United States District Court, M.D. Tennessee, Nashville Division
THE HOSPITAL AUTHORTIY OF METOPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, d/b/a NASHVILLE GENERAL HOSPITAL and AMERICAN FEDERATION OF STATE, COUNTY AND MUNICPAL EMPLOYEES DISTRICT COUNCIL 37 HEALTH & SECURITY PLAN, Plaintiffs,
MOMENTA PHARMACEUTICALS, INC. and SANDOZ INC., Defendants.
WAVERLY KLCRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
before the Court is Momenta Pharmaceuticals, Inc.
(“Momenta”) and Sandoz Inc.'s
“Defendants”) Motion to Stay Proceedings or in
the Alternative to Stay Class Notice (Doc. No. 441).
Nashville General Hospital (“NGH”) and American
Federation of State, County and Municipal Employees District
Council 37 Health & Security Plan (“DC 37”)
(collectively “Plaintiffs”) have responded in
opposition (Doc. No. 459), and Defendants have replied (Doc.
No. 461). For the reasons stated below, the Court will deny
case is currently scheduled for trial on January 7, 2020. On
September 20, 2019, the Court entered a Memorandum Opinion
granting Plaintiffs' Renewed Motion for Class
Certification and Appointment of Class Counsel. (Doc. Nos. 426,
427.) After carefully considering “no fewer than seven
briefs regarding class certification, one aborted evidentiary
hearing, amendment of the class definition, and one full
evidentiary hearing” on July 12, 2019, the Court
concluded that “Plaintiffs have carried their burden in
establishing that their proposed class should be certified
under Rule 23(a)(1) and (b)(3) under the Federal Rules of
Civil Procedure.” (Doc. No. 426 at 1-2, 36.)
October 2, 2019, Defendants petitioned the United States
Court of Appeals for the Sixth Circuit for permission to
appeal the Court's class certification order pursuant to
Federal Rule of Civil Procedure 23(f). (Doc. No. 442-1.)
Concurrently with their Rule 23(f) petition, Defendants also
filed in this Court a Motion to Stay Proceedings or in the
Alternative to Stay Class Notice until the Sixth Circuit
rules on their Rule 23(f) petition or, if granted, resolves
their appeal. (Doc. No. 441.)
stay is an intrusion into the ordinary processes of
administration and judicial review.” Dodds v.
United States Dep't of Educ., 845 F.3d 217, 220 (6th
Cir. 2016) (quoting Nken v. Holder, 556 U.S. 418,
435 (2009)). “A stay is not a matter of right, even if
irreparable injury might otherwise result. It is instead an
exercise of judicial discretion, and the propriety of its
issue is dependent upon the circumstances of the particular
case. The party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that
discretion.” Nken, 556 U.S. at 433-34
(internal citations, quotation marks, and brackets omitted).
“A motion to a court's discretion is a motion, not
to its inclination, but to its judgment; and its judgment is
to be guided by sound legal principles.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 139 (2005)
(citation and brackets omitted).
deciding whether to grant a stay, the Court must consider
four factors: “(1) whether the stay applicant has made
a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Nken, 556
U.S. at 434 (citation and internal quotation marks omitted).
Although these four factors are “interrelated
considerations that must be balanced together, ”
Serv. Emp. Int'l Union Local 1 v. Husted, 698
F.3d 341, 343 (6th Cir. 2012) (citation and internal
quotation marks omitted), “[t]he first two factors of
the traditional standard are the most critical.”
Nken at 434.
have moved to stay all proceedings, or in the alternative to
stay issuance of class notice pending the resolution of their
Rule 23(f) petition. Because both of Defendants' requests
require the Court to balance the four traditional stay
factors, the Court will discuss both requests in tandem,
noting any differences in the analysis where appropriate. In
any event, Defendants have not shown that the four factors
weigh in favor of staying all proceedings or class notice in
Defendants have not demonstrated a strong likelihood of
success on the merits. If the Sixth Circuit even hears
Defendants' appeal, “an order granting class
certification ‘is subject to a very limited review and
will be reversed only upon a strong showing that the district
court's decision was a clear abuse of
discretion.'” Lyngaas v. Curaden AG, No.
17-cv-10910, 2019 WL 2635966, at *2 (E.D. Mich. June 27,
2019) (quoting Olden v. LaFarge Corp., 383 F.3d 495,
507 (6th Cir. 2004)); see also In re Delta Air
Lines, 310 F.3d 953, 960 (6th Cir. 2002) (“Rule
23(f) appeals will be the exception, not the norm.”).
To find abuse of discretion requires a “definite and
firm conviction that the district court committed a clear
error of judgment.” In re Whirlpool Corp.
Front-Loading Washer Prods. Liability Litig., 722 F.3d
838, 850 (6th Cir. 2013) (citation and internal quotation
to Defendants' arguments on this prong, the Court
properly undertook a “rigorous analysis” to
ensure Rule 23's requirements were satisfied in this
case. The Court reviewed and applied controlling precedent
and weighed the evidence before it, discussing the
parties' arguments, the nature and credibility of their
conflicting expert reports and testimony, and their documents
and materials in support, and concluded that Plaintiffs
carried their burden in establishing that their proposed
class should be certified under Rule 23. Defendants'
motion merely reflects their disagreement with the
Court's conclusion and their attempt to relitigate issues
the Court already exhaustively considered. Compare
(Doc. No. 442 at 3) (claiming that the Court wrongly accepted
“Dr. Lamb's untested hypotheses” and
certified a class “includ[ing] uninjured class
members”), with (Doc. No. 361 at 21) (arguing
that “the proposed class includes insurers who,
according to Dr. Lamb's untested assumption, are
uninjured in hospital transactions”). Because
Defendants have not established a strong likelihood of
success on the merits of their appeal, this factor weighs
against a stay.
Defendants have not established irreparable injury absent a
stay. Defendants argue that, without a stay of all
proceedings, they will have to “spend significant time
and resources preparing for the trial of a class that is
likely to be decertified, ” and without a stay of class
notice, they will have to “expend substantial time and
resources re-negotiating an agreed-upon form of notice and
reaching agreement on the logistics of disseminating
notice.” (Doc. No. 442 at 4, 8.) In response,
Plaintiffs cite numerous opinions from this Circuit holding
that “[m]ere injuries, however substantial, in terms of
money, time and energy necessarily expended in the absence of
a stay, are not enough.” E.g., ProCraft
Cabinetry, Inc. v. Sweet Home Kitchen and Bath, Inc.,
343 F.Supp.3d 734, 739 (M.D. Tenn. 2018) (quoting Sampson
v. Murray, 415 U.S. 61, 90 (1974)).
parties suggest, (Doc. No. 442 at 4-5; Doc. No. 459 at 5-8),
courts appear split over whether litigation costs alone
establish irreparable harm in this procedural posture.
Compare e.g., Tipton v. CSX Transp., Inc.,
No. 3:15-cv-311-TAV-CCS, 2017 WL 4583248, at *6 (E.D. Tenn.
Oct. 13, 2017) (“[a] showing of irreparable harm
requires more than a reference to litigation costs associated
with continued district court proceedings, [because] . . .
the same factors are present in most (if not all) cases
concerning class certification”) (citation and internal
quotation marks omitted), with Wilcox v. Lloyds TSB Bank,
PLC, No. 13-00508 ACK-RLP, 2016 WL 917893, at *6 (D.
Haw. Mar. 7, 2016) (“In the Rule 23(f) context, courts
have found irreparable injury where failure to issue a stay
would result in substantial time and resources being spent on
the litigation.”) (citation and internal quotation
marks omitted). “In almost any case with a pending
interlocutory appeal, denying a stay and continuing with
district court proceedings will present a risk of additional
unrecoverable litigation costs; nevertheless, courts do not
grant stays as a matter of course in the Rule 23(f)
context.” Huffman v. Prudential ...