Opinion
Case No. 19-cv-02573-EMC
01-11-2021
STALEY, et al., Plaintiffs, v. GILEAD SCIENCES, INC., et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR COSTS AND A STAY OF PROCEEDINGS
Docket No. 463
Defendants Gilead and BMS have moved for costs and a stay (against Plaintiff KPH only) pursuant to Federal Rule of Civil Procedure 41(d). The Court finds this matter suitable for resolution without oral argument and therefore VACATES the hearing on the motion for costs and a stay. In the exercise of its discretion, see Caldwell v. Wells Fargo Bank, N.A., No. 13-CV-01344-LHK, 2014 U.S. Dist. LEXIS 24731, at *19 (N.D. Cal. Feb. 26, 2014) (noting that a court has "'broad discretion'" under the rule), the Court DENIES the request for relief. The Court is not persuaded that KPH's second suit reflects forum shopping or constitutes vexatious litigation. See Simeone v. First Bank Nat'l Ass'n, 971 F.2d 103, 108 (8th Cir. 1992). Moreover, assuming that attorney's fees are "costs" for purposes of Rule 41(d), see Millman v. Wilmington Sav. Fund Soc'y, FSB, No. 17-cv-04123-EMC, 2018 U.S. Dist. LEXIS 73663, at *11 n.3 (N.D. Cal. May 1, 2018) (noting that "the Ninth Circuit is silent on this issue, [although] several Circuit Court of Appeals (Third, Fourth, Sixth, and Seventh Circuit Courts) have all found that attorneys' fees are /// /// /// not part of costs"), Defendants have not adequately established significant work that will be useless in this second suit by KPH. See Esquivel v. Arau, 913 F. Supp. 1382, 1388, 1391 (C.D. Cal. 1996).
This order disposes of Docket No. 463.
IT IS SO ORDERED. Dated: January 11, 2021
/s/_________
EDWARD M. CHEN
United States District Judge