Opinion
ATTORNEYS AT LAW222 RUSH LANDING ROADP O BOX NOVATO, CALIFORNIA BRAYTON
David R. Donadio Attorneys for Plaintiff
Susan A. Ogdie, Ted Mechtenberg Attorneys for Hawker Beechcraft Corporation f/k/a Raytheon Aircraft Company, Defendant.
Tyler R. Johnson Robert E. Boone III, Tyler R. Johnson Attorneys for McDonnell Douglas Corporation, Defendant
Brian T. Clark, Laura Patricia Yee Attorneys for Lockheed Martin Corporation, Defendant
SEDGWICK, DETERT, MORAN & ARNOLD, LLP
Derek Johnson Attorneys for General Electric Company, Defendant
ALAN R. BRAYTON, ESQ., S.B.
DAVID R. DONADIO, ESQ., S.B. BRAYTON02dcPURCELL LLP Attorneys at Law Novato, California Attorneys for Plaintiff
JOINT MOTION AND STIPULATION TO STAY PROCEEDING OR, IN THE ALTERNATIVE, TO CONTINUE CASE MANAGEMENT DEADLINE AND CONFERENCE, AND TO EXTEND TIME; [PROPOSED] ORDER TO STAY; [PROPOSED ALTERNATIVE] ORDER TO CONTINUE and DOES 1-300,
Pursuant to Civil L. R. 7-11 and 7-12, the following parties hereby stipulate to, and respectfully move the Court for, an Order staying deadlines, or in the alternative extending time, as set forth in the Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3) and the Notice filed June 21, 2007 (Document 31), for the following good cause:
On June 11, 2007 with Document 10, June 11, 2007 with Document 14 and June 15, 2007 with Document 21, Defendants HAWKER BEECHCRAFT CORPORATION F/K/A RAYTHEON AIRCRAFT COMPANY, MCDONNELL DOUGLAS CORPORATION and GENERAL ELECTRIC COMPANY, respectively, filed Notices to Tag Along Action regarding the pending Multidistrict Litigation ("MDL") in the Eastern District of Pennsylvania, seeking among other things, to move Jurisdiction of this matter to that District. Said Defendants subsequently mailed notice to the Judicial Panel on Multidistrict Litigation ("JPML") pursuant to 28 U.S.C. § 1407.
On June 11, 2007, Defendant HAWKER BEECHCRAFT CORPORATION F/K/A RAYTHEON AIRCRAFT COMPANY filed it declination to proceed before Magistrate Judge and request for reassignment to a District Court Judge (Document 8). On June 13, 2007, the Reassignment Order (Document 17) assigned this matter to the Honorable Susan Illston and ordered that "all matters presently scheduled for hearing are vacated and should be renoticed for hearing before the judge to whom the case has been reassigned." On June 21, 2007, the Notice (Document 31) set the initial case management conference for Friday, September 21, 2007 at 2:00 p.m. It appears to the parties that neither the Reassignment Order of June 13, 2007 (Document 17) nor the Notice of June 21, 2007 (Document 31) disturbed the deadlines by the May 14, 2007 Order Setting Initial Case Management Conference and ADR Deadlines (Document 3), except, of course, moving the CMC Conference date.
On June 19, 2007 Defendant HAWKER BEECHCRAFT CORPORATION F/K/A RAYTHEON AIRCRAFT COMPANY filed its Defendant Hawker Beechcraft Corporation f/k/a Raytheon Aircraft Company's Notice of and Motion to Sever Pursuant to Fed.R.Civ.P.21 (Document 27), currently set for hearing on August 17, 2007.
On July 29, 1991, the JPML entered an order transferring all asbestos personal injury cases pending in the federal courts to the United States District Court for the Eastern District of Pennsylvania, for coordinated pretrial proceedings pursuant to 28 U.S.C. § 1407. That order also applies to "tag-along actions, " or actions involving common questions of fact filed after January 17, 1991. Such actions are to be transferred to the eastern District of Pennsylvania as part of MDL 875, for coordinated pretrial proceedings.
The JPML has held that a district court has the authority to stay pending a transfer order. In re Asbestos Products Liability Litigation, 170 F.Supp.2d 1348, 1349 n.1 (J.P.M.L. 2001) ("[T]hose courts concluding that such issues should be addressed by the transferee judge need not rule on them, and the process of 1407 transfer in MDL-875 can continue without any unnecessary interruption or delay.")
The parties agree that it is likely that the JPML will transfer this matter to the Eastern District of Pennsylvania.
However, to date, the Clerk of the JPML has not entered a Conditional Transfer Order pursuant to JPML Rule 12(a) or filed an order to show cause why the action should not be transferred, pursuant to JPML Rule 13(b).
It is likely the dates set forth in the Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3) and the Notice filed June 21, 2007 (Document 31) and the deadlines imposed by Rule 26 of the Federal Rules of Civil Procedure, will come to pass before the Clerk of the JPML acts.
In addition, Defendant TODD SHIPYARDS CORPORATION has not filed an answer in this matter.
The parties make this Motion on the grounds that a stay of this action would (a) promote judicial efficiency, (b) allow consistency in pretrial rulings, and (c) be most convenient to the parties.
Due to the pending action by the Clerk of the JPML, the parties hereby STIPULATE to and respectfully request the Court VACATE its Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3) and Notice filed June 21, 2007 (Document 31), and that the Court issue an Order STAYING this action pending the outcome of the MDL Panel's decision on the merits of the transfer.
In the alternative, the parties hereby STIPULATE to and respectfully request that the dates set forth in the Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3) and the Notice filed June 21, 2007 (Document 31) be vacated and all deadlines set by Rule 26 of the Federal Rules of Civil Procedure, be continued pending the outcome of the JPML's decision on the merits of the transfer. Specifically, these deadlines in this matter include the August 15, 2007 Rule 26 deadline to meet and confer and file Joint ADR Certification (set by the Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3)), the August 15, 2007 Deadline to complete Initial Disclosure and Discovery Plan (set by Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3)), the August 29, 2007 deadline to file the Joint Case Management Statement (set by Order Setting Initial Case Management Conference and ADR Deadlines filed May 14, 2007 (Document 3)) and the Case Management Conference currently set for Friday, September 21, 2007 at 2:00 p.m. (set by Notice filed June 21, 2007 (Document 31)).