Family Medicine Pharmacy, Llc v. Impax Laboratories, Inc.

MOTION for Order/Judgment Motion to Enjoin Copycat Class Action

S.D. Ala.May 11, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA MOBILE DIVISION FAMILY MEDICINE PHARMACY, LLC ) ) Plaintiff, ) ) Civil Action 17-0053-WS-MU v. ) ) IMPAX LABORATORIES, INC., ) CLASS ACTION ) Defendant. ) MOTION TO ENJOIN COPYCAT CLASS ACTION COMES NOW, the Plaintiff Family Medicine Pharmacy, LLC, (hereinafter “Plaintiff” or “FMP”) and hereby requests that this Honorable Court enter its Order Staying the second filed, copycat putative class action pending in the U.S. District Court for New Jersey styled as Medicine To Go Pharmacies, Inc. v. Impax Laboratories, Inc, Case no. 3:17-cv-00986-FLW- DEA. In support thereof, Plaintiff states, as follows: I. RELEVANT FACTS On January 30, 2017, Plaintiff filed its class action complaint (Doc.1), alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 221, as amended by the Junk Fax Prevention Act of 2005 (hereinafter "the TCPA") concerning Defendant Impax Laboratories, Inc.’s (hereinafter “Defendant” or “Impax”) fax blasting of an advertisement for Defendant’s epinephrine auto-injector. On February 14, 2017, Medicine To Go Pharmacies, Inc. (hereinafter “Medicine To Go”), filed their copycat class action complaint against the Defendant in the United States District Court for the District of New Jersey, Case no. 3:17-cv-00986-FLW-DEA, concerning the same violations of the TCPA related to Defendant’s fax advertisement for its epinephrine auto- injector. The February 14, 2017 complaint filed by Medicine To Go is attached hereto and incorporated herein as Exhibit 1. It is beyond dispute that both the first-filed matter before this Court and Medicine To Go’s second filed matter involves overlapping identical issues, the same defendant, and identical putative classes. In fact, Defendant Impax filed its Motion To Dismiss, Transfer, or Stay, along with its supporting brief on April 17, 2017, copies of which are attached hereto and incorporated herein as Exhibit 2. Case 1:17-cv-00053-WS-MU Document 31 Filed 05/11/17 Page 1 of 6 2 In short, there is no dispute that the present matter is first filed and the second filed matter is substantively and factually identical to the matter before this Honorable Court. II. ARGUMENT a. THE COURT IS EMPOWERED TO ENJOIN THE COPYCAT ACTION PURSUANT TO THE ALL WRITS ACT The All Writs Act, 28 U.S.C. § 1651, confers “extraordinary powers” upon federal courts. See ITT Community Dev. Corp. v. Barton, 569 F.2d 1351 (5th Cir. 1978). The All Writs Act authorizes district court judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” In re Managed Care Litigation, 236 F. Supp. 2d 1336 (S.D. Fla. 2002); In re Checking Account Overdraft Litig., 859 F. Supp. 2d 1313, 1322 (S.D. Fla. 2012). The Act has been interpreted to empower a federal court “to issue such commands . . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Telephone Co., 434 U.S. 159, 172 (1977). This power “extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.” Id. at 174. Thorogood v. Sears, 678 F.3d 546, 548 (7th Cir. 2012). b. THE FIRST-FILE-RULE REQUIRES ENJOINMENT OF THE COPYCAT ACTION It is undisputed that the present action is the first-filed TCPA facsimile class action against Impax. In addition to the All Writs Act, application of the “first-to-file rule” authorizes this Honorable Court to enjoin the Medicine To Go action. The Eleventh Circuit follows the “first-to-file rule.” See Manuel v. Convergys Corp.., 430 F.3d 1132, 1135-36 (11th Cir. 2005) (“[W]here two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed under the first-filed rule.”). The Eleventh Circuit recently instructed in Collegiate Licensing Co., v. American Casually Co., of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013) as follows: The first-filed rule provides that when parties have instituted competing or parallel litigation in separate courts, the court initially seized of the controversy should hear the case. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir.1982). Thus, we have held that “[w]here two actions Case 1:17-cv-00053-WS-MU Document 31 Filed 05/11/17 Page 2 of 6 3 involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first- filed suit under the first-filed rule.” Manuel, 430 F.3d at 1135 (citations omitted). The first-filed rule not only determines which court may decide the merits of substantially similar cases, but also generally establishes which court may decide whether the second filed suit must be dismissed, stayed, or transferred and consolidated. See Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir.1971); Sutter Corp. v. P & P Industries, Inc., 125 F.3d 914, 920 (5th Cir.1997) (citing Mann Mfg., 439 F.2d at 408). Id. “Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first- filed suit under the first-filed rule.” Manuel v. Convergys Corp., 430 F. 3d 1132, 1135 (11th Cir. 2005). “The ‘first to file’ rule is grounded in principles of comity and sound judicial administration. . . . 'The concern manifestly is to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result.’” Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997) (quoting West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985)). The Third Circuit Court of Appeals concurs with our Eleventh Circuit’s interpretation and applicability of the first to file rule. In Chavez, et al., v. Dole Food Company, Inc., 836 F.3d 205 (3rd Cir. 2016), the Third Circuit instructed, in pertinent part, as follows: Our initial inquiry concerns proper application of “the first-filed rule.” That rule is a comity-based doctrine stating that, when duplicative lawsuits are filed successively in two different federal courts, the court where the action was filed first has priority. In some cases, “first-filed” courts have relied on the rule to enjoin litigation in other jurisdictions. Id. 836 F. 3d at 210. …. We initially adopted the first-filed rule in Crosley Corp. v. Hazeltine Corp. [122 F.2d 925, 929-30 (3d Cir. 1941)] …[W]e stated that “[t]he party who first brings a controversy into a court of competent jurisdiction for adjudication should, so far as our dual system permits, be free from the vexation of subsequent litigation over the same subject matter.” [Id. at 930.] Id. 836 F. 3d at 216 … The benefits of staying a second-filed suit are just as persuasive in the context of the first-filed rule. Because a stay confines litigants to the first forum until proceedings there have concluded, a stay will generally avoid wasted judicial efforts, conflicting judgments, and unnecessary friction between courts. In addition, a second-filed court will rarely need to reach the merits of the stayed case. The far more likely result is that the matter will reach a final resolution in the first court. …We therefore conclude that, in the vast majority of cases, a court exercising its discretion under the first-filed rule should stay … a second-filed suit. Id. at 220. As most recently observed by a U.S. District Court residing within the Third Circuit: The first-filed (or “first-to-file”) rule provides that “[i]n all cases of federal concurrent jurisdiction, the court which first has possession of the subject must decide it.” Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941). It applies to “mirror-image litigation that, if resulting in two conflicting judgments, may require separate appeals.” Nexans Inc. v. Belden Inc., 966 F. Supp. 2d 396, 403 (D. Del. 2013) (internal citations omitted). Thus, it will apply if the relevant actions are “identical or nearly identical.” In re Telebrands Corp., 824 F.3d 982, Case 1:17-cv-00053-WS-MU Document 31 Filed 05/11/17 Page 3 of 6 4 985 (Fed. Cir. 2016). “If applied, the [first-filed] rule counsels that a later-filed action involving the same controversy should be dismissed, transferred, or stayed in favor of the first-filed action.” Nexans, 966 F. Supp. 2d at 403 (citing Genentech, Inc. v. Eli Lilly & Co., 998 F.2d 931, 937 (Fed. Cir.1993), abrogated on other grounds by Wilton v. Seven Falls Co., 515 U.S. 277, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995)). Mobile Telecomms. Techs., LLC v. Mobile Telecomms. Techs., LLC, No. 16-md-02722-LPS- CJB, 2017 U.S. Dist. LEXIS 39213, at *8 (D. Del. Mar. 20, 2017). In sum, when, as here, competing class action complaints are filed in different courts, asserting fundamentally identical claims against a common defendant, the first case to be filed with class action allegations takes precedence and should preclude the later-filed case. c. THE FIRST-FILE-RULE REQUIRES A STAY OF THE COPYCAT ACTION The Third Circuit holds that a stay of the second-filed action is preferable to dismissal. Chavez v. Dole Food Co., 836 F.3d 205 (3d Cir. 2016). When a district court decides to apply the first-filed rule, it then faces the discretionary choice whether to stay the second-filed action, transfer it, dismiss it without prejudice, or dismiss it with prejudice, thereby permanently terminating the case. The Delaware District Court chose the last option. The issue we confront now is whether that decision was an abuse of the Delaware District Court's discretion—a question of first impression in our Circuit. We begin by looking to the relevant treatises. Speaking of the first-filed rule as a doctrine of abstention, Wright and Miller say that "it is well settled that if the same issues are presented in an action pending in another federal court, one of these courts may stay the action before it or even in some circumstances enjoin going forward in the other federal court." Wright and Miller also discuss the possibility of transferring a second-filed case to another forum. At no point do they suggest that a court ought to dismiss a second-filed action, much less do so with prejudice. Moore's Federal Practice, meanwhile, states that "[i]f the first-filed action is vulnerable to dismissal on jurisdictional or statute of limitations grounds, the court in the second-filed action should stay it or transfer it, rather than outright dismiss it." This guidance reflects the commonsense proposition that, in a case raising timeliness concerns, a court's decision to dismiss a second-filed suit could, if the limitations clock were to expire in the first forum, have the effect of putting the plaintiffs entirely out of court. Indeed, that is precisely what is threatened in this very case. Several of our sister circuits have also considered the appropriateness of dismissing a case under the first-filed rule. The Seventh, Ninth, and Fifth Circuits have all stated that district courts should be careful to apply their discretion under the rule so as not to cause undue prejudice to the litigants appearing before them. These courts have therefore indicated that, in most circumstances, a stay or transfer of a second-filed action will be more appropriate than a dismissal. Chavez v. Dole Food Co., 836 F.3d 205, 216-17. As a matter of potential interest, Alabama’s state courts have regularly addressed the issue of second-filed cases and routinely hold that the second-filed matter should be stayed until the first- Case 1:17-cv-00053-WS-MU Document 31 Filed 05/11/17 Page 4 of 6 5 filed case is decided. In Ex parte Speedee Cash of Ala., Inc., 806 So 2d 389 (Ala. 2001), the Alabama Supreme Court found that when two potential class actions involved at least one identical issue of substantive law and had a common defendant, a stay of the second filed suit was needed to prevent the risk of inconsistent adjudication on the common issue. See, also, Ex Parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001) (“the law in Alabama is well settled: when a later-filed class action is substantially similar to a previously filed class action, the trial court in the later-filed action does not have subject-matter jurisdiction, and thus must administratively stay or dismiss the case.”). III. CONCLUSION As the case before this Honorable Court was filed first and the later filed case substantially overlaps with the matter before this Court, Plaintiff respectfully moves this Honorable Court to enter an Order staying the second filed matter until such time as the present case is decided on the merits, or class certification is denied. Respectfully submitted this 12th day of May, 2017. /s/Diandra S. Debrosse Zimmermann Diandra S. Debrosse Zimmermann (ASB2956-N76D) OF COUNSEL: ZARZAUR MUJUMDAR & DEBROSSE – TRIAL LAWYERS 2332 2nd Avenue North Birmingham, Alabama 35203 T: 205.983.7985 F: 888.505.0523 E: fuli@zarzaur.com /s/James H. McFerrin James H. McFerrin (ASN2945m72J) OF COUNSEL: MCFERRIN LAW FIRM LLC 265 Riverchase Parkway East, Suite 106 Birmingham, Alabama 35244 T: 205.870.5704 F: 205.985.5093 E: jhmcferrin@bellsouth.net Case 1:17-cv-00053-WS-MU Document 31 Filed 05/11/17 Page 5 of 6 6 CERTIFICATE OF SERVICE I do hereby certify that on the 12th day of May, 2017, I have served a copy of the foregoing pleading on counsel for all parties to this proceeding by CM/ECF and/or by mailing the same via United States Mail, properly addressed and first-class postage pre-paid, as follows: Warren Butler Attorney for Defendants Starnes Davis Florie LLP RSA Battle House Tower, 20th Floor P. O. Box 1548 Mobile, AL 36633-1548 S. Stewart Haskins II (admitted pro hac vice) Zachary A. McEntyre (admitted pro hac vice) Anush Emelianova (admitted pro hac vice) Attorneys for Defendants KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, GA 30309 Andrew T. Thomasson Philip D. Stern STERN THOMASSON LLP Attorneys for Medicine To go 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 /s/ Diandra S. Debrosse Zimmermann Diandra S. Debrosse Zimmermann Case 1:17-cv-00053-WS-MU Document 31 Filed 05/11/17 Page 6 of 6 EXHIBIT 1 Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 1 of 13 1 Philip D. Stern Andrew T. Thomasson STERN•THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1329 (973) 379-7500 Attorneys for Plaintiff and all others similarly situated UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MEDICINE TO GO PHARMACIES, INC. ) on behalf of plaintiff and the class members ) defined herein, ) ) Plaintiff, ) ) vs. ) ) IMPAX LABORATORIES, INC., ) and JOHN DOES 1-10, ) ) Defendants. ) COMPLAINT – CLASS ACTION INTRODUCTION 1. Plaintiff Medicine To Go Pharmacies, Inc., brings this action to secure redress for the actions of defendant Impax Laboratories, Inc. (“Impax”) in sending or causing the sending of unlawful advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”). PARTIES 2. Plaintiff Medicine To Go Pharmacies, Inc. is a corporation with offices at 528 West Lacey Road, Forked River, New Jersey 08731, where it maintains telephone facsimile equipment. Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 1 of 12 PageID: 1Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page of 13 2 3. Defendant, Impax Laboratories Inc., is a Delaware corporation that has offices at 30831 Huntwood Avenue, Hayward, California 94544. 4. Defendants John Does 1-10 are other natural or artificial persons that were involved in the sending of the facsimile advertisements described below. Plaintiff does not know who they are. JURISDICTION AND VENUE 5. This Court has jurisdiction under 28 U.S.C. §§1331 and 1367. Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740, 751-53 (2012). 6. Venue in this District is proper for the same reason. FACTS 7. On December 21, 2016, plaintiff Medicine To Go Pharmacies, Inc., received the fax advertisement attached as Exhibit A on its facsimile machine. 8. Discovery may reveal the transmission of additional faxes as well. 9. Impax is responsible for sending or causing the sending of the fax. 10. Impax, as the entity whose products or services were advertised in the fax, derived economic benefit from the sending of the fax. 11. Impax either negligently or wilfully violated the rights of plaintiff and other recipients in sending the fax. 12. The fax does not contain an opt-out notice that complies with 47 U.S.C. §227. 13. The TCPA makes unlawful the “use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine ...” 47 U.S.C. §227(b)(1)(C). 14. The TCPA provides for affirmative defenses of consent or an established business relationship. Both defenses are conditioned on the provision of an opt out notice that complies with the TCPA. Holtzman v. Turza, 728 F.3d 682 (7th Cir. 2013); Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013). Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 2 of 12 PageID: 2Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 3 of 13 3 15. On information and belief, the faxes attached hereto were sent as part of a mass broadcasting of faxes. 16. On information and belief, defendants have transmitted similar fax advertisements to at least 40 other persons in this District. 17. There is no reasonable means for plaintiff or other recipients of defendants’ advertising faxes to avoid receiving illegal faxes. Fax machines must be left on and ready to receive the urgent communications authorized by their owners. COUNT I – TCPA 18. Plaintiff incorporates ¶¶ 1-17. 19. The TCPA, 47 U.S.C. §227(b)(3), provides: Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State– (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If the Court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the subparagraph (B) of this paragraph. 20. Plaintiff and each class member suffered damages as a result of receipt of the faxes, in the form of paper and ink or toner consumed as a result. Furthermore, plaintiff’s statutory right of privacy was invaded. 21. Plaintiff and each class member is entitled to statutory damages. 22. Defendants violated the TCPA even if their actions were only negligent. 23. Defendants should be enjoined from committing similar violations in the future. Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 3 of 12 PageID: 3Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 4 of 13 4 CLASS ALLEGATIONS 24. Pursuant to Fed. R. Civ .P. 23(a) and (b)(3), plaintiff brings this claim on behalf of a class, consisting of (a) all persons (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. §1658), (c) were sent faxes by or on behalf of defendant Impax Laboratories, Inc., promoting its goods or services for sale (d) which do not contain an “opt out” notice in the form required by 47 U.S.C. §227. 25. The class is so numerous that joinder of all members is impractical. Plaintiff alleges on information and belief that there are more than 40 members of the class. 26. There are questions of law and fact common to the class that predominate over any questions affecting only individual class members. The predominant common questions include: a. Whether defendants engaged in a pattern of sending unlawful fax advertisements; and b. Whether defendants thereby violated the TCPA. 27. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has retained counsel experienced in handling class actions and claims involving unlawful business practices. Neither plaintiff nor plaintiff's counsel have any interests which might cause them not to vigorously pursue this action. 28. Plaintiff’s claims are typical of the claims of the class members. All are based on the same factual and legal theories. 29. A class action is the superior method for the fair and efficient adjudication of this controversy. The interest of class members in individually controlling the prosecution of separate claims against defendants is small because it is not economically feasible to bring individual actions. 30. Several courts have certified class actions under the TCPA. City Select Auto Sales, Inc. v David Randall Associates, Inc. 296 F.R.D. 299 (D.N.J. 2013); Holtzman v. Turza, 08 Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 4 of 12 PageID: 4Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 5 of 13 5 C 2014, 2009 WL 3334909, 2009 U.S. Dist. LEXIS 95620 (N.D.Ill., Oct. 14, 2009), aff’d in relevant part, 728 F.3d 682 (7th Cir. 2013); Sadowski v. Med1 Online, LLC, 07 C 2973, 2008 WL 2224892, 2008 U.S. Dist. LEXIS 41766 (N.D.Ill., May 27, 2008); CE Design Ltd. v Cy's Crabhouse North, Inc., 259 F.R.D. 135 (N.D.Ill. 2009); Targin Sign Sys. v Preferred Chiropractic Ctr., Ltd., 679 F. Supp. 2d 894 (N.D.Ill. 2010); Garrett v. Ragle Dental Lab, Inc., 10 C 1315, 2010 U.S. Dist. LEXIS 108339, 2010 WL 4074379 (N.D.Ill., Oct. 12, 2010); Hinman v. M & M Rental Ctr., 545 F.Supp. 2d 802 (N.D.Ill. 2008); Clearbrook v. Rooflifters, LLC, 08 C 3276, 2010 U.S. Dist. LEXIS 72902 (N.D. Ill. July 20, 2010) (Cox, M.J.); G.M. Sign, Inc. v. Group C Communs., Inc., 08 C 4521, 2010 WL 744262, 2010 U.S. Dist. LEXIS 17843 (N.D. Ill. Feb. 25, 2010); Kavu, Inc. v. Omnipak Corp., 246 F.R.D. 642 (W.D.Wash. 2007); Display South, Inc. v. Express Computer Supply, Inc., 961 So.2d 451, 455 (La. App. 1st Cir. 2007); Display South, Inc. v. Graphics House Sports Promotions, Inc., 992 So. 2d 510 (La. App. 1st Cir. 2008); Lampkin v. GGH, Inc., 146 P.3d 847 (Ok. App. 2006); ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. (App.) 94, 50 P.3d 844 (2002); Core Funding Group, LLC v. Young, 792 N.E.2d 547 (Ind.App. 2003); Critchfield Physical Therapy v. Taranto Group, Inc., 293 Kan. 285; 263 P.3d 767 (2011); Karen S. Little, L.L.C. v. Drury Inns. Inc., 306 S.W.3d 577 (Mo. App. 2010). 31. Management of this class action is likely to present significantly fewer difficulties that those presented in many class actions, e.g. for securities fraud. WHEREFORE, plaintiff requests that the Court enter judgment in favor of plaintiff and the class and against defendants for: a. Actual damages; b. Statutory damages; c. An injunction against the further transmission of unlawful fax advertising; d. Costs of suit; e. Such other or further relief as the Court deems just and proper. Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 5 of 12 PageID: 5Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 6 of 13 6 DATED: February 14, 2017 STERN•THOMASSON LLP Representing Plaintiff, Medicine to Go Pharmacies, Inc. and all others similarly situated s/ Andrew T. Thomasson Andrew T. Thomasson Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 6 of 12 PageID: 6Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 7 of 13 7 CERTIFICATION PURSUANT TO LOCAL CIVIL RULE 11.2 I, Andrew T. Thomasson, hereby certify that to the best of my knowledge that the matter in controversy is not the subject of any other action pending in any court, or of any pending arbitration or administrative proceeding. DATED: February 14, 2017 STERN•THOMASSON LLP Representing Plaintiff, Medicine to Go Pharmacies, Inc. and all others similarly situated s/ Andrew T. Thomasson Andrew T. Thomasson Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 7 of 12 PageID: 7Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 8 of 13 8 NOTICE OF ASSIGNMENT Please be advised that all rights relating to attorney’s fees have been assigned to counsel. DATED: February 14, 2017 STERN•THOMASSON LLP Representing Plaintiff, Medicine to Go Pharmacies, Inc. and all others similarly situated s/ Andrew T. Thomasson Andrew T. Thomasson Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 8 of 12 PageID: 8Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 9 of 13 9 DOCUMENT PRESERVATION DEMAND Plaintiffs hereby demand that each defendant take affirmative steps to preserve all recordings, data, documents, and all other tangible things that relate to plaintiffs, the events described herein, and any account or number or symbol relating to them. These materials are likely very relevant to the litigation of this claim. If defendants are aware of any third party that has possession, custody, or control of any such materials, plaintiffs demand that defendants request that such third party also take steps to preserve the materials. This demand shall not narrow the scope of any independent document preservation duties of the defendants. DATED: February 14, 2017 STERN•THOMASSON LLP Representing Plaintiff, Medicine to Go Pharmacies, Inc. and all others similarly situated s/ Andrew T. Thomasson Andrew T. Thomasson Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 9 of 12 PageID: 9Case 1:17-cv-00053-WS-MU Document 31-1 Filed 05/11/17 Page 10 of 13 Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 10 of 12 PageID: 10Case 1:17-cv-00053 WS-MU Document 31-1 Filed 05/11/17 Page 11 of 13 Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 11 of 12 PageID: 11Case 1:17-cv-00053 WS-MU Document 31-1 Filed 05/11/17 Page 12 of 13 Case 3:17-cv-00986-FLW-DEA Document 1 Filed 02/14/17 Page 12 of 12 PageID: 12Case 1:17-cv-00053 WS-MU Document 31-1 Filed 05/11/17 Page 13 of 13 EXHIBIT 2 Case 1:17-cv-00053-WS-MU Document 31-2 Filed 05/11/17 Page 1 of 22 Nicholas Stevens, Esq. STARR, GERN, DAVISON & RUBIN, P.C. 105 Eisenhower Parkway, Suite 401 Roseland, NJ 07068 (973) 403-9200 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MEDICINE TO GO PHARMACIES, INC. ) ) Civil Action No. 3:17-cv-986-FLW-DEA ) Plaintiff, ) ) NOTICE OF MOTION TO DISMISS, TRANSFER, OR STAY v. ) ) Return Date: May 15, 2017 IMPAX LABORATORIES, INC., and JOHN DOES 1-10, ) ) ) ORAL ARGUMENT REQUESTED IF OPPOSED Defendants. ) PLEASE TAKE NOTICE that on May 15, 2017 or another date if designated by the Court, Defendant IMPAX LABORATORIES, INC., through its counsel, Nicholas Stevens, Esq., will move the above court for an Order pursuant to Fed. R. Civ. P. 12 and the first-filed doctrine dismissing the Complaint of Plaintiff Medicine To Go Pharmacies, Inc. or, alternatively, transferring this matter to the United States District Court for the Southern District of Alabama, or staying the proceedings in this matter during the pendency of the first-filed action in the United States District Court for the Southern District of Alabama. Case 3:17-cv-00986-FLW-DEA Document 10 Filed 04/17/17 Page 1 of 3 PageID: 30Case 1:17-cv-00053 WS-MU Document 31-2 Filed 05/11/17 Page 2 of 22 PLEASE TAKE FURTHER NOTICE that the movant shall rely on the legal brief submitted herewith. A proposed order also is submitted herewith. PLEASE TAKE FURTHER NOTICE that the movant respectfully requests oral argument if the motion is opposed. /s/ Nicholas Stevens Nicholas Stevens, Esq. STARR, GERN, DAVISON & RUBIN, P.C. 105 Eisenhower Parkway, Suite 401 Roseland, NJ 07068 (973) 403-9200 Attorneys for Defendant IMPAX LABORATORIES, INC. Date: April 17, 2017 Case 3:17-cv-00986-FLW-DEA Document 10 Filed 04/17/17 Page 2 of 3 PageID: 31Case 1:17-cv-00053 WS-MU Document 31-2 Filed 05/11/17 Page 3 of 22 CERTIFICATION OF SERVICE I certify that, on this date, this Notice of Motion and associated papers were electronically filed with the Clerk, District of New Jersey, and that the below-listed attorney is listed as a recipient of such material electronically filed with the Court in this matter: Andrew T. Thomasson Philip D. Stern STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 (973) 379-7500 Fax: (973) 532-5868 andrew@sternthomasson.com philip@sternthomasson.com /s/ Nicholas Stevens Nicholas Stevens Counsel for Defendant Impax Laboratories, Inc. Date: April 17, 2017 Case 3:17-cv-00986-FLW-DEA Document 10 Filed 04/17/17 Page 3 of 3 PageID: 32Case 1:17-cv-00053 WS-MU Document 31-2 Filed 05/11/17 Page 4 of 22 Nicholas Stevens, Esq. STARR, GERN, DAVISON & RUBIN, P.C. 105 Eisenhower Parkway, Suite 401 Roseland, NJ 07068 (973) 403-9200 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MEDICINE TO GO PHARMACIES, INC. ) ) Civil Action No. 3:17-cv-986-FLW-DEA ) Plaintiff, ) ) v. ) ) Return Date: May 15, 2017 IMPAX LABORATORIES, INC., and JOHN DOES 1-10, ) ) ) Defendants. ) BRIEF OF IMPAX LABORATORIES, INC. IN SUPPORT OF ITS MOTION TO DISMISS, TRANSFER, OR STAY Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 1 of 18 PageID: 33Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 5 of 22 i TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 2 ARGUMENT ............................................................................................................. 5 I. THE FIRST-FILED RULE APPLIES TO THIS ACTION BECAUSE ANOTHER FEDERAL COURT IS ALREADY CONSIDERING AN IDENTICAL, FIRST-FILED ACTION ..... 7Error! Bookmark not defined. A. Family Medicine Is the First-Filed Suit . 7Error! Bookmark not defined. B. The Proposed Class Definitions Are Substantially the Same ........ 8Error! Bookmark not defined. C. The Issues Are Substantially the Same . 8Error! Bookmark not defined. II. THE COURT SHOULD DISMISS THIS CASE OR, ALTERNATIVELY, TRANSFER OR STAY IT ....................... 10Error! Bookmark not defined. A. Dismissal Will Best Serve the Interests of Justice .... 10Error! Bookmark not defined. B. If Not Dismissed, This Case Should Be Transferred to the Northern District of Alabama ............................. 11Error! Bookmark not defined. CONCLUSION ................................ 14ERROR! BOOKMARK NOT DEFINED. Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 2 of 18 PageID: 34Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 6 of 22 ii TABLE OF AUTHORITIES Page(s) Cases Abushalieh v. Am. Eagle Exp., 716 F. Supp. 2d 361 (D.N.J. 2010) ..................................................... 6, 10, 12, 14 Am. Inst. for History Educ., LLC v. E-Learning Sys. Int'l LLC, No. CIV.A. 10-2607, 2010 WL 4746233 (D.N.J. Nov. 16, 2010) ..................... 11 Am. Tel. & Tel. Co. v. MCI Commc’ns Corp., 736 F. Supp. 1294 (D.N.J. 1990) .......................................................................... 9 Black Diamond Equip., Ltd. v. Genuine Guide Gear, No. 2:03-CV-01041, 2004 WL 741428 (D. Utah Mar. 12, 2004) ...................... 11 Catanese v. Unilever, 774 F. Supp. 2d 684 (D.N.J. 2011) ......................................................... 5, 6, 7, 12 Crosley Corp. v. Hazeltine Corp., 122 F.2d 925 (3d Cir. 1941) ................................................................................. 5 Curtis v. Citibank, N.A., 226 F.3d 133 (2d Cir. 2000) ............................................................................... 11 Dumas v. Major League Baseball Properties, Inc., 52 F. Supp. 2d 1183 (S.D. Cal. 1999) ................................................................... 9 Family Medicine Pharmacy, LLC v. Impax Laboratories, Inc., Case No. 1:17-cv-00053 (S.D. Ala.) ............................................................passim First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76 (2d Cir. 1989) ................................................................................. 11 Guthy-Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264 (C.D. Cal. 1998) .......................................................................... 7 Ivy–Dry, Inc. v. Zanfel Labs., Inc., Civ. No. 08–4942 (WHW), 2009 WL 1851028 (D.N.J. June 24, 2009) ............................................................................................................... 8, 13 Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 3 of 18 PageID: 35Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 7 of 22 iii Job Haines Home for the Aged v. Young, 936 F. Supp. 223 (D.N.J. 1996) ............................................................................ 6 Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) ........................................................................... 12, 13 Kim v. BMW of N. Am., LLC, No. 2:12-CV-02917 CCC, 2013 WL 655198, at *4 (D.N.J. Feb. 20, 2013) ................................................................................................................... 17 Maximum Human Performance, Inc. v. Dymatize Enters., Inc., No. 09-235 (PGS), 2009 WL 2778104 (D.N.J. Aug. 27) ..................................... 6 O.P. Schuman & Sons, Inc. v. DJM Advisory Grp., LLC, No. 16-3563, 2017 WL 634069 (E.D. Pa. Feb. 16, 2017) ................................ 5, 8 Ortiz v. Panera Bread Co., No. 1:10CV1424, 2011 WL 3353432 (E.D. Va. Aug. 2, 2011) ..................... 8, 11 Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984) .............................................................................. 11 Wheaton Indus., Inc. v. Aalto Sci., Ltd., No. 12-6965, 2013 WL 4500321 (RMB/JS), at *2 (D.N.J. Aug. 21, 2013) ........................................................................................................... 5, 6, 12 Statutes 28 U.S.C. § 1404(a) ............................................................................................. 6, 12 28 U.S.C. § 1658 ........................................................................................................ 5 Telephone Consumer Protection Act, 47 U.S.C. § 227 (2015) ........................passim Other Authorities Fed. R. Civ. P. 12 ....................................................................................................... 1 Fed. R. Civ. P. 26(f) ................................................................................................... 3 Federal Rule of Evidence 201(b)(2) and (c)(2) ......................................................... 1 Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 4 of 18 PageID: 36Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 8 of 22 INTRODUCTION This purported class action should be dismissed under the “first to file” rule because an identical putative class action was filed in the United States District Court for the Southern District of Alabama two weeks earlier and is more procedurally advanced. See Family Medicine Pharmacy, LLC v. Impax Laboratories, Inc., Case No. 1:17-cv-00053 (S.D. Ala.) (“Family Medicine”).1 Alternatively, the Court should transfer this case to the Southern District of Alabama so that it can be adjudicated with Family Medicine, or stay this case until Family Medicine is resolved. In both this case and Family Medicine, the plaintiffs are pharmacies that allege receipt of an identical fax on December 21, 2016 from Defendant Impax Laboratories, Inc. (“Impax”), which Plaintiffs allege violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (2015). Both Family Medicine and Plaintiff here seek to recover identical statutory damages, and both seek to represent substantively identical purported nationwide classes comprised of all recipients of the fax they ostensibly received. Family Medicine, however, was filed on January 30, 2017, 15 days before this case was filed on February 14, 2017. And 1 The docket sheet, complaint, and amended complaint from the Family Medicine Action are attached as Exhibit A, Exhibit B, and Exhibit C, respectively. Impax requests that this Court take judicial notice of those documents in accordance with Federal Rule of Evidence 201(b)(2) and (c)(2). Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 5 of 18 PageID: 37Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 9 of 22 2 while the only activity in this case to date is an agreed order extending Impax’s time to respond to the Complaint, the parties in Family Medicine have begun actively litigating that matter: Impax filed a motion to dismiss the Family Medicine complaint on March 27, 2017; the Court entered an initial scheduling order on April 4, 2017; and on April 10, 2017, Family Medicine filed an amended complaint. Under the first-filed rule — a well-settled doctrine in this Circuit and elsewhere — this case should be dismissed without prejudice to preserve judicial resources while Family Medicine is litigated. Alternatively, this action should be transferred to the Southern District of Alabama, where an identical proceeding is already pending, based on principles of comity and judicial efficiency. Finally, if this Court finds that neither dismissal nor transfer are appropriate, this case ought to be stayed pending a determination in Family Medicine. BACKGROUND Impax is a manufacturer of pharmaceutical products. See Compl. ¶ 3 and Ex. A. One of Impax’s products is an epinephrine auto-injector (“EAI”) that can be used for the emergency treatment of life-threatening allergic reactions, including anaphylaxis. See Compl. Ex. A. This EAI contains the same active medicine as the EpiPen manufactured by Mylan, but it is available to patients at a considerably lower cost. See id. Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 6 of 18 PageID: 38Case 1:17-cv-00053-WS-MU Document 31-2 Filed 05/11/17 Page 0 of 22 3 On January 30, 2017, Family Medicine Pharmacy filed a complaint in the Southern District of Alabama, alleging that Impax violated the TCPA by sending it a single, two-page fax announcement that provided usage, safety, and regulatory information for Impax’s EAI on December 21, 2016. Family Medicine, Doc. #1, at ¶ 16 and Ex. A; accord Family Medicine, Doc. #24, at ¶ 17 (Amended Complaint). Family Medicine contends that Impax’s medical announcement is an unsolicited fax advertisement that did not contain the opt-out notice required by statute and was sent in violation of the TCPA. Family Medicine, Doc. #24, at ¶¶ 16-17, 24. Family Medicine does not allege that it has ever received any other faxes from Impax. See generally id. Family Medicine seeks damages, injunctive relief, and attorneys’ fees, as well as declaratory relief, on behalf of itself and a purported nationwide class. Id. ¶¶ 33-45. On March 27, 2017, Impax filed a motion to dismiss the Family Medicine complaint. Family Medicine, Doc. #21. A week later, on April 4, 2017, the Court in Family Medicine entered an initial scheduling order, directing the parties to conduct a Rule 26(f) conference and to make their initial disclosures. Id., Doc. #23. On April 10, 2017, Family Medicine filed an amended complaint. Id., Doc. #24. This case was filed on February 14, 2017, 15 days after Family Medicine, asserting the same claim based on the same allegations on behalf of the same purported class. Like the plaintiff in Family Medicine, Plaintiff here alleges that, on Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 7 of 18 PageID: 39Case 1:17-cv-00053-WS-MU Document 31-2 Filed 05/11/17 Page 1 of 22 4 December 21, 2016, Impax sent it a single, two-page fax announcement with usage, safety, and regulatory information for the EAI. Compl. ¶ 7. Plaintiff contends, like Family Medicine, that this medical announcement is an “unsolicited advertisement” that did not contain an opt-out notice and was sent in violation of the TCPA. Id. ¶ 11-13. Plaintiff does not allege that it has ever received any other faxes from Impax. See generally id. In short, the fax that Plaintiff allegedly received, which is attached to the Complaint as Exhibit A, is the exact same medical announcement that Family Medicine allegedly received and attached to its complaint as Exhibit A. Compare id. Ex. A with Family Medicine, Doc. #24, Ex. A. Based on having allegedly received this single, two-page medical announcement, Plaintiff seeks damages, injunctive relief, and attorneys’ fees on behalf of a putative nationwide class. See id. ¶ 31. The only activity in this case to date has been a consent order extending the time for Impax to respond to Plaintiff’s Complaint until April 17, 2017. Docs. ##7, 8. Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 8 of 18 PageID: 40Case 1:17-cv-00053-WS-MU Document 31-2 Filed 05/11/17 Page 2 of 22 5 Both plaintiffs seek to represent purported nationwide classes and propose the following, substantively identical class definitions: Family Medicine Medicine To Go Any and all individuals and entities, who or which, from 2013 to the present, received one or more unsolicited advertisements, substantially similar to that received by the Named Plaintiff, via facsimile from Defendant. Family Medicine, Doc. #24, at ¶ 22. (a) [A]ll persons (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. § 1658), (c) were sent faxes by or on behalf of defendant Impax Laboratories, Inc., promoting its goods or services for sale (d) which do not contain an “opt out” notice in the form required by 47 U.S.C. §227. Compl. ¶ 24. ARGUMENT The Third Circuit has long held that “[i]n all cases of concurrent jurisdiction, the court which first has possession of the subject must decide it.” Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941) (quoting Smith v. McIver, 22 U.S. 532, 535 (1824)). This rule, known as the first-to-file (or first-filed) rule applies where a “determination in one action leaves little or nothing to be determined in the other.” Wheaton Indus., Inc. v. Aalto Sci., Ltd., No. 12-6965, 2013 WL 4500321 (RMB/JS), at *2 (D.N.J. Aug. 21, 2013) (quoting Nat’l Cas. Co. v. Hertz Equip. Rental Corp., No. 12–5048, 2013 WL 2242653, at *1 n. 4 (D.N.J. May 21, 2013)). The issues and parties need not be identical, id., as long as the subject matter of both cases overlaps. Catanese v. Unilever, 774 F. Supp. 2d Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 9 of 18 PageID: 41Case 1:17-cv-00053-WS-MU Document 31-2 Filed 05/11/17 Page 3 of 22 6 684, 687 (D.N.J. 2011); see also O.P. Schuman & Sons, Inc. v. DJM Advisory Grp., LLC, No. 16-3563, 2017 WL 634069, at *2 (E.D. Pa. Feb. 16, 2017) (applying the first-filed rule to a second-filed TCPA fax case based on the transmission of the same facsimile). The “primary purpose” of the rule “is to ‘avoid burdening the federal judiciary and to prevent the judicial embarrassment of conflicting judgments.” Catanese, 744 F. Supp. 2d. at 687 (quoting EEOC v. Univ. of Penn., 850 F.2d 969, 977 (3d Cir. 1988)); see also Job Haines Home for the Aged v. Young, 936 F. Supp. 223, 233 (D.N.J. 1996) (“It is in the interests of justice to permit suits involving the same parties and issues to proceed before one court and not simultaneously before two tribunals.”). “Once a court finds that the first-filed rule applies, the Court must decide[] whether the later-filed action should be dismissed, stayed, or transferred pursuant to 28 U.S.C. § 1404(a) .” Abushalieh v. Am. Eagle Exp., 716 F. Supp. 2d 361, 367 (D.N.J. 2010) (finding that transfer was appropriate). In deciding whether to dismiss, stay, or transfer under the first-to-file rule, the court should consider the factors applicable to a motion to transfer under 28 U.S.C. § 1404(a), namely, the convenience of the parties and witnesses and the interests of justice. Wheaton Indus., Inc., 2013 WL 4500321, at *2. The opposing party bears the burden of showing that some exception to the first-to-file rule applies. Maximum Human Performance, Inc. v. Dymatize Enters., Inc., No. 09-235 (PGS), 2009 WL Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 10 of 18 PageID: 42Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 14 of 22 7 2778104, at *3 (D.N.J. Aug. 27), report and recommendation adopted by 2009 WL 2952034 (D.N.J. Sept. 14, 2009). No such exception applies here, and Plaintiff’s Complaint should be dismissed. I. THE FIRST-FILED RULE APPLIES TO THIS ACTION BECAUSE ANOTHER FEDERAL COURT IS ALREADY CONSIDERING AN IDENTICAL, FIRST-FILED ACTION. Because Family Medicine involves the same challenged conduct and seeks certification of a purported class that is substantively identical to or broader than the purported class in this case, the first-filed rule applies. Therefore, in the interests of judicial economy, this case should be dismissed. If it is not dismissed, this case should be transferred to the Southern District of Alabama. Failing both, this Court should stay this matter while the first-filed action is pending. A. Family Medicine Is the First-Filed Suit. There is no dispute that the Family Medicine case was filed on January 30, 2017, two weeks before this case was filed on February 14, 2017. See Guthy- Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 270 (C.D. Cal. 1998) (“In [determining the date an action was filed], the court should employ the date on which the original . . . complaint was filed.”). That fact alone warrants invocation of the first-filed rule and dismissal, transfer, or stay of this action in favor of the earlier-filed Family Medicine case. See Catanese v. Unilever, 774 F. Supp. 2d 684, 688–89 (D.N.J. 2011) (“[T]he policy reasons underlying the first- Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 11 of 18 PageID: 43Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 15 of 22 8 filed rule are ‘just as valid when applied to the situation where one suit precedes the other by a day as they are in a case where a year intervenes between the suits.’”) (quoting Crosley Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 475 (3d Cir.1942)). B. The Proposed Class Definitions Are Substantially the Same. Plaintiff here and Family Medicine assert claims against the same defendant — Impax — and seek to represent the same purported class: all persons or entities that received the medical announcement Plaintiff here and Family Medicine allege that they received on December 21, 2016. See Compl. ¶¶ 7, 24 and Family Medicine, Doc. #24, at ¶¶ 16-17, 22. This identity of parties weighs in favor of applying the first-filed rule.2 See Ortiz v. Panera Bread Co., No. 1:10CV1424, 2011 WL 3353432, at *2 (E.D. Va. Aug. 2, 2011) (applying first-to-file rule to dismiss later-filed class action in favor of first-filed class action because “[t]he parties in these two cases are identical . . . . Both . . . Plaintiffs seek to represent the same class.”). C. The Issues Are Substantially the Same. As this Court has recognized, the most important consideration in a first- 2 Plaintiff alleges that Impax may have sent other faxes that purportedly violate the TCPA to other recipients, Compl. ¶ 8, but Plaintiff does not allege that it received any faxes other than the December 21, 2016 fax attached to its complaint. See generally Compl. Nor does Plaintiff attach any other faxes or describe them. Id. Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 12 of 18 PageID: 44Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 16 of 22 9 filed rule analysis is overlapping subject matter. Ivy–Dry, Inc. v. Zanfel Labs., Inc., Civ. No. 08–4942 (WHW), 2009 WL 1851028, at *5 (D.N.J. June 24, 2009) (citing EEOC, 850 F.2d at 971). There is no question that the Family Medicine action is substantially related to the present complaint. See O.P. Schuman & Sons, Inc. v. DJM Advisory Grp., LLC, No. 16-3563, 2017 WL 634069, at *3 (E.D. Pa. Feb. 16, 2017) (applying first-filed rule and stating that “it cannot be disputed that this [second-filed] case and the [first-filed] Florida action share the same subject matter, as the plaintiffs in both cases allege they received the same facsimile from Defendants, in violation of the TCPA”). To succeed on their TCPA claims, each plaintiff must demonstrate that the December 21 fax appended to both complaints is an “unsolicited advertisement” that does not contain certain opt-out language. See Compl. Ex. A and Family Medicine, Doc. #24, Ex. A. Each complaint asserts precisely those allegations. See Compl. ¶ 12 and Family Medicine, Doc. #24, at ¶ 24. And each complaint asserts that the putative class members suffered damages in the form of paper and toner consumed as a result of receiving the fax. See Compl. ¶ 20 and Family Medicine, Doc. #24, at ¶ 20. Finally, in both complaints, the plaintiffs seek the same relief — statutory damages and injunctive relief on behalf of the same purported class. See Compl. ¶ 31 and Family Medicine, Doc. #1, at ¶¶ 33-45. Because the alleged conduct is the same in both cases — that Impax Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 13 of 18 PageID: 45Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 17 of 22 10 purportedly faxed plaintiffs an unsolicited advertisement in violation of the TCPA — the Court should apply the first-filed rule. See Dumas v. Major League Baseball Properties, Inc., 52 F. Supp. 2d 1183, 1189 (S.D. Cal. 1999) (applying the first-to- file rule where “the underlying complained-of conduct is almost identical”); Am. Tel. & Tel. Co. v. MCI Commc’ns Corp., 736 F. Supp. 1294, 1300, 1310 (D.N.J. 1990) (concluding that related-case doctrine compels transfer, where D.C. case involved false claims made through broadcast or published media while N.J. case involved false claims made in telemarketing efforts, because the “ultimate injury,” deceptive promotional activity, is the same). II. THE COURT SHOULD DISMISS THIS CASE OR, ALTERNATIVELY, TRANSFER OR STAY IT. When the first-to-file rule applies, as it does here, the Court must decide whether to dismiss, transfer, or stay the later filed suit. Abushalieh, 716 F. Supp. 2d at 367. Here, the central purposes behind the rule, to conserve judicial resources and avoid conflicting rulings, would best be served by dismissal of Plaintiff’s claims against Impax. A. Dismissal Will Best Serve the Interests of Justice. Plaintiff’s TCPA claim against Impax is identical to the claim already being litigated in the Southern District of Alabama on behalf of the same purported class. Dismissing this case in favor of the first-filed action in the Southern District of Alabama would not prejudice Plaintiff because its interests are represented in the Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 14 of 18 PageID: 46Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 18 of 22 11 Family Medicine case — it is a member of the putative class the plaintiff in that case seeks to represent, asserting the same claims as that plaintiff and seeking the same relief. Forcing Impax to defend these actions in two different venues, on the other hand, would needlessly waste judicial resources and risk inconsistent rulings. Precisely because of these dynamics, courts have regularly dismissed second-filed cases in similar circumstances. See Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000) (“Because of the obvious difficulties of anticipating the claim or issue-preclusion effects of a case that is still pending, a court faced with a duplicative suit will commonly . . . dismiss it without prejudice. . . . ”); e.g., Ortiz v. Panera Bread Co., No. 1:10CV1424, 2011 WL 3353432, at *2 (E.D. Va. Aug. 2, 2011) (applying first-to-file rule to dismiss later-filed class action in favor of first-filed class action); First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79-80 (2d Cir. 1989) (affirming dismissal of second action under first-filed rule); Upchurch v. Piper Aircraft Corp., 736 F.2d 439, 440 (8th Cir. 1984) (affirming second court’s dismissal of action); Black Diamond Equip., Ltd. v. Genuine Guide Gear, No. 2:03-CV-01041, 2004 WL 741428, at *1-3 (D. Utah Mar. 12, 2004) (dismissing second-filed complaint in favor of first-filed case). This Court should do the same and dismiss this case without prejudice. B. If Not Dismissed, This Case Should Be Transferred to the Northern District of Alabama. In lieu of dismissal, this Court should promote judicial efficiency by Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 15 of 18 PageID: 47Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 19 of 22 12 transferring this case to the Southern District of Alabama. “Courts in this Circuit have frequently held that the pendency of a related or similar case in another forum is a powerful reason to grant a motion for a change of venue.” Am. Inst. for History Educ., LLC v. E-Learning Sys. Int'l LLC, No. CIV.A. 10-2607 (RMB/KMW), 2010 WL 4746233, at *3 (D.N.J. Nov. 16, 2010). Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” The claims in this case could have been, and in fact have been, brought in the Southern District of Alabama, and this case should be transferred for the sake of judicial efficiency. See Abushalieh, 716 F. Supp. 2d at 367-68 (transferring second-filed action); Catanese, 774 F. Supp. 2d at 689-91 (transferring second-filed action); Wheaton Indus., Inc., 2013 WL 4500321, at *4-5 (transferring second-filed action). In addition to the enumerated factors in § 1404(a), the Third Circuit has set forth both private and public interests that courts should consider in ruling on a motion to transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Among the private interests that the Jumara court identified as being significant to the § 1404(a) analysis are: plaintiff’s forum preference as manifested in the original choice; the defendant’s preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses—but only to the extent that the witnesses Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 16 of 18 PageID: 48Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 20 of 22 13 may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). Id. at 879 (citations omitted). Among the public interests to be considered are: the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Id. at 879–80 (citations omitted). The relevant private factors support transfer. Impax obviously prefers Alabama, where it is already facing a claim in the Family Medicine litigation that is identical to Plaintiff’s claim in this case. While Plaintiff may prefer this District, Plaintiff’s preference is not dispositive. “[B]ecause the subject matter of the respective cases is the same, the interest[] each plaintiff holds in the forum of its choice . . . does not tip the balance.” Ivy-Dry, 2009 WL 1851028, at *6 (granting motion to transfer). As the Ivy-Dry court pointed out, “[t]o credit one plaintiff’s interest in its chosen forum is to discredit the same interest of the other plaintiff.” Id. “This is especially true in this Circuit in the context of a class action, where a plaintiff's choice of forum is entitled to less deference.” Kim v. BMW of N. Am., LLC, No. 2:12-CV-02917 CCC, 2013 WL 655198, at *4 (D.N.J. Feb. 20, 2013). The relevant public factors also support transfer to the Southern District of Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 17 of 18 PageID: 49Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 21 of 22 14 Alabama. The benefits of transferring this action so that it may be consolidated with Family Medicine are manifest, as transfer would permit the plaintiffs in both cases to pursue their common claims while Defendant Impax may respond to a single action. See Abushalieh, 716 F. Supp. 2d at 368. Both New Jersey and Alabama have an equal local interest in this case. CONCLUSION Because the Family Medicine action was filed first, the claims and parties in the two cases substantially overlap, and Plaintiff is a member of the proposed Family Medicine class, Plaintiff’s claim against Impax should be dismissed. In lieu of dismissal, Plaintiff’s claim should be transferred to Judge William H. Steele in the Southern District of Alabama. Finally, if Plaintiff’s claims are not dismissed or transferred, a stay of this litigation is appropriate. Respectfully submitted this 17th day of April, 2017. /s/ Nicholas Stevens Nicholas Stevens, Esq. STARR, GERN, DAVISON & RUBIN, P.C. 105 Eisenhower Parkway, Suite 401 Roseland, NJ 07068 (973) 403-9200 Attorney for Defendant IMPAX LABORATORIES, INC. Case 3:17-cv-00986-FLW-DEA Document 10-1 Filed 04/17/17 Page 18 of 18 PageID: 50Case 1:17-cv 00053-WS-MU Document 31-2 Filed 05/11/17 Page 22 of 22