SLC-6714809-3

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

SUZY ELKINS, on behalf of Herself ) 

 and others similarly situated, ) 

 ) 

Plaintiff, ) 

 ) Case No. 1:12-cv-5617 

 v. ) 

 ) 

MEDCO HEALTH SOLUTIONS, INC., ) JURY TRIAL DEMANDED 

 ) 

 Defendant. ) 

DEFENDANT MEDCO HEALTH SOLUTIONS, INC.’S MOTION TO STAY 

PENDING A DECISION ON WHETHER 1404(a) TRANSFER IS APPROPRIATE 

Defendant Medco Health Solutions, Inc. (“Medco”) hereby moves this Court for a 

temporary stay of proceedings in this matter until such time as the Court has had an opportunity 

to consider whether it is more appropriate for this matter to proceed in the Eastern District of 

Missouri, where Plaintiff, Defendant, and witnesses in this case reside. (See Medco’s Motion to 

Transfer, Doc. # 12). In support of its motion, Medco states as follows: 

INTRODUCTION 

Plaintiff alleges that Medco violated the Telephone Consumer Practices Act (“TCPA”) 

and engaged in improper “telemarketing” when it contacted her at a telephone number she 

provided in order to inform her of prescription benefits under a health plan she had recently 

enrolled in through Coventry of Missouri (“Coventry”). Medco called Plaintiff because she had 

purchased a Coventry plan with a pharmacy benefit through Medco, and had been filling 

numerous prescriptions at Medco network pharmacies in the St. Louis area. Under her 

Coventry/Medco health plan, however, Plaintiff had an additional prescription benefit available 

to her for the prescriptions she had been purchasing, which could save her money. In other 

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words, Medco was doing its job as the pharmacy benefit manager selected by Plaintiff and her 

health plan. Plaintiff did not need to enroll in a plan with a pharmacy benefit, or pharmacy 

benefit management services. But she did, and now complains that the company she hired did 

exactly what she hired them to do. On these theories, she purports to represent a nationwide 

class. 

Medco believes Plaintiff’s claims have no merit. Before those issues are addressed, 

however, there is the key threshold question of whether the Northern District of Illinois is the 

most appropriate venue for this case. For this reason, Medco has filed a Motion to Transfer this 

case pursuant to 28 U.S.C. § 1404(a) to the Eastern District of Missouri. The Eastern District of 

Missouri is the logical venue for this case. It is where Plaintiff Suzy Elkins (“Plaintiff”) works 

and resides. It is where the health plan at issue is based. Key witnesses from Coventry, 

Plaintiff’s Missouri employer (a St. Louis law firm), and Medco are located in the Eastern 

District of Missouri. And it is in the Eastern District of Missouri where plaintiff received the 

allegedly improper calls notifying her of benefits under her prescription health plan. In stark 

contrast, there is no connection to the Northern District of Illinois. See Doc. # 12. 

Pursuant to this Court’s Case Management Procedures, the parties held a telephone 

conference on August 27, 2012. The key threshold question raised was venue. Medco’s counsel 

questioned why this case was filed in this District, given the fact that Plaintiff and key witnesses 

are in Missouri, and there is no apparent connection to the Northern District of Illinois. 

Plaintiff’s counsel had no substantive response. 

The parties then discussed discovery and other scheduling issues. The parties disagreed 

on whether the viability of Plaintiff’s individual theories should be tested before Plaintiff is 

allowed to engage in broad discovery into sensitive health care related issues concerning a 

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putative class of health plan members Elkins purports to represent. Medco believes that those 

questions should be addressed by the Court that will ultimately hear this case—whether here or 

in the Eastern District of Missouri—and that the question of appropriate venue is necessarily 

antecedent to scheduling and case management. In response, Plaintiff served broad class 

discovery seeking information on all calls Medco has made to its members over the last four 

years. 

In the interest of judicial economy, Medco now asks that this case and all discovery be 

stayed until the Court rules on the pending venue motion and it is finally determined where this 

case will proceed. 

LEGAL STANDARD 

The decision to issue a stay rests within the sound discretion of the trial court. See Doe v. 

City of Chic., 360 F. Supp. 2d 880, 881 (N.D. Ill. 2005) (“The court has the inherent power to 

stay civil proceedings, postpone civil discovery, or impose protective orders when the interests 

of justice so dictate”) see also Clinton v. Jones, 520 U.S. 681, 706-07 (1997) (“The District 

Court has broad discretion to stay proceedings as an incident to its power to control its own 

docket.”). “[A] stay is proper where the likelihood that [the pending] motion may result in a 

narrowing or outright elimination of discovery outweighs the likely harm to be produced by the 

delay.” Perelman v. Perelman, No. 10-5622, 2011 WL 3330376, at *1 (E.D. Pa. Aug. 3, 2011) 

ARGUMENT 

I. IN THE INTEREST OF JUDICIAL ECONOMY, THIS COURT SHOULD STAY 

ALL DISCOVERY AND MEDCO’S TIME TO RESPOND TO THE COMPLAINT 

UNTIL THIS COURT RULES OF THE MOTION TO TRANSFER 

“Judicial economy requires that another district court should not burden itself with the 

merits of the action until it is decided that a transfer should be effected . . . [.]” McDonnell 

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Douglas Corp. v. Polin, 429 F.2d 30, 30 (3d Cir. 1970); see Goodman v. Fleischmann, 364 

F.Supp. 1172, 1176 (E.D. Pa., 1973) (“Our courts have uniformly held that the decision to 

transfer is preliminary to discovery on the merits, and that motions to transfer should be acted 

upon at the threshold of the litigation.”); see also Stolz v. Barker, 466 F.Supp. 24 

(M.D.N.C.1978) (transferring venue and withholding decision on pending motions when doing 

so would allow the transferee court to decide important issues that are critical to the disposition 

of the case); cf. Paul v. Aviva Life and Annuity Co., No. 09-1038 2009 WL 2244766, 1 (N.D. Ill., 

July 27, 2009) (granting motion for stay pending decision on motion to transfer case to MDL, in 

order to conserve judicial resources).

Here, Medco’s response to Plaintiff’s Complaint is due September 10, 2012. Medco, 

however, has filed its Motion to Transfer in advance of that deadline in the interest of judicial 

economy. Given the infancy of this case, it is practical that the Court who ultimately hears this 

case is also the Court who sets the pre-trial procedures and schedules, and to the extent possible, 

that the cited law remains consistent throughout this lawsuit. Staying all discovery and Medco’s 

time to respond will promote this consistency. 

Issuing a temporary stay will also avoid unnecessary hassles and preserve judicial 

resources in the event the motion to transfer is granted. No discovery is needed to resolve the 

current Motion to Transfer. Without a stay, however, the expenditures of both judicial and party 

resources that would otherwise soon be required here (e.g., as regards the Court, in issuing a 

scheduling order and undertaking pretrial conferences and case management; and as regards the 

parties, and duplicative motion practice on dispositive motions) will be considerable, and likely 

prove unnecessary if the case is transferred. 

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Finally, Plaintiff will not be prejudiced if this case is stayed for a short period to allow 

this Court to rule on the motion to transfer. This case is in its earliest stages, and Plaintiff will 

not be harmed if discovery is stayed until this Court decides where it will proceed. On the other 

hand, moving ahead with pretrial motions and discovery could cause inconsistency in the 

scheduling and procedures and duplicated motion practice if this case is eventually transferred. 

For these reasons, Medco asks that its Motion to Stay be granted. 

WHEREFORE, for all the reasons stated above, Medco respectfully requests that the 

Court enter an order that: 

1) The Rule 16 conference currently set for September 19, 2012, be continued until 

such time as this Court has had an opportunity to rule on the threshold venue questions raised in 

Medco’s pending 1404(a) motions; 

2) Discovery obligations and the deadline for responding to discovery be stayed and 

reset pending rescheduling of the Rule 16 conference before this Court or the transferee court; 

3) Medco’s time to respond to the Complaint is tolled for fifteen (15) days from the 

date it receives notice of the Court’s ruling on Medco’s pending Motion to Transfer Venue. 

II. IN THE ALTERNATIVE TO A STAY, MEDCO ASKS THAT IT BE GRANTED 

AN ADDITIONAL TWENTY-ONE DAYS TO RESPOND TO PLAINTIFF’S 

COMPLAINT. 

 In the alternative, if this Court does not grant Medco’s motion to stay, Medco asks for an 

extension of twenty-one (21) days to respond to the Complaint. 

WHEREFORE, Medco, in the event this Court decides not to enter a stay pending a 

decision on Medco’s motion to transfer, respectfully requests that the Court enter an order 

granting Medco an additional twenty-one (21) days to respond to Plaintiff’s Complaint, making 

its response due October 1, 2012. 

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 Respectfully submitted, 

 /s/ Douglas F. McMeyer 

Douglas F. McMeyer (IL. Bar No. 6293348) 

Husch Blackwell, LLP 

120 S. Riverside Plaza 

Suite 2200 

Chicago, Illinois 60606 

Phone: (312) 655-1500 

Fax: (312) 655-1501 

Douglas.McMeyer@huschblackwell.com

Attorney for Medco Health Solutions, Inc.

 

 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on the 31st day of August, 2012, the foregoing was 

filed electronically with the Clerk of the Court for the United States District Court for the 

Northern District of Illinois, Eastern Division, and was served by operation of that Court’s 

electronic filing system and separately by e-mail upon the following: 

Alexander H. Burke (ABurke@burkelawllc.com) 

Burke Law Offices, LLC 

155 N. Michigan Avenue, Suite 9020 

Chicago, Illinois 60601 

Robert T. Healey (bob@healeylaw.com) 

Healey Law, LLC 

640 Cepi, Suite A 

Chesterfield, MO 63005 

 /s/ Douglas F. McMeyer_________ 

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