Edging 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 Counsel for Defendants 7 8 IN THE UNITED STATES DISTRICT COURT 19 0 FOR THE DISTRI CT OF NEVADA 11 MICHAEL EDGING, CASE NO. 2:21-cv-00322-RFB-BNW 12 Plaintiff, STIPULATION AND [PROPOSED] 13 v. ORDER TO STAY DISCOVERY AND ALL PRETRIAL DEADLINES 14 C. R. BARD, INC. and BARD PERIPHERAL VASCULAR, INC., (RENEWED REQUEST) 15 Defendants. 16 17 18 Plaintiff Michael Edging and Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. 19 (collectively “Bard”) (Plaintiff and Bard are collectively referred to herein as “the Parties”) pursuant 20 to Fed. R. Civ. P. 26 and the Court’s inherent powers, respectfully request that this Court enter an 21 Order temporarily staying discovery and all pretrial deadlines imposed by the Court, the Local Rules, 22 and the Federal Rules of Civil Procedure for ninety (90) days to permit them to pursue negotiations 23 of a settlement of this and all cases of Plaintiff’s counsel recently remanded from the MDL pursuant 24 to the MDL Court’s February 11, 2021 Amended Suggestion of Remand and Transfer Order (Fifth) 25 (“Fifth Remand Order”). 26 Plaintiff’s counsel and Defendants have previously settled in principle numerous cases in the 27 MDL concerning Bard inferior vena cava (“IVC”) filters. The Parties believe that a stay is necessary 28 in this case to conserve their resources and attention so that they may attempt to resolve it and the 1 claims of other such plaintiffs represented by Plaintiff’s counsel that were recently remanded to 2 district courts across the country. Accordingly, the Parties jointly request that the Court enter a stay 3 of discovery and all pretrial deadlines in this case for a period of ninety (90) days. If Plaintiff has not 4 filed dismissal papers within ninety (90) days from the stay being granted, the Parties request the 5 opportunity to file a joint status report regarding the status of the settlement. 6 I. Background 7 Plaintiff’s counsel represents plaintiffs with cases in the In re: Bard IVC Filters Products 8 Liability Litigation, MDL 2641 (the “MDL”), as well as cases that have been transferred or remanded 9 from the MDL to courts across the country, involving claims against Bard for injuries they contend 10 arise out of their use of Bard’s IVC filters. The Parties reached a settlement in principle concerning 11 the majority of the Plaintiff’s counsel’s IVC filter cases and have finalized the details of that 12 settlement with most of their clients. However, a small number of those plaintiffs “opted out” of the 13 settlement. The cases remanded pursuant to the MDL’s Fifth Remand Order included those cases that 14 were previously dismissed but for which the MDL Court reinstated prior to remanding, since the 15 plaintiff had opted out of the settlement and a final settlement had not been reached. With respect to 16 those cases, including this one, counsel for the Parties have renewed discussions in an attempt to 17 achieve a settlement of the cases of these remaining plaintiffs represented by Plaintiff’s counsel. 18 Counsel for the Parties believe that their resources are best directed to focusing their efforts on 19 potential settlement discussions, especially given their past history of successful settlement 20 discussions relating to cases in this MDL. Thus, the Parties jointly move this Court to enter a stay of 21 all discovery and pretrial deadlines in this case for a period of ninety (90) days. 22 II. Arguments and Authorities 23 A. The Court Has Authority to Grant the Requested Stay. 24 Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent authority 25 and discretion to manage its own docket, this Court has the authority to grant the requested stay. Fed. 26 R. Civ. P. 6(b) (“When an act may or must be done within a specified time the court may, for good 27 cause, extend the time....”); Fed. R. Civ. P. 26(a) (“A party or any person from whom discovery is 28 sought may move for a protective order in the court where the action is pending . . .The court may, 1 for good cause, issue an order to protect a party or person from annoyance, embarrassment, 2 oppression, or undue burden or expense.”). This Court therefore has broad discretion to stay 3 proceedings as incidental to its power to control its own docket – particularly where, as here, a stay 4 would promote judicial economy and efficiency. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); 5 Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d 808, 816 (8th Cir. 2006) (citing Clinton v. 6 Jones, 520 U.S. 681, 706 (1997)). 7 A stipulation to stay proceedings, like the Parties seek here, is an appropriate exercise of this 8 Court’s jurisdiction. See Landis v. N. Am. Co., 299 U.S. 248, 254-255 (1936) (explaining a court’s 9 power to stay proceedings is incidental to its inherent power to control the disposition of the cases on 10 its docket to save the time and effort of the court, counsel, and the parties). 11 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 time and effort 12 for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even 13 balance. 14 Id. (citing Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)); see also CMAX, 15 Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (district courts possess “inherent power to control the 16 disposition of the causes on its docket in a manner which will promote economy of time and effort 17 for itself, for counsel, and for litigants”); Garlock Sealing Tech., LLC v. Pittsburgh Corning Corp. 18 (In re Pittsburgh Corning Corp.), No. 11-1406, 11-1452 2012 U.S. 19 Dist. LEXIS 86193, *11 (W.D. Mo. June 21, 2012) (noting that a court’s power to stay proceedings 20 is incidental to its power to control the disposition of causes on its docket). 21 Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) also vest the Court with 22 authority to limit the scope of discovery or control its sequence and may grant a stay to allow parties 23 to negotiate a settlement. Britton, 523 U.S. at 598. 24 B. Good Cause Exists to Grant the Requested Stay. 25 Plaintiff and Defendants are actively engaging in settlement negotiations. The Parties 26 further and in good faith believe that a final settlement is forthcoming that shall resolve this and other 27 cases within the inventory, especially given their past history of successful settlement discussions 28 relating to cases in this MDL. The Parties do not seek a stay in bad faith, to unduly burden any party 1 || or the Court or cause unnecessary delay, but to support the efficient and expeditious resolution of th 2 || litigation. Granting the stay here will certainly save the time and effort of the Court, counsel, and tl 3 || parties, promote judicial economy and effectiveness, and provide counsel an opportunity to resol 4 || their issues without additional litigation expenses for their clients. 5 Facilitating the Parties’ efforts to resolve their dispute entirely through settlement 6 || negotiations is reasonable and constitutes good cause for granting the requested stay of discovery an 7 || other pretrial deadlines. The Parties agree that the relief sought herein is necessary to handle the cas 8 in the most economical fashion, and that the relief sought in this Stipulation is not for delay, but s 9 || that justice may be done. 10 II. Conclusion 11 For the foregoing reasons, the Parties respectfully request that the Court enter a stay of a 12 || activity in this case, for a period of ninety (90) days. If Plaintiff has not filed dismissal papers withi 2&2 13 ||minety (90) days from the stay being granted, the Parties request the opportunity to file a joint statu 3 14 || report regarding the status of the settlement. ° bee 15 Respectfully submitted, "16 DATED this 11" day of August 2021. 17 DAVIS BETHUNE JONES, LLC GREENBERG TRAURIG, LLP 18 By: _/s/ Grant L. Davis By: /s/Eric W. Swanis 19 Grant L. Davis ERIC W. SWANIS, ESQ. Shawn Gayland Foster Nevada Bar No. 6840 0 gdavis@dbjlaw.net swanise@gtlaw.com sfoster@dbjlaw.net 10845 Griffith Peak Drive, Suite 600 City Center Square, Suite 2930 Las Vegas, Nevada 89135 21 . > 1100 Main St. Telephone: (702) 792-3773 9 Kansas City MO 64105 Facsimile: (702) 792-9002 33 Counsel for Plaintiff Counsel for Defendants 24 Order 25 IT ISSO ORDERED 2% DATED: 11:17 am, August 13, 2021 27 Les WO Fat, 28 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE ACTIVE 587°9°9062v2?