United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION TO
STAY (ECF NO. 28)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
before the Court are Defendant CVS Pharmacy, Inc.'s
Motion to Stay (“Mot., ” ECF No. 25) and Notice
of Non-Opposition to the Motion (ECF No. 26). The Court
vacated the hearing and took the matter under submission
without oral argument pursuant to Civil Local Rule 7.1(d)(1).
See ECF No. 27. After considering the Motion and the
relevant law, the Court GRANTS
Defendant's unopposed Motion.
5, 2018, Plaintiff filed a punitive class action alleging
that Defendant falsely claimed that the Algal-900 DHA
supplement was clinically shown to improve memory.
See ECF No. 1. The factual allegations in
Plaintiff's complaint are nearly identical to the factual
allegations in the complaint in Worth v. CVS Pharmacy,
Inc., No. 16-CV-498 SMG, a punitive class action filed
on February 1, 2016, in the Eastern District of New York (the
“Worth Action”). See ECF No. 25-3;
see also ECF No. 25-4.
28, 2019, the court in the Worth Action certified a
settlement class of “all consumers in the United States
who purchased one or more Algal-900 DHA Products, containing,
on the label and/or packaging, the claim that it is
‘clinically shown to improve memory' or offers
‘clinically shown memory improvement,' on or after
November 15, 2008, through September 30, 2016, ” ECF.
No. 25-5 at ¶ 6, and set a final approval hearing for
September 26, 2019. Id. at ¶ 15.
that approval of the Worth Settlement would settle claims for
the putative class asserted in this case, Defendant filed the
instant Motion on June 13, 2019. See generally ECF
have the discretionary power to stay proceedings. Ali v.
Trump, 241 F.Supp.3d 1147, 1152 (W.D. Wash. 2017)
(citing Landis v. N. Am. Co., 299 U.S. 248, 254
(1936)). In determining whether to grant a motion to stay,
“the competing interests [that] will be affected by the
granting or refusal to grant a stay must be weighed.”
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th
Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265,
268 (9th Cir. 1962)). Those interests include: (1) “the
possible damage which may result from the granting of 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.”
Motion, Defendant requests the court to grant a one hundred
and twenty day stay pending final approval of the proposed
settlement in the Worth Action (the “Worth
Settlement”). Mot. at 9. As an initial matter, Civil
Local Rule 7.1(e)(2) requires “each party opposing a
motion” to file its opposition and serve the movant at
least fourteen days before the noticed hearing date. Civil
Local Rule 7.1(f)(3)(c) provides that, “[i]f an
opposing party fails to file the papers in the manner
required by Civil Local Rule 7.1.e.2, that failure may
constitute a consent to the granting of a motion or other
request for ruling by the court.” Consequently, by
virtue of Civil Local Rule 7.1(f)(3)(c), Plaintiff has
consented to the relief requested in Defendant's Motion.
See United States v. Warren, 601 F.2d 471, 473 (9th
Cir. 1979) (upholding dismissal of indictments pursuant to a
district court local rule stating that failure to timely
oppose motions is deemed consent to the motion).
the Court addresses Defendant's Motion on the merits and
briefly analyzes each of the Landis factors below.
Possible Damage from Granting of a Stay
district court approves a class action settlement, “a
federal court may release not only those claims alleged in
the complaint, but also a claim ‘based on the identical
factual predicate as that underlying the claims in the
settled class action.'” Reyn's Pasta Bella,
LLC v. Visa USA, Inc., 442 F.3d 741, 748 (9th Cir. 2006)
(quoting Class Pls. v. City of Seattle, 955 F.2d
1268, 1287 (9th Cir. 1992)). Defendant contends that
Plaintiff will not suffer any damage if the requested stay is
granted because this action and the Worth Action are based on
the same alleged misrepresentations regarding the same
product, see Mot. at 5, meaning that the Worth
Settlement, if approved, will necessitate dismissal of this
action despite the differing theories of liability. See
Id. at 6-7.
Court agrees with Defendant that the requested stay will not
damage Plaintiff because a stay will ensure Plaintiff does
not waste unnecessary expenses in an action that may be
subject to dismissal. Furthermore, the requested stay
“will allow [Plaintiff] to focus [its] resources on
attacking the fairness of the potential [Worth]
settlement.” See In re JPMorgan Chase LPI Hazard
Litig., No. ...