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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW MEXICO 

ROSEMARIE B. MIMS, 

 Plaintiff, 

v. No. 16-CV-136 MCA/GBW 

DAVOL, INC. and C.R. BARD, INC., 

 Defendants. 

MEMORANDUM OPINION AND ORDER 

THIS MATTER is before the Court on Defendants C.R. Bard, Inc. and Davol 

Inc.’s Expedited Motion to Stay all Proceedings [Doc. 59]. The Court, having considered 

the submissions, the relevant law, and otherwise being fully advised in the premises, 

hereby GRANTS the Motion.

BACKGROUND

 On April 19, 2018, Defendants filed the present Motion to Stay all Proceedings, 

representing that a motion had been filed before the United States Judicial Panel on 

Multidistrict Litigation (JPML) “to transfer the actions of more than 50 plaintiffs who, 

like Plaintiff in this case, have products liability claims related to the use of Bard’s hernia 

mesh products pending in various federal courts, into one federal court for the purposes 

of consolidation and coordination.” [Doc. 59, p. 1] While a group of over 50 plaintiffs 

filed the Motion to Transfer, Plaintiff’s action and several other similar actions were not 

identified as related actions in the Motion to Transfer. [Doc. 59, p.2; Doc. 59-3] 

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 Plaintiff opposed the Motion to Stay, arguing that her case was not listed on the 

cases proposed to be transferred and Defendants had not shown that this case should be 

included with those which might be transferred. [Doc. 61, pp. 3-5] She also argued that 

further delay in this case was prejudicial because the case has been pending for over two 

years

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 and she had not received discovery responses. [Doc. 61, pp. 6-7] Plaintiff also 

argued that, “if the case is transferred, the Defendants will likely attempt to relitigate their 

motion to dismiss. By the time that these issues are resolved, this case will likely be 

completed. Therefore, rather than promote efficiency, a transfer would prevent the 

timely resolution of this case.” [Doc. 61, p. 6] 

 After Plaintiff filed her response, the Court held a status conference in order to 

address Defendants’ argument that there is an exigency. The Court also asked 

Defendants to attach to their Reply their response to the Motion to Transfer filed with the 

JPML. And, because Defendants would be submitting new information in the Reply, the 

Court granted Plaintiff leave to file a Sur-reply to address such information. [See Doc. 

62] Thereafter, Defendants filed their Reply, attaching their response to the Motion to 

Transfer filed with the JPML, in which Defendants indicated that they did not oppose 

transfer and consolidation of the hernia mesh cases and requested that several other cases, 

including Plaintiff’s, be included with those transferred. [Doc. 64-1, p. 25; Doc. 64-3, p. 

5] Defendants also filed with the JPML (and provided a copy to this Court) an Amended 

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 Although this case has been pending since February of 2016, early in the case the 

parties filed motions, including a Motion to Dismiss [Doc. 18] and a Motion to Certify 

Question of State Law to the New Mexico Supreme Court [Doc. 24]. A scheduling order 

was first entered on March 3, 2018, which set the discovery deadline of August 27, 2018. 

[Doc. 51] 

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Schedule of Actions related to the Motion to Transfer. [Doc. 64-3] To this Court, 

Defendants argued that they had answered all discovery requests thus far in this case. 

[Doc. 64, pp. 5-7] Defendants argued that, given the pending Motion to Transfer before 

the JPML, they would suffer prejudice if they had “to expend significant resources on 

this discovery, including potential duplicative expert discovery and discovery disputes, if 

the case may be transferred to the MDL.” [Doc. 64, p. 3] Defendants argued that a stay 

of a few months would not be prejudicial to Plaintiff, and Defendants submitted that 

courts around the country have granted thirty-nine motions to stay pending the decision 

of the JPML. [Doc. 64, p. 10] 

 Plaintiff filed a Sur-reply, in which she agreed that Defendant had recently 

submitted many documents (according to Plaintiffs, more than one million pages worth) 

to her, but noted that “there are still discovery issues that must be addressed in this case,” 

including objections to Plaintiff’s discovery requests and identification of which 

documents already supplied to Plaintiff are responsive to her discovery requests. [Doc. 

68, p. 6] She also argued that no motion had been filed before the JPML to include her 

case with those proposed to be transferred, and thus “there has been no discernable 

progress for the inclusion of this matter in a multidistrict litigation.” [Doc. 68, p. 3] 

Plaintiff further argued that there was a question as to whether the mesh product 

implanted in Plaintiff should be included in the multi-district litigation. [Doc. 68, p. 4] 

Finally, Plaintiff argued that prior multi-district litigation hernia mesh cases proceeded 

very slowly, and thus she would suffer prejudice because her case is at a more advanced 

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stage of litigation. [Doc. 68, pp. 4-5] Accordingly, Plaintiff continues to oppose the 

Motion to Stay. 

 On June 15, 2018, Defendants filed a notice to the Court that the JPML set a 

hearing to consider the issue of creating multi-district litigation on July 26, 2018 in Santa 

Fe, New Mexico. [Doc. 70] 

ANALYSIS

 Section 1407 of Title 28 allows for the transfer and consolidation to a single Court 

“civil actions involving one or more common questions of fact” upon the determination 

of the JPML that “transfers for such proceedings will be for the convenience of parties 

and witnesses and will promote the just and efficient conduct of such actions.” 28 

U.S.C. § 1407. 

The pendency of a motion, order to show cause, conditional transfer order 

or conditional remand order before the Panel pursuant to 28 U.S.C. § 1407 

does not affect or suspend orders and pretrial proceedings in any pending 

federal district court action and does not limit the pretrial jurisdiction of 

that court. 

Rule 2.1(d) of the Rules of Procedure of the United States Judicial Panel on Multidistrict 

Litigation. However, 

[a] district court may in [its] discretion stay proceedings before it pending 

resolution of a motion brought pursuant to 28 U.S.C § 1407, as the power 

to stay “is incidental to the power inherent in every court to control the 

disposition of the causes on its docket with economy of time and effort for 

itself, for counsel, and for litigants.” Landis v. North American Co., 299 

U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). When considering a 

motion to stay, a district court should 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). 

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Pace v. Merck & Co., No. CIV 04-1356MCA/ACT, 2005 WL 6125457, at *1 (D.N.M. 

Jan. 10, 2005). 

 Before considering the factors governing a stay, the Court must decide whether 

this case is one “pending resolution of a motion brought pursuant to 28 U.S.C. § 1407.” 

Id. The Court concludes that it is. While Defendants did not file their own separate 

motion seeking the transfer of this case, they instead sought the transfer of this case 

pursuant to their response to the Motion to Transfer, and they filed a Notice of Related 

Actions with the JPML. Defendants thus complied with Rule 6.2(d) of the Rules of 

Procedure of the United States Judicial Panel on Multidistrict Litigation, putting the issue 

of whether the case should be transferred before the JPML. 

 Proceeding then to the application of the factors relevant to a stay, the Court 

concludes that a stay of these proceedings is appropriate pending the decision by the 

JPML. Although Plaintiff argues that she will suffer prejudice, her arguments are largely 

focused on prejudice she would suffer if this case were transferred, an issue which the 

JPML, not this Court, must address. The relevant potential delay a stay would impose is 

the delay prior to the JPML’s decision on consolidation, which is likely to be a few 

months. By comparison, the potential hardship and inequity for Defendants includes the 

expenditure of “significant resources on . . . discovery, including potential duplicative 

expert discovery and discovery disputes.” [Doc. 64, p. 3] Although the Court 

understands that Plaintiff has “patiently endured” while “this case has been in litigation 

for over two years,” [Doc. 61, pp. 2, 6], after weighing the relative hardships, the court 

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Concludes that it would be more costly and unreasonable to impose duplicative discovery 

on Defendants. 

 With regard to judicial economy, imposing a stay in this case would avoid 

potentially duplicative litigation. “A stay pending the Panel’s decision can increase 

efficiency and consistency, particularly when the [potential] transferor court believes that 

a transfer order is likely and when [any] pending motions raise issues likely to be raised 

in other cases as well.” Federal Judicial Center, Manual for Complex Litigation § 22.35 

(4th ed. 2004). Given the potential for discovery disputes in this case, it would conserve 

the Court’s resources to wait to address those issues until after the JPML has made its 

determination. 

 Accordingly, for the foregoing reasons, the Court exercises its discretion to grant a 

stay in this case pending the decision of the JPML on the Motion to Transfer. 

CONCLUSION

WHEREFORE, for the foregoing reasons, the Court HEREBY STAYS this 

matter pending the resolution of the Motion to Transfer by the JPML. 

 SO ORDERED this 18 day of June, 2018 in Albuquerque, New Mexico. 

 ___________________________ 

 M. CHRISTINA ARMIJO 

 United States District Judge 

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