Ferguson v. CVS Pharmacy, Inc.

• Court: District Court, S.D. California
• Decided: September 12, 2019
• Docket: 3:18-cv-01529
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LES FERGUSON, an individual, Case No.: 18-CV-1529 JLS (MDD)

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. UNOPPOSED MOTION TO STAY

14 CVS PHARMACY, INC., a corporation, (ECF No. 28) 15 Defendant. 16 17 Presently before the Court are Defendant CVS Pharmacy, Inc.’s Motion to Stay 18 (“Mot.,” ECF No. 25) and Notice of Non-Opposition to the Motion (ECF No. 26). The 19 Court vacated the hearing and took the matter under submission without oral argument 20 pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 27. After considering the Motion and 21 the relevant law, the Court GRANTS Defendant’s unopposed Motion. 22 BACKGROUND 23 On July 5, 2018, Plaintiff filed a punitive class action alleging that Defendant falsely 24 claimed that the Algal-900 DHA supplement was clinically shown to improve memory. 25 See ECF No. 1. The factual allegations in Plaintiff’s complaint are nearly identical to the 26 factual allegations in the complaint in Worth v. CVS Pharmacy, Inc., No. 16-CV-498 SMG, 27 a punitive class action filed on February 1, 2016, in the Eastern District of New York (the 28 “Worth Action”). See ECF No. 25-3; see also ECF No. 25-4. 1 On May 28, 2019, the court in the Worth Action certified a settlement class of “all 2 consumers in the United States who purchased one or more Algal-900 DHA Products, 3 containing, on the label and/or packaging, the claim that it is ‘clinically shown to improve 4 memory’ or offers ‘clinically shown memory improvement,’ on or after November 15, 5 2008, through September 30, 2016,” ECF. No. 25-5 at ¶ 6, and set a final approval hearing 6 for September 26, 2019. Id. at ¶ 15. 7 Claiming that approval of the Worth Settlement would settle claims for the putative 8 class asserted in this case, Defendant filed the instant Motion on June 13, 2019. See 9 generally ECF No. 25. 10 LEGAL STANDARD 11 Courts have the discretionary power to stay proceedings. Ali v. Trump, 241 F. Supp. 12 3d 1147, 1152 (W.D. Wash. 2017) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). 13 In determining whether to grant a motion to stay, “the competing interests [that] will be 14 affected by the granting or refusal to grant a stay must be weighed.” Lockyer v. Mirant 15 Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268 16 (9th Cir. 1962)). Those interests include: (1) “the possible damage which may result from 17 the granting of a stay,” (2) “the hardship or inequity which a party may suffer in being 18 required to go forward,” and (3) “the orderly course of justice measured in terms of the 19 simplifying or complicating of issues, proof, and questions of law which could be expected 20 to result from a stay.” Id. 21 ANALYSIS 22 In its Motion, Defendant requests the court to grant a one hundred and twenty day 23 stay pending final approval of the proposed settlement in the Worth Action (the “Worth 24 Settlement”). Mot. at 9. As an initial matter, Civil Local Rule 7.1(e)(2) requires “each 25 party opposing a motion” to file its opposition and serve the movant at least fourteen days 26 before the noticed hearing date. Civil Local Rule 7.1(f)(3)(c) provides that, “[i]f an 27 opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, 28 that failure may constitute a consent to the granting of a motion or other request for ruling 1 by the court.” Consequently, by virtue of Civil Local Rule 7.1(f)(3)(c), Plaintiff has 2 consented to the relief requested in Defendant’s Motion. See United States v. Warren, 601 3 F.2d 471, 473 (9th Cir. 1979) (upholding dismissal of indictments pursuant to a district 4 court local rule stating that failure to timely oppose motions is deemed consent to the 5 motion). 6 Nonetheless, the Court addresses Defendant’s Motion on the merits and briefly 7 analyzes each of the Landis factors below. 8 I. Possible Damage from Granting of a Stay 9 When a district court approves a class action settlement, “a federal court may release 10 not only those claims alleged in the complaint, but also a claim ‘based on the identical 11 factual predicate as that underlying the claims in the settled class action.’” Reyn’s Pasta 12 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 748 (9th Cir. 2006) (quoting Class Pls. v. City 13 of Seattle, 955 F.2d 1268, 1287 (9th Cir. 1992)). Defendant contends that Plaintiff will not 14 suffer any damage if the requested stay is granted because this action and the Worth Action 15 are based on the same alleged misrepresentations regarding the same product, see Mot. at 16 5, meaning that the Worth Settlement, if approved, will necessitate dismissal of this action 17 despite the differing theories of liability. See id. at 6–7. 18 The Court agrees with Defendant that the requested stay will not damage Plaintiff 19 because a stay will ensure Plaintiff does not waste unnecessary expenses in an action that 20 may be subject to dismissal. Furthermore, the requested stay “will allow [Plaintiff] to focus 21 [its] resources on attacking the fairness of the potential [Worth] settlement.” See In re 22 JPMorgan Chase LPI Hazard Litig., No. C-11-03058 JCS, 2013 WL 3829271, at *4 (N.D. 23 Cal. July 23, 2013). This factor therefore weighs in favor of granting a stay. 24 II. Hardship to Defendant Absent a Stay 25 For the same reasons, not granting a stay would harm Defendant because “[i]t would 26 be burdensome for both parties to spend time, energy, and resources on pretrial and 27 discovery issues” when this case may be dismissed upon final approval of the Worth 28 / / / 1 ||Settlement. See Alvarez v. T-Mobile USA, Inc., 2010 WL 5092971, at *2 (E.D. Cal. Dec. 2 2010). Consequently, this factor also favors granting the requested stay. 3 The Orderly Course of Justice 4 Finally, the Court concludes that judicial economy would not be served by having 5 ||the Court expend resources on a case that may be dismissed. See CollegeSource, Inc. v. 6 ||AcademyOne, Inc., No. 08-CV-1987 H (CAB), 2011 WL 6934458, at *2 (S.D. Cal. 7 || Dec. 30, 2011) (holding that granting a stay in the one of two cases that had progressed 8 was proper because the case that had progressed further included the same parties and 9 |/issues). Accordingly, the final Landis factor also weighs in favor of granting a stay. 10 Because all three Landis factors weigh in favor of granting Defendant the requested 11 the Court concludes that a limited stay pending the Worth Settlement is appropriate. 12 CONCLUSION 13 In light of the foregoing, the Court GRANTS Defendant’s Motion (ECF No. 28). 14 ||Defendant SHALL FILE a status report within one hundred and twenty (120) days or 15 || within seven (7) days of final approval of the settlement of the Worth Action, whichever 16 sooner. 17 IT IS SO ORDERED. 18 19 || Dated: September 12, 2019 tt 00 pen Janis L. Sammartino United States District Judge 21 22 23 24 25 26 27 28