NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FALK, U.S.M.J.

Before the Court is Defendants’ motion to stay the case. [CM/ECF No. 4.] The

motion is opposed. No oral argument was heard. Fed. R. Civ. P. 78(b). Based upon the

following, the motion is granted.

Defendants Power Balance, LLC and Power Balance, Inc. market and sell wristbands,

bracelets, and other products that contain “Mylar Holograms,” which purport to cause

physiological benefits in those wearing them, including improved balance, flexibility, and

strength. Plaintiff, Suzanne Packer, a New Jersey resident, purchased a Power Balance

bracelet from a Modell’s Sporting Goods store. In January 2011, Ms. Packer filed a class

action complaint in New Jersey Superior Court, alleging that her Power Balance bracelet was

SUZANNE PACKER, Individually and

on behalf of the purchasers of Power

Balance, 

 Plaintiff,

v.

POWER BALANCE, LLC, POWER

BALANCE, INC., AND MODELL’S

SPORTING GOODS, INC.,

 Defendants.

 Civil Action No. 11-802 (WJM)

 

MEMORANDUM OPINION

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effectively worthless and that Defendants’ marketing and advertising is false and violates the

New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. Defendants removed the case to

this Court on February 14, 2011.

On February 22, 2011, Defendants filed a motion to stay the case. There are

approximately 17 more cases with allegations relating to Power Balance’s marketing and

advertising pending in federal courts around the country. (See Declaration of Michael J.

Avenatti, Esq. ¶2; Exs. 1-15.) Defendants request a stay based on the following: (1) the

Power Balance Defendants have apparently agreed to a nationwide class action settlement

relating to their marketing and advertising in a federal action pending before the Honorable

Cormac J. Carney, U.S.D.J., in the United States District Court for the Central District of

California, Batungbacal v. Power Balance, LLC, 11-18 (C.D. Cal.); and (2) Defendants have

moved before the Judicial Panel on Multidistrict Litigation (“JPML”) to consolidate all

Power Balance cases pending in federal court, including this one, before Judge Carney – the

District Judge presiding over the Batungbacal action.

According to Defendants, the stay would be short. Settlement papers in the

Batungbacal action are to be filed before the end of March, and the JPML has scheduled a

hearing on Defendants’ motion for transfer on March 30, 2011. Based on these related

proceedings, Power Balance has successfully moved to stay three other federal cases. (See

Supplemental Declaration of Michael J. Avenatti, Esq. ¶ 4; Exs. C-E.)

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 The cases are: Bowlin v. Power Balance, LLC, 11-351 (HGD) (S.D. Ga.);

1

Davidson v. Power Balance, 11-288 (RDP) (N.D. Ala.); Inthiar v. Power Balance, LLC,

2

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Plaintiff opposes a stay. She argues that the class action settlement does not account

for her claims under the NJCFA, and that the quantum of damages she may recover under

the New Jersey statute exceeds the recoverable amount under the state laws involved in the

nationwide class action settlement. She also contends that Defendant Modell’s is not a party

to the class action settlement.

A stay of civil litigation is discretionary. See, e.g., Bechtel Corp. v. Local 215

Laborers’ Int’l Union of N.A., 544 F.2d 1207, 1215 (3d Cir. 1976) (“A United States District

Court has broad powers to stay proceedings.”). Deciding whether to stay a case requires “an

exercise of judgment, which must weigh competing interests and maintain an even balance.”

Landis v. North Am. Co., 299 U.S. 248, 255-56 (1936). Considerations include: the hardship

to the moving party should the case proceed; the potential prejudice to the non-moving party;

whether the actions involve the same or similar parties; the similarity of issues; and judicial

economy. See, e.g., Ford Motor Credit v. Chiorazzo, 529 F. Supp. 2d 535, 542 (D.N.J.

2008); Local 478 Trucking & Allied Indus. Pen. Fund v. Jayne, 778 F. Supp. 1289, 1324

(D.N.J. 1991). Stays of a civil actions are common when the issue of transfer is before the

JPML. See, e.g., Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997) (“A

majority of courts have concluded that it is appropriate to stay preliminary pretrial

proceedings while a motion to transfer and consolidate is pending with the MDL panel

because of the judicial resources that would be saved.”); 15 Charles A. Wright, et al., Federal

Practice & Procedure § 3866.1 (“[D]istrict courts will often exercise their discretionary

11-60049 (S.D. Fla.).

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power to stay the proceedings before them with regard to a wide variety of matters pending

a decision by the panel regarding the transfer of a case, especially when such a stay would

further the policies of judicial economy, efficiency, and consistency that are deeply

embedded in the federal multidistrict litigation statute.”). Courts have also stayed civil

actions pending consideration of nationwide class action settlements. See, e.g., Annunizatio

v. eMachines, Inc., No. 05-610, 2006 U.S. Dist. LEXIS 97020, at *14-17 (C.D. Cal. July 24,

2006) (granting stay pending nationwide class action settlement); Chartner v. Provident Mut.

Life Ins. Co., No. 02-8045, 2003 U.S. Dist. LEXIS 19500, at *9-10 (E.D. Pa. Oct. 21, 2003).

A stay is appropriate here. First, Defendants’ marketing and advertising are the

subject of federal cases around the country. There is a proposed nationwide class action

settlement addressing these issues, while at the same time the JPML is also considering

transfer and coordination of these cases before the same District Judge. The class action

papers are being filed in California shortly, which may be dispositive of Plaintiff’s claims.

In addition, the MDL has scheduled a hearing to address transfer and consolidation on March

30, 2011, which is imminent. These proceedings involve similar parties and claims to those

in Plaintiff’s Complaint. The existence of related proceedings at such advanced stages

weighs heavily in favor of a stay.

Second, balancing of the parties’ interest weighs in favor of a stay. Absent a stay,

Defendant could be compelled to unnecessarily litigate claims in different fora, become

subject to competing court orders, and undercut the primary purpose of the MDL. In

contrast, Plaintiff has not shown any prejudice that will result from a brief stay while the

related proceedings develop.

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Third, considerations of judicial economy favor a stay. Judge Carney is considering

a comprehensive settlement of claims relating to Defendants’ marketing and advertising, the

very subjects of Plaintiff’s Complaint. Likewise, the MDL is considering whether to transfer

at least 17 federal cases, including this one, to Judge Carney. It would be a waste of judicial

resources for this Court to consider the merits of Plaintiff’s Complaint at the same time that

Judge Carney is considering the nationwide settlement and the JPML is considering whether

transfer is appropriate.

Based on the above, this action will stayed pending consideration of both the

nationwide class action proceedings and the JPML’s decision on transfer and consolidation.

However, the stay will not be indefinite. Defendant shall file status reports with this Court

providing updates on the California class action litigation and the MDL proceedings. The

first status report shall be submitted on or before April 21, 2011. Additional status reports

shall be filed every thirty days thereafter. Based upon these reports, the Court will consider

whether a continued stay of this case is warranted.

s/Mark Falk

MARK FALK

United States Magistrate Judge

Dated: March 22, 2011

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