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Anticancer, Inc., A California Corporation v. In the Alternative To Bifurcate the Fifth Claim Pfizer Inc.

March 26, 2012

ANTICANCER, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
IN THE ALTERNATIVE TO BIFURCATE THE FIFTH CLAIM PFIZER INC., A DELAWARE CORPORATION, FOR RELIEF CROWN BIOSCIENCE, INC., A CALIFORNIA CORPORATION, AND DOES 1--50,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER (1) DENYING WITHOUT PREJUDICE MOTION CROWNBIO'S MOTION TO SEVER AND (2) DENYING (ECF No. 30)

Presently before the Court is Defendant Crown Bioscience, Inc.'s ("CrownBio") motion to sever or bifurcate the fifth claim for relief. (Mot. to Sever, ECF No. 30) Also before the Court are Plaintiff Anticancer, Inc.'s ("Anticancer") opposition, (Anticancer Opp'n, ECF No. 33), Defendant Pfizer, Inc.'s ("Pfizer") opposition, (Pfizer Opp'n, ECF No. 34), and CrownBio's reply, (Reply in Supp., ECF No. 37). The motion hearing set for April 19, 2012, is HEREBY VACATED, and the matter is taken under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). Having considered the parties' arguments and the law, the Court DENIES CrownBio's motion.

BACKGROUND

Anticancer first filed its complaint in this action on January 19, 2011, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment solely against Pfizer. (Compl., ECF No. 1) Subsequently, on October 4, 2011, Anticancer moved to amend the complaint to add CrownBio as a defendant, and to assert two patent infringement claims-one against Pfizer alone, and the other against both Pfizer and CrownBio. (Mot. to Amend, ECF No. 15) No other claims were proposed against CrownBio. Pfizer did not oppose Anticancer's motion to amend, and so the Court, finding amendment appropriate under the circumstances, granted the motion. (Order, Nov. 8, 2011, ECF No. 18) Anticancer's first amended complaint ("FAC") was filed one day later, on November 9, 2011. (FAC, ECF No. 19) And now, CrownBio moves this Court to sever or bifurcate claim five of the FAC-the only claim asserted against it-pursuant to Federal Rules of Civil Procedure 21 and 42. (Mot. to Sever, ECF No. 30)

LEGAL STANDARD

Federal Rule of Civil Procedure 21 permits a court to "sever any claim against a party." It is within the district court's discretion whether to sever a claim so long as it is "discrete and separate." Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000) (noting that a district court is vested with "broad discretion . . . to make a decision granting severance"). A court may not "attempt to separate an essentially unitary problem," however. Spencer, White & Prentis, Inc. v. Pfizer, Inc., 498 F.2d 358, 362 (2d Cir. 1974). In considering whether to sever a claim under Rule 21, a court considers the following factors:

"(1) whether the claims arise out of the same transaction or occurrence;

(2) whether the claims present some common questions of law or fact;

(3) whether settlement of the claims or judicial economy would be facilitated;

(4) whether prejudice would be avoided if severance were granted; and

(5) whether different witnesses and documentary proof are required for the separate claims."

SEC v. Leslie, No. 07-3444, 2010 U.S. Dist. LEXIS 76826, at *10 (N.D. Cal. July 29, 2010) (quoting Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 580 (E.D.N.Y. 1999)).

Federal Rule of Civil Procedure 42(b) authorizes a court "[f]or convenience, to avoid prejudice, or to expedite and economize" to "order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims."*fn1 Like the decision to sever under Rule 21, the decision whether to bifurcate for trial under Rule 42(b) is within the broad discretion of the district court. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)). A court considers the same factors relevant to severance under Rule 21 in deciding whether to bifurcate under Rule 42(b). Morris, 37 F. Supp. 2d at 580. The moving party carries the "burden of proving ...

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