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In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

October 13, 2017

IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to All Cases)

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE U.S. DISTRICT JUDGE.

         This matter is before the court on Defendants' Motion to Continue Stay of Discovery (ECF No. 50). In their motion, defendants ask the court to continue the stay of all discovery until it decides their pending and anticipated motions to dismiss. Plaintiffs oppose the requested stay. For the reasons discussed below, the court grants the motion in part and denies it in part.

         I. Legal Standard for Motion to Stay Discovery

         The decision to stay discovery and other pretrial proceedings is firmly vested in the sound discretion of the trial court.[1] The Tenth Circuit, however, has held that “the right to proceed in court should not be denied except under the most extreme circumstances.”[2] A stay is not favored because it can delay a timely resolution of the matter.[3] Therefore, as a general rule, the District of Kansas does not favor staying discovery pending a ruling on a dispositive motion.[4]

Although, upon a showing of good cause, the court may . . . stay or limit the scope of discovery to protect a party from annoyance, embarrassment, oppression or undue burden or expense, bare assertions that discovery will be unduly burdensome or that it should be stayed because pending dispositive motions will probably be sustained, are insufficient to justify the entry of an order staying discovery generally.[5]

         However, a stay pending a ruling on a dispositive motion may be appropriate where the following circumstances are present:

(1) the case is likely to be finally concluded via the dispositive motion;
(2) the facts sought through discovery would not affect the resolution of the dispositive motion; or (3) discovery on all issues posed by the complaint would be wasteful and burdensome.[6]

         A party seeking a stay of discovery has the burden to show a clear and compelling reason for the court to issue a stay.[7]

         II. The Parties' Arguments

         Defendants argue that all the factors favoring a stay are present in this case. They think it likely that the court's rulings on their motions to dismiss will, “[a]t a minimum, ” result in “entire categories of issues, claims, and defendants” dropping out of the case. Reciting the standard for ruling on a motion under Federal Rule of Civil Procedure 12(b)(6), defendants also assert that no facts adduced during discovery will affect the court's ruling. Finally, defendants contend it would be wasteful, burdensome and prejudicial to allow discovery to go forward before knowing if any claims or parties will remain following the court's ruling on the motions to dismiss.

         Relying in part on the general rule in this district that the court should not stay discovery pending a ruling on dispositive motions, plaintiffs contend defendants have not met their burden to show a compelling reason to grant the stay. Plaintiffs also reach a different conclusion on each of the factors defendants discuss. They submit defendants' motions to dismiss are not likely to conclude this litigation, argue that certain Pfizer patent settlement agreements are indeed relevant to the viability of the class plaintiffs' antitrust claims, and dispute the burden defendants would bear if discovery begins sooner rather than later.

         III. Application of the Standard to This Case

         As noted above, the great weight of authority in this District disfavors granting a stay of discovery and other pretrial proceedings, even when a dispositive motion is pending. In those instances where a stay is appropriate, at least one of the following three factors is present: (1) the case is likely to be finally concluded as a result of the ruling, (2) the facts sought through the remaining discovery ...


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