United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO STAY
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
before the Court is the Motion to Stay Discovery (Doc. 22)
filed by Defendant Kansas Regenerative Medicine Center, LLC
(hereinafter “Defendant”). Having reviewed the
submissions of the parties, Defendants' motion is
DENIED for the reasons set forth below.
is a stem cell treatment center providing adult stem cell
therapy treatments. Plaintiff contends that Defendant's
process directly infringes the treatment methods claimed in a
patent held by Plaintiff, the “‘202
Patent.” (Doc. 1, at 14, 20.)
moves the Court for an Order stay of the present action while
awaiting the resolution of a later-filed patent infringement
case Plaintiff brought in the Central District of California
against California Stem Cell Treatment Center, another clinic
performing stem cell treatments, VetStem Biopharma, Inc.
v. California Stem Cell Treatment Center, Inc., No.
19-4728 (hereinafter “the California case”).
Defendant argues that allowing the California case “to
proceed with [sic] promote judicial economy and ultimately,
save the Court, counsel and parties time and resources by
deciding identical issues in a single action.” (Doc.
23, at 1.)
decision to stay discovery and other pretrial proceedings is
firmly vested in the sound discretion of the trial
court.” Toney v. Harrod, No. 15-3209-EFM-TJJ,
2018 WL 5830398, at *1 (D. Kan. Nov. 7, 2018) (citing Pet
Milk Co. v. Ritter, 323 F.2d 586, 588 (10th Cir. 1963);
McCoy v. U.S., No. 07-2097-CM, 2007 WL 2071770, at
*2 (D. Kan. July 16, 2007)). This power is part of the
Court's inherent power to control its docket. Ed
Tobergte Assocs. Inc. v. Zide Sport Shop of Ohio, Inc.,
83 F.Supp.2d 1197, 1198 (D. Kan. 1999) (citation omitted).
stated, Tenth Circuit has concluded that “the right to
proceed in court should not be denied except under the most
extreme circumstances.” Commodity Futures Trading
Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d
1477, 1484 (10th Cir. 1983). For instance, the District of
Kansas generally does not favor staying discovery pending a
ruling on a dispositive motion. McCoy, 2007 WL
2071770, at *2.
discussed above, there is an allegedly similar case pending
in the Central District of California against California Stem
Cell Treatment Center, another clinic performing stem cell
treatments, VetStem Biopharma, Inc. v. California Stem
Cell Treatment Center, Inc., No. 19-4728. Defendant
contends that the “first-to-file” rule validates
staying the proceedings in the present action.
Federal courts have developed a general rule to apply to
situations in which essentially the same issues and litigants
are involved in two substantially identical causes of action
before federal courts in different districts. The
first-to-file rule provides that the court where jurisdiction
first attaches should make the determination of the
appropriate venue to decide the case, and the second court
will decline to act until proceedings in the first court
terminate. See Cessna Aircraft Co. v. Brown, 348
F.2d 689, 692 (10th Cir.1965); see also Hospah Coal Co.
v. Chaco Energy Co., 673 F.2d 1161 (10th Cir.1982);
Custom Energy, LLC v. Liebert Corp., No. Civ. A. 98-
2077-GTV, 1998 WL 295610 (D.Kan. June 2, 1998).
Tobergte Assocs., 83, F.Supp.2d at 1198.
the present action was filed before the California action
(yet on the same day), Defendant argues that this case should
be stayed “because … the equities and principals
of judicial economy underlying the first to file rule weigh
in favor of allowing resolution of the California Action
before proceeding with the claims against KRMC.” (Doc.
23, at 2.) More specifically, Defendant continues that
(1) the Plaintiff is asserting identical claims in both
suits; (2) Defendant KRMC is postured substantially similar
to the Defendant in the California Action; and (3) judicial
economy will be served by allowing the California Action to
proceed. Finally, and perhaps most importantly, the parties
in the California Action are the larger and more important
‘players' in this dispute, and fairness and equity
favor having those parties be the ones that spend the money
and time to first decide the issues of infringement and
validity of the patent in question, before a small ...