IQVIA Inc. v. Medimpact Healthcare Systems, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IQVIA, INC., a Delaware corporation; Case No.: 21-CV-2081-GPC-DEB and IQVIA AG, a Swiss company; and 12 DIMENSIONS HEALTHCARE LLC, a ORDER DENYING DEFENDANTS’ 13 United Arab Emirates limited liability MOTION TO STAY AND company, GRANTING PLAINTIFFS’ EX 14 PARTE MOTION TO FILE A SUR- Plaintiffs, 15 REPLY v. 16 [DKT. NOS. 97, 111.] MEDIMPACT HEALTHCARE 17 SYSTEMS, INC., a California 18 corporation; MEDIMPACT INTERNATIONAL LLC, a California 19 limited liability company; 20 MEDIMPACT INTERNATIONAL HONG KONG, LTD., a Hong Kong 21 corporation; and DALE BROWN, an 22 individual, 23 Defendants. 24 25 Before the Court is Defendants’ motion to stay filed on October 21, 2022. (Dkt. 26 No. 97.) On November 10, 2022, Plaintiffs filed an opposition and Defendants replied on 27 1 November 18, 2022. (Dkt. Nos. 102, 109.) On November 28, 2022, Plaintiffs filed a 2 motion for leave to file a sur-reply which Defendants opposed. (Dkt. Nos. 111, 115.) 3 Based on the reasoning below, the Court GRANTS Plaintiffs’ ex parte motion for leave 4 to file a sur-reply and DENIES Defendants’ motion to stay. 5 Background 6 On May 6, 2022, Plaintiffs IQVIA Inc., IQVIA AG and Dimensions Healthcare 7 LLC (collectively “Plaintiffs” or “IQVIA”) filed the operative first amended complaint1 8 (“FAC”) against Defendants MedImpact Healthcare Systems, Inc. (“MHSI”), MedImpact 9 International LLC (“MIL”) and MedImpact International Hong Kong Ltd. (“MI-HK”) 10 and Dale Brown (collectively “Defendants” or “MedImpact”) for 1) misappropriation of 11 trade secrets under the Defend Trade Secrets Act (“DTSA”); 2) misappropriation of trade 12 secrets under the California Uniform Trade Secrets Act (“CUTSA”); 3) violations of 13 Racketeer Influenced and Corrupt Organizations Act (“RICO”); 4) breach of fiduciary 14 duty; and 5) civil conspiracy. (Dkt. No. 68, FAC.) On Defendants’ motion to dismiss, 15 the Court granted dismissal of the RICO claim but denied dismissal of the remaining 16 causes of action on October 7, 2022. (Dkt. No. 93.) 17 The FAC alleges, that since 2011, MedImpact schemed to steal confidential and 18 proprietary trade secrets from Dimensions through a Joint Venture (“JV”) between MIL 19 and Dimensions. (Dkt. No. 68, FAC ¶ 1 & n.1.) IQVIA alleges that MedImpact stole its 20 confidential and proprietary drug-to-diagnosis indication and contraindication edits,2 21 22 1 On April 15, 2022, the Court granted Defendants’ motion to dismiss the complaint with leave to 23 amend. (Dkt. No. 59.) The original complaint was filed on December 13, 2021. (Dkt. No. 1, Compl.) 24 2 “Drug-to-diagnosis indication edits provide a rejection alert when a patient requests to fill a prescription for a medication that is not used to treat that patient’s medical diagnosis. For example, an 25 indication edit would reject the incorrect prescription of an antibiotic—used to treat bacterial 26 infections—for a viral infection, such as influenza. Relatedly, drug-to-diagnosis contraindication edits provide a rejection alert when a patient requests to fill a prescription for a medication that may result in 27 an adverse drug event if the medication is taken by a patient with certain medical conditions.” (Dkt. No. 1 incorporated them into MedImpact’s products and unlawfully offered these edits for sale 2 causing harm to IQVIA. (Id. ¶¶ 3, 8.) 3 This case arises out of litigation in a related case, MedImpact Healthcare Systems, 4 Inc. et al. v. IQVIA Holdings Inc. et al. in Case No. 19cv1865-GPC(DEB) (“MedImpact 5 I”). In that case, MedImpact alleges that IQVIA, through its acquisition of Dimensions 6 and through the JV, misappropriated MedImpact’s trade secrets of its PBM3 platform. 7 (Case No. 19cv1865-GPC(DEB), Dkt. No. 93, FAC.) In the amended answer, IQVIA 8 asserts the affirmative defense of unclean hands based on MedImpact’s scheme to steal 9 IQVIA’s drug-to-diagnosis indication and contraindication edits trade secrets. (Id., Dkt. 10 No. 134, Am. Ans. at 27;4 Dkt. No. 357, Swedlow Decl., Ex. 2, IQVIA’s second 11 supplemental response to Pls’ Interrogatory No. 8 at 26-30 (UNDER SEAL).) In 12 September 2021, IQVIA sought leave to file a counterclaim to allege that MedImpact 13 misappropriated IQVIA’s drug-to-diagnosis indication and contraindication edits but the 14 motion was denied on November 16, 2021. (Id., Dkt. Nos. 305, 360.) Shortly thereafter, 15 on December 13, 2021, IQVIA filed the instant complaint alleging the same claims as in 16 the proposed counterclaims. (Dkt. No. 1, Compl.) It is not disputed that the allegations 17 underlying the unclean hands defense in MedImpact I and the FAC in this case are the 18 same. 19 On February 25, 2022, MedImpact sought summary judgment on the unclean 20 hands defense in MedImpact I, but it was denied by the Court on May 17, 2022. (Case 21 No. 19cv1865-GPC(DEB), Dkt. Nos. 405, 557.) The Court held that IQVIA had not 22 waived the unclean hands affirmative defense and MedImpact’s alleged inequitable 23 24 68, FAC ¶ 3.) These edits save lives and minimize errors, fraud, waste, and/or abuse of medications and 25 drive savings. (Id. ¶¶ 23-25.) 26 3 Pharmaceutical Benefits Management Platform 4 Page numbers are based on the CM/ECF pagination. 27 1 conduct is related to the subject matter of its affirmative claims to support an unclean 2 hands affirmative defense. (Id., Dkt. No. 557 at 4-9.) After a number of dispositive 3 motions, the remaining claims in MedImpact I are misappropriation of trade secrets under 4 the DTSA and CUTSA against IQVIA AG and Omar Ghosheh (“Dr. Ghosheh”) and 5 breach of fiduciary duty and conspiracy against Dr. Ghosheh. (See Dkt. No. 625.) 6 MedImpact I is set for trial on February 21, 2023 in about two months. (See Dkt. No. 7 661.) 8 In the instant motion, MedImpact moves to stay this case under Landis v. N. Am. 9 Co., 299 U.S. 248, 254 (1936) pending resolution of IQVIA’s unclean hands affirmative 10 defense in MedImpact I arguing that because the unclean hands affirmative defense is 11 based on the same core facts as the claims in this case, a stay will simplify issues in this 12 case. (Dkt. No. 97-1.) IQVIA opposes. (Dkt. No. 102.) 13 Discussion 14 A. IQVIA’s Ex Parte Motion to file a Sur-Reply 15 On November 28, 2022, IQVIA filed an ex parte motion for leave to file a sur- 16 reply in order to “correct a material inaccuracy in Defendants’ Reply brief . . .” 17 concerning its “inspection” of MedBlocX.5 (Dkt, No. 111 at 2.) MedImpact opposes 18 arguing it did not raise any new arguments or facts in the reply but only responded to 19 IQVIA’s false statement that it was denied inspection of MedBlocX. (Dkt. No. 115.) 20 Because neither the Federal Rules of Civil Procedure nor this District's Local Rules 21 provide litigants a right to file a sur-reply, which leaves the question of whether to 22 “permit[ ] the filing of a sur-reply is within the discretion of the district court.” 23 Whitewater W. Indus., Ltd. v. Pac. Surf Designs, Inc., No. 17CV001118 BENBLM, 2018 24 WL 3198800, at *1 (S.D. Cal. June 26, 2019). Allowing the filing of a sur-reply is within 25 26 5 MedBlocX is MedImpact’s product that allegedly incorporates IQVIA’s trade secrets 27 1 the discretion of the district court, “but only where a valid reason for such additional 2 briefing exists.” Nat'l Cas. Co. v. Nat’l Strength and Conditioning Ass’n, Case No.: 18- 3 CV-1292 JLS (KSC), 2020 WL 2991508, at *1 (S.D. Cal. June 4, 2020) (quoting 4 Whitewater W. Indus., 2018 WL 3198800, at *1). 5 Here, the Court agrees with MedImpact that the reply does not raise any new facts 6 or arguments but addresses an incorrect statement that IQVIA was denied inspection of 7 MedblocX during discovery in MedImpact I when, in fact, it had not. However, because 8 clarification is a valid reason for the sur-reply, the Court GRANTS IQVIA’s request. See 9 Radware, Ltd. v. F5 Networks., Inc., Case No. 5:13-cv-02024-RMW, 2016 WL 393227, 10 at *2 (N.D. Cal. Feb. 2, 2016). 11 B. Legal Standard on Landis Stay 12 A federal district court possesses the inherent power to “control the disposition of 13 the causes on its docket with economy of time and effort for itself, for counsel, and for 14 litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “A trial court may, with 15 propriety, find it is efficient for its own docket and the fairest course for the parties to 16 enter a stay of an action before it, pending resolution of independent proceedings which 17 bear upon the case. This rule applies whether the separate proceedings are judicial, 18 administrative, or arbitral in character, and does not require that the issues in such 19 proceedings are necessarily controlling of the action before the court.” Leyva v. Certified 20 Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979) (citations omitted). 21 Deciding whether to grant a stay “calls for the exercise of judgment, which must 22 weigh competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55. 23 The Ninth Circuit considers three factors on whether a stay should be granted: “[1] the 24 possible damage which may result from the granting of a stay, [2] the hardship or 25 inequity which a party may suffer in being required to go forward, and [3] the orderly 26 course of justice measured in terms of the simplifying or complicating of issues, proof, 27 1 and questions of law which could be expected to result from a stay.” Lockyer v. Mirant, 2 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th 3 Cir. 1962)). “[I]f there is even a fair possibility that the stay for which [the requesting 4 party] prays will work damage to [someone] else,” then the party seeking a stay “must 5 make out a clear case of hardship or inequity in being required to go forward.” Landis, 6 299 U.S. at 255. 7 “In the typical Landis stay case, a federal court postpones resolution of the case 8 pending some related proceeding. However, the related proceeding typically serves only 9 to narrow the factual or legal issues for the federal court. . . . [A] Landis stay is generally 10 of a limited duration.” Stoltz v. Fry Foods, Inc., 60 F. Supp. 3d 1132, 1136-37 (D. Idaho 11 2014) see also Landis, 299 U.S. at 250-51 (recognizing that the related case “may not 12 settle every question of fact and law” in the stayed federal action). A district court has 13 discretion whether to grant or deny a Landis stay. See Dependable Highway Express, 14 Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007). “The proponent of a 15 stay bears the burden of establishing its need.” Landis, 299 U.S. at 255; Clinton v. Jones, 16 520 U.S. 681, 708 (1997). 17 1. Orderly Course of Justice 18 In considering the orderly course of justice, the Court considers whether a stay will 19 simplify or complicate issues, proof, and questions of law. See Lockyer, 398 F.3d at 20 1110. 21 MedImpact argues that because the unclean hands affirmative defense in 22 MedImpact I, and the misappropriation of trade secret claims in this case implicate the 23 same core issue of whether MedImpact incorporated IQVIA’s drug-to-diagnosis 24 indication and contraindication edits into its PBM platform and offered it for sale, staying 25 this action will promote efficiency and the orderly course and administration of justice. 26 MedImpact explains there is a “strong prosect” that that issue preclusion will apply to any 27 1 rulings on the unclean hands defense in MedImpact I, and will simplify and streamline 2 the issues in this case. (Dkt. No. 97-1 at 12-17.) 3 IQVIA responds that because it did not have a full and fair opportunity to litigate 4 the unclean hands defense in MedImpact I, issue preclusion cannot apply. Further, they 5 contend that in the event the jury finds no liability, the Court would not even rule on the 6 unclean hands affirmative defense. Finally, if the jury finds liability and the Court 7 determines the equitable affirmative defense of unclean hands, and applies issue 8 preclusion, then IQVIA would be deprived of their right to jury trial on their trade secret 9 misappropriation claims. (Dkt. No. 102 at 11-15.) MedImpact replies that IQVIA had a 10 full and fair opportunity in MedImpact I to litigate the unclean hands defense, the fact 11 that the Court might not even rule on the affirmative defense does not preclude a stay as 12 long as there is a “strong prospect” that it could apply, and the deprivation of a “right to 13 jury trial does not negate the issue-preclusive effect of a judgment, even if that judgment 14 was entered by a juryless tribunal.” (Dkt. No. 109 at 8-10 (quoting B&B Hardware, Inc. 15 v. Hargis Indus., Inc., 575 U.S. 138, 150 (2015).) 16 As both parties well know, issue preclusion bars “successive litigation of an issue 17 of fact or law actually litigated and resolved in a valid court determination essential to the 18 prior judgment, even if the issue recurs in the context of a different claim.” Taylor v. 19 Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 20 748-49 (2001) (internal quotation marks omitted). On whether an issue of fact or law 21 was “actually litigated”, the Ninth Circuit articulated four conditions that must be met: 22 “‘(1) the issue at stake was identical in both proceedings; (2) the issue was actually 23 litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to 24 litigate the issue; and (4) the issue was necessary to decide the merits.’” Janjua v. 25 Neufeld, 933 F.3d 1061, 1065 (9th Cir. 2019) (quoting Oyeniran v. Holder, 672 F.3d 800, 26 806 (9th Cir. 2012), as amended (May 3, 2012)). 27 1 IQVIA challenges the third condition arguing that issue preclusion cannot apply to 2 any ruling in MedImpact I because it did not have a full and fair opportunity to litigate 3 the unclean hands affirmative defense due to obstruction of discovery by MedImpact and 4 its spoliation of tens of thousands of emails it was required to preserve. (Dkt. No. 102 at 5 11-13.) 6 Issue preclusion cannot apply if there was not a full and fair opportunity to litigate 7 in the prior proceeding. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-81 & n. 8 22 (1982) (“Redetermination of issues is warranted if there is reason to doubt the quality, 9 extensiveness, or fairness of procedures followed in prior litigation.”). A party has had a 10 full and fair opportunity to litigate if the procedures provided meet the requirements of 11 the Due Process Clause of the Fourteenth Amendment. Id. at 482-83 & n. 24. While 12 there is not a single model of procedural fairness mandated by the Due Process Clause, 13 see Mitchell v. W.T. Grant Co., 416 U.S. 600, 610 (1974), “whether the party against 14 whom the prior judgment is asserted was represented by counsel, had a right to appeal, 15 was held to a different burden of proof, or whether the opposing party fraudulently 16 concealed facts are all factors which bear on the inquiry into a full and fair opportunity to 17 litigate.” Pragovich v. IRS, No. MC 08–0041–PHX–MHM (MEA), 2008 WL 5082267, 18 at *2 (D. Ariz. Nov. 26, 2008) (Murguia, J) (citations omitted). 19 To determine if a party was provided with a full and fair opportunity to litigate in a 20 prior proceeding, “the court must compare the procedures in the prior and subsequent 21 actions. If ‘procedural opportunities unavailable in the first action . . . could readily 22 cause a different result’ in the second action, then the results of the first action generally 23 should not be given preclusive effect.” Maciel v. Comm’r of Internal Revenue, 489 F.3d 24 1018, 1023 (9th Cir. 2007). Second, “the court must consider the parties' incentives to 25 litigate in the two actions. If a party had good reason not to contest an issue vigorously 26 27 1 during the first action and did not, in fact, vigorously contest the issue, that party 2 generally should be entitled to relitigate the issue during the second action.” Id. 3 Here, IQVIA argues that both factors demonstrate it did not have a full and fair 4 opportunity to litigate the unclean hands affirmative defense. On the first factor, IQVIA 5 argues that MedImpact obstructed discovery into MedBlocX stating that MedImpact 6 knows full well it has never submitted its MedBlocX product for inspection . . . ”6 and the 7 Magistrate Judge denied it discovery into MedBlocX. (Dkt. No. 102 at 6, 8, 11-12.) In 8 direct contrast, MedImpact replies that IQVIA deposed MedImpact’s witnesses about 9 MedBlocX at ten depositions, deposed the developer of MedBlocX and IQVIA’s experts 10 were allowed to inspect three platforms, including MedBlocX in October 2021. (Dkt. 11 No. 109 at 7.) 12 Between October 12-14, 2021, IQVIA’s experts inspected MedBlocX as well as 13 MedImpact’s other platforms relevant in MedImpact I, and during that inspection, took 14 screen shots of MedBlocX. (Dkt. No. 109-1, Hodges Decl. ¶ 9.) In its sur-reply, IQVIA 15 agrees its experts were able to review and take screenshots of the “outward-facing 16 MedBlocX user interface” but did not inspect its source code. (Dkt. No. 111-2, Sur-reply 17 ¶ 3.) It contends it was denied inspection of MedBlocX’s source code. (Dkt. No. 111-1, 18 Schmit Decl. ¶ 4.) 19 At the same time, on October 12, 2021, the parties submitted a discovery dispute 20 where IQVIA sought information relating to “each Relevant MedImpact Application.” 21 (Dkt. No. 345.) Subsequently, on December 3, 2021, the parties submitted another 22 discovery dispute where IQVIA sought “copies of source code repositories that contain 23 all versions of the Drug-to-Diagnosis Edits and/or any Accused MedImpact Product, 24 25 6 Later in the opposition, IQVIA states that it was denied the right to inspect any “source code 26 repositories that contain all versions of the Drug-to-Diagnosis Edits and/or any Accused MedImpact Product.” (Dkt. No. 102 at 8.) 27 1 including all versions of the source code created from inception through the present.” 2 (Dkt. No. 367; Dkt. No. 367-5, Swedlow Decl., Ex. 4, Request No. 145, at 8.) IQVIA 3 also sought “[d]ocuments sufficient to show the technologies and platforms used for the 4 Drug-to-Diagnosis Edits and/or any Accused MedImpact Product, including but not 5 limited to applications, tools, web platforms, and software.” (Dkt. No. 367-5, Swedlow 6 Decl., Ex. 4, Request No. 146.) 7 On January 13, 2022, Magistrate Judge Butcher denied both motions to compel by 8 IQVIA. (Dkt. No. 388.) The Magistrate Judge ruled that MedBlocX was not relevant to 9 the FAC, and additionally that it was not relevant to the unclean hands defense because 10 IQVIA’s alleged trade secrets of drug-to-diagnosis indication and contraindication edits 11 do not arise out of the claims in MedImpact’s FAC and are new and distinct claims that 12 are at issue in the related or in this case. (Id. at 6-7.) But on May 17, 2022, this Court 13 concluded differently holding that IQVIA’s allegations on the unclean hands affirmative 14 defense were relevant to MedImpact’s affirmative claims. (Dkt. No. 557.) 15 While IQVIA may have inspected the “outward-facing MedBlocX user interface”, 16 it was denied discovery into the source codes of MedBlocX. Further, the inspection of 17 MedBlocX was likely permitted by MedImpact as it related to the affirmative claims in 18 MedImpact I and not as it related to the unclean hands defense. Finally, while 19 MedImpact challenges the relevance of the source codes of MedBlocX as a red herring, 20 that issue is not properly before the Court. Because IQVIA has sufficiently raised a 21 concern that it was denied discovery concerning its trade secrets on the unclean hands 22 affirmative defense, the Court concludes that it may not have had a full and fair 23 opportunity to litigate the defense. 24 Further, the issue of MedImpact’s alleged spoliation of evidence by deleting tens 25 of thousands of relevant emails is currently disputed and subject to a motion before the 26 27 1 Magistrate Judge. (Dkt. Nos. 611, 614, 632, 639.) Thus, the Court declines to consider 2 an issue currently before the Magistrate Judge. 3 As to the second factor on whether a party had a full and fair opportunity to litigate 4 considering “the parties' incentives to litigate in the two actions”, IQVIA raises the issue 5 but fails to present argument on it and MedImpact does not address it. (Dkt. No. 102 at 6 11.) Accordingly, the Court concludes the second factor is not at issue by the parties. 7 Thus, because IQVIA has shown that it may not have had a full and fair 8 opportunity to litigate the unclean hands affirmative defense, the Court concludes the 9 orderly course of justice factor does not support a stay. 10 2. Possible Damage in Granting a Stay 11 Next, MedImpact maintains that IQVIA will not be harmed because this case is in 12 its early stage and it has waited years to file this case and the stay is for a short period 13 until trial is completed in February 2023. (Dkt. No. 97-1 at 17-18.) It further contends 14 that while the stay is in place, IQVIA’s claims will be significantly streamlined or fully 15 resolved through disposition of the unclean hands defense in MedImpact I. (Id.) IQVIA 16 argues it will be prejudiced if a stay is granted because MedImpact’s trade secret 17 misappropriation is ongoing as they are currently selling or offering MedBlocX for sale 18 and a stay would damage IQVIA. (Dkt. No. 102 at 15-17.) 19 The Ninth Circuit has recognized that a party seeking injunctive relief to address 20 an ongoing harm makes out a clear case of hardship more so than if a party seeks 21 monetary relief to address a past harm. Lockyer, 398 F.3d at 1112. 22 Here, the FAC seeks injunctive relief as well as damages. (Dkt. No. 68, FAC ¶¶ 23 118-127; 129-37.) It seeks a preliminary and permanent injunction enjoining MedImpact 24 from further misappropriation or use of IQVIA’s trade secrets. (Id. at p. 65.) Despite 25 MedImpact’s protestations to the contrary by arguing that IQVIA has inspected 26 MedBlocX and did not find any misappropriated trade secrets, procedurally, at this early 27 1 stage, the Court is not in a position to make findings of fact. Therefore, MedImpact’s 2 arguments based on the merits of IQVIA’s claims are not persuasive. Because IQVIA 3 seeks injunctive relief barring MedImpact from continuing to misappropriate its trade 4 secrets, and MedImpact has not presented any other persuasive argument to support lack 5 of harm to IQVIA, the Court concludes that it has demonstrated that it may suffer harm 6 or hardship if the Court imposes a stay. 7 3. Hardship or Inequity a Party May Suffer in Denying a Stay 8 Finally, MedImpact argues it will suffer significant hardship if a stay is denied 9 because it will be required to litigate two separate cases involving the same legal and 10 factual issues especially if some of the issues may be precluded by a judgment in its favor 11 on IQVIA’s unclean hands defense. (Dkt. No. 97-1 at 18-19.) IQVIA responds that 12 MedImpact will not suffer any harm solely for engaging in litigation on two fronts and a 13 stay would not promote judicial efficiency or the narrowing of issues since issue 14 preclusion would not apply. (Dkt. No. 102 at 18-19.) 15 If there is “even a fair possibility” that a stay “will work damage to someone else,” 16 the moving party “must make out a clear case of hardship or inequity in being required to 17 go forward.” Landis, 299 U.S. at 255; see Lockyer, 398 F.3d at 1112 (“[B]eing required 18 to defend a suit, without more, does not constitute a “clear case of hardship or inequity” 19 within the meaning of Landis”). “Where the opponent does not adduce evidence that it 20 will be harmed by a stay, however, courts have considered the moving party's burden in 21 litigating the case to be a legitimate form of harm.” In re Am. Apparel, Inc. Shareholder 22 Derivative Litig., No. CV 10–06576 MMM RCX, 2012 WL 9506072, at *45 (C.D. Cal. 23 July 31, 2012) (citing Cohen v. Carreon, 94 F. Supp. 2d 1112, 1118–19 (D. Or. 2000) 24 (noting that defendants' concern “that they would be required to waste time and money 25 needlessly litigating the same substantive and procedural issues as they did in the 26 California action” was valid, and relying on that conclusion in part in granting a stay 27 1 || where plaintiff would not be harmed); Lamar Co., LLC v. Continental Cas. Co., No. CV— 2 ||05—-320-AAM, 2007 WL 81876, at *3 (E.D. Wash. Jan. 8, 2007) (because the court was 3 || not persuaded that there was a “fair possibility” the non-moving party would be harmed, 4 [was] not necessary for Lamar or Continental to demonstrate a ‘clear case of hardship 5 || or inequity’”)). 6 Here, because IQVIA has shown that there is a fair possibility of harm if a stay is 7 ||entered, MedImpact must demonstrate a “clear case of hardship or inequity”, besides the 8 || burden of litigating on two fronts, which it has failed to do. 9 Despite the Court’s ruling denying a stay, it recognizes that while the motion to 10 was pending, a stay has, in effect, been placed on this case. Trial in MedImpact I is 11 to start in about two months. Because this case is in its early stages and the parties 12 not had their early neutral evaluation conference nor a case management 13 || conference, the likelihood that MedImpact will be harmed by having to vigorously 14 || litigate MedImpact I and conduct discovery in this case would not be impactful. 15 In considering the factors to support a Landis stay, the Court finds that MedImpact 16 ||has not demonstrated a stay is warranted and DENIES the motion to stay the case. 17 Conclusion 18 Based on the reasoning above, the Court GRANTS Plaintiff's ex parte motion for 19 || leave to file a sur-reply and DENIES Defendants’ motion to stay the case. The hearing 20 || set on December 9, 2022 shall be vacated. 21 IT IS SO ORDERED. 22 ||Dated: December 6, 2022 <= 24 United States District Judge 25 26 27 13 28 21-CV-2081-GPC-DEB