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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE DILANTIN LITIGATION Index No. 784000/2019
_______________________________________
THIS DOCUMENT RELATES TO:
Penrod, et. al. v. Pfizer, Inc. et. al., NY Sup. Ct., PLAINTIFFS’ MEMORANDUM
New York County, Index No. 159346/2018 IN OPPOSITION TO
DEFENDANTS’ MOTION TO
Polenberg et. al. v. Pfizer, Inc. et. al. NY Sup. SEVER AND DISMISS ON THE
Ct., New York County, Index No. 451095/2019 GROUNDS OF FORUM NON
CONVENIENS
DeLumeau et. al. v. Pfizer, Inc. et. al. NY Sup.
Ct., New York County, Index No. 451094/2019
(All actions in this coordinated proceeding)
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO SEVER AND DISMISS ON THE
GROUNDS OF FORUM NON CONVENIENS
Plaintiffs file this Memorandum in Opposition to Defendants’ Motion to Sever and
Dismiss on the Grounds of Forum Non Conveniens.
I. INTRODUCTION
Pfizer is one of the largest and wealthiest drug companies in the world. Its world
headquarters and its lawyers’ offices are located in Midtown Manhattan, a few miles from this
courthouse.
The Plaintiffs are a group of 47 people from 25 different states with only three things in
common. One, they suffer from a severe and typically permanent brain injury known as
cerebellar atrophy that resulted from their ingestion of Pfizer’s anti-seizure drug, Dilantin.
Despite 70 years of scientific and safety data identifying Dilantin as a primary cause of
cerebellar atrophy, despite having warned doctors and patients in foreign countries of this well-
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known (to Pfizer) risk since the 1990’s, and despite internally studying and assessing this danger
for decades, Pfizer inexplicably chose to disregard and conceal it from doctors and patients in the
United States. Indeed, Pfizer did not reference this devastating public health concern in its
United States Dilantin label until December 2015, and only did so after several of the Plaintiffs
in this case brought the claims that are now pending in this New York court.
Two, the Plaintiffs have limited to no resources, particularly when compared to the
limitless resources of the corporate defendants. Three, the Plaintiffs are litigating in New York
County because Pfizer successfully orchestrated the transfer and coordination of their cases to
Pfizer’s home forum almost a year after the original Plaintiffs filed suit in Kings County, where
Plaintiff Amy Polenberg resides, in early 2018.
Now that Pfizer has assembled all of the Plaintiffs in the forum most convenient for
Pfizer and its lawyers and almost two years have passed, Pfizer has changed its position 180
degrees and seeks to dismiss the coordinated action and send all of the individual Plaintiffs back
home to start over by refiling individual actions in at least 25 different forums which are now
(according to Pfizer) more convenient than its own backyard. Pfizer has no desire to actually
litigate the injured Plaintiffs’ claims in good faith. Its goal is to bury those claims in an endless
pattern of delay tactics and procedural gamesmanship designed to avoid trials on very damaging
liability facts and run up costs rather than progress this litigation to resolution.
Defendants’ latest motion should be denied because they: 1) invoked and accepted the
benefits of the jurisdiction of their home Court for the past 18+ months, 2) waived forum non
conveniens rights by delaying more than 18 months to bring this motion, and 3) argued the
opposite position for their own benefit in their previously-filed coordination motion, estopping
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their contrary arguments here. Defendants’ latest motion should be denied as a matter of basic
fairness given the relative status of the parties and the procedural history of this litigation.
Defendants’ motion should also be denied because of this litigation’s unique posture.
Specifically, pursuant to the agreement of the parties, the Superior Court of San Francisco has
taken the lead in these Dilantin cases and shouldered the burden of nearly all discovery and
disputes, greatly reducing New York’s burden. The balance of all factors does not strongly favor
the inequitable result that Defendants seek.1
II. DISCUSSION
A. Defendants Waived the Forum Non Conveniens Defense
This case has been pending for nearly two years. Shortly after it was filed, Pfizer and its
attorneys successfully sought – over Plaintiffs’ objection – to coordinate Plaintiffs’ first-filed
Kings County action into this case, so that the consolidated action could proceed in Pfizer’s
home jurisdiction, New York County. After forcing all of the Plaintiffs to Pfizer’s chosen forum,
Pfizer waited almost a year before changing its position and asserting that New York County was
not a convenient jurisdiction after all, and that this Court should dismiss the coordinated action
from the same forum that Pfizer insisted upon in the first place. Not surprisingly, New York law
has something to say about this type of gamesmanship: “[t]he law is well settled that, in addition
to the traditional factors considered on forum non conveniens motions, the court may rely upon
delay in making the motion to dismiss as a basis for denial of the motion.” Persaud v. Goriah,
N.Y.S.2d 872, 875 (1989); see also Corines v. Dobson, 521 N.Y.S.2d 686 (1st Dept. 1987);
Bussanich v. United States Lines, 424 N.Y.S.2d 449 (1st Dept. 1980); ABKCO Indus. v. Lennon,
1
“Unless the balance of all factors strongly favors defendant and itplainly appears that New York is an
inconvenient forum, forum non-conveniens relief should not be lightly granted.” Corines v. Dobson, 521 N.Y.S.2d
686, 688 (1st Dept. 1987).
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384 N.Y.S.2d 781 (1st Dept. 1976); Mirabella v. Banco Indus. De La Republica Argentina, 352
N.Y.S.2d 640 (1st Dept. 1974); cf. Aboujdid v. Singapore Airlines, Ltd., 494 N.E.2d 1055 (N.Y.
Ct. App. 1986); De Sapio v. Kohlmeyer, 321 N.E.2d 770 (N.Y. Ct. App. 1974).
Defendants’ inexcusable delay in moving for the relief it now seeks is a significant factor
in this Court’s jurisdictional analysis. Corines, 521 N.Y.S.2d at 688. In Persaud, the plaintiff
served the defendant with a summons and complaint in June 1987; the defendant filed an answer
and motion to dismiss for forum non conveniens; and the motion for forum non conveniens was
granted. 539 N.Y.S.2d at 872. The defendant, however, abandoned the motion by failing to settle
an order. Id. at 873. A year and a half into the litigation, defendant refiled her forum non
conveniens motion. Id. at 872. The court found that defendant’s one and a half year “delay
sufficient to support the conclusion that defendant accepted the jurisdiction of the New York
courts and waived her right to make the forum non conveniens motion.” Id. at 875.
Similarly, in Corines, the court found the defendants’ year and a half delay in bringing a
forum non conveniens motion waived the defense:
The case had been pending in New York for eighteen months where significant
activity, including discovery and pretrial conferences took place. The note of
issue and certificate of readiness had been filed without objection and the matter
placed on the trial calendar before defendant eventually moved to dismiss on
forum non conveniens grounds. Under these circumstances, even if warranted,
dismissal for forum non conveniens should not have been granted. The defendant
having taken advantage of the resources of the New York courts should not, at
such late point in time, be allowed to remove the action.
521 N.Y.S.2d at 688.
In Bock v. Rockwell Mfg. Co., Inc., 543 N.Y.S.2d 89 (2d Dept. 1989), the defendant
waited 15 months to file a forum non conveniens motion. In denying the motion, the court stated
“it is clear that the defendants are guilty of laches. Having participated in the action for such an
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extended period of time, to wit, approximately 15 months before moving to dismiss, the
defendants cannot claim that New York is an inconvenient forum.” Id. at 91.
In this case, Defendant waited over 18 months to seek the relief they know ask this Court
to award.2 Plaintiffs filed their first multi-plaintiff complaint against Defendants in May 2018
(Polenberg) contained 17 non-New York plaintiffs from Wisconsin, Illinois, Florida, Nevada,
Tennessee, Pennsylvania, Colorado, Texas, Ohio, Massachusetts and Washington. Defendants
filed their answer on July 9, 2018 (over 18 months ago) and did not move to dismiss the claims
for forum non conveniens. Instead, Defendants not only accepted – but fought – to impose the
jurisdiction of this Court on Plaintiffs. In the interim, Defendants actively pursued discovery
from the Plaintiffs by demanding detailed Plaintiff Fact Sheets, medical records and
authorizations and served traditional discovery (requests for production of documents and
interrogatories) on the Plaintiffs in the New York.
The second multi-plaintiff complaint (Penrod) was filed in October 2018 and contained
10 non-New York Plaintiffs from Ohio, North Carolina, South Carolina, Iowa, Florida, Texas,
Pennsylvania and Alabama. Defendants again answered (on November 15, 2018) and chose not
to file a motion to dismiss for forum non conveniens. Rather, Defendants utilized the
jurisdiction of this Court to again serve traditional discovery (demand for verified bill of
particulars containing 91 discovery demands with subparts, notice of discovery and inspection
containing 51 demands, authorizations to interview physicians, expert witness information,
identification of witnesses). See Defendants’ Memorandum of Law in Support of Motion for
Order for Coordination, page 3, para 2, attached as Exhibit 1. Defendants also demanded
detailed Plaintiff Fact Sheets, medical records and authorizations from each Plaintiff.
2
Polenberg was filed on May 18, 2018. Defendant answered on July 9, 2018. Defendants did not file their forum
non conveniens motion until January 13, 2020 (Document No. 16), more than 18 months after filing their answer.
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Defendants further engaged the jurisdiction of this Court by filing a Motion to Coordinate
the Polenberg and Penrod actions - arguing New York was a convenient forum.3 On June 26,
2019, the Litigation Coordination Panel granted Defendants’ motion to coordinate over
Plaintiffs’ objection. Notably, the Panel agreed with Defendants’ contention that the
convenience of the parties and judicial economy warranted coordination in New York County.4
Through their own conduct, Defendants waived their right to contend that New York
County is an inconvenient forum when they took the exact opposite position 18 months prior,
embraced this Court’s jurisdiction to force the consolidation of the pending cases in this (their
home) jurisdiction, intentionally delayed this motion for over a year and a half, and engaged in
extensive discovery. It is now too late for Defendants to reverse course and force 47 seriously
injured people with limited resources to start over somewhere else. If that is not waiver, the
concept does not exist.
B. Defendants Judicially Admitted that This Court is a Convenient and Appropriate
Forum
Over a year ago on, November 26, 2018, the New York County-based Defendants and
their New York County-based lawyers filed a motion to coordinate these actions. In that motion,
Defendants argued, among other things, that 1) New York is a convenient forum, 2) coordination
in New York serves judicial economy, and 3) coordination in New York would not unreasonably
delay or increase expenses to the parties. Based on these arguments, the Court granted
Defendants’ motion. Defendants now assert the opposite position; they ask this Court to scatter
these cases across the country, to increase the work-load of dozens of judges, thereby creating
colossal delay and expense.
3
Defendants served their coordination motion on Plaintiffs on November 27, 2018. A file stamped copy of the
motion dated February 13, 2019 (Document No. 13) was also served on Plaintiffs.
4
Three additional complaints have been filed in New York and coordinated into these coordinated proceedings.
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The judicial admissions in Defendants’ Motion to Coordinate illustrate the wisdom of
keeping these plaintiffs in New York:
i. “Defendants Pfizer, Parke-Davis, and Warner-Lambert have their principal places of
business in New York County. New York County is thus a convenient forum for
employees of Pfizer, Parke Davis and/or Warner-Lambert involved with Dilantin.”
[Exhibit 1 - Defendants’ Memorandum of Law in Support of Motion for Order of
Coordination in New York dated November 26, 2018, p. 8];
ii. “[T]he interests of the courts, public, witnesses and parties, . . . weigh heavily in favor
of litigating these actions involving 30 plaintiffs in a single New York court in New
York County” [Id. at p. 2];
iii. New York County is “well suited to manage products liability actions ...it has
designated Complex Litigation Parts, presided over by jurists trained in the intricacies
of these matters” [Id. at p. 1];
iv. “New York County . . . (1) has vast experience in handling these types of
pharmaceutical product liability proceedings and (2) is convenient to the parties and
counsel, including the county where Pfizer and its counsel are based.” [Id. at pp. 7];
v. “[T]here is a risk of duplicative or inconsistent rulings [ifthe cases are litigated in
different courts]. The New York [] actions will present similar factual and legal issues
regarding the same product.” Keeping these cases coordinated “will, therefore,
ensure consistent rulings on discovery, preliminary motions, motions for summary
judgment or adjudication, and motions in limine and/or Frye motions.” [Id. at p. 5 -
6];
vi. Keeping the cases coordinated in New York is highly efficient because they involve
the same claims and allegations. “[T]hese cases involve claims concerning the
research and development, warnings, risks and benefits, and marketing of Dilantin.
Indeed, as a basis for liability, the complaints raise identical allegations regarding the
"mechanism of injury." The claims also involve “Defendants' alleged knowledge of
the causes of plaintiffs' injuries and alleged undisclosed treatments, [] Dilantin's
alleged lack of efficacy and Defendants' alleged "deceptive marketing strategies," and
failure to warn of risks associated with Dilantin.” [Id. at p. 5];
vii. Keeping the cases coordinated in New York is advantageous because “[c]oordinated
discovery would be advantageous . .. written discovery, document production, and
testimony from fact and expert witnesses will be substantially similar in both
actions.” [Id. at p. 6];
viii. “Keeping the cases coordinated in New York is convenient because “[e]mployees of
Pfizer, Parke-Davis, and/or Warner-Lambert involved in the development and
marketing of Dilantin will likely be fact witnesses in both the New York and Kings
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County actions. Coordination, therefore, will avoid duplicative discovery in multiple
New York courts. Indeed, the parties have expressed their intention to coordinate
discovery among Dilantin cases nationwide (including in these New York cases) so as
to avoid duplication of efforts where possible.” [Id. at p. 6];
ix. Keeping these cases coordinated together in New York would be manageable. “New
York courts regularly manage complex proceedings involving many more actions
than are at issue here, and the coordinated proceeding would involve substantially
similar actions. Furthermore, the parties are represented by the same counsel in both
actions.” [Id. at p. 6];
x. Keeping the cases in New York promotes efficient utilization of judicial resources.
“[F]rom an overall judicial resources perspective, coordination will promote the
efficient utilization of judicial facilities and avoid multiple hearings on similar
motions in different courts. This factor thus weighs in favor of coordination too.” [Id.
at p. 6];
xi. Keeping the cases coordinated in New York would not unreasonably delay or
increase expenses to the parties. “[A] coordinated proceeding would not unreasonably
delay the progress or increase the expense to the parties. To the contrary, a
coordinated proceeding would streamline the proceeding and avoid duplicative if not
inconsistent efforts, resulting from the efficient handling of the litigation and
conserve the resources of New York state courts and the parties.” [Id. at p. 7];
xii. Keeping the cases coordinated in New York requires common discovery. “The
allegations in both actions are the same--namely, that Dilantin is defective and that
Defendants have misrepresented the drug's safety and efficacy. The cases will
therefore raise many of the same issues and require common discovery.” [Id. at p. 2].
Instead of extolling the significant advantages Defendants’ previously asserted to the
New York Court in order to keep the non-New York Plaintiffs’ cases coordinated and venued in
New York, Defendants now switch positions and seek the opposite – sever the cases and scatter
them across the dozens of federal judges in dozens of states throughout the country, creating an
unnecessary waste of judicial time, resources and economy. The effect of the relief sought by
Pfizer will be to force 47 injured Plaintiffs (with limited financial means) to incur the substantial
delay and cost of refiling individual lawsuits in 25 or more jurisdictions around the country, pay
for and serve five corporate defendants (that the same Plaintiffs previously served) with process
in each case, and start the clock over.
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Under Defendants’ new position, more than 40 plaintiffs’ cases will be severed and sent
to 25 or more different Federal Courts across the country. More than 40 cases will have to be
refiled. More than 40 sets of filing fees will need to be paid. More than 40 service fees will be
incurred5. At least 25 federal judges, their courtrooms and staff will be affected. As many as 25
sets of local counsel will need to be retained. Collectively, hundreds of individuals will be
involved in responding to the fallout from Defendants’ motion – most from the already burdened
Federal courts, including judicial officers, magistrates, judicial attorneys, judicial clerks,
courtroom officers, filing staff and other courthouse personnel – if the notion is granted.6 This is
the opposite of judicial economy. It is procedural gamesmanship at its worst. Estoppel, waiver,
laches, and fundamental fairness bar Defendants’ about face.7
Defendants also argue that witnesses, such as family members and medical providers, are
located in other states. Depositions will also occur in New York where Pfizer witnesses are
located regardless of whether the cases remain coordinated in New York County as requested by
Pfizer, or are dispersed across the country to begin anew. Pfizer has ample lawyers and
resources to cover depositions around the country without regard to where the cases are pending.
Defendants also argue that the transactions giving rise to the actions occurred elsewhere –
this is only partially correct. While ingestion and injury occurred elsewhere, the witnesses,
decisions, documents, emails, memos, policies and procedures regarding Defendants’ liability
occurred here in New York. Defendants’ New York decisions, and lack thereof, about the safety
5
Defendants have refused to allow counsel to accept service in these cases.
6
This is not a case where a Federal MDL has already been created which would allow the non-resident cases to be
swept up into an already existing MDL. In this case, there is not (yet) a coordination home for these cases outside of
the New York coordination.
7
At no time in their coordination motion did Defendants argue, or even hint, that coordinating the 30 non-New York
Plaintiffswould be burdensome. In fact,they argued justthe opposite – that coordination was “convenient”,
“advantageous”, promotes “judicial efficiency”, would be “manageable”, would not “unreasonably delay progress”
or “increase expense to the parties”, would “streamline the litigation”and “avoid duplicative if not inconsistent
efforts”, and would “conserve the resources of New York state courts and the parties.”
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of their drug (involving millions of pages of documents the conduct of dozens of New York-
based Pfizer employees) are the foundation of these actions.8 Indeed, that is the reason this
litigation was coordinated in New York County at Pfizer’s request. Defendants waived their
right to the relief they seek.
C. Defendants’ Motion Should be Denied Because of This Litigation’s Unique Posture
– California Has Shouldered the Burden of Discovery, Alleviating the Burden on
New York
Pursuant to an agreement of the parties, the California Coordinated Proceeding is taking
the lead on all pre-trial discovery and related issues. The California Coordinated proceeding has
held monthly status conferences, weekend discovery conferences, and conference calls
addressing the parties’ pre-trial disputes. Case Management Orders have addressed electronic
discovery, confidentiality, experts, Plaintiff Fact Sheets and other case management matters.
Defendants have asked this Court to enter several of those California orders in this New York
Court.
Significant discovery issues involving the production of documents, including
Defendants’ regulatory files, source files, electronic discovery, custodial files, and search terms
were addressed and resolved in the California Coordinated proceeding. Defendants have
produced millions of pages of documents over the past two years under the California
Coordinated Actions’ leadership. Except for one deposition in Michigan, the depositions of
Defendants’ employee witnesses have all taken place in New York. The parties’ agreement for
the California Coordinated action take the lead in this litigation has greatly reduced, and
8
Defendants argued in their coordination motion that New York is the proper forum because its corporate
headquarters, where decisions are made, and its employees involved with Dilantin are in New York. “Furthermore,
New York County is a more convenient forum. Defendants Pfizer, Parke-Davis, and Warner-Lambert have their
principal place of business in New York County. New York County is thus a convenient forum for employees of
Pfizer, Parke Davis and/or Warner-Lambert involved with Dilantin.” [Exhibit 1 - Defendants’ Memorandum of Law
in Support of Motion for Order of Coordination in New York dated November 26, 2018, page 8].
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continues to reduce, the burden on the New York system. This New York coordinated action
will continue to benefit from the burden the California court has shouldered. For example, the
cases in this coordinated proceeding have been on file for 21 months and, except for Defendants’
Motion to Coordinate and the present motion, the parties have not brought substantive issues to
this Court.
Coordination has led to efficient and cost-effective litigation management largely
shouldered by California. Dispersing these cases across the country would unreasonably burden
multiple states and the federal judges and staff residing therein. As Defendants pled to this Court
in their Motion to Coordinate: “the interests of the courts, public, witnesses and parties, and to
facilitate coordination in the various Dilantin actions, weigh heavily in favor of litigating these
actions involving 30 plaintiffs in a single New York court in New York County.” Id. at p. 2.
D. These Cases Will Likely be Re-Coordinated if Severed
If these cases are severed and spread across the country, a motion to coordinate the cases
in federal court will likely be filed by one or both of the parties (or sua sponte by one of the
federal courts) because, as alleged by Defendants to this Court, continued coordination of these
cases makes the most sense. A severance, refiling in multiple different federal courts and
subsequent re-coordination back to a single federal jurist (potentially before an MDL judge in
New York), will only serve to burden the federal judicial system, and to the parties.
III. REQUEST FOR RELIEF
Defendants waived their forum non conveniens rights. The relief they seek is also barred
under the doctrines of laches, equity and estoppel. Their motion should be denied.
Plaintiffs should not be penalized for filing their claims in a proper and lawful forum
(New York, where Pfizer is headquartered). Should the cases be dismissed, this Court has broad
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discretion to fashion whatever conditions it deems appropriate in order to limit the burden on and
extinguish the prejudice to Plaintiffs to the fullest extent possible.9 If Defendants’ motion is
granted, Plaintiffs request that the Court Order Defendants to abide by the conditions below in an
attempt to partially mitigate the substantial prejudice that will result to Plaintiffs. Those
conditions include:
1) The statute of limitations and statute of repose are tolled from the date of the non-
residents’ filing of their current New York complaint up and until 120 days after
entry of an agreed order of dismissal of their claims in the New York actions;
2) Defendants agree to use only the New York statute of limitations and statute of
repose periods if the statutes of limitations and repose in the forum of the re-filed
action is shorter than the New York statutes of limitations and repose;
3) Defendants agree to accept service of each complaint through their counsel by
email;
4) Defendants shall file an answer within 30 days of receipt of a complaint by
defense counsel;
5) Defendants shall not challenge jurisdiction or venue in in the re-filed cases;
6) Defendants shall produce all current employees and corporate representative
witnesses in person at trial in each of the non-resident Plaintiff jurisdictions upon
a written request from counsel for Plaintiffs;
7) Should Defendants fail to abide by any of the above conditions, at Plaintiffs’
discretion the case at issue may be reinstated back into the New York Coordinated
9
“Forum non conveniens dismissals are often appropriately conditioned to protect the party opposing dismissal. See,
e.g., Sussman v. Bank of Israel, 990 F.2d 71, 71 (2d Cir.1993) (per curiam) (affirming district court's forum non
conveniens dismissal conditioned upon defendants' partialwaiver of limitations defense and undertaking from
Israeli officials that plaintiff would not be detained if he went to Israel to initiate litigation in that alternative forum);
R. Maganlal & Co., 942 F.2d at 167 (defendant agreed to dismissal conditioned upon submission to jurisdiction of
foreign court); Borden, 919 F.2d at 829 (forum non conveniens dismissal conditioned upon foreign forum's acting
upon plaintiff's request for injunction within specified time frame); Union Carbide, 809 F.2d at 203–04 (affirming
district court's dismissal on condition that defendant consent to personal jurisdiction and waive statute of limitations
defense in foreign forum) (collecting cases); Constructora Spilimerg, C.A. v. Mitsubishi Aircraft Co., 700 F.2d 225,
226 (5th Cir.1983) (forum non conveniens dismissal in favor of Venezuelan court conditioned upon defendant's
acceptance of service of process, waiver of objections to personal jurisdiction,and undertaking to effectuate
Venezuelan judgment).” Blanco v. Blanco Indus. De Venezuela, S.A., 997 F.2d 974, 984 (2d Cir. 1993); see also
CPLR 327(a) (“When the court finds that in the interest of substantial justice the action should be heard in another
forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions
that may be just.”) (emphasis added).
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Proceeding with the fees associated with the reinstatement payable by
Defendants.
Plaintiffs request all other relief to which they are entitled at law and equity.
Dated: February 14, 2020 Respectfully submitted,
/s/ Connor G. Sheehan
Connor G. Sheehan*
Blake J. Brownshadel*
DUNN SHEEHAN LLP
3400 Carlisle Street, Ste. 200
Dallas, Texas 75204
Telephone: (214)866-0077
Facsimile: (214)866-0070
Pro Hac Vice
/s/ Robert A. Mosier
Robert A. Mosier
Victoria J. Maniatis
SANDERS PHILLIPS GROSSMAN LLC
16755 Von Karman Ave., Ste 200,
Irvine, CA 92606
Telephone: (949) 233-7002
Facsimile: (888) 307-7697
rmosier@thesandersfirm.com
Attorneys for Plaintiffs
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EXHIBIT 1
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NYSCEF DOC. NO. 13
34 RECEIVED NYSCEF: 02/13/2019
02/14/2020
STATE O
Related Content
in New York County
Case
Diane Crawford v. Brownstone Lane, Llc, Board Of Managers Of Brownstone Lane, Llc, Maxwell-Kates, Inc., Brownstone Too Equities Llc, Board Of Managers Of Brownstone Too Equities Llc, Brownstone Lane Ii Condominium, Board Of Managers Of Brownstone Lane Ii Condominium
Jul 18, 2024 |
Torts - Other Negligence (premisis) |
Torts - Other Negligence (premisis) |
156548/2024
Case
Infinity Auto Insurance Company and any and all of their subsidiaries, affiliates, underwriting or parent companies v. Victor Chalen-Hernandez a/k/a VICTOR CHALEN, Xiomara Garcia, Active Motion Chiropractic, Pc, Ace Med Supplies, Inc, Advanced Orthopedics And Joint Preservation P, Aeon Diagnostics, Inc, Andrew Hall, Md, Pllc, Angela Abramov-Plischtejew Np-Psych/ Mental Health, Axion Med, Inc, Bakhra Supply Inc, Best Care Pharmacy Of New York, Inc, Big Apple Delivery Supply Corp, Burke Physical Therapy, Pc, Centurion Midtown Anesthesia Pllc, Cr Medical Care, Pllc, Flexmed Supply Inc a/k/a FLEX MED SUPPLY, INC, Four Square Physical Therapy, Pc, Fresh Pond Pharmacy, Inc, Fulton Street Acupuncture, Pc, Health Wellness Medical Services, Pllc, Jules F Parisien a/k/a JULES FRANCOIS PARISIEN, MD, Med Supply Delivery Service, Inc, Medex Diagnostic And Treatment Center, Llc a/k/a MEDEX ASC, Ortho Choice Inc, Nikoros Supply, Inc, Pranevicius Medical Pc, Rafael Yaakobov Family Health Np Pc, Ridgewood Drug Inc, Roosevelt Family Chiropractic, Pc, South Bronx Medical Rehabilitation, Pc, Stand-Up Mri Of East Elmhurst, Pc, Surgimed Care Inc, Vdr Services, Inc, Viotek Med Supplies Inc
Jul 15, 2024 |
Torts - Other (Declaratory Judgment) |
Torts - Other (Declaratory Judgment) |
156383/2024
Ruling
ABDALLAH ELHANIA ET AL VS. AIRBNB, INC. ET AL
Jul 18, 2024 |
CGC23605312
Real Property/Housing Court Law and Motion Calendar for July 18, 2024 line 6. DEFENDANT AIRBNB, INC. DEMURRER to Amended COMPLAINT is continued to August 6, 2024 on Court's own motion. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
Anderson white VS Kidango, Inc.
Jul 18, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
RG20058141
RG20058141: Anderson white VS Kidango, Inc.
07/18/2024 Hearing on Motion - Other Petition for Approval of Compromise of Claim or
Action or Disposition of Proceeds of Judgment for Minor or Person with Disability; filed by
Jayla Anderson White (Plaintiff) in Department 24
Tentative Ruling - 07/16/2024 Rebekah Evenson
The Hearing on Motion - Other Petition for Approval of Compromise of Claim or Action or
Disposition of Proceeds of Judgment for Minor or Person with Disability; filed by Jayla
Anderson White (Plaintiff) scheduled for 07/18/2024 is continued to 09/05/2024 at 09:00 AM in
Department 24 at Rene C. Davidson Courthouse .
The hearing on Defendants’ Petition for Approval of Compromise of Claim of minor Plaintiff
Jayla Anderson White is continued to September 5, 2024 at 9:00 a.m. in Department 24.
Plaintiff’s guardian ad litem has not retained an attorney of record to represent Plaintiff in this
case. In addition, Defendants filed a Case Management Conference Statement on June 20, 2024
indicating (on page 5, paragraph 15) that Plaintiff’s guardian ad litem passed away in May. If
that is true, Plaintiff will need to have a new guardian ad litem appointed..
A guardian ad litem who is not an attorney cannot represent himself or herself (or the minor) in
litigation, but instead must retain a duly licensed attorney to represent the minor. (See J.W. v.
Superior Court (1993) 17 Cal.App.4th 958, 965.)
Defendants are directed to notify Plaintiff of this ruling. If Plaintiff has not obtained appointment
of a guardian ad litem by August 15, 2024, Defendant shall submit a declaration describing their
efforts to identify the present parent or guardian for Plaintiff, and to communicate with Plaintiff
and/or Plaintiff’s guardian regarding appointment of Guardian ad Litem and retention of counsel.
Ruling
ZHIWEI CHEN VS VERIZON WIRELESS SERVICES, LLC
Jul 17, 2024 |
23AHCV01967
Case Number:
23AHCV01967
Hearing Date:
July 17, 2024
Dept:
X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE:
July 17, 2024
TRIAL DATE: No date set.
CASE:
Zhiwei Chen v. Verizon Wireless Services, LLC
CASE NO.:
23AHCV01967
MOTION FOR RECONSIDERATION
MOVING PARTY
:
Plaintiff Zhiwei Chen
RESPONDING PARTY
:
Defendant Verizon Wireless Services, LLC
OPPOSITION:
NO OPPOSITION FILED
REPLY:
None filed.
RELIEF REQUESTED
Plaintiff moves for reconsideration of the Courts May 16, 2024 order denying Plaintiffs Motion to Vacate ruling in favor of the defendants application for arbitration.
BACKGROUND
Plaintiff Zhiwei Chen filed this action against defendant Verizon Wireless Services, LLC on on August 28, 2023. Plaintiff has been self-represented since the outset of the suit. Plaintiff alleges Defendant committed an intentional tort wherein Defendant used technical means to take control of [Plaintiffs] phone ... [and] forged the plaintiffs signature with the intention of taking possession of plaintiffs property. (Compl., p. 4, ¶ IT-1.)
On November 7, 2023, the Court granted Defendants motion to compel the parties to arbitrate their dispute. The Court stayed the action pending the completion of arbitration.
On March 27, 2024, one hundred forty-one (141) days after the Courts November 2023 order, Plaintiff filed a Motion to Quash to vacate /quash the ruling of November 7, 2023, which he subsequently removed from calendar.
On April 16, 2024, one hundred sixty-one (161) days after the Courts November 2023 order, Plaintiff filed a Motion to Vacate ruling in favor of the defendants application for arbitration.
On May 16, 2024, the Court denied Plaintiffs motion to vacate.
On May 20, 2024, Plaintiff filed the instant motion for reconsideration of the May 16, 2024 ruling. That motion is now before the Court.
Defendant filed no opposition, although Plaintiff filed no proof of service indicating Plaintiff gave Defendant notice of his motion.
Plaintiff filed no reply.
TENTATIVE RULING
The motion is DENIED.
LEGAL STANDARD
When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Code Civ. Proc., § 1008(a).)
If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order. (Code Civ. Proc., § 1008 (c); see also
Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1106-1107.)
DISCUSSION
As an initial matter: Plaintiffs Motion to Vacate was, in operation, a motion to reconsider, which the Court denied. (See 05-16-2024 Minute Order, p.2 [recharacterizing motion by relief sought].) The instant motion is a motion to reconsider the Courts ruling on a motion to reconsider. Any renewed motion, including a renewed motion for reconsideration, must be justified by new facts or law. (See
Le Francois v. Goel
,
supra
, 35 Cal.4th at p. 1099.) Plaintiff objects that the Court did not consider evidence that was already available at the time of the May 16, 2024 ruling. This does not justify a renewed motion for reconsideration of the Courts November 2023 order, nor does it justify a motion to reconsider the motion to reconsider.
For the same reason, reconsideration under Code of Civil Procedure section 1008(a) is unwarranted. Plaintiff specified no
new
or
different
facts, circumstances etc. in his declaration(s) accompanying his motion.
Reconsideration under section 1008(c) is similarly unwarranted. Plaintiff cites no relevant change in the law since November 2023, and the Court is aware of none. The Court declines to exercise its own discretion to reconsider either prior ruling.
Plaintiffs motion is denied.
Court to provide notice.
Dated:
July 17, 2024
___________________________________
Joel L. Lofton
Judge of the Superior Court
Ruling
Morales VS Extended Stay America, Inc.
Jul 18, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
RG20061971
RG20061971: Morales VS Extended Stay America, Inc.
07/18/2024 Hearing on Motion to Reclassify (Walker Motion) filed by ESA Management,
LLC (Defendant) + in Department 518
Tentative Ruling - 07/16/2024 Victoria Kolakowski
The Motion to Reclassify filed by ESA Management, LLC, Extended Stay America, Inc. on
06/13/2024 is Denied.
I. Background
Nahum Morales sued Extended Stay America, Inc. and ESA Management, LLC (“Defendants”),
among others, for injuries allegedly sustained after being bit by bedbugs after staying an
Extended Stay America hotel in Union City, California. (Compl. ¶ 1, May 11, 2020.) In his
complaint—filed as an unlimited civil action—Morales requested to recover an unspecified
amount of general, specific, and punitive damages, among other claims for relief. (Id. § 7.)
Defendants filed an answer generally denying the allegations and asserting several affirmative
defenses. (Answer, Feb. 16, 2021.)
Following Morales’s responses to Defendants’ discovery requests and testimony from his
deposition about his medical expenses and property damage, Defendants moved to reclassify the
action as a limited civil action. (Mot., June 13, 2024.) Defendants argued Morales’s known
medical expenses were under the $35,000.00 threshold and that Morales lacked evidence to
support his property damage claim. (Id. 7:4–9:23, 10:19–11:13; see also Reply Mem. 2:4–11
(noting SB-71 (enacted October 13, 2023, raised amount in controversy to $35,000.00).)
Morales opposed. (Opp’n Mem., July 3, 2024.) Morales noted that he sought $250,000.00 in
general damages along with his claim for special damages for his medical expenses. (Id. 3:15–
4:9.)
II. Legal Standard
“[A] defendant . . . may file a motion for reclassification within the time allowed for that party to
respond to the initial pleading.” (Code Civ. Proc. § 403.040(a).) “If a party files a motion for
reclassification after the time for that party . . . to respond to a complaint . . . , the court shall
grant the motion and enter an order for reclassification only if both of the following conditions
are satisfied: [¶] [t]he case is incorrectly classified[] [¶] [t]he moving party shows good cause for
not seeking reclassification earlier.” (§ 403.040(b)(1), (2).) “The court shall grant the motion and
enter an order for reclassification, regardless of any fault or lack of fault, if the case has been
classified in an incorrect jurisdictional classification.” (§ 403.040(a); see also Ytuarte v. Super.
Ct. (Kashani) (2005) 129 Cal. App. 4th 266, 277 (“[A] matter may be reclassified as a limited
civil action ‘when (i) the absence of jurisdiction is apparent before trial from the complaint,
petition, or related documents, or (ii) during the course of pretrial litigation, it becomes clear that
the matter will “necessarily” result in a verdict below the superior court’s jurisdictional amount .
. . .”) (quoting Walker v. Super. Ct. (Slaton), 53 Cal. 3d 257, 262).) “This standard involves an
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
RG20061971: Morales VS Extended Stay America, Inc.
07/18/2024 Hearing on Motion to Reclassify (Walker Motion) filed by ESA Management,
LLC (Defendant) + in Department 518
evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, and
according to Walker, requires a ‘high level of certainty that [the] damage award will not exceed
$[3]5,000.’” (Id. (quoting Walker, 53 Cal. 3d at 269.)
III. Discussion
The Court finds that Morales’s action does not necessarily involve less than $35,000.00.
Defendants did not carry their burden of showing that the damage award cannot exceed the
monetary threshold. Accordingly, the Court will not reclassify this action as a limited civil case.
IV. Order
The motion is DENIED.
PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative
ruling will become the order of the Court unless it is contested before 4:00 PM on the court day
preceding the noticed hearing.
To contest a tentative ruling, a party should do the following:
First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and
copy all counsel of record and self-represented parties. The contesting party must state in the
subject line of the email the case name, case number and motion.
Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case
number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this
Ruling" button, enter the party's name and a brief statement of the party's reason for contesting
the tentative, and click "Proceed."
Parties may appear via videoconference, using the Zoom.com website or application.
TO CONNECT TO ZOOM:
Department 518 is inviting you to a scheduled ZoomGov meeting.
Topic: Department 518's Personal Meeting Room
Join ZoomGov Meeting
https://alameda-courts-ca-gov.zoomgov.com/j/16054307984
Meeting ID: 160 5430 7984
One tap mobile
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
RG20061971: Morales VS Extended Stay America, Inc.
07/18/2024 Hearing on Motion to Reclassify (Walker Motion) filed by ESA Management,
LLC (Defendant) + in Department 518
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Ruling
SANTIAGO AJANEL, ET AL. VS LOS ANGELES POLICE DEPARTMENT, A PUBLIC ENTITY, ET AL.
Jul 18, 2024 |
22STCV29612
Case Number:
22STCV29612
Hearing Date:
July 18, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPARTMENT
32
HEARING DATE
July 18, 2024
CASE NUMBER
22STCV29612
MOTION
Motion to Continue Trial
MOVING
PARTIES
Defendant City of Los Angeles
OPPOSING PARTY
Unopposed
MOTION
Defendant City of Los Angeles (Defendant) moves to continue trial. No opposition has been filed.
BACKGROUND
The complaint was filed on September 12, 2022. Trial was initially set for March 11, 2024.
Defendants answer was filed on November 15, 2022.
On February 8, 2024, pursuant to stipulation, the Court continued trial and all related dates to September 17, 2024.
On May 29, 2024, Defendant filed and electronically served a motion for summary judgment. The hearing for summary judgment is currently scheduled for September 24, 2024.
ANALYSIS
Legal Standard
Continuances are granted only on an affirmative showing of good cause requiring a continuance. (
In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 823.) A trial court has broad discretion in considering a request for a trial continuance. (
Pham v. Nguyen
(1997) 54 Cal.App.4th 11, 13-18.) California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.
To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).)
A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (Cal. Rules of Court, rule 3.1332(b).)
Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:
(1)
The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(2)
The unavailability of a party because of death, illness, or other excusable circumstances;
(3)
The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4)
The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(5)
The addition of a new party if:
(A)
The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or
(B)
The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new partys involvement in the case;
(6)
A partys excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(7)
A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.
(Cal. Rules of Court, rule 3.1332(c).)
In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
(1)
The proximity of the trial date;
(2)
Whether there was any previous continuance, extension of time, or delay of trial due to any party;
(3)
The length of the continuance requested
;
(4)
The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
(5)
The prejudice that parties or witnesses will suffer as a result of the continuance;
(6)
If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;
(7)
The courts calendar and the impact of granting a continuance on other pending trials;
(8)
Whether trial counsel is engaged in another trial;
(9)
Whether all parties have stipulated to a continuance;
(10)
Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and
(11)
Any other fact or circumstance relevant to the fair determination of the motion or application.
(Cal. Rules of Court, rule 3.1332(d).)
A party may move for summary judgment at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.¿ (Code Civ. Proc., § 437c, subd. (a)(1).)¿ Notice of the motion and supporting papers must be served on all other parties at least 75 days before the time appointed for hearing.¿ (
Id.
, subd. (a)(2).)¿ The motion must be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.¿ (
Id.
, subd. (a)(3).)¿¿¿
Discussion
Defendant requests the Court continue trial in this case to at least 30 days after the September 24, 2024 summary judgment hearing.
A party that timely files a motion for summary judgment under Code of Civil Procedure section 437c has a right to have their motion heard before the start of trial. (
Cole v. Superior Court
(2022) 87 Cal.App.5th 84, 88.)
If served electronically, a motion for summary judgment must be made at least 105 days before trial, plus two court days. (See Code Civ. Proc. § 437c(a)(2), (3).)
Therefore, a motion for summary judgment in this case needed to be filed by May 31, 2024.
Defendant timely served its motion for summary judgment on May 29, 2024. Defendant argues that the summary judgment hearing could not be reserved until September 24, 2024. (Lee Decl. ¶ 2.) Since that date is after trial,
Defendant requests that the Court continue the trial date to allow for the motion for summary judgment to be heard.
Therefore, since Defendant has filed a timely summary judgment motion, and seeing no opposition, the Court finds good cause to continue trial.
Accordingly, the Court grants the motion to continue trial.
CONCLUSION AND ORDER
The Court GRANTS Defendants motion to continue trial.
The Final Status Conference is continued to October 17, 2024, at 10:00 a.m. in Department 32 of the Spring Street Courthouse.
Trial is continued to October 31, 2024, at 8:30 a.m. in Department 32 of the Spring Street Courthouse.
All discovery and pre-trial motion cut-off dates shall be in accordance with the new trial date.
Defendant shall give notice of this order, and file a proof of service of such.
Ruling
SINGH vs KPC GLOBAL MEDICAL CENTERS, INC.
Jul 18, 2024 |
CVSW2200991
MOTION TO COMPEL RESPONSES TO
SINGH VS KPC GLOBAL PRODUCTION OF DOCUMENTS;
CVSW2200991
MEDICAL CENTERS, INC. REQUEST MONETARY SANCTIONS BY
KPC GLOBAL MEDICAL CENTERS, INC.
Tentative Ruling:
See 1.
Ruling
ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT MEDICAL...
Jul 18, 2024 |
Civil Unlimited (Civil Rights/Discrimination) |
22CV007747
22CV007747: ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT
MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
ELIZABETH ENRIGHT (Plaintiff) in Department 20
Tentative Ruling - 07/15/2024 Karin Schwartz
The Motion to Compel the Deposition of Daniel Baer is DROPPED because no motion is on file.
Plaintiff filed an ex parte application but did not file a motion. The Court's intention, when it
granted the ex parte on 7/8/24, was to advance the hearing date on an already filed and scheduled
motion. However, it appears that no motion with respect to Daniel Baer had been filed (i.e., only
the ex parte).
Separately, the Court, through a misunderstanding, advanced the hearing date on a separately
pending motion to compel (i.e., CCP 1987 notice) to 7/18/24. However, per the Court's order of
7/12/24, any matters relating to that motion will be heard at the pretrial on 8/2/24. Accordingly,
the Court is continuing the hearing on this motion, which the Court inadvertently advanced to
7/18/24, to the date before the the pretrial, which is an ordinary law and motion day for the
Court.
The Hearing on Motion to Compel Discovery (not "Further Discovery") filed by ELIZABETH
ENRIGHT (Plaintiff) scheduled for 07/18/2024 is continued to 08/01/2024 at 03:00 PM in
Department 20 at Rene C. Davidson Courthouse .
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV007747: ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT
MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
ELIZABETH ENRIGHT (Plaintiff) in Department 20
BOTH ECOURT AND EMAIL notices are required.
Ruling
RICHARD CABRERA-LARA VS ARBOL GRADING, INC., ET AL.
Jul 16, 2024 |
21STCV19154
Case Number:
21STCV19154
Hearing Date:
July 16, 2024
Dept:
B
RICHARD CABRERA-LARA V. ARBOL GRADING, INC., ET AL.
MOTION FOR SUMMARY JUDGMENT/Summary adjudication
Date of Hearing:
July 16, 2024
Trial Date:
August 16, 2024
Department:
B
Case No.:
21STCV19154
Moving Party:
Defendant and Cross-Complaint Melt De La Paz Inc. (Melt)
Responding Party:
Plaintiff Richard Cabrera-Lara (Plaintiff) and Plaintiff-in-Intervention State Farm Fire and Casualty Company (State Farm)
BACKGROUND
This action arises from Plaintiff Richard Cabrera-Lara (Plaintiff) allegedly sustaining injuries while working on a construction project on May 12, 2020 at 2451 Summitridge Drive, Beverly Hills, California. Plaintiff alleges that he sustained injuries while assisting with the cleaning of a heavy-duty drill.
On May 20, 2021, Plaintiff filed a Complaint against Defendants Arbol Grading, Inc. dba Arbol Construction (Arbol), Melt De La Paz, Inc. (Melt), Miguel Mitchell (Mitchell), and Does 1 to 100, inclusive (collectively, the Defendants), alleging a single cause of action for General Negligence.
On April 15, 2022, State Farm Fire and Casualty Company (State Farm) filed a Motion for Leave to File a Complaint-in-Intervention.
On June 24, 2022, Defendant Melt filed its Answer to the Complaint. Also, on such date, Defendant Melt filed a Cross-Complaint against Roes 1 through 10, inclusive, alleging causes of action for: (1) Indemnity; (2) Contribution; and (3) Declaratory Relief.
On July 29, 2022, Defendant Arbol filed its Answer to the Complaint.
On September 7, 2022, the Honorable Audra Mori sitting in Department 31 at Spring Street Courthouse granted State Farms Motion for Leave to Intervene. (09/07/22 Minute Order.)
On September 9, 2022, State Farm filed a Complaint-in-Intervention against Defendants Arbol, Melt, and Mitchell alleging causes of action for: (1) General Negligence; and (2) Products Liability.
On September 22, 2022, Defendant Melt filed its Answer to the Complaint-in-Intervention.
On October 6, 2022, Defendant Arbol filed its Answer to the Complaint-in-Intervention.
On April 30, 2024, Defendant Melt filed and served the instant Motion for Summary Judgment or, alternatively, Motion for Summary Adjudication as to the Complaint (the Motion).
[1]
The Motion is made on the grounds that Plaintiffs cause of action against Defendant Melt is barred the doctrine of workers compensation exclusivity. Specifically, Defendant Melt argues that, because Plaintiff was a special employee of Defendant Melt at the time of the alleged injury, Plaintiffs sole remedy is through the workers compensation scheme.
If summary judgment cannot be granted, Defendant Melt moves for summary adjudication on the sole issue that Plaintiffs cause of action for negligence is barred by the workers compensation exclusivity rule.
On July 1, 2024, State Farm filed an opposition to the Motion.
On July 1, 2024, Plaintiff also filed an opposition to the Motion.
On July 11, 2024, Defendant Melt filed respective reply briefs as to the oppositions filed by Plaintiff and State Farm.
Given that the oppositions make similar and oftentimes overlapping arguments, the Court will address the respective oppositions collectively. The Court, however, will address the evidence presented by Plaintiff and State Farm separately where appropriate.
Initially, the Court notes that Defendant Melt only presents 10 undisputed material facts in support of the Motion. State Farm does not dispute any of Defendant Melts undisputed material facts.
[2]
Plaintiff only disputes Defendant Melts UMF Nos. 3, 5, and 6.
[Tentative] Ruling
The Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication (the Motion) filed by Defendant Melt De La Paz Inc. is DENIED in its entirety.
DISCUSSION
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(
Adler v. Manor Healthcare Corp
. (1992) 7 Cal.App.4th 1110, 1119.)
The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.
(
Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67.)
A cause of action has no merit if [o]ne or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. (Code Civ. Proc., § 437c, subd. (o)(1).) A defendant has met its burden in showing that a cause of action has no merit if the defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met its burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (
Ibid
.)
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (
Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1520.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.
(
Dore v. Arnold Worldwide, Inc.
(2006) 39 Cal.4th 384, 389.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (
Aguilar v. Atlantic Richfield Co.
,
supra
, 25 Cal.4th 826, 849.)
The summary judgment statute [is] not intended nor can it be used as a substitute for existing methods in the trial of issues of fact. (
Travelers Indemn. Co. v. McIntosh
(1952) 112 Cal.App.2d 177, 182.) The summary judgment procedure is drastic and should be used with caution. (
House v. Lala
(1960) 180 Cal.App.2d 412, 415.) Any doubt in granting summary judgment should be exercised against the moving party. (
Ibid
.) Summary adjudication motions are procedurally identical to summary judgment motions. (
Dunn v. County of Santa Barbara
(2006) 135 Cal.App.4th 1281, 1290.)
Evidentiary Objections
The Court SUSTAINS Plaintiffs evidentiary objection number 1 to the declaration of Jonathan A. Termechi, Esq. in support of the Motion. Defendant Melt is improperly using its own interrogatory responses in support of the Motion. A partys own . . . interrogatory responses . . . cannot itself serve as competent evidence to create a genuine issue of material fact. (
Bayramoglu v. Nationstar Mortgage LLC
(2020) 51 Cal.App.5th 726, 740.)
Issue No.1: The Workers Compensation Exclusivity Rule
California Workers Compensation Act . . . provides an employees exclusive remedy against his or her employer for injuries arising out of and in the course of employment. (
Melendrez v. Ameron Internat. Corp.
(2015) 240 Cal.App.4th 632, 638.) Under the workers compensation scheme, an employees remedy against an employer for a work-related injury isas a general ruleexclusively limited to the benefits provided by statute. (
Gigax v. Ralston Purina Co.
(1982) 136 Cal.App.3d 591, 597.) According to Labor Code section 3601 [w]here the conditions of compensation exist, the right to recover such compensation pursuant to the provisions of this division is, except as provided in Section 3706 the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment . . . . (
Ibid
.) An employee, however, retains the right to pursue any common law remedies he may have against third party tortfeasors. (
Id
. at p. 598.) The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer . . . . (
Ibid
.) The workers compensation laws were not designed to relieve one other than the employer from any liability imposed by statute or by common law. (
Ibid
.)
Whether an employees injury arose out of and in the course of [his] employment is generally a question of fact to be determined in light of the circumstances of the particular case. (
Melendrez
,
supra
, 240 Cal.App.4th at p. 639, citation omitted.) When there is no dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law . . . . (
Ibid
.)
A special employment relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employees activities. (
Riley v. Southwest Marine, Inc.
(1988) 203 Cal.App.3d 1242, 1247.) The borrowed employee is held to have two employershis original or general employer and a second, the special employer. (
Id
. at p. 1247-48.) In this dual employer situation, the employee is generally limited to a statutory workers compensation remedy for injuries he receives in the course of his employment with the special employer; he may not bring a separate tort action against either employer. (
Id
. at p. 1248.)
Whether an employment relationship existed is a question for the trier of fact [w]here the evidence, though not in conflict, permits conflicting inferences. (
Ibid
.) However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment. (
Ibid
.)
The determination of whether a worker is a borrowed servant is accomplished by ascertaining who has the power to control and direct the servants in the performance of their work, distinguishing between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking. (
Collins v. Union Pacific Railroad Co.
(2012) 207 Cal.App.4th 867, 879.)
[W]here there is a dual employment the workman is barred from an action for damages against either employer. (
Kowalski v. Shell Oil Co.
(1979) 23 Cal.3d 168, 175.) In assessing the existence of a special employment relationship, the primary consideration is whether the employer has [t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not. (
Id
. at p. 175.)
The following factors are analyzed in determining whether a special employment relationship exists: (1) whether the borrowing employers control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employers work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee; and (9) whether the borrowing employer had the obligation to pay the employee. (
Riley
,
supra
, 203 Cal.App.3d at p. 1250.)
Defendant Melts Evidence
Defendant Melt presents the following undisputed material facts: Plaintiff generally alleges that, on May 12, 2020, he was working on a home construction site at or near 2451 Summitridge Drive, Beverly Hills, California. (Defendant Melts Separate Statement of Facts (DSSF) No. 1.) At the time of the subject incident, Plaintiff was an ironworker apprentice for Cruz Concrete Stone, Inc. (Cruz), a masonry and rebar contractor on the project. (DSSF No. 2.) Plaintiff was informed by his supervisor at Cruz that he needed to assist an employee of Defendant Melt named Miguel Mitchell (Mitchell), by measuring holes being drilled by Defendant Melt using a large drill with an auger. (DSSF No. 4.) When replacing the drill bit, the drill allegedly moved in an upward direction, which injured Plaintiffs fingers. (DSSF No. 7.) As a result of the subject incident, Plaintiff filed a workers compensation claim with Cruzs workers compensation insurance. (DSSF No. 8.) On or about May 20, 2021, Plaintiff filed the instant action against Defendant Melt, alleging one cause of action for general negligence. (DSSF No. 9.) Based on his discovery responses, Plaintiff alleges that Defendant Melt carelessly, recklessly and negligently screened, hired, employed, trained, supervised and monitored Defendant Mitchell which left an untrained, unsafe, unsupervised worker at the controls of a dangerous machine working with Plaintiff and ultimately caused the subject incident. (DSSF No. 10.)
Defendant Melt presents evidence that Plaintiff accepted the request from his supervisor at Cruz to assist Defendant Mitchell. (Termechi Decl., Ex. H at p. 163:12-21, 164:16-21, and 165:18-19.)
[3]
Defendant Melt presents evidence that while assisting Defendant Mitchell, Plaintiff was asked to replace a drill bit. (Termechi Decl., Ex. E at Nos. 13, 15, 19, 21, and 27.)
Analysis
The Court finds that Defendant Melt has not met its burden to establish that a special employment relationship existed between Plaintiff and Defendant Melt, and therefore the burden does not shift to Plaintiff or State Farm to show a triable issue of fact.
Defendant Melt presents no evidence that it had the right to control and direct the activities of Plaintiff or the manner and method in which Plaintiffs work was performed. All the evidence presented by Defendant Melt shows is that Plaintiff was asked by his supervisor at Cruz to assist an employee of Defendant Melt by measuring holes being drilled, and that Plaintiff was injured during such activity.
Defendant Melt presents no evidence as to whether: (1) it had control over Plaintiffs work; (2) Plaintiff was performing the work of Defendant Melt; (3) there was an agreement between Cruz and Defendant Melt; (4) Cruz terminated its relationship with Plaintiff; (5) Defendant Melt furnished any tools to Plaintiff; (6) Plaintiff worked for or with Defendant Melt for a considerable period of time; (7) Defendant Melt had the right to fire Plaintiff; and (8) Defendant Melt had any obligation to pay Plaintiff. (
Riley
,
supra
, 203 Cal.App.3d 1242, 1250.) Defendant Melt has made a showing of neither the primary factor nor secondary factors articulated in
Riley
,
supra
, 203 Cal.App.3d 1242, 1250.
Summary judgment and summary adjudication are therefore inappropriate.
Even if Defendant Melt had met its burden to show that there was a special employment relationship, the Court would have found that both State Farm and Plaintiff presented respective evidence to establish a triable issue of fact.
State Farm presented evidence that the Person Most Knowledgeable (PMK) at Defendant Melt testified at deposition that: (1) Defendant Melt never employed Plaintiff; (2) Defendant Melt never intended to hire Plaintiff even on a temporary basis; (3) Plaintiff never served as an agent or employee of Defendant Melt in any manner. (Salley Decl., ¶ 2; Ex. A at p. 91:25-92:21.) State Farm presented evidence that a supervisor from Cruz told Plaintiff to go help with the drilling machine. (Salley Decl., ¶ 3; Ex. B at p. 90:18-91:9.)
Plaintiff presented the following evidence: he was working for Cruz on the day of the incident. (Upton Decl., ¶ 3; Ex. 1 at p. 28:18-21.) At the time of the incident, Plaintiff received a paycheck from Cruz. (Upton Decl., ¶ 3; Ex. 1 at p. 84:25-85:5.) Plaintiff was asked by a foreman from Cruz to measure holes being drilled in the ground. (Upton Decl., ¶ 3; Ex. 1 at p. 90:21-24.) Plaintiffs supervisor from Cruz provided him with instructions on how to measure. (Upton Decl., ¶ 3; Ex. 1 at p. 110:19-111:1 and 113:1-3.) There was no agreement between Cruz and Defendant Melt for Defendant Melt to temporarily hire one of Cruzs employees. (Upton Decl., ¶ 4; Ex. 2 at p. 38:23-39:4.) Defendant Melt never intended to hire Plaintiff even on a temporary basis and never employed Plaintiff. (Upton Decl., ¶ 4; Ex. 2 at p. 91:25-92:6.) Plaintiff has never served as an agent or employee of any kind for Defendant Melt. (Upton Decl., ¶ 4; Ex. 2 at p. 92:14-18.)
Thus, even if Defendant Melt had met its initial burden to show the existence of a special employment relationship, the Court would have found that both Plaintiff and State Farm presented evidence to show the existence of a triable issue of material fact.
CONCLUSION
Based on the foregoing, the Motion is DENIED in its entirety.
Moving party is ordered to give notice.
[1]
The Motion has a reservation identification number ending in 8616.
[2]
State Farm only objected to Defendant Melts UMF No. 6 in its responsive separate statement; however, State Farm failed to file any separate evidentiary objections. As such, the Court deems State Farm to not have disputed Defendant Melts UMF No. 6. The Court reminds the parties that if it is not set forth in the separate statement,
it does not exist
. (
San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A.
(2002) 102 Cal.App.4th 308, 313, emphasis in original.)
[3]
Defendant Melt cites to non-existent pages of deposition testimony that are not included in Exhibit H. (See DSSF No. 5.) There is no page 90, 91, 94, 135, 238, or 242 in Exhibit H, which is attached to the declaration of Mr. Termechi in support of the Motion.
Document
Isabella Hernandez v. Aqsa Shakoor M.D., Robert E. Berg M.D., Regina Matar-Ujvary M.D., Nyu Tisch Hospital, Nyu Langone Medical Center, Nyu Langone Hospitals, Nyu Langone Health System,, Covidien Lp, Covidien Sales, Llc, Covidien Holding, Inc., Medtronic, Inc.
Jul 17, 2024 |
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805200/2024
Preview
FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE DILANTIN LITIGATION Index No. 784000/2019 _______________________________________ THIS DOCUMENT RELATES TO: Penrod, et. al. v. Pfizer, Inc. et. al., NY Sup. Ct., PLAINTIFFS’ MEMORANDUM New York County, Index No. 159346/2018 IN OPPOSITION TO DEFENDANTS’ MOTION TO Polenberg et. al. v. Pfizer, Inc. et. al. NY Sup. SEVER AND DISMISS ON THE Ct., New York County, Index No. 451095/2019 GROUNDS OF FORUM NON CONVENIENS DeLumeau et. al. v. Pfizer, Inc. et. al. NY Sup. Ct., New York County, Index No. 451094/2019 (All actions in this coordinated proceeding) PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SEVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS Plaintiffs file this Memorandum in Opposition to Defendants’ Motion to Sever and Dismiss on the Grounds of Forum Non Conveniens. I. INTRODUCTION Pfizer is one of the largest and wealthiest drug companies in the world. Its world headquarters and its lawyers’ offices are located in Midtown Manhattan, a few miles from this courthouse. The Plaintiffs are a group of 47 people from 25 different states with only three things in common. One, they suffer from a severe and typically permanent brain injury known as cerebellar atrophy that resulted from their ingestion of Pfizer’s anti-seizure drug, Dilantin. Despite 70 years of scientific and safety data identifying Dilantin as a primary cause of cerebellar atrophy, despite having warned doctors and patients in foreign countries of this well- PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 1 1 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 known (to Pfizer) risk since the 1990’s, and despite internally studying and assessing this danger for decades, Pfizer inexplicably chose to disregard and conceal it from doctors and patients in the United States. Indeed, Pfizer did not reference this devastating public health concern in its United States Dilantin label until December 2015, and only did so after several of the Plaintiffs in this case brought the claims that are now pending in this New York court. Two, the Plaintiffs have limited to no resources, particularly when compared to the limitless resources of the corporate defendants. Three, the Plaintiffs are litigating in New York County because Pfizer successfully orchestrated the transfer and coordination of their cases to Pfizer’s home forum almost a year after the original Plaintiffs filed suit in Kings County, where Plaintiff Amy Polenberg resides, in early 2018. Now that Pfizer has assembled all of the Plaintiffs in the forum most convenient for Pfizer and its lawyers and almost two years have passed, Pfizer has changed its position 180 degrees and seeks to dismiss the coordinated action and send all of the individual Plaintiffs back home to start over by refiling individual actions in at least 25 different forums which are now (according to Pfizer) more convenient than its own backyard. Pfizer has no desire to actually litigate the injured Plaintiffs’ claims in good faith. Its goal is to bury those claims in an endless pattern of delay tactics and procedural gamesmanship designed to avoid trials on very damaging liability facts and run up costs rather than progress this litigation to resolution. Defendants’ latest motion should be denied because they: 1) invoked and accepted the benefits of the jurisdiction of their home Court for the past 18+ months, 2) waived forum non conveniens rights by delaying more than 18 months to bring this motion, and 3) argued the opposite position for their own benefit in their previously-filed coordination motion, estopping PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 2 2 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 their contrary arguments here. Defendants’ latest motion should be denied as a matter of basic fairness given the relative status of the parties and the procedural history of this litigation. Defendants’ motion should also be denied because of this litigation’s unique posture. Specifically, pursuant to the agreement of the parties, the Superior Court of San Francisco has taken the lead in these Dilantin cases and shouldered the burden of nearly all discovery and disputes, greatly reducing New York’s burden. The balance of all factors does not strongly favor the inequitable result that Defendants seek.1 II. DISCUSSION A. Defendants Waived the Forum Non Conveniens Defense This case has been pending for nearly two years. Shortly after it was filed, Pfizer and its attorneys successfully sought – over Plaintiffs’ objection – to coordinate Plaintiffs’ first-filed Kings County action into this case, so that the consolidated action could proceed in Pfizer’s home jurisdiction, New York County. After forcing all of the Plaintiffs to Pfizer’s chosen forum, Pfizer waited almost a year before changing its position and asserting that New York County was not a convenient jurisdiction after all, and that this Court should dismiss the coordinated action from the same forum that Pfizer insisted upon in the first place. Not surprisingly, New York law has something to say about this type of gamesmanship: “[t]he law is well settled that, in addition to the traditional factors considered on forum non conveniens motions, the court may rely upon delay in making the motion to dismiss as a basis for denial of the motion.” Persaud v. Goriah, N.Y.S.2d 872, 875 (1989); see also Corines v. Dobson, 521 N.Y.S.2d 686 (1st Dept. 1987); Bussanich v. United States Lines, 424 N.Y.S.2d 449 (1st Dept. 1980); ABKCO Indus. v. Lennon, 1 “Unless the balance of all factors strongly favors defendant and itplainly appears that New York is an inconvenient forum, forum non-conveniens relief should not be lightly granted.” Corines v. Dobson, 521 N.Y.S.2d 686, 688 (1st Dept. 1987). PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 3 3 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 384 N.Y.S.2d 781 (1st Dept. 1976); Mirabella v. Banco Indus. De La Republica Argentina, 352 N.Y.S.2d 640 (1st Dept. 1974); cf. Aboujdid v. Singapore Airlines, Ltd., 494 N.E.2d 1055 (N.Y. Ct. App. 1986); De Sapio v. Kohlmeyer, 321 N.E.2d 770 (N.Y. Ct. App. 1974). Defendants’ inexcusable delay in moving for the relief it now seeks is a significant factor in this Court’s jurisdictional analysis. Corines, 521 N.Y.S.2d at 688. In Persaud, the plaintiff served the defendant with a summons and complaint in June 1987; the defendant filed an answer and motion to dismiss for forum non conveniens; and the motion for forum non conveniens was granted. 539 N.Y.S.2d at 872. The defendant, however, abandoned the motion by failing to settle an order. Id. at 873. A year and a half into the litigation, defendant refiled her forum non conveniens motion. Id. at 872. The court found that defendant’s one and a half year “delay sufficient to support the conclusion that defendant accepted the jurisdiction of the New York courts and waived her right to make the forum non conveniens motion.” Id. at 875. Similarly, in Corines, the court found the defendants’ year and a half delay in bringing a forum non conveniens motion waived the defense: The case had been pending in New York for eighteen months where significant activity, including discovery and pretrial conferences took place. The note of issue and certificate of readiness had been filed without objection and the matter placed on the trial calendar before defendant eventually moved to dismiss on forum non conveniens grounds. Under these circumstances, even if warranted, dismissal for forum non conveniens should not have been granted. The defendant having taken advantage of the resources of the New York courts should not, at such late point in time, be allowed to remove the action. 521 N.Y.S.2d at 688. In Bock v. Rockwell Mfg. Co., Inc., 543 N.Y.S.2d 89 (2d Dept. 1989), the defendant waited 15 months to file a forum non conveniens motion. In denying the motion, the court stated “it is clear that the defendants are guilty of laches. Having participated in the action for such an PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 4 4 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 extended period of time, to wit, approximately 15 months before moving to dismiss, the defendants cannot claim that New York is an inconvenient forum.” Id. at 91. In this case, Defendant waited over 18 months to seek the relief they know ask this Court to award.2 Plaintiffs filed their first multi-plaintiff complaint against Defendants in May 2018 (Polenberg) contained 17 non-New York plaintiffs from Wisconsin, Illinois, Florida, Nevada, Tennessee, Pennsylvania, Colorado, Texas, Ohio, Massachusetts and Washington. Defendants filed their answer on July 9, 2018 (over 18 months ago) and did not move to dismiss the claims for forum non conveniens. Instead, Defendants not only accepted – but fought – to impose the jurisdiction of this Court on Plaintiffs. In the interim, Defendants actively pursued discovery from the Plaintiffs by demanding detailed Plaintiff Fact Sheets, medical records and authorizations and served traditional discovery (requests for production of documents and interrogatories) on the Plaintiffs in the New York. The second multi-plaintiff complaint (Penrod) was filed in October 2018 and contained 10 non-New York Plaintiffs from Ohio, North Carolina, South Carolina, Iowa, Florida, Texas, Pennsylvania and Alabama. Defendants again answered (on November 15, 2018) and chose not to file a motion to dismiss for forum non conveniens. Rather, Defendants utilized the jurisdiction of this Court to again serve traditional discovery (demand for verified bill of particulars containing 91 discovery demands with subparts, notice of discovery and inspection containing 51 demands, authorizations to interview physicians, expert witness information, identification of witnesses). See Defendants’ Memorandum of Law in Support of Motion for Order for Coordination, page 3, para 2, attached as Exhibit 1. Defendants also demanded detailed Plaintiff Fact Sheets, medical records and authorizations from each Plaintiff. 2 Polenberg was filed on May 18, 2018. Defendant answered on July 9, 2018. Defendants did not file their forum non conveniens motion until January 13, 2020 (Document No. 16), more than 18 months after filing their answer. PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 5 5 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 Defendants further engaged the jurisdiction of this Court by filing a Motion to Coordinate the Polenberg and Penrod actions - arguing New York was a convenient forum.3 On June 26, 2019, the Litigation Coordination Panel granted Defendants’ motion to coordinate over Plaintiffs’ objection. Notably, the Panel agreed with Defendants’ contention that the convenience of the parties and judicial economy warranted coordination in New York County.4 Through their own conduct, Defendants waived their right to contend that New York County is an inconvenient forum when they took the exact opposite position 18 months prior, embraced this Court’s jurisdiction to force the consolidation of the pending cases in this (their home) jurisdiction, intentionally delayed this motion for over a year and a half, and engaged in extensive discovery. It is now too late for Defendants to reverse course and force 47 seriously injured people with limited resources to start over somewhere else. If that is not waiver, the concept does not exist. B. Defendants Judicially Admitted that This Court is a Convenient and Appropriate Forum Over a year ago on, November 26, 2018, the New York County-based Defendants and their New York County-based lawyers filed a motion to coordinate these actions. In that motion, Defendants argued, among other things, that 1) New York is a convenient forum, 2) coordination in New York serves judicial economy, and 3) coordination in New York would not unreasonably delay or increase expenses to the parties. Based on these arguments, the Court granted Defendants’ motion. Defendants now assert the opposite position; they ask this Court to scatter these cases across the country, to increase the work-load of dozens of judges, thereby creating colossal delay and expense. 3 Defendants served their coordination motion on Plaintiffs on November 27, 2018. A file stamped copy of the motion dated February 13, 2019 (Document No. 13) was also served on Plaintiffs. 4 Three additional complaints have been filed in New York and coordinated into these coordinated proceedings. PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 6 6 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 The judicial admissions in Defendants’ Motion to Coordinate illustrate the wisdom of keeping these plaintiffs in New York: i. “Defendants Pfizer, Parke-Davis, and Warner-Lambert have their principal places of business in New York County. New York County is thus a convenient forum for employees of Pfizer, Parke Davis and/or Warner-Lambert involved with Dilantin.” [Exhibit 1 - Defendants’ Memorandum of Law in Support of Motion for Order of Coordination in New York dated November 26, 2018, p. 8]; ii. “[T]he interests of the courts, public, witnesses and parties, . . . weigh heavily in favor of litigating these actions involving 30 plaintiffs in a single New York court in New York County” [Id. at p. 2]; iii. New York County is “well suited to manage products liability actions ...it has designated Complex Litigation Parts, presided over by jurists trained in the intricacies of these matters” [Id. at p. 1]; iv. “New York County . . . (1) has vast experience in handling these types of pharmaceutical product liability proceedings and (2) is convenient to the parties and counsel, including the county where Pfizer and its counsel are based.” [Id. at pp. 7]; v. “[T]here is a risk of duplicative or inconsistent rulings [ifthe cases are litigated in different courts]. The New York [] actions will present similar factual and legal issues regarding the same product.” Keeping these cases coordinated “will, therefore, ensure consistent rulings on discovery, preliminary motions, motions for summary judgment or adjudication, and motions in limine and/or Frye motions.” [Id. at p. 5 - 6]; vi. Keeping the cases coordinated in New York is highly efficient because they involve the same claims and allegations. “[T]hese cases involve claims concerning the research and development, warnings, risks and benefits, and marketing of Dilantin. Indeed, as a basis for liability, the complaints raise identical allegations regarding the "mechanism of injury." The claims also involve “Defendants' alleged knowledge of the causes of plaintiffs' injuries and alleged undisclosed treatments, [] Dilantin's alleged lack of efficacy and Defendants' alleged "deceptive marketing strategies," and failure to warn of risks associated with Dilantin.” [Id. at p. 5]; vii. Keeping the cases coordinated in New York is advantageous because “[c]oordinated discovery would be advantageous . .. written discovery, document production, and testimony from fact and expert witnesses will be substantially similar in both actions.” [Id. at p. 6]; viii. “Keeping the cases coordinated in New York is convenient because “[e]mployees of Pfizer, Parke-Davis, and/or Warner-Lambert involved in the development and marketing of Dilantin will likely be fact witnesses in both the New York and Kings PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 7 7 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 County actions. Coordination, therefore, will avoid duplicative discovery in multiple New York courts. Indeed, the parties have expressed their intention to coordinate discovery among Dilantin cases nationwide (including in these New York cases) so as to avoid duplication of efforts where possible.” [Id. at p. 6]; ix. Keeping these cases coordinated together in New York would be manageable. “New York courts regularly manage complex proceedings involving many more actions than are at issue here, and the coordinated proceeding would involve substantially similar actions. Furthermore, the parties are represented by the same counsel in both actions.” [Id. at p. 6]; x. Keeping the cases in New York promotes efficient utilization of judicial resources. “[F]rom an overall judicial resources perspective, coordination will promote the efficient utilization of judicial facilities and avoid multiple hearings on similar motions in different courts. This factor thus weighs in favor of coordination too.” [Id. at p. 6]; xi. Keeping the cases coordinated in New York would not unreasonably delay or increase expenses to the parties. “[A] coordinated proceeding would not unreasonably delay the progress or increase the expense to the parties. To the contrary, a coordinated proceeding would streamline the proceeding and avoid duplicative if not inconsistent efforts, resulting from the efficient handling of the litigation and conserve the resources of New York state courts and the parties.” [Id. at p. 7]; xii. Keeping the cases coordinated in New York requires common discovery. “The allegations in both actions are the same--namely, that Dilantin is defective and that Defendants have misrepresented the drug's safety and efficacy. The cases will therefore raise many of the same issues and require common discovery.” [Id. at p. 2]. Instead of extolling the significant advantages Defendants’ previously asserted to the New York Court in order to keep the non-New York Plaintiffs’ cases coordinated and venued in New York, Defendants now switch positions and seek the opposite – sever the cases and scatter them across the dozens of federal judges in dozens of states throughout the country, creating an unnecessary waste of judicial time, resources and economy. The effect of the relief sought by Pfizer will be to force 47 injured Plaintiffs (with limited financial means) to incur the substantial delay and cost of refiling individual lawsuits in 25 or more jurisdictions around the country, pay for and serve five corporate defendants (that the same Plaintiffs previously served) with process in each case, and start the clock over. PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 8 8 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 Under Defendants’ new position, more than 40 plaintiffs’ cases will be severed and sent to 25 or more different Federal Courts across the country. More than 40 cases will have to be refiled. More than 40 sets of filing fees will need to be paid. More than 40 service fees will be incurred5. At least 25 federal judges, their courtrooms and staff will be affected. As many as 25 sets of local counsel will need to be retained. Collectively, hundreds of individuals will be involved in responding to the fallout from Defendants’ motion – most from the already burdened Federal courts, including judicial officers, magistrates, judicial attorneys, judicial clerks, courtroom officers, filing staff and other courthouse personnel – if the notion is granted.6 This is the opposite of judicial economy. It is procedural gamesmanship at its worst. Estoppel, waiver, laches, and fundamental fairness bar Defendants’ about face.7 Defendants also argue that witnesses, such as family members and medical providers, are located in other states. Depositions will also occur in New York where Pfizer witnesses are located regardless of whether the cases remain coordinated in New York County as requested by Pfizer, or are dispersed across the country to begin anew. Pfizer has ample lawyers and resources to cover depositions around the country without regard to where the cases are pending. Defendants also argue that the transactions giving rise to the actions occurred elsewhere – this is only partially correct. While ingestion and injury occurred elsewhere, the witnesses, decisions, documents, emails, memos, policies and procedures regarding Defendants’ liability occurred here in New York. Defendants’ New York decisions, and lack thereof, about the safety 5 Defendants have refused to allow counsel to accept service in these cases. 6 This is not a case where a Federal MDL has already been created which would allow the non-resident cases to be swept up into an already existing MDL. In this case, there is not (yet) a coordination home for these cases outside of the New York coordination. 7 At no time in their coordination motion did Defendants argue, or even hint, that coordinating the 30 non-New York Plaintiffswould be burdensome. In fact,they argued justthe opposite – that coordination was “convenient”, “advantageous”, promotes “judicial efficiency”, would be “manageable”, would not “unreasonably delay progress” or “increase expense to the parties”, would “streamline the litigation”and “avoid duplicative if not inconsistent efforts”, and would “conserve the resources of New York state courts and the parties.” PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 9 9 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 of their drug (involving millions of pages of documents the conduct of dozens of New York- based Pfizer employees) are the foundation of these actions.8 Indeed, that is the reason this litigation was coordinated in New York County at Pfizer’s request. Defendants waived their right to the relief they seek. C. Defendants’ Motion Should be Denied Because of This Litigation’s Unique Posture – California Has Shouldered the Burden of Discovery, Alleviating the Burden on New York Pursuant to an agreement of the parties, the California Coordinated Proceeding is taking the lead on all pre-trial discovery and related issues. The California Coordinated proceeding has held monthly status conferences, weekend discovery conferences, and conference calls addressing the parties’ pre-trial disputes. Case Management Orders have addressed electronic discovery, confidentiality, experts, Plaintiff Fact Sheets and other case management matters. Defendants have asked this Court to enter several of those California orders in this New York Court. Significant discovery issues involving the production of documents, including Defendants’ regulatory files, source files, electronic discovery, custodial files, and search terms were addressed and resolved in the California Coordinated proceeding. Defendants have produced millions of pages of documents over the past two years under the California Coordinated Actions’ leadership. Except for one deposition in Michigan, the depositions of Defendants’ employee witnesses have all taken place in New York. The parties’ agreement for the California Coordinated action take the lead in this litigation has greatly reduced, and 8 Defendants argued in their coordination motion that New York is the proper forum because its corporate headquarters, where decisions are made, and its employees involved with Dilantin are in New York. “Furthermore, New York County is a more convenient forum. Defendants Pfizer, Parke-Davis, and Warner-Lambert have their principal place of business in New York County. New York County is thus a convenient forum for employees of Pfizer, Parke Davis and/or Warner-Lambert involved with Dilantin.” [Exhibit 1 - Defendants’ Memorandum of Law in Support of Motion for Order of Coordination in New York dated November 26, 2018, page 8]. PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 10 10 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 continues to reduce, the burden on the New York system. This New York coordinated action will continue to benefit from the burden the California court has shouldered. For example, the cases in this coordinated proceeding have been on file for 21 months and, except for Defendants’ Motion to Coordinate and the present motion, the parties have not brought substantive issues to this Court. Coordination has led to efficient and cost-effective litigation management largely shouldered by California. Dispersing these cases across the country would unreasonably burden multiple states and the federal judges and staff residing therein. As Defendants pled to this Court in their Motion to Coordinate: “the interests of the courts, public, witnesses and parties, and to facilitate coordination in the various Dilantin actions, weigh heavily in favor of litigating these actions involving 30 plaintiffs in a single New York court in New York County.” Id. at p. 2. D. These Cases Will Likely be Re-Coordinated if Severed If these cases are severed and spread across the country, a motion to coordinate the cases in federal court will likely be filed by one or both of the parties (or sua sponte by one of the federal courts) because, as alleged by Defendants to this Court, continued coordination of these cases makes the most sense. A severance, refiling in multiple different federal courts and subsequent re-coordination back to a single federal jurist (potentially before an MDL judge in New York), will only serve to burden the federal judicial system, and to the parties. III. REQUEST FOR RELIEF Defendants waived their forum non conveniens rights. The relief they seek is also barred under the doctrines of laches, equity and estoppel. Their motion should be denied. Plaintiffs should not be penalized for filing their claims in a proper and lawful forum (New York, where Pfizer is headquartered). Should the cases be dismissed, this Court has broad PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 11 11 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 discretion to fashion whatever conditions it deems appropriate in order to limit the burden on and extinguish the prejudice to Plaintiffs to the fullest extent possible.9 If Defendants’ motion is granted, Plaintiffs request that the Court Order Defendants to abide by the conditions below in an attempt to partially mitigate the substantial prejudice that will result to Plaintiffs. Those conditions include: 1) The statute of limitations and statute of repose are tolled from the date of the non- residents’ filing of their current New York complaint up and until 120 days after entry of an agreed order of dismissal of their claims in the New York actions; 2) Defendants agree to use only the New York statute of limitations and statute of repose periods if the statutes of limitations and repose in the forum of the re-filed action is shorter than the New York statutes of limitations and repose; 3) Defendants agree to accept service of each complaint through their counsel by email; 4) Defendants shall file an answer within 30 days of receipt of a complaint by defense counsel; 5) Defendants shall not challenge jurisdiction or venue in in the re-filed cases; 6) Defendants shall produce all current employees and corporate representative witnesses in person at trial in each of the non-resident Plaintiff jurisdictions upon a written request from counsel for Plaintiffs; 7) Should Defendants fail to abide by any of the above conditions, at Plaintiffs’ discretion the case at issue may be reinstated back into the New York Coordinated 9 “Forum non conveniens dismissals are often appropriately conditioned to protect the party opposing dismissal. See, e.g., Sussman v. Bank of Israel, 990 F.2d 71, 71 (2d Cir.1993) (per curiam) (affirming district court's forum non conveniens dismissal conditioned upon defendants' partialwaiver of limitations defense and undertaking from Israeli officials that plaintiff would not be detained if he went to Israel to initiate litigation in that alternative forum); R. Maganlal & Co., 942 F.2d at 167 (defendant agreed to dismissal conditioned upon submission to jurisdiction of foreign court); Borden, 919 F.2d at 829 (forum non conveniens dismissal conditioned upon foreign forum's acting upon plaintiff's request for injunction within specified time frame); Union Carbide, 809 F.2d at 203–04 (affirming district court's dismissal on condition that defendant consent to personal jurisdiction and waive statute of limitations defense in foreign forum) (collecting cases); Constructora Spilimerg, C.A. v. Mitsubishi Aircraft Co., 700 F.2d 225, 226 (5th Cir.1983) (forum non conveniens dismissal in favor of Venezuelan court conditioned upon defendant's acceptance of service of process, waiver of objections to personal jurisdiction,and undertaking to effectuate Venezuelan judgment).” Blanco v. Blanco Indus. De Venezuela, S.A., 997 F.2d 974, 984 (2d Cir. 1993); see also CPLR 327(a) (“When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just.”) (emphasis added). PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 12 12 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 Proceeding with the fees associated with the reinstatement payable by Defendants. Plaintiffs request all other relief to which they are entitled at law and equity. Dated: February 14, 2020 Respectfully submitted, /s/ Connor G. Sheehan Connor G. Sheehan* Blake J. Brownshadel* DUNN SHEEHAN LLP 3400 Carlisle Street, Ste. 200 Dallas, Texas 75204 Telephone: (214)866-0077 Facsimile: (214)866-0070 Pro Hac Vice /s/ Robert A. Mosier Robert A. Mosier Victoria J. Maniatis SANDERS PHILLIPS GROSSMAN LLC 16755 Von Karman Ave., Ste 200, Irvine, CA 92606 Telephone: (949) 233-7002 Facsimile: (888) 307-7697 rmosier@thesandersfirm.com Attorneys for Plaintiffs PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 13 13 of 29 FILED: NEW YORK COUNTY CLERK 02/14/2020 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/14/2020 EXHIBIT 1 PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO SERVER AND DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS - PAGE 14 14 of 29 FILED: NEW YORK COUNTY CLERK 02/13/2019 02/14/2020 12:45 05:17 PM INDEX NO. 159346/2018 NYSCEF DOC. NO. 13 34 RECEIVED NYSCEF: 02/13/2019 02/14/2020 STATE O