United States District Court, S.D. Texas, Houston Division
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
removing defendant, CVS, has moved to stay this case until
the Judicial Panel on Multidistrict Litigation considers
whether to finalize its order transferring this action to the
National Prescription Opiate MDL pending in the Northern
District of Ohio. (Docket Entry No. 6). The plaintiff, the
County of Jim Wells, opposes the stay and moves to remand,
arguing that no basis for federal removal is present. (Docket
Entry Nos. 3, 5).
14, 2019, the County of Jim Wells filed this petition in the
Texas state district court in Jim Wells County. (Docket Entry
No. 1-A). The County a sse rts claims for public nuisance and
Texas common law nuisance, common law fraud, negligence,
gross negligence, unjust enrichment, civil conspiracy, and
relief under the Texas Controlled Substances Act. The County
alleges that CVS “contributed to or assisted in
creating and maintaining a condition . . . harmful to the
health and safety of Jim Wells County residents, ” and
seeks damages and equitable relief for damages and injuries
to itself and its residents from the misuse of prescription
opioid medications. (Docket Entry No. 1-A at 59, 71).
case was transferred from Jim Wells County to the Texas
Opioid MDL in the 152nd Judicial District Court of Harris
County, Texas. CVS has timely removed, asserting federal
question jurisdiction, 28 U.S.C. § 1331, and the Class
Action Fairness Act (“CAFA”), 28 U.S.C.
§§ 1332(d) and 1453(b), as grounds for federal
jurisdiction. (Docket Entry No. 1). The County moved to
remand. (Docket Entry No. 5). CVS filed this motion to stay
any ruling on the remand motion until the JPML decides
whether to transfer the case. (Docket Entry No. 6).
pendency of a . . . conditional transfer order . . . before
the Panel pursuant to 28 U.S.C. § 1407 does not affect
or suspend orders and pretrial proceedings in any pending
federal district court action and does not limit the pretrial
jurisdiction of that court.” J.P.M.L.R.P. 2.1(d). When
a motion to remand is pending, many courts determine whether
to rule on a motion to remand or to stay until the decision
on transfer using the steps set out in Meyers v. Bayer
AG, 143 F.Supp.2d 1044 (E.D. Wis. 2001). See 15
Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 3866.1 (3d ed. 2007)
(citing cases); see also Curtis v. BP America, Inc.,
808 F.Supp.2d 976, 978 (S.D. Tex. 2011); Meinhart v.
Halliburton Energy Services, Inc., No. H-11-0073, 2011
WL 1463600, at *2 (S.D. Tex. Apr. 4, 2011). Courts determine
whether a stay is appropriate by weighing: (1) the judicial
resources saved by avoiding duplicative litigation; (2) the
hardship to the moving party if a stay is not granted; and
(3) the potential prejudice to the nonmoving party if it is
granted. Meyers, 143 F.Supp.2d at 1049; see also
La. Stadium & Exposition Dist., No. 09-235, 09-2738,
2009 WL 926982, at *1 (E.D. La. Apr. 2, 2009).
first step is to preliminarily assess the jurisdictional
issue. A court should remand if its “preliminary
assessment suggests that removal was improper.”
Id. “If, on the other hand, the jurisdictional
issue appears factually or legally difficult, the . . .
second step should be to determine whether identical or
similar jurisdictional issues have been raised in other cases
that have been or may be transferred to the MDL
proceeding.” Id. The court should allow the
transferee court to decide the jurisdictional issues if that
would further judicial economy and consistency. Id.
“Only if the jurisdictional issue is both difficult and
similar or identical to those in cases transferred or likely
to be transferred should the court proceed to the third step
and consider the motion to stay.” Id.
pending motion to remand presents factually and legally
difficult issues. Other cases consolidated before the MDL
transferee court in Ohio present similar removal issues,
making a stay appropriate to avoid duplicate litigation of
those issues, to improve judicial economy, and to reduce the
risk of inconsistent results. The hardship to CVS if a stay
is not granted is the exposure to inconsistent results in
similar cases, requiring it to engage in duplicate
litigation. The potential prejudice to the County if a stay
is granted is from delay. That potential for prejudice is
reduced by the relatively expeditious pace of the JPML's
decisions on transfer. The delay until the JMPL decides
whether to transfer will likely be short. If the case is not
transferred, this court will decide the motion to remand
motion to stay, (Docket Entry No. 6), is granted. The motion
to remand, (Docket Entry No. 5), is ...