Opinion
ALAN R. BRAYTON, ESQ., S.B. #73685, DAVID R. DONADIO, ESQ., S.B. #154436, BRAYTON02dcPURCELL LLP, Attorneys at Law, Novato, California, Attorneys for Plaintiff.
Derek Johnson, Attorneys for Defendant, GENERAL ELECTRIC COMPANY.
JOINT MOTION AND STIPULATION TO STAY PROCEEDING OR, IN THE ALTERNATIVE, TO CONTINUE CASE MANAGEMENT DEADLINES - C
SUSAN ILLSTON, District Judge.
Pursuant to Civil L. R. 7-11 and 7-12, the following parties hereby stipulate to, and respectfully move the Court for, an Order extending time as set forth in the Case Management Conference Order and Notice filed January 19, 2007 (Document 14), for the following good cause:
On December 27, 2006, Defendant GENERAL ELECTRIC COMPANY filed Documents 8 and 9, a Notice to Tag Along Action and letter 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 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 Case Management Conference Order (Document 14) 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 USX CORPORATION has not filed an Answer in this matter and Plaintiffs are attempting to confirm service upon said Defendant. (Defendant McDONNELL DOUGLAS CORPORATION was dismissed from the action by the Order of January 18, 2007 (Document 13)).
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 Case Management Conference Order and Notice filed January 19, 2007 (Document 14), 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 Case Management Conference Order and Notice filed January 19, 2007 (Document 14), 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 February 16, 2007 Rule 26 deadline to meet and confer and file Joint ADR Certification, the March 2, 2007 Deadline to complete Initial Disclosure and Discovery Plan, the March 2, 2007 deadline to file the Joint Case Management Statement and the Case Management Conference currently set for March 9, 2007.
[PROPOSED] ORDER TO STAY
IT IS HEREBY ORDERED that the hearing date and deadlines specified in the Case Management Conference Order and Notice filed January 19, 2007 (Document 14), are hereby VACATED and that this action is STAYED pending the outcome of the JPML's decision on the merits of the transfer.
[PROPOSED ALTERNATIVE] ORDER TO CONTINUE
IT IS HEREBY ORDERED that the hearing date and deadlines specified in the Case Management Conference Order and Notice filed January 19, 2007 (Document 14), are hereby VACATED.
IT IS FURTHER ORDERED that the following case management deadlines are continued as follows:
1. Last day to meet and confer re initial disclosures, early settlement, ADR process selection, and discovery plan is [set for a date on or after July 20, 2007 to wit:] ________________, 2007;
2. Last day to file Joint ADR Certification with Stipulation to ADR process or Notice of Need for ADR Phone Conference is [set for a date after July 20, 2007 to wit:] ________________, 2007;
3. Last day to complete initial disclosures or state objection to Rule 26(f) Report, file/serve Case Management Statement and file/serve Rule 26(f) Report is [set for a date after July 20, 2007 to wit:] ________________, 2007; and,
4. The Case Management Conference is [set for a date after July 20, 2007 to wit: ] _________________, 2007 at 2:00 p.m., Courtroom 10, 19th Floor, 450 Golden Gate Avenue, San Francisco, California.