Ashworth v. Albers Medical, Inc.

33 A.L.R. Fed. 2d 681, 229 F.R.D. 527, 2005 U.S. Dist. LEXIS 22595, 2005 WL 1833038
District Court, S.D. West Virginia·Decided July 25, 2005·No. Civ.A. No. 2:05-0139·Published·Cited by 29 cases

Opinion

MEMORANDUM ORDER AND OPINION

COPENHAVER, District Judge.

Pending before the court is the motion of the United States of America, filed June 2, 2005, seeking to intervene in this action for the limited purpose of obtaining a stay of discovery.

In support of this motion, the United States offers the Declaration of Phillip Eugene Porter, Senior Litigation Counsel in the office of the United States Attorney for the Western District of Missouri. Porter states that since March of 2003 agents of the United States Food and Drug Administration’s Office of Criminal Investigations have been investigating a scheme to sell and distribute counterfeit Lipitor tablets in the United States. Porter Dec. at ¶¶ 2-3. As a result of that ongoing investigation, eight persons have been formally charged with crimes re[529]*529lating to the illegal sale and distribution of counterfeit Lipitor.1 Id. at ¶¶ 11-18. He also represents that three of the defendants in this action, Albers Medical, Inc. (“Albers”), Med Pro, Inc., (“Med Pro”) and H.D. Smith Wholesale Drug Company (“H.D. Smith”), have been informed of their status as unindicted targets of that investigation. Id. at ¶ 2.

The scheme that is the subject of the investigation is also the subject of four civil actions, including this one. Id. at ¶¶ 4-7. The United States asserts that indictments against Albers, Med Pro and H.D. Smith will be forthcoming “on or before expiration of the September 2, 2005 stay order currently in place in related civil cases pending in the Western District of Missouri.” United States’ Reply at p. 4. Inasmuch as the parallel criminal investigation concerns the same subject matter as this action and inasmuch further as that investigation may be severely prejudiced by the allowance of discovery here, the United States seeks to intervene for the limited purpose of obtaining a discovery stay.

Plaintiff Tammy Ashworth and defendants Pfizer, Inc. (“Pfizer”) and Albers have responded to the motion. Pfizer does not oppose either the intervention or the stay. Pfizer’s Resp. at pp. 1-2. Albers does not oppose the intervention or the imposition of the stay but requests that any stay be rea-1 sonably limited in duration. Albers’ Resp. Pfizer and Albers also request that the stay be expanded to include all proceedings. Id. at p. 3. The remaining defendants Med Pro and H.D. Smith have not responded.2

Plaintiff, however, opposes the motion contending that discovery should not be stayed inasmuch as the United States has had over two years to complete its criminal investigation, has not suggested how much more time is reasonably needed and has not identified any interests that should outweigh her interests in prosecuting this action.

I.

Having reviewed the various filings of the parties, there is no opposition to the intervention of the United States. Even plaintiff, who opposes the motion, does not challenge the propriety of the United States’ intervention in this action. Rather, her objections are directed solely at the requested stay.

Rule 24(a) provides, in relevant part, that upon timely application a third-party may intervene as of right in an action when:

the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Fed.R.Civ.P. 24(a). Additionally, a third-party may be permitted to intervene “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Fed.R.Civ.P. 24(b). Courts that have addressed a motion to intervene for the limited purpose of seeking a stay in a civil action filed on behalf of the United States have allowed intervention where the civil action shares the same common questions of fact as a parallel criminal proceeding. Bureerong v. Uvawas, 167 F.R.D. 83, 85-86 (C.D.Cal.1996) (allowing United States to intervene under Rule 24(b) for the limited purpose of seeking a stay of discovery); Twenty First Century Corp. v. LaBianca, 801 F.Supp. 1007, 1009 (S.D.N.Y.1992) (same); Bridgeport Harbour Place I, LLC v. Ganim, 269 F.Supp.2d 6, 8 (D.Conn.2002) (granting United States’ motion to intervene finding that the parallel criminal and civil actions involved common questions of fact and law); see also SEC v. Chestman, 861 F.2d 49, 50 (2nd Cir.1988) (finding that district court did not clearly abuse its discretion allowing United States to intervene whether under Rule 24(a) or (b)). In Chestman, the court noted the government had a discernible interest in [530]*530intervening to prevent discovery in the civil case which would exceed that available to the defendant in a parallel criminal proceeding. 861 F.2d at 50.

There being no opposition to the motion to intervene; the United States’ application to intervene having been filed at an early stage of this litigation; the criminal proceedings in the Western District of Missouri and the civil action here involving common questions of fact — namely the who, what, were and why of the criminal scheme which placed counterfeit and illegally diverted foreign manufactured Lipitor into the United States pharmaceutical distribution chain; and the discernable interest of the United States to limit the scope of discovery in this action, the court concludes that the United States should be permitted to intervene under Rule 24(b). Because the intervention is permissible, the court declines to reach the additional contention that the intervention is required.

II.

A. The Availability of a Stay.

The remaining issue is whether discovery should be stayed. “[T]he power to stay proceedings 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). Because of the frequency with which civil and regulatory laws overlap criminal laws, American jurisprudence contemplates the possibility of simultaneous or virtually simultaneous parallel proceedings and the Constitution does not mandate the stay of civil proceedings in the face of parallel criminal proceedings. SEC v. Dresser, 628 F.2d 1368, 1374-75 (D.C.Cir.1980); see also Keating v. OTS, 45 F.3d 322, 324 (9th Cir.1995) (“[t]he Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.”).

Free access — add to your briefcase to read the full text and ask questions with AI

Ashworth v. Albers Medical, Inc., 33 A.L.R. Fed. 2d 681, 229 F.R.D. 527, 2005 U.S. Dist. LEXIS 22595, 2005 WL 1833038 (S.D.W. Va. 2005).

33 A.L.R. Fed. 2d 681 (Ashworth v. Albers Medical, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related