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Cross v. Merck & Co

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 12, 2006

DIANE CROSS, PLAINTIFF,
v.
MERCK & CO, INC., ET AL. DEFENDANTS.

The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO REMAND AND GRANTING OF PROCEEDINGS DEFENDANT'S MOTION FOR STAY

Plaintiff has filed a motion to remand this action to the Superior Court of California, County of Los Angeles. Defendant Merck & Co, Inc. ("Merck") has filed a cross-motion to stay this action pending a decision of transfer by the Judicial Panel on Multidistrict Litigation ("JPMDL"). For the reasons discussed below, Plaintiff's motion to remand is DENIED WITHOUT PREJUDICE and Defendant's motion to stay this action pending transfer proceedings before the JPMDL is GRANTED.

This action is the subject of a Conditional Transfer Order, conditionally transferring this and other Vioxx cases to the United Stated District Court for the Eastern District of Louisiana ("MDL court") for coordinated or consolidated pretrial proceedings. Plaintiff has filed a notice of opposition with the JPMDL. To date, there has been no ruling on the transfer.

Plaintiff seeks to remand this action on the ground that the Court lacks diversity jurisdiction. Plaintiff contends that contrary to Merck's claims in its Notice of Removal, defendant McKesson Corporation, a California corporation, was properly joined and is not a "sham" defendant. Merck seeks to stay all proceedings in this Court pending a transfer decision by the JPMDL.

In determining whether to issue a stay of proceedings pending transfer proceedings before the JPMDL, courts consider three 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).

The Court finds that a stay of this case pending a transfer decision by the JPMDL would promote judicial economy and avoid the possibility of conflicting rulings. In addition, a stay would conserve the parties' resources. Although a stay may result in some delay in the resolution of this case, Plaintiff would not suffer significant prejudice.

Accordingly, the Court GRANTS Merck's motion to stay these proceedings pending a transfer decision by the JPMDL and DENIES Plaintiff's motion to remand WITHOUT PREJUDICE to renewing the motion either before this Court if the case is not transferred or before the MDL court.

IT IS SO ORDERED.

20061212

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