IN THE UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

BETTY WEATHERS, * 

 * 

 Plaintiff, * 

 * 

v. * CASE NO.: 2:06-cv-0666-WHA 

 * 

ELI LILLY AND COMPANY, et al. * 

 * 

Defendants. * 

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO STAY ALL 

PROCEEDINGS PENDING TRANSFER DECISION BY THE JUDICIAL PANEL 

ON MULTIDISTRICT LITIGATION

 Plaintiff Betty Weathers files this opposition to Lilly’s Motion to Stay All 

Proceedings Pending Transfer Decision by the Judicial Panel on Multidistrict Litigation 

and in support states as follows: 

Defendant Lilly’s Motion to Stay should be denied. Before ruling on Lilly’s 

motion, the issue of subject matter jurisdiction should be resolved by this Court. Lilly 

cannot justify why the MDL would be in a better position to move forward with an action 

filed under Alabama law. Whether this case raises issues similar to federal cases which 

may be transferred to the MDL is not the issue which faces this Court. This Court can, 

and should, resolve the issue before it rather than shifting the issue to the MDL. 

Moreover, Despite Lilly’s assertion that both parties will avoid prejudice by 

having its Motion to Stay granted, the truth is only Lilly will benefit by the continuing 

and unnecessary delay that is almost certain to occur if this case is transferred to the 

MDL. As Lilly acknowledges in their brief, the Zyprexa MDL has been ongoing since 

April 2004. What Lilly fails to point out is that the MDL proceedings have made very 

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little, if any, progress during that two-year period. The main purpose of an MDL is to 

coordinate pre-trial discovery and to provide that discovery to lawyers representing 

clients across the country. However, most of the attorneys appointed by the MDL court to 

prepare the discovery have resolved their cases and are not actively pursuing discovery. 

In two years, not a single deposition has been taken by attorneys for plaintiffs. 

As a result of using Zyprexa, Plaintiff has suffered the onset of diabetes mellitus, 

which, as this Court knows, is a severe and potentially deadly disease. In fact, Plaintiff 

now has a 65% chance of suffering a fatal heart attack or stroke1 and Plaintiff’s overall 

health is likely to deteriorate as time passes. Any inconvenience that Lilly may face as a 

result of state-court proceedings pales in comparison to the prejudice that Plaintiff will 

suffer by the needless delay tactics, such as this Motion to Stay, that Lilly intends to 

employ throughout this and other proceedings. 

Plaintiff, therefore, respectfully urges this Court to enter an Order denying Lilly’s 

Motion to Stay All Proceedings. 

ARGUMENT 

In its Motion, Defendant Lilly cites several Orders by judges in other federal 

districts agreeing to stay these cases pending transfer. There are an equal or greater 

number of federal judges who do not defer the jurisdictional issue to a MDL. For 

example, in the diet drug litigation, as this Court is keenly aware, Wyeth filed a Motion 

to Stay Proceedings in virtually every case pending transfer to the MDL. The judges in 

this District did not accede to this built in delay, and instead decided the jurisdictional 

issue. In Sandra Cash v. Wyeth, this Court rejected the notion that it should allow the 

 

1 See http://www.diabetes.org/type-2-diabetes/well-being/heart-disease-and-stroke.jsp

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MDL to resolve the jurisdictional issue, stating “[t]he question of whether [the sales 

representative] was negligent or made fraudulent statements is specific to this case. The 

MDL court would not be in a better position to decide remand than this court.” See

Sandra Cash v. Wyeth, CV-03-RRA-3378-E. 

Just recently, United States District Judge William Steele denied Lilly’s Motions 

to Stay and remanded five Zyprexa® cases filed in various circuit courts encompassed by 

the Southern District. Lilly unsuccessfully alleged fraudulent joinder as a means to 

disregard the citizenship of the in-state defendants. Judge Steele flatly rejected Lilly’s 

contention that judicial economy would be served by allowing the MDL court to decide 

the merits of the jurisdictional issues, and sharply criticized the “reflexive rule that 

automatically defers decision to an MDL court whenever it can be predicted that an issue 

at least superficially may arise in other transferred cases.” Betts v. Eli Lilly and 

Company, et al., Case No. 06-0259-WS-B (S.D. Ala. June 5, 2006)2. 

Further, Eleventh Circuit precedent requires the federal court to promptly 

determine issues of subject matter jurisdiction. Consistent with the principles of judicial 

economy, issues of subject matter jurisdiction should be resolved prior to any transfer to 

a MDL. 

A. Eleventh Circuit case law requires that this Court rule on Plaintiff’s 

Motion to Remand prior to addressing any other motions, including a 

request to stay proceedings. 

This Court is under a duty to examine its own jurisdiction prior to undertaking 

any action. University of South Ala. v. The American Tobacco Company, 168 F. 3d 405, 

410 (11th Cir. 1999) (“a court should inquire into whether it has subject matter 

jurisdiction at the earliest possible stage in the proceedings.”). If this court lacks subject 

 

2 See Exhibit “1” attached and submitted with this brief. 

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matter jurisdiction, it is without power to act, or to enter a stay of proceedings. Stern v. 

Mutual Life Ins. Co., 968 F. Supp. 637, 639 (N.D. Ala. 1997)(“If the court lacks 

jurisdiction ab initio, it is without jurisdiction to enter such a stay. It is incumbent upon a 

court whose subject matter jurisdiction is questioned to make a determination as to 

whether it has, or does not have, jurisdiction over the action.”). See also United States v. 

Hays, 515 U.S. 737-742-744, 155 S.Ct. 2431, 2435 (1995) (“The court has an 

independent obligation to examine the petition for removal to determine if federal 

jurisdiction exists over the case.”). 

B. MDL courts routinely prefer that district courts reject motions to stay 

 and resolve any motions to remand themselves. 

In the diet drug litigation cases, Judge Louis Bechtle, the original judge presiding 

over the MDL, set out the Court’s preferences for all cases which could potentially be 

transferred to the MDL at a March 4, 1998, hearing in Philadelphia, Pennsylvania. The 

Court stated: 

There are one or two things. Let me mention just one or two other items 

that everyone here has to be concerned about. When cases are transferred 

here, many times they are transferred here and very little has been done in 

the transferor court. They have been filed there and they are a tagalong 

and everything kind of stops, that allows it to work. Although, in many 

instances there are motions filed in the transferor court, some are motions 

to remanded back to state court. For example, there might be other 

motions pending in the transferor court at the time that the case is to be 

transferred here. In virtually every instance, the transferor court, 

when that court learns that it could become involved in the MDL, they 

do not rule on any of those motions. Although they have the authority 

and, indeed, the power to do so, they – it is a matter of custom, do not 

do that. It is better if they did, but they don’t. 

(See In Re: Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine Products Liability

Litigation, MDL 1203 – March 4, 1998-Transcript pp. 105 – 106 (emphasis added)). 

In MDL 1203, the Court specifically questioned why matters of remand regarding 

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state law issues and removal based on fraudulent joinder were being brought before the 

MDL court, when they were more properly decided by the local district court. See In Re 

Diet Drugs Product Liability Litigation, MDL No. 1203, Hearing Transcript, (E.D. P.A. 

July 16, 2002). Specifically, Judge Bartle, who succeeded Judge Bechtle, when asked to 

address issues regarding the alleged fraudulent joinder of defendants, asked: 

 “Why shouldn’t that matter be decided by the [local] federal court in 

Louisiana rather than my remanding cases to the State Court?” Id. at 15. 

“Is that really a matter for me to get involved in? Isn’t it better for a [local] federal 

court in Mississippi to decide that? I mean, that court would certainly be better 

versed in the nuances of Mississippi law than I.” Id. at 102. 

Judge Bartle further explained the reason why the local federal court is in a better 

position to decide the issue, and how having the MDL court decide these case specific, 

state law specific issues does not promote the consistency and efficiency for which an 

MDL is created: 

“Maybe doctor x did prescribe the drug for a plaintiff in Mississippi and 

that doctor is appropriately joined. Maybe in another case down in Texas, 

a particular doctor who is joined didn’t do so.” Id. at 104-105. 

“[I]f I make a decision, a case specific decision about what the law of 

Mississippi is with respect to a pharmacy, you know, I’m going to have to 

look at the complaint that was filed and see what the cause of action is. 

And then I’m going to have ... to decide what Mississippi law is. I’m 

going to have to decide whether it is proper to bring that particular 

defendant into the case.” Id. at 126. 

“Now, maybe complaint A will have a certain theory against a pharmacy 

[sales representative]. And then I will have to decide, well, does 

Mississippi permit that or not. Then complaint B in Mississippi will have 

a slightly different theory. So I'm then going to have to decide whether or 

not in B, you can sue a pharmacy [sales representative] under that theory. 

Maybe you can't sue it under theory A but maybe under B. You can't sue 

under failure to warn, but we all know about the ingenuity of lawyers. 

There are probably or 30 in this room. And I'll bet there could be 25 or 30 

different theories that lawyers could develop to sue pharmacies [sales 

representatives] in Mississippi.” Id. at 127. 

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“I’m just saying to you that it’s simply, you know, deciding one 

Mississippi case related to pharmacies [sales representatives] may not be 

the end of the story.” 

Id. at 128. 

These statements illustrate the obvious truth that this local District Court is in the 

best position to decide the jurisdictional issue and remand motion, and no benefit will 

inure to either party by having the issue decided by the MDL court, except for delay, 

which is certainly not a tenet of the Manual for Complex Litigation, Third Edition, and is 

no basis for imposing a stay on these proceedings. Thus, the only result of a transfer to 

the MDL Court would be further unnecessary delay of the Plaintiff’s case. 

C. Lilly’s Request to Stay should be denied. 

It would be inappropriate to issue a stay of the proceedings.3 The United States 

District Court for the Southern District of Alabama addressed whether or not a Motion to 

Stay should be granted when the case is due to be remanded in Nicholas v. The 

Prudential Insurance Company, No. 97-0204-CB-C, 1997 U.S. Dist. LEXIS 6579 

(1997). In that case, Prudential asked the court to stay all proceedings, including 

Plaintiff’s Motion to Remand, until the MDL Panel determined whether or not to transfer 

the case. Prudential pointed out to the court that similar Remand Motions had already 

been transferred. Prudential also argued that by allowing all Motions to Remand to be 

heard in one setting would “promote consistency, conserve judicial resources, and avoid 

duplicative discovery.” Id. at 14. Prudential further stated that since other courts granted 

 3

 In Paula Turner v. Merck & Co., Inc., CV-1:04 CV999-2, in the Middle District of Alabama, 

the Honorable Myron Thompson granted a “Consent Motion” to stay all proceedings. In Stephanie Terrell 

v. Wyeth, CV-03-BE-2876-S and Sandra Storey v. Wyeth, CV-04-BE-0027-E, the Honorable Karon 

Bowdre granted Motions to Remand for lack of subject matter jurisdiction even though Defendants had 

filed Motions to Stay pending transfer to the MDL. 

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stay under identical circumstances, that court should follow suit. The court disagreed: 

[M]ore importantly, the plaintiffs chose to pursue their claims in state 

court. It is axiomatic that ‘federal courts are courts or limited 

jurisdiction,’ and that ‘plaintiff is still the master of his own claim.’ To 

allow this case to be transferred to the District of New Jersey 

unnecessarily burdens the plaintiffs’ right to proceed in the forum of their 

own choosing. Even if the District Court in New Jersey ultimately 

remanded the case to the Circuit Court of Mobile County, Alabama, the 

plaintiffs would nevertheless be forced to pursue their claim in a forum not 

of their choosing one thousand miles from home. In light of the clearly 

improper removal of this case, such circumstances are simply intolerable. 

Nicholas v. The Prudential Insurance Company, No. 97-0204-CB-C, 1997 U.S. Dist. 

LEXIS 6579 (M.D. Ala. 1997) (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 

(11th Cir. 1994)). 

The Southern District addressed this issue again on June 5, 2006 in cases 

involving the same pharmaceutical drug as the instant case. Judge Steele found that the 

resources of the federal courts are better expended by having the transferor court deciding 

the jurisdictional issues: 

The economy of the transferor court presumably is always enhanced by 

deferring ruling on a motion to remand, since it takes no effort to do 

nothing. However, an accurate assessment of judicial economy requires 

consideration of the time and effort of all courts involved; a deferral that 

saves one court an hour’s work but costs other courts several more is 

scarcely a conservator of judicial resources. 

... 

To defer ruling on a plainly meritorious motion to remand forces a body of 

seven judges (who have their own dockets in addition to the Panel’s) to 

needlessly review and hear argument on requests for transfer, objections 

thereto, and post-transfer matters. 

Betts Order at 3. 

 Moreover, Judge Steele addressed the practical aspects of having a foreign court 

decide issues involving unfamiliar state-law: 

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A transferee court sitting elsewhere is not only unlikely to possess unusual 

familiarity with the Alabama law, but is likely to be less conversant with 

that law than a transferor court that regularly considers Alabama legal 

issues when it sits in diversity. In such cases, the transferee court will 

require more time than the transferor court to resolve the motion, because 

it must first acquaint itself with Alabama law the transferor court already 

knows, resulting in an additional tax on judicial economy. Moreover, the 

transferee court stands at a similar comparative disadvantage with respect 

to motions to remand involving the law of the remaining 50 or more local 

jurisdictions outside its own. 

Id. at 6. Plaintiff would respectfully urge this Court to follow Judge Steele’s lead and see 

Lilly’s Motion to Stay for what it is – an unnecessary and impractical waste of judicial 

resources. 

Courts in the Tenth Circuit have also addressed the issue of whether it is 

appropriate to allow transfer of a civil action to an MDL Panel where there is no original 

jurisdiction in the district court. See Aetna U.S. Healthcare, Inc. v. Hoeschst 

Aktiengesellschaft, 54 F. Supp. 2d 1042 (D. Kan. 1999); Bellinder v. Microsoft Corp.,

2000 WL 57501 (D. Kan. 2000). 

 In the Aetna case, plaintiffs filed numerous claims against defendant drug 

manufacturers in state court in Kansas alleging unfair competition and violations of the 

Unfair Trade and Consumer Protection Act, K.S.A. § 50-101 et seq. Aetna, 54 F. Supp2d 

at 1046. Plaintiffs’ complaint made no allegations that would give rise to original federal 

jurisdiction. The defendants improperly removed the action to federal court and moved 

for a stay pending the rulings from a Multi-District Litigation Panel that was hearing 

similar complaints in other cases. Id at. 1046. The Aetna Court gave a full treatment of 

the law and rationale behind their decision to handle the jurisdictional question first by 

stating: 

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Defendants argue that the Court should stay consideration of plaintiffs’ 

motion for remand (and all other issues) until the Joint panel on MultiDistrict Litigation (“JPMDL”) has decided their motion to consolidate 

numerous similar actions. Defendants contend that plaintiffs will still get 

a chance to seek remand, after the JPMDL has made its decision. 

The Court sees no reason to delay ruling on plaintiffs’ motion to remand. 

The Court retains jurisdiction to decide the remand issue, despite 

defendants’ motion to the J.P.M.D.L. See panel Rule 1.5, 181 F.R.D. 1, 3 

(1988).4

 Defendants cite district courts which have already addressed the 

jurisdictional issue, which is an important preliminary issue in this case. 

“If at any time before final judgment it appears that the district court lacks 

subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 

1407(c). 

While staying the proceedings might allow a single district court to rule on 

the jurisdictional issue in the various cases, a stay would not affect the law 

that applies to the present case and little would be gained by a stay on the 

motion to remand. The parties would still be subject to Kansas law. No 

great judicial economy will be realized from a delay. The parties will not 

save time, for they have already briefed the remand issue. The Court is 

well versed in both Kansas and federal law, while the transferor court 

would need to apply the law of different states to different claims. For 

purposes of judicial economy, the jurisdictional issue should be 

resolved immediately. If federal jurisdiction does not exist, the case 

can be remanded before trial resources are further expended. In the 

Court’s view, judicial economy dictates a present ruling on the 

remand issue.

Aetna, 54 F. Supp. 2d at 1047, 1048 (emphasis added). 

The same district expanded the Aetna decision in Havens Protected “C” Clamps, 

Inc. v. Pilkington, PLC, 2000 WL 382027 (D. Kan. 2000). In Havens, the plaintiffs once 

again filed a complaint that provided no foothold for federal jurisdiction. The defendants 

improperly removed the case to federal court and requested a stay pending consolidation 

rulings by an MDL Panel. Havens, 2000 WL 382027 *1. Prior to the defendants’ motion, 

 4 Rules of Procedure of the Judicial Panel on Mutlidistrict Litigation. 28 U.S.C. § 1407. Rule 

1.5. Effect of the Pendency of an Action Before the Panel: The pendency of a motion, order to show 

cause, conditional transfer order or conditional remand order before the Panel concerning transfer or 

remand of an action pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial 

proceedings in the district court in which the action is pending and does not in any way limit the pretrial 

jurisdiction of that court. A transfer or remand pursuant to 28 U.S.C. § 1407 shall be effective when the 

transfer or remand order is filed in the office of the clerk of the district court of the transferee district. 

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the Plaintiffs filed a motion to remand. The Havens court chose to rule on the propriety 

of issuing a stay absent a showing of federal jurisdiction. The Court stated: 

According to Panel Rule 1.5, this court’s jurisdiction is not affected by the 

MDL panel’s issuance of a conditional transfer order, and therefore this 

court retains jurisdiction to rule on plaintiffs’ pending motion to remand. 

Because disposition of plaintiffs’ motion to remand requires the court to 

determine whether federal jurisdiction exists over the action, the court 

believes that, in the interests of judicial economy, resolution of plaintiffs’ 

motion is appropriate at this juncture. Indeed, because the issues raised in 

plaintiffs’ motion to remand have been fully briefed by the parties, and 

further because there is reason to believe that the transferee court would be 

a more suitable forum for resolution of the matters raised therein, the court 

can perceive no benefit to deferring ruling on plaintiffs’ motion...Finally, 

the court notes that there is at least some authority for the proposition 

that a district court cannot stay proceedings for which it lacks 

jurisdiction...Accordingly, defendants’ informal request to stay these 

proceedings pending the transfer of the case by the MDL Panel is denied. 

Havens, 2000 WL 382027 *2 (emphasis added). 

In Lloyd v. Cabell Huntington Hospital, Inc., 58 F. Supp. 2d 694 (S.D.W.Va. 

1999), the court ruled that it is without the power to stay proceedings in cases where no 

federal jurisdiction is present. The court ruled: 

This Court cannot, however, stay proceedings in an action over which it 

lacks jurisdiction. Removal statutes must be construed strictly against 

removal. 

Adkins v. Gibson, 906 F. Supp. 345 346 (S.D.W.Va. 1995) (Haden, C.J.) 

(citing Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th

Cir. 1994)); accord Murray v. State Farm Fire & Cas. Co., 870 F. Supp. 

123, 124 (S.D.W.Va. 1994)(Haden, C.J.). The burden of establishing the 

propriety of removal falls upon the removing party. Mulcahey, 29 F.3d at 

151. If federal jurisdiction is doubtful, remand is necessary. 

Lloyd, 58 F. Supp. 2d at 696. 

Likewise, the United States District for the Northern District of California 

addressed this very issue in Tortola Restaurants v. Kimberly-Clark Corp., 987 F. Supp. 

1186 (N.D. Cal. 1997). This case involved a class action suit brought by citizens of 

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California against Kimberly-Clark for a price fixing scheme. Defendants improperly 

removed the case to federal court and moved to stay proceedings pending pretrial rulings 

by an MDL Panel. The Court properly denied the defendants’ motion to stay and 

remanded the case for lack of subject matter jurisdiction. Id. at 1190. In the discussion 

for defendants’ motion to stay the Court noted: 

A putative transferor court need not automatically postpone rulings on 

pending motions, or in any way generally suspend proceedings, merely on 

grounds that an MDL transfer motion has been filed. See Manual for 

Complex Litigation 3d § 31.131, p. 252 (3d ed. 1995); see also Villareal v. 

Chrysler Corp., No. C-95-4414, 1996, WL 116832, at *1 (N.D. Cal. Mar. 

12, 1996) (“a stay is improper. Judicial economy will be best served by 

addressing the remand issue [as it] will facilitate litigation in the 

appropriate forum). 

Here, a motion has been filed with this Court seeking a determination of 

the appropriate forum in which to litigate this matter. ‘The appropriate 

forum, moreover, is a threshold issue to class certification and defendants’ 

petition to the Panel does not affect scheduled pretrial proceedings.’ This 

Court, as transferor Court, ‘retains exclusive jurisdiction until the § 1407 

transfer becomes effective and as such, motions to remand should be 

resolved before the panel acts on the motion to transfer.’ Spitzfaden v. 

Dow Corning Corp., No. 95-2578, 1995 WL 662663, *4 n. 1 (E.D. La. 

Nov. 8, 1995)(citing Manual for Complex Litigation, 3d § 31.131.) 

Accordingly, defendants’ motion for stay of proceedings pending a 

decision by the Panel is hereby DENIED, and the Court addresses the 

merits of plaintiff’s remand motion. 

Tortola, 987 F. Supp at 1189 (emphasis added). 

Such is the case at bar. This Court should examine whether it has subject matter 

jurisdiction before any decision to stay the proceedings pending the transfer of this case 

to the MDL has been made. 

CONCLUSION 

Since there is no subject matter jurisdiction in this case, there is no reason for this 

Court to postpone its decision on the jurisdictional issue while awaiting a decision of the 

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Judicial Panel. For the Plaintiff’s sake and for the sake of judicial economy and 

efficiency, this Court should exercise its discretion and resolve the jurisdictional issue 

once and for all. 

Respectfully submitted this 31st day of July, 2006. 

/s/ FRANK WOODSON 

E. Frank Woodson, Jr. (WOODS0479) 

Attorney for Plaintiff 

OF COUNSEL:

BEASLEY, ALLEN, CROW, METHVIN, 

PORTIS & MILES, P.C. 

Post Office Box 4160 

Montgomery, Alabama 36103-4160 

Phone: (334) 269-2343 

Fax: (334) 954-7555 

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CERTIFICATE OF SERVICE

 I hereby certify that I have served a copy of the foregoing document upon the 

parties as listed below by placing a copy of same in the United States Mail, first class, 

postage prepaid on this the 31st day of July, 2006. 

James C. Barton 

Alan D. Mathis 

JOHNSTON, BARTON, PROCTOR, 

& POWELL, L.L.P. 

2900 AmSouth/Harbert Plaza 

1901 Sixth Avenue North 

Birmingham, Alabama 35203

/s/ FRANK WOODSON 

 Of Counsel 

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