendants removed this action to federal court on July 22, 2022 pursuant to the 21 Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). ECF No. 1 at 4. On July 22, 22 2022, Defendants filed a Notice of Related Cases stating that cases involving “retinal 23 injuries associated with the use of Elmiron” had been centralized in an MDL proceeding 24 the District of New Jersey. ECF No. 3 at 2. Defendants stated that on July 25, 2022 they 25 provided notice to the MDL Panel of this “tag-along” action. ECF No. 7 at 4. The JPML 26 issued a Conditional Transfer Order, which Plaintiffs opposed and gave notice of a 27 1 Motion to Vacate. Id. at 4-5. The JPML issued a briefing schedule on the Motion to 2 Vacate and ordered that all briefing be complete on or before September 21, 2022. Id. at 3 5. 4 On August 18, 2022, Defendants filed this Motion to Stay all proceedings pending 5 a ruling by the JPML. ECF No. 7. Plaintiffs filed an Opposition on September 30, 2022, 6 (ECF No. 16), and Defendants filed a Reply on October 7, 2022, (ECF No. 19). A 7 hearing was set for October 21, 2022. 8 Plaintiffs filed a Motion to Remand on August 19, 2022. ECF No. 8. A briefing 9 schedule was provided: any Opposition to the Motion for Remand is due on or before 10 November 1, 2022; any Reply is due on or before November 15, 2022; and a hearing is 11 currently scheduled for December 2, 2022. ECF No. 15 at 2-3. 12 LEGAL STANDARD 13 “[T]he power to stay proceedings is incidental to the power inherent in every court 14 to control the disposition of the causes on its docket with economy of time and effort for 15 itself, for counsel, and for litigants.” Landis v. North America Co., 299 U.S. 248, 254 16 (1936). Courts consider three factors in deciding whether to stay proceedings: (1) any 17 potential prejudice to the non-moving party; (2) the hardship and inequity to the moving 18 party if the action is not stayed; and (3) the judicial resources that would be saved by 19 avoiding duplicative litigation if the cases are later consolidated in an MDL. Rivers v. 20 Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. Aug. 11, 1997). “Courts frequently 21 grant stays pending a decision by the MDL Panel regarding whether to transfer a case.” 22 Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 809 (N.D. Cal. 1998). “‘The 23 general rule is for federal courts to defer ruling on pending motions to remand in MDL 24 litigation until after the [JPML] has transferred to the MDL panel.’” In re Diet Drug 25 Litig., 2012 WL 13012665, at *1 (C.D. Cal. 2012) (quoting Michael v. Warner-Lambert 26 Co., 2003 U.S. Dist. LEXIS 21525, at *4 (S.D. Cal. Nov. 20, 2003)). “Deference to the 27 1 MDL court for resolution of a motion to remand provides an opportunity for the 2 uniformity, consistency, and predictability in litigation that underlies the MDL system.” 3 Conroy v. Fresh Del Monte Produce, Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal. July 8, 4 2004). 5 DISCUSSION 6 The Court finds the above factors weigh in favor of granting a stay pending the 7 JPML’s decision. Defendants claim they will “face significant hardship if a stay is not 8 granted” because they will be required to engage in “duplicative briefing and arguments.” 9 ECF No. 7 at 8. Defendants state that “[t]he ‘potential burden’ to the parties ‘of engaging 10 in duplicative litigation weighs heavily in favor of staying . . . proceedings pending MDL 11 transfer.’” ECF No. 7 at 8 (quoting Jones v. Bristol-Myers Squibb Co., 2013 WL 12 3388659, at *3 (N.D. Cal. July 8, 2013)); see also Nielsen v. Merck & Co., 2007 WL 13 806510, at *2 (N.D. Cal. Mar. 15, 2007) (“[A]bsent a stay, [Defendant] would suffer 14 prejudice from being forced to litigate the same jurisdictional issues in multiple 15 forums.”). Plaintiffs argue the Motion to Stay should be denied because Defendants have 16 not sufficiently shown they will suffer significant hardship and prejudice absent a stay. 17 ECF No. 16 at 5. Although the burden on Defendants if this case is not stayed pending 18 the JPML decision is not tremendous (Defendants will only have to file a single 19 Opposition to Plaintiffs’ Motion for Remand in this Court), this factor weighs slightly in 20 favor of granting the stay. 21 The Court finds that potential prejudice to the Plaintiffs by granting a stay is 22 limited. The stay is not indefinite and will be lifted as soon as the JPML issues its 23 decision. It is expected that the pending JPML Motion will be set for the JPML’s next 24 hearing date on December 1, 2022, and that the JPML’s Order will be issued shortly after 25 this hearing. See ECF No. 19 at 3. At that point, briefing on the Motion to Remand will 26 occur either in this Court or in the MDL court. The transferee court is just as capable to 27 1 decide a Motion to Remand as this Court, and minimal prejudice exists when Plaintiff is 2 able to make their same jurisdictional arguments in the MDL Court. See In re Prudential 3 Ins. Co. of Am. Sales Pracs. Litig., 170 F. Supp. 2d 1346, 1347 (J.P.M.L. 2001) 4 (“[R]emand motions can be presented to and decided by the transferee judge.” (citing In 5 re Ivy, 901 F.2d 7 (2nd Cir. 1990))). Further, Defendant argues that a short stay is not 6 prejudicial at this point because “there has been little activity in the case.” ECF No. 7 at 9 7 (citing Franklin v. Prospect Mortg., LLC, 2013 WL 6423389, at *2 (E.D. Cal. Dec. 9, 8 2013) (“In addition, there has not been a significant amount of activity in this case. 9 Therefore the Court finds that Plaintiffs will not be prejudiced by the delay.”)). 10 Last, judicial economy favors a stay. Granting a motion to stay proceedings 11 pending a decision by the JPML is a practice courts routinely follow because of the 12 judicial resources that are saved. See e.g., Little v. McKesson Corp., 2016 WL 8668899, 13 at *2 (S.D. Cal. Dec. 16, 2016) (“Where an MDL is being considered or a transfer 14 pending, a majority of courts have concluded that it is often appropriate to stay 15 preliminary pretrial proceedings . . . because of the judicial resources that are 16 conserved.”); Harris v. Merck & Co. Inc., 2006 WL 4056986, at *2 (S.D. Cal. Dec. 11, 17 2006) (granting a stay awaiting JPML decision while motion for remand was pending); 18 Rivers, 980 F. Supp. at 1362 (“[A] majority of courts have concluded that it is often 19 appropriate to stay preliminary pretrial proceedings while a motion to transfer and 20 consolidate is pending with the MDL Panel because of the judicial resources that are 21 conserved.”). If the JPML determines transfer is appropriate, any resources expended on 22 behalf of this Court will have been needless, as such efforts would most likely be 23 duplicated by the transferee judge. 24 A stay will also prevent the possibility that conflicting rulings are issued by this 25 Court and the transferee court. See American Seafood, Inc. v. Magnolia Processing, 1992 26 WL 102762, at *2 (E.D. Pa. May 7, 1992) (granting a stay to prevent conflicting rulings 27 1 pending motions by transferor and transferee court). In sum, the risk of inconsistent 2 rulings and the judicial resources that will be conserved outweigh any potential prejudice 3 || Plaintiffs might suffer as a result of a short, not indefinite stay. 4 CONCLUSION 5 For the above reasons, Defendants’ Motion to Stay is GRANTED. The hearing on 6 || this Motion, currently scheduled for October 21, 2022, and the hearing on Plaintiffs’ 7 Motion to Remand, currently scheduled for December 2, 2022, is VACATED. The 8 || Parties aae ORDERED to file a joint status report apprising the Court of the JPML’s 9 || decision within 30 days of the JPML’s Order. 10 11 IT IS SO ORDERED. 12 13 || Dated: October 18, 2022 =<

15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 22-cv-1074-GPC-MSB