Griego v. C R Bard Incorporated ( 2021 )

1 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 GREENBERG TRAURIG, LLP 10845 Griffith Peak Drive, Suite 600 3 Las Vegas, Nevada 89135 4 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 Email: swanise@gtlaw.com 6 7 C ounsel for Defendants IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE DISTRI CT OF NEVADA NESTOR GRIEGO, 10 CASE NO. 2:21-cv-00325-JAD-BNW Plaintiff, 11 SECOND STIPULATION AND v. [PROPOSED] ORDER TO STAY 12 DISCOVERY AND ALL PRETRIAL 13 C. R. BARD, INCORPORATED and BARD DEADLINES PERIPHERAL VASCULAR, INCORPORATED, 14 Defendants. 15 16 17 Plaintiff Nestor Griego and Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. 18 (collectively “Bard”) (Plaintiff and Bard are collectively referred to herein as “the Parties”) pursuant 19 to Fed. R. Civ. P. 26 and the Court’s inherent powers, respectfully request that this Court enter an 20 Order temporarily staying discovery and all pretrial deadlines imposed by the Court, the Local Rules, 21 and the Federal Rules of Civil Procedure for sixty additional (60) days to permit them to pursue 22 ongoing negotiations of a settlement of this and all cases of Plaintiff’s counsel recently remanded 23 from the MDL pursuant to the MDL Court’s February 11, 2021 Amended Suggestion of Remand and 24 Transfer Order (Fifth) (“Fifth Remand Order”). 25 Plaintiff’s counsel and Defendants have previously settled in principle numerous cases in the 26 MDL concerning Bard inferior vena cava (“IVC”) filters. The Parties have undertaken negotiations 27 which involve Plaintiff Griego and other pending unsettled claims and such discussions are ongoing. 28 The Parties believe that a stay is necessary in this case to conserve their resources and attention so 1 that they may attempt to resolve it and the claims of other such plaintiffs represented by Plaintiff’s 2 counsel that were recently remanded to district courts across the country. Accordingly, the Parties 3 jointly request that the Court enter a stay of discovery and all pretrial deadlines in this case for a 4 period of sixty (60) days. If Plaintiff has not filed dismissal papers within sixty (60) days from the 5 stay being granted, the Parties request the opportunity to file a joint status report regarding the status 6 of the settlement. 7 I. BACKGROUND 8 Plaintiff’s counsel represents plaintiffs with cases in the In re: Bard IVC Filters Products 9 Liability Litigation, MDL 2641 (the “MDL”), as well as cases that have been transferred or remanded 10 from the MDL to courts across the country, involving claims against Bard for injuries they contend 11 arise out of their use of Bard’s IVC filters. The Parties reached a settlement in principle concerning 12 the majority of the Plaintiff’s counsel’s IVC filter cases and have finalized the details of that 13 settlement with most of their clients. However, a small number of those plaintiffs “opted out” of the 14 settlement. The cases remanded pursuant to the MDL’s Fifth Remand Order included those cases 15 that were previously dismissed but for which the MDL Court reinstated prior to remanding, since the 16 plaintiff had opted out of the settlement and a final settlement had not been reached. With respect to 17 these cases, including this one, counsel for the Parties have renewed discussions in an attempt to 18 achieve a settlement of the cases of these remaining plaintiffs represented by Plaintiff’s counsel. 19 Counsel for the Parties believe that their resources are best directed to focusing their efforts on 20 potential settlement discussions, especially given their past history of successful settlement 21 discussions relating to cases in this MDL. Thus, the Parties jointly move this Court to enter a stay of 22 all discovery and pretrial deadlines in this case for a period of sixty (60) days. 23 II. ARGUMENTS AND AUTHORITIES 24 A. The Court Has Authority to Grant the Requested Stay. 25 Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent authority 26 and discretion to manage its own docket, this Court has the authority to grant the requested stay. Fed. 27 R. Civ. P. 6(b) (“When an act may or must be done within a specified time the court may, for good 28 cause, extend the time . . .”); Fed. R. Civ. P. 26(a) (“A party or any person from whom discovery is 1 sought may move for a protective order in the court where the action is pending . . . The court may, 2 for good cause, issue an order to protect a party or person from annoyance, embarrassment, 3 oppression, or undue burden or expense.”). This Court therefore has broad discretion to stay 4 proceedings as incidental to its power to control its own docket – particularly where, as here, a stay 5 would promote judicial economy and efficiency. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); 6 Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d 808, 816 (8th Cir. 2006) (citing, Clinton v. 7 Jones, 520 U.S. 681, 706 (1997)). 8 A stipulation to stay proceedings, like the Parties seek here, is an appropriate exercise of this 9 Court’s jurisdiction. See, Landis v. N. Am. Co., 299 U.S. 248, 254-255 (1936) (explaining a court’s 10 power to stay proceedings is incidental to its inherent power to control the disposition of the cases on 11 its docket to save the time and effort of the court, counsel, and the parties). 12 The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of 13 time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing 14 interests and maintain an even balance. 15 Id. (citing, Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)); see also, CMAX, Inc. 16 v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (district courts possess “inherent power to control the 17 disposition of the causes on its docket in a manner which will promote economy of time and effort 18 for itself, for counsel, and for litigants”); Garlock Sealing Tech., LLC v. Pittsburgh Corning Corp. 19 (In re Pittsburgh Corning Corp.), No. 11-1406, 11-1452 2012 U.S. Dist. LEXIS 86193, *11 (W.D. 20 Mo. June 21, 2012) (noting that a court’s power to stay proceedings is incidental to its power to 21 control the disposition of causes on its docket). 22 Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) also vest the Court with 23 authority to limit the scope of discovery or control its sequence and may grant a stay to allow parties 24 to negotiate a settlement. Britton, 523 U.S. at 598. 25 B. Good Cause Exists to Grant the Requested Stay. 26 Plaintiff and Defendants are actively engaging in settlement negotiations. The Parties 27 further and in good faith believe that a final settlement is forthcoming that shall resolve this and other 28 cases within the inventory, especially given their past history of successful settlement discussions 1 relating to cases in this MDL. The Parties do not seek a stay in bad faith, to unduly burden any party 2 or the Court or cause unnecessary delay, but to support the efficient and expeditious resolution of this 3 litigation. Granting the stay here will certainly save the time and effort of the Court, counsel, and the 4 parties, promote judicial economy and effectiveness, and provide counsel an opportunity to resolve 5 their issues without additional litigation expenses for their clients. 6 Facilitating the Parties’ efforts to resolve their dispute entirely through settlement negotiations 7 is reasonable and constitutes good cause for granting the requested stay of discovery and other pretrial 8 deadlines. The Parties agree that the relief sought herein is necessary to handle the case in the most 9 economical fashion, and that the relief sought in this Agreed Stipulation is not for delay, but so that 10 justice may be done. 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. CONCLUSION 2 For the foregoing reasons, the Parties respectfully request that the Court enter a stay of a 3 || activity in this case, for a period of sixty (60) days. If Plaintiff has not filed dismissal papers withi 4 || sixty (60) days from the stay being granted, the Parties request the opportunity to file a joint statu 5 || report regarding the status of the settlement. 6 Respectfully submitted, 7 DATED this 23" day of June 2021. 8 AYLSTOCK WITKIN KREIS GREENBERG TRAURIG, LLP 9 OVERHOLTZ, PLLC 10 By: _/s/ Douglass A. Kreis By: /s/ Eric W. Swanis DOUGLASS A. KREIS, ESQ. ERIC W. SWANIS, ESQ. 11 dkreis@awkolaw.com Nevada Bar No. 6840 17 East Main Street, Suite 200 swanise@gtlaw.com 12 Pensacola, Florida 32502 10845 Griffith Peak Drive 628 13 Suite 600 358 Counsel for Plaintiff Las Vegas, Nevada 89135 14 Telephone: (702) 792-3773 22 Facsimile: (702) 792-9002 1S 16 Counsel for Defendants Order IT IS SO ORDERED 18 DATED: 12:21 pm, June 25, 2021 19 20 Gua Lea when 1 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28