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In Hall, the district court also declined to find preemption under Mensing given the posture of the case and proceeded to evaluate the merit of the plaintiff's state law claims.
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Case No. 1:21-cv-00897
2021-05-24
Sidney HALL, Plaintiff, v. ORTHOMIDWEST, INC., et al., Defendants.
Daniel N. Abraham, Colley Shroyer & Abraham, Columbus, OH. Ilyas Sayeg, Maglio Christopher & Toale, Sarasota, FL, for Plaintiff. Erica M. James, A. Michael Anderton, Tucker Ellis, Cleveland, OH, for Defendants. Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, for Defendants OrthoMidwest, Inc., Stacie M. Matrka, TJM Medical, Inc., Medical Device Business Services, Inc., Depuy Synthes Sales, Inc., Johnson & Johnson Services, Inc., Johnson & Johnson.
Daniel N. Abraham, Colley Shroyer & Abraham, Columbus, OH.
Ilyas Sayeg, Maglio Christopher & Toale, Sarasota, FL, for Plaintiff.
Erica M. James, A. Michael Anderton, Tucker Ellis, Cleveland, OH, for Defendants.
Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, for Defendants OrthoMidwest, Inc., Stacie M. Matrka, TJM Medical, Inc., Medical Device Business Services, Inc., Depuy Synthes Sales, Inc., Johnson & Johnson Services, Inc., Johnson & Johnson.
OPINION AND ORDER
J. Philip Calabrese, United States District Judge Plaintiff Sidney Hall filed suit in State court against Medical Device Business Services, Inc., DePuy Synthes Sales, Inc., Johnson & Johnson Services, Inc., and Johnson and Johnson (collectively, the "Johnson & Johnson Defendants"), and OrthoMidwest, Inc., Stacie Matrka, TJM Medical, Inc., and Thomas J. McTighe (collectively, the "Distributor Defendants"). Plaintiff's complaint asserts various claims based on injuries he allegedly sustained following hip replacement surgery involving medical devices the Johnson & Johnson Defendants manufactured. Specifically, Plaintiff alleges manufacturing defect (Count IV), defective design (Count V), defect due to inadequate warning or instruction (Count VI), and manufacturing a non-conforming product (Count VII) against the Johnson and Johnson Defendants. Plaintiff also asserts claims against the Distributor Defendants on theories of failure to warn (Counts I and II) and distributing a non-conforming product (Count III).
The Johnson & Johnson Defendants removed the case to federal court on the basis of diversity jurisdiction, arguing the Distributor Defendants were fraudulently joined for the purposes of defeating diversity and, thereby, avoiding transfer to long-running multi-district litigation in the Northern District of Texas. Plaintiff moved to remand on May 3, 2021 and sought consideration on an expedited basis. (ECF No. 8, PageID #276.) On May 21, 2021, the Court held oral arguments on the record on Defendants’ motion to stay and Plaintiffs’ motion to remand.
Ordinarily, courts "defer ruling on pending motions to remand in MDL litigation until after the JPML has transferred the case." Board of Cnty. Comm'rs of Seminole Cnty, Okla. v. Purdue Pharma L.P. , No CIV-18-372-JWL, 2019 WL 1474397, at *2 (E.D. Okla. Apr. 3, 2019) (quotation omitted). But that practice varies from MDL to MDL. In this MDL, the practice has been to transfer cases with motions to remand pending. On the facts and circumstances presented, however, removal turns on the Ohio Product Liability Act, not questions of federal law or general principles of 28 U.S.C. §§ 1332 or 1446. Therefore, in the interests of judicial economy and promoting the prompt and efficient resolution of the case, the Court takes up the motion now as Plaintiff requests.
STATEMENT OF FACTS
The Johnson & Johnson Defendants manufacture a metal-on-metal hip replacement device known as the "DePuy Pinnacle MoM hip replacement system." (ECF No. 1-3, ¶ 13, PageID #54.) Mr. Hall underwent hip replacement surgery on December 2, 2009 in Columbus, Ohio, during which time the Pinnacle device was implanted into him. (Id. , ¶ 111, PageID #71.) Plaintiff alleges that, over the ensuing ten-year period, the Pinnacle device was "releasing toxic Cobalt metal ions and Chromium metal ions into Plaintiff's body and causing injury." (Id. , ¶ 112.) Mr. Hall was asymptomatic during this period. (Id. )
On April 30, 2019, Mr. Hall presented to his treating orthopedic physician with complaints of discomfort in his groin area. (Id. , ¶ 113.) Subsequent blood tests revealed elevated levels of cobalt and chromium in Mr. Hall's system. (Id. , ¶ 115.) On February 6, 2020, Mr. Hall underwent surgical removal of the Pinnacle device. (Id. , ¶ 118, PageID #72.) Mr. Hall claims that he continues to suffer pain as a result of the implantation of the allegedly defective Pinnacle device. (Id. , ¶ 120–21.)
STATEMENT OF THE CASE
As alleged in the complaint, Plaintiff resides in Ohio. (ECF No. 1-3, ¶ 1, PageID #51.) Defendant OrthoMidwest is a corporation organized under the laws of the State of Ohio with its principal place of business in Ohio. (Id. , ¶ 2.) Defendant Stacie Matrka, President of OrthoMidwest, had her principal place of business in Ohio. (Id. , ¶ 3.) Defendant TJM Medical is a corporation organized under the laws of the State of Ohio with its principal place of business in Ohio. (Id. , ¶ 4.) Defendant Thomas J. McTighe, President of TJM Medical, is a citizen of Ohio. (Id. , ¶ 5.)
Defendant DePuy is a corporation organized under the laws of the State of Indiana with its principal place of business in Indiana. (ECF No. 1, ¶ 8, PageID #3.) Johnson & Johnson Services, Inc. and Johnson & Johnson are corporations organized under the laws of the State of New Jersey with their principal places of business in New Jersey. (Id. , ¶ 10.)
Plaintiffs allege the Distributor Defendants were "responsible for informing & educating medical providers, marketing, selling, facilitating distribution of product to, servicing and supporting Plaintiff Sidney Hall's orthopedic surgeons and the Pinnacle hip replacement at issue in this matter." (ECF No. 1-3, ¶ 30, PageID #56.) Further, Plaintiff claims that the Distributor Defendants "were not simply a mouthpiece for Johnson & Johnson," but had "knowledge regarding the performance of" the Pinnacle device. (Id. , ¶¶ 34–35.)
In their notice of removal, Defendants acknowledge that the Distributor Defendants are non-diverse. (ECF No. 1, ¶ 11, PageID #3.) Nonetheless, Defendants contend removal is appropriate based on Plaintiff's fraudulent joinder of the Distributor Defendants. (Id. , ¶ 13, PageID #4.) To support this argument, Defendants attach declarations of Stacie Matrka (ECF No. 1-4) and Thomas J. McTighe (ECF No. 1-5.)
ANALYSIS
Federal courts have limited jurisdiction, possessing only that power the Constitution and statutes authorize. Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A defendant may remove a case to federal court only if it could have been filed there in the first place. Strong v. Telectronics Pacing Sys., Inc. , 78 F.3d 256, 256 (6th Cir. 1996). Further, the federal court has jurisdiction if the matter in controversy exceeds $75,000 and where the controversy is between "citizens of different states." 28 U.S.C. § 1332(a)(1). Diversity jurisdiction requires complete diversity of citizenship, meaning that no plaintiff resides in the same State as any defendant. Glancy v. Taubman Ctrs., Inc. , 373 F.3d 656, 664 (6th Cir. 2004) (citing Caterpillar, Inc. v. Lewis , 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) ).
As the party invoking federal jurisdiction, a defendant seeking to remove the case bears the burden of establishing that the Court would have had original jurisdiction if Plaintiff filed suit here. See, e.g. , Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. 1989). Courts strictly construe the removal statute and resolve all doubts in favor of remand. Eastman v. Marine Mech. Corp. , 438 F.3d 544, 549–50 (6th Cir. 2006).
I. Fraudulent Joinder
Under the law of this Circuit, fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds. See Alexander v. Electronic Data Sys. Corp. , 13 F.3d 940, 949 (6th Cir. 1994). Fraudulent joinder occurs where a complaint names a party against which there is no colorable cause of action. Walker v. Philip Morris USA, Inc. , 443 F. App'x 946, 951 (6th Cir. 2011) (citation omitted). This standard requires the absence of a reasonable basis in law or fact for the claims asserted:
There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged or on the facts in view of the law .... One or the other at least would be required before it could be said that there was no real intention to get a joint judgment, and that there was no colorable ground for so claiming.
Alexander , 13 F.3d at 949 (quoting Bobby Jones Garden Apartments, Inc. v. Suleski , 391 F.2d 172, 176 (5th Cir. 1968) ); see also Walker , 443 F. App'x at 951.
The removing party bears the burden of proving fraudulent joinder. Alexander , 13 F.3d at 949. To do so, a defendant may present evidence and not merely rely on the allegations of the complaint. See Casias v. Wal-Mart Stores, Inc. , 695 F.3d 428, 433 (6th Cir. 2012) ; King v. Centerpulse Orthopedics, Inc. , No. 1:05-CV-1318, 2006 WL 456478, at *1, 2006 U.S. Dist. LEXIS 7028 (N.D. Ohio Feb. 24, 2006).
Where a defendant presents evidence to support an argument of fraudulent joinder, courts in this Circuit employ a procedure akin to proceedings on a motion for summary judgment to determine whether discrete facts preclude a basis for recovery against the in-State defendants. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. , 491 F.3d 320, 330 (6th Cir. 2007) ; Walker , 443 F. App'x at 952–53 (discussing Smallwood v. Illinois Cent. R.R. Co. , 385 F.3d 568, 573–74 (5th Cir. 2004) (en banc)). Because fraudulent joinder arguments arise early in litigation, a summary inquiry limits the evidentiary procedure outlined to identifying "discrete and undisputed facts." Smallwood , 385 F.3d at 573. Additionally, courts take into account "unchallenged factual allegations." Walker , 443 F. App'x at 953 (quoting Travis v. Irby , 326 F.3d 644, 649 (5th Cir. 2003) ). Alternatively, a court may analyze fraudulent joinder on the basis of the pleadings, construing them in favor of the plaintiff as it would on a motion to dismiss. Smallwood , 385 F.3d at 573.
But consistent with resolving doubts in favor of remand, the Court must give Plaintiff the benefit of the doubt on all disputes of fact and any ambiguities in the controlling State law. Coyne ex rel. Ohio v. American Tobacco Co. , 183 F.3d 488, 493 (6th Cir. 1999). Moreover, the plaintiff's motive for joining a non-diverse party has no bearing on the analysis. Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C. , 176 F.3d 904, 907 (6th Cir. 1999). For these reasons, the burden to demonstrate fraudulent joinder "is indeed a heavy one." King , 2006 WL 456478, at *2, 2006 U.S. Dist. LEXIS 7028 (quoting Fields v. Reichenberg , 643 F. Supp. 777, 779 (N.D. Ill. 1986) ).
I.A. Preemption
As threshold matter, the Distributor Defendants argue that PLIVA, Inc. v. Mensing , 564 U.S. 604, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), and its progeny preempt any claims against them as non-manufacturers of an FDA-approved product. There, the Supreme Court held that federal law preempts claims against generic drug manufacturers premised on a failure-to-warn theory under principles of conflict preemption. Id. at 624–25, 131 S.Ct. 2567. That is, manufacturers of generic FDA-approved drugs cannot be found liable on claims under State law that they failed to warn because they do not create or alter the warning labels; rather, federal law requires that they use the same FDA-approved labels and warnings as the brand-name version of the drug. Id. at 613–15, 131 S.Ct. 2567.
Plaintiff argues that the Supreme Court's holding in Mensing does not apply because the Pinnacle device is not FDA-approved; instead, it received FDA clearance (not approval) through the 510(k) premarket notification process, which requires a showing that a device is safe and effective because it is substantially equivalent to a device already on the market. (ECF No. 8 n.1, PageID #281.) To respond to the Distributor Defendants’ preemption arguments, Plaintiff relies on the previous ruling in the Pinnacle MDL rejecting preemption arguments on the ground that "the 510(k) process ... does not preempt state-law design defect claims." In re DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liab. Litig. , No. 3:11-MD-2244-K, 2017 WL 9807462, at *3 (N.D. Tex. Sept. 18, 2017) (citing Medtronic v. Lohr , 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ). Finally, Plaintiff points out that Mensing did not address medical devices, only generic drugs. (ECF No. 8, PageID #282.)
As a matter of law, the distributor of a medical device marketed through the 510(k) process has no authority to change the product or its warnings. As is the case with a generic drug, then, principles of conflict preemption likely bar claims under State law against a distributor. Put another way, the rationale of Mensing and its progeny applies with equal force on facts like those alleged here. However, to agree with Defendants that federal law preempts Plaintiff's claims under State law would require extending the case law on the issue to the types of medical devices at issue here. In the Court's view, the current procedural posture does not provide the appropriate vehicle to take such a step (because of the removal posture and previous ruling on the issue from the MDL Court), even though doing so does not appear to involve much, if any, doubt. Accordingly, the Court proceeds to analyze whether Plaintiff's claims have a reasonable basis in law or fact under State law.
I.B. Ohio's Product Liability Act
In Counts I, II, and III, Plaintiff brings claims under Ohio's Product Liability Act, alleging the Distributor Defendants, as suppliers under the Act, were negligent because they knew the "dangerous propensities" of the Pinnacle device but failed adequately to warn Plaintiff or his physicians and that the Pinnacle device did not conform to representations the Distributor Defendants made. (ECF No. 1-3, ¶¶ 130–34, PageID #74; id. , ¶ 149, PageID #76.)
I.B.1. Supplier Definition
As an initial matter, the Distributor Defendants claim they are not suppliers under the Act because they were mere conduits by which the Johnson & Johnson Defendants offered their products for sale. (ECF No. 15, PageID #437.) However, the statute defines a supplier as anyone who participates in placing a product into the stream of commerce. Ohio Rev. Code § 2307.71(A)(15)(a)(i). Although the statutory text does not require, as Defendants argue, physical control over the product at any particular point in the supply chain, a supplier must "exert some control over the product." Stiner v. Amazon.com, Inc. , 162 Ohio St.3d 128, 2020-Ohio-4632, 164 N.E.3d 394, ¶ 19.
The Distributor Defendants admit that they "distributed DePuy orthopaedic products to physicians and hospitals in certain locations within the State of Ohio." (ECF No. 1-4, ¶ 4, PageID #87; ECF No. 1-5, ¶ 4, PageID #89.) Further, they negotiated pricing with hospitals and sold directly to them. (ECF No. 1-4, ¶ 8, PageID #87; ECF No. 1-5, ¶ 8, PageID #89.) Notwithstanding Defendants’ arguments to the contrary, the record shows that the Distributor Defendants are suppliers within the meaning of the statute. Their level of involvement with the product clears the floor the Ohio Supreme Court set in Stiner and differs materially and considerably from that of Amazon.com in that case.
I.B.2. Supplier Liability
Under the Act, a supplier may have liability where (a) the supplier was negligent and its negligence proximately caused injury; or (b) the product did not conform to a representation the supplier made when the product left its control and that representation and the failure to conform to it proximately caused injury. Ohio Rev. Code § 2307.78(A). Liability under this statute requires independent or express conduct of a supplier. That is, the supplier must make a representation or act negligently. See, e.g. , Thompson v. Sunbeam Prods. , No. 2:10-cv-98, 2011 WL 4502049, at *13–14, 2011 U.S. Dist. LEXIS 110677 (S.D. Ohio Sept. 28, 2011) ; Welch Sand & Gravel v. O&K Trojan , 107 Ohio App.3d 218, 228–29, 668 N.E.2d 529, 536–37 (1995).
I.B.2.a. Negligence/Failure to Warn
In Counts I and II, Plaintiff brings claims for negligence/failure to warn under Section 2307.78(A)(1). Under Ohio law, to establish that a supplier has liability for failure to warn about the dangers of a product, a plaintiff must plead and prove "that the supplier knew or should have known in the exercise of ordinary care, of the risk of the hazard to which it failed to warn." Estate of Blandford v. A.O. Smith Corp. , No. 103030, 2016-Ohio-2835, ¶ 24 (Ohio Ct. App.) (citations omitted); see also King , 2006 WL 456478, at *4.
i. Evidence
To resolve the question of fraudulent joinder, the parties may present evidence, Casias , 695 F.3d at 433, and the record before the Court demonstrates that the Distributor Defendants, as suppliers of the Pinnacle device, did not design the product or have any role in creating or altering the warning label (ECF No. 1-4, ¶¶ 10–17, PageID #87–88; ECF No. 1-5, ¶¶ 10–17, PageID #91–92). Nor did they have knowledge of any alleged defect in the product. (ECF No. 1-4, ¶ 20, PageID #88; ECF No. 1-5, ¶ 20, PageID #92.)
On a motion for summary judgment, a non-moving party may not rest on the pleadings and must instead come forward with some evidence to rebut the claims of the other side. Tokmenko v. MetroHealth Sys. , 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Plaintiff makes only a halfhearted effort to rebut Defendants’ evidence. First, he points to a training manual showing the Distributor Defendants were present during revision surgeries. (ECF No. 8-2.) But the declarations make the same point. (See ECF No. 1-4, ¶ 12, PageID #87; ECF No. 1-5, ¶ 12, PageID #91.) Second, Plaintiff relies on an answer to a complaint against TJM Medical, Inc. and Mr. McTighe pending in State court. (ECF No. 19-1.) In that case, which remains in the very early stages, those Defendants made averments consistent with their evidence here.
Treating fraudulent joinder as akin to a summary-judgment proceeding, even on a limited basis for purposes only of identifying any discrete facts not in dispute, leaves no dispute over the facts showing that Plaintiff has no colorable claim against the Distributor Defendants. A defendant can only warn of what it knows. Without knowledge of the alleged defects at issue, Plaintiff can have no recovery against the Distributor Defendants.
ii. Allegations
But even taking the pleadings at face value as if proceeding on a motion to dismiss and disregarding Defendants’ declarations, Plaintiff's allegations fail to state a claim that the Distributor Defendants may have liability under Ohio law. Construing the amended complaint in Plaintiff's favor, he alleges the Distributor Defendants had knowledge of revision surgeries and the like. (ECF No. 1-3, ¶¶ 35–39, PageID #57–58.) Notwithstanding the volume of allegations directed at the Distributor Defendants (see ECF No. 19, PageID #504–05), Plaintiff points to no allegation consistent with the Rule 8 pleading standard that the Distributor Defendants allegedly had knowledge of a product defect. See, e.g. , Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement."); Eidson v. Tennessee Dep't of Children's Servs. , 510 F.3d 631, 634 (6th Cir. 2007) (recognizing that courts do not accept "[c]onclusory allegations or legal conclusions masquerading as factual allegations[.]"). Product revisions and defects are two very different things.
And a supplier's knowledge without more does not give rise to liability under the statute. On this score, Plaintiff argues that the Distributor Defendants selectively provided the manufacturer with their knowledge of revision surgeries (perhaps negligently, perhaps intentionally), resulting in an overall mix of inaccurate information available to the manufacturer, which then failed to give an appropriate warning or falsely or misleadingly marketed the product, resulting in surgeons and hospital procurement personnel deciding to use the product of the Johnson & Johnson Defendants, which led to Mr. Hall's alleged injuries. But such an attenuated chain of events does not amount to proximate cause under Ohio law, even on a claim that the Distributor Defendants should have known of a product defect. Cromer v. Children's Hosp. Med. Ctr. of Akron , 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 50 (citing Gedeon v. East Ohio Gas Co. , 128 Ohio St. 335, 339–40, 190 N.E. 924 (1934) ); see also Jeffers v. Olexo , 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989) (defining proximate cause as "[t]hat which immediately precedes and produces the effect") (quotations omitted).
* * *
At this stage of the proceedings, whichever methodology the Court employs to resolve the question of fraudulent joinder, the Distributor Defendants have carried their heavy burden of establishing that there is no reasonable basis in law or in fact to support Plaintiff's claims in Counts I and II against them under State law.
I.B.2.b. Non-Conforming Product
In Count III, Plaintiff asserts a claim under Section 2307.78(A)(2), alleging the Pinnacle device did not conform "when it left the control of Defendants, to the representations made by Defendants." (ECF No. 1-3, ¶ 149, PageID #77.) This statute requires a plaintiff to plead and prove that "the product in question did not conform ... to a representation made by that supplier, and that representation and the failure to conform to it were a proximate cause of harm for which the claimant seeks to recover compensatory damages." Ohio Rev. Code § 2307.78(A)(2).
Here, the record contains no evidence any Distributor Defendant made independent representations that might occasion liability. Again, Plaintiff fails to point to any evidence in the record in response to the declarations the Distributor Defendants submitted. Even on the face of the amended complaint, the representations Plaintiff alleges the Distributor Defendants made actually came from DePuy. For example, two specific representations Plaintiff alleges the Distributor Defendants made are accompanied by photographs of marketing materials bearing the manufacturer's name. (ECF No. 1-3, ¶ 47, PageID #60–61.) Even assuming those representations made material claims about the product's quality or safety, Ohio law does not impose liability where a supplier does nothing more than pass along the manufacturer's statements because that representation is not the supplier's. See King , 2006 WL 456478, at *5 ; Patterson v. Central Mills, Inc. , 112 F. Supp. 2d 681, 694 (N.D. Ohio 2000).
At most, the amended complaint supports an inference that the Distributor Defendants passed along allegedly defective warnings the manufacturers created. (ECF No. 1-3, ¶¶ 135–40, PageID #74–75.) But even that assumption gives Plaintiff the benefit of the doubt with allegations that impermissibly fail to distinguish between the Johnson & Johnson Defendants and the Distributor Defendants. That is, the amended complaint repeatedly refers to "Defendants" without distinguishing between which Defendant allegedly made any representation to which the product may not have conformed. (See, e.g. , ECF No. 1-3, ¶ 68, PageID #64.) In any event, the record establishes that the Distributor Defendants had no role in creating any marketing or promotional materials related to the Pinnacle device. (ECF No. 1-4, ¶ 18, PageID #88; ECF No. 1-5, ¶ 18, PageID #92.) Accordingly, Plaintiff asserts no colorable claim under Section 2307.78(A)(2) against the Distributor Defendants.
I.C. Remedy
Where parties are fraudulently joined, they are dismissed from the lawsuit. See West v. Visteon Corp. , 367 F. Supp. 2d 1160, 1165 (N.D. Ohio 2005). Nor is their citizenship considered for purposes of determining diversity jurisdiction. Coyne , 183 F.3d at 493. Once the Distributor Defendants are dismissed, the Court's removal jurisdiction over the case is evident based on the complete diversity of the parties and the amount in controversy.
II. Defendants’ Motion to Stay
With the matter properly before the Court on the basis of diversity jurisdiction, Defendants ask the Court to stay proceedings pending its transfer to MDL No. 2244 in the United States District Court for the Northern District of Texas. (ECF No. 6, PageID #261.) In that MDL, more than 9,500 cases are coordinated as part of the proceedings involving the Pinnacle device at issue here. (Id. , PageID #265.) "[A] majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel." Romine v. Uber Techs., Inc. , No. 3:16-CV-371, 2017 WL 11494684, at *2 (E.D. Tenn. May 24, 2017) (quotation omitted). Here, the Judicial Panel on Multidistrict Litigation will shortly take up the question whether this case should be transferred to the MDL.
With that action imminent, in the Court's view any case-management steps it may take will not materially advance the case. Indeed, they may prove inconsistent with the governing case management orders in the MDL, should the Panel transfer the case. Further, there will be little, if any, prejudice from a brief delay to determine whether transfer is appropriate under Section 1407. If it is not, the Court will promptly convene a case management conference, which would likely track the discovery and other efforts and case management in the MDL in any event. For these reasons, the Court exercises its discretion to stay proceedings pending the Panel's determination.
CONCLUSION
For the foregoing reasons, the Court determines that the Distributor Defendants were fraudulently joined. Therefore, the Court DISMISSES OrthoMidwest, Inc., Stacie Matrka, TJM Medical, Inc., and Thomas J. McTighe. Further, the Court DENIES Plaintiff's motion to remand (ECF No. 8). Finally, the Court GRANTS Defendants’ motion to stay these proceedings pending resolution of the dispute over transfer by the Judicial Panel on Multidistrict Litigation and exercises its discretion to suspend Defendants’ obligation to answer, move, or otherwise plead until further order of the Court or transfer to the MDL. (ECF No. 6).