Heinrich v. Ethicon, Inc. ( 2023 )

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 5 Barbara Heinrich and Gregory Heinrich, Case No. 2:20-cv-00166-CDS-VCF 6 Plaintiffs Order Granting Motion to Lift Stay for 7 v. Limited Purpose and Granting Request to Set Mediation 8 Ethicon, Inc., and Johnson & Johnson, [ECF Nos. 254, 255] 9 Defendants 10 11 At a status conference on April 27, 2023, I stayed this case, pending mediation. ECF No. 12 251. At that hearing, the parties represented that they had contacted the magistrate judge to 13 arrange a time for settlement negotiations. Id. The defendants then moved for reconsideration of 14 my order denying their renewed motion for judgment as a matter of law. ECF No. 252. I denied 15 that request in part and granted it in part, clarifying my finding that the discovery rule does 16 apply to causes of action governed by Nevada Revised Statutes (NRS) § 11.190(4)(e). ECF No. 17 253. The defendants now move to lift the stay of this case for the limited purpose of filing a 18 motion to certify to the Nevada Supreme Court a question of law related to NRS § 11.190(4)(e). 19 ECF No. 254. The defendants also filed a stipulation—signed by counsel for all parties— 20 representing that they “stipulate to attend a settlement mediation before Magistrate Judge 21 Elayna J. Youchah.” ECF No. 255. They request that the mediation be set for September 27, 2023. 22 Id. 23 Under Nevada Rule of Appellate Procedure 5(a), the Nevada Supreme Court “may 24 answer questions of law certified to it by” a United States district court if questions of state law 25 arise under “which it appears to the certifying court [that] there is no controlling precedent” in 26 the decisions of Nevada’s appellate courts. Nev. R. App. P. 5(a). The United States Supreme 1 Court recognizes that whether to certify a question to a state’s supreme court “rests in the 2 sound discretion of the federal court.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). It also 3 acknowledges that the “certification of novel or unsettled questions of state law for 4 authoritative answers by a [s]tate’s highest court . . . may save ‘time, energy, and resources and 5 hel[p] build a cooperative judicial federalism.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 6 77 (1997) (quoting Schein, 416 U.S. at 391). But “[w]hen a party requests certification for the first 7 time after losing on the issue, that party must show ‘particularly compelling reasons’ for 8 certifying the question.” Carolina Cas. Ins. Co. v. McGhan, 572 F. Supp. 2d 1222, 1226 (D. Nev. 2008) 9 (quoting Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1984)). 10 The defendants do not yet move for the certification of a question of law to the Nevada 11 Supreme Court. I emphasize that my decision about whether to grant their request to lift the 12 stay for that limited purpose is not a decision on the merits of the certification issue itself. The 13 defendants will need, as they indicated, to file a motion to certify a question, in compliance with 14 the case law described above and any other relevant legal authority. But as for the threshold 15 issue of whether the stay may be lifted for the limited purpose of seeking to certify a question to 16 the Nevada Supreme Court, I grant that request, subject to one condition. The parties stipulate 17 to attend a settlement mediation conference with Magistrate Judge Youchah on September 27, 18 2023. ECF No. 255. For judicial efficiency and in the interest of justice, that mediation should 19 continue as planned, regardless of the certified-question issue. I defer to the magistrate judge 20 and her schedule to determine whether September 27, 2023, is an amenable date for the 21 settlement to begin. But regardless of when the mediation occurs, the defendants’ request to lift 22 the stay of the case for the limited purpose of seeking certification of a question of law is 23 granted, as long as the parties proceed with their settlement conference on September 27, 2023, 24 or whenever is most convenient for the magistrate judge. 25 26 1 Conclusion 2 IT IS THEREFORE ORDERED that the defendants’ motion to lift the stay of the case for 3 a limited purpose [ECF No. 254] is GRANTED. This case will remain STAYED except to allow 4 the defendants to file a motion seeking to certify a question of law to the Nevada Supreme 5 Court. 6 IT IS FURTHER ORDERED that the parties’ stipulation as to mediation [ECF No. 255] 7 is GRANTED. The case is REFERRED to the magistrate judge to schedule mediation on 8 September 27, 2023, as the parties request, or at another mutually agreeable time. 9 IT IS FURTHER ORDERED that the defendants must file their motion to certify by June 10 16, 2023. 11 DATED: May 15, 2023 _________________________________ 12 Cristina D. Silva United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26