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- 1 - 06cv2574

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

EDNA GOYA, an individual,

Plaintiff,

CASE NO. 06-CV-2574 H (AJB)

ORDER DENYING

MERCK & CO.’S MOTION

FOR A STAY WITHOUT

PREJUDICE AND

DEFERRING RULING ON

MOTION TO REMAND

(Doc. Nos. 6 & 10)

vs.

MERCK & CO., INC., a corporation;

MCKESSON CORPORATION, a

corporation; and DOES 1-100,

inclusive,

Defendants.

Defendant Merck & Co., Inc. (“Merck”) removed this case from state court on

November 21, 2006. (Doc. No. 1.) In her complaint, Plaintiff Edna Goya alleges that

she suffered injuries caused by her use of Merck’s product, Fosamax. (Id.) On

December 14, 2006, Merck filed a motion to stay proceedings. (Doc. No. 6.) Plaintiff

filed a response in opposition on December 29, 2006. (Doc. No. 9.) Merck filed a reply

on January 3, 2007. (Doc. No. 12.) On January 3, 2007, Defendant McKesson

Corporation filed a notice that it joins in Merck’s request for a stay. (Doc. No. 14.) In

its motion, Merck asks the Court to stay the proceedings pending a decision by the

Judicial Panel on Multidistrict Litigation (“JPMDL”) as to whether this action should

be transferred to In re Fosamax Prods. Liab. Litig., MDL No. 1789, currently pending

before Judge John Keenan in the Southern District of New York.

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- 2 - 06cv2574

On December 29, 2006, Plaintiff filed a motion to remand. (Doc. No. 10.)

Merck filed a response in opposition on January 26, 2007. (Doc. No. 18.) McKesson

filed a joinder in Merck’s response on January 23, 2007. (Doc. No. 17.)

As indicated in a previous order, pursuant to its discretion under Civil Local Rule

7.1(d)(1), the Court submits the motions on the papers without oral argument.

On December 27, 2006, the JPMDL entered an order conditionally transferring

this case to the In re Fosamax proceedings. (Jeffrey M. Tanzer Decl. Supp. Def.’s

Reply Supp. Mot. to Stay Proceedings, Ex. 1.) Plaintiff indicates that she will oppose

final transfer, however. If Plaintiff files an opposition, according to Rule 7.4 of the

Rules of Procedure of the JPMDL, the conditional transfer order will be stayed until

further order of the JPMDL, and the JPMDL will set the matter for hearing. See Rules

of Procedure of the JPMDL, Rule 7.4(c)-(d). Then, the JPMDL will determine whether

to issue a final transfer order.

Under the rules of procedure of the JPMDL, a pending conditional transfer order

does not affect pretrial proceedings in the district court and does not in any way limit

the pretrial jurisdiction of the district court. See Rule 1.5 of the Rules of Procedure for

the Judicial Panel on Multidistrict Litigation. Nevertheless, district courts have inherent

power to stay their own proceedings. The power to stay a case 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. N. Am.

Co., 299 U.S. 248, 254 (1936); see also CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th

Cir. 1962). Whether to grant a stay is left to the sound discretion of the trial court.

CMAX, Inc., 300 F.2d at 268. Courts generally take into consideration judicial

economy and prejudice to the parties in determining whether to enter a stay. See, e.g.,

Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997); see also Landis,

299 U.S. at 254-55.

Given that this case was recently filed and the JPMDL has already entered a

conditional transfer order, the Court finds that a formal stay is not required to preserve

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- 3 - 06cv2574

judicial resources and to avoid prejudice to Merck. Accordingly, the Court DENIES

Merck’s motion for a stay without prejudice. The Court notes that at least 58 cases

have already been transferred to the coordinated proceedings before Judge Keenan, and

additional cases, such as this one, are currently awaiting transfer decisions by the

JPMDL. Therefore, although the Court declines to impose a formal stay, the Court does

not expect the parties to pursue the case or conduct any discovery while awaiting the

JPMDL’s decision. 

Additionally, Plaintiff has recently filed a motion to remand this action. As at

least one court has noted: “The general rule is for federal courts to defer ruling on

pending motions to remand in MDL litigation until after the JPMDL has transferred the

case to the MDL panel.” Jackson v. Johnson & Johnson, Inc., No. 01-2113 DA, 2001

WL 34048067, at *6 (W.D. Tenn. April 3, 2001); see also In re Amino Acid Lysine

Antitrust Litig., 910 F. Supp. 696, 700 (J.P.M.L. 1995) (“[T]he pending motion to

remand . . . can be presented to and decided by the transferee judge.”). Accordingly,

the Court will DEFER ruling on Plaintiff’s motion to remand for 60 days, subject to

further deferral if the JPMDL has not entered a final ruling on transfer at that time. If

the JPMDL declines to enter a final transfer order, the motion to remand will be

pending before this Court. If, however, the JPMDL enters a final transfer order

consolidating this case for pretrial proceedings in the Southern District of New York,

the Court notes that the motion will be pending before the transferee court and no

longer before this Court.

IT IS SO ORDERED.

Dated: February 1, 2007 

MARILYN L. HUFF, District Judge

UNITED STATES DISTRICT COURT

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- 4 - 06cv2574

Copies To:

Magistrate Judge Battaglia

Hector G. Gancedo

Tina B. Neives

Amy M. Boomhouwer

Gancedo & Nieves, LLP

144 W. Colorado Blvd.

Pasadena, CA 91105

Douglas Emhoff

Jeffrey Tanzer

Venable LLP

2049 Century Park East, Suite 2100

Los Angeles, CA 90067

Case 1:07-cv-03296-JFK Document 2-18 Filed 05/08/2007 Page 4 of 4 Case 3:06-cv-02574-H-AJB Document 19 Filed 02/02/2007 Page 4 of 4