Private Medical Care Foundation, Inc. v. Califano

• Decision Date: 14 October 1977
• Docket Number: No. CIV-77-0728-D.,CIV-77-0728-D.
• Citation: 451 F. Supp. 450
• Parties: PRIVATE MEDICAL CARE FOUNDATION, INC., a corporation, Congress of County Medical Societies, Inc., a corporation, Pottawatomie County Medical Society, Inc., a corporation, Oklahoma State Medical Association and Francis A. Davis, M.D., Plaintiffs, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education & Welfare, Donald Kennedy, Commissioner of the Food & Drug Administration and J. Richard Crout, Director, Bureau of Drugs, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

451 F. Supp. 450

PRIVATE MEDICAL CARE FOUNDATION, INC., a corporation, Congress of County Medical Societies, Inc., a corporation, Pottawatomie County Medical Society, Inc., a corporation, Oklahoma State Medical Association and Francis A. Davis, M.D., Plaintiffs, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education & Welfare, Donald Kennedy, Commissioner of the Food & Drug Administration and J. Richard Crout, Director, Bureau of Drugs, Defendants.

No. CIV-77-0728-D.

United States District Court, W. D. Oklahoma.

October 14, 1977.

Roy J. Davis, Don G. Holladay, Oklahoma City, Okl., for plaintiffs.

John E. Green, Acting U. S. Atty., by Ronny D. Pyle, Asst. U. S. Atty., Oklahoma City, Okl., Jeffrey B. Springer, Deputy Chief Counsel, Michael P. Peskoe, Associate Chief Counsel, Donald O. Beers, Asst. Chief Counsel, FDA, Department of HEW, Rockville, Md., for defendants.

ORDER

DAUGHERTY, Chief Judge.

In this action, the Plaintiffs seek declaratory and injunctive relief with respect to a final regulation promulgated by the Commissioner of the Food and Drug Administration. The Defendants herein are Joseph A. Califano, Jr., the Secretary of Health, Education & Welfare; Donald Kennedy, the Commissioner of the Food & Drug Administration; and J. Richard Crout, the Director of the Bureau of Drugs. The regulation involved prescribes patient labeling requirements for estrogens for general use.

The action was filed in this Court on July 25, 1977. On July 29, 1977, an action¹ was filed in the United States District Court for the District of Delaware seeking declaratory and injunctive relief from the same regulation that is at issue in this case. The complaint in the Delaware action was filed by the Pharmaceutical Manufacturers Association against Defendants Food & Drug Administration; Joseph A. Califano, Jr., Secretary of Health, Education & Welfare; and Donald Kennedy, Commissioner of Food and Drugs.²

On August 12, 1977, the defendants in the Delaware case moved to transfer that action to this district, or, in the alternative, to stay or dismiss said action with leave to the plaintiff therein to resume its litigation upon final determination of this case. The plaintiff in the Delaware case filed a motion for preliminary injunction on September 12, 1977; a similar motion was filed in this case by the Plaintiffs herein on September 13, 1977. On October 5, 1977, the Delaware court rendered its opinion denying the defendants' motion to transfer, dismiss or stay the Delaware case in favor of the case in this district and denying the Delaware plaintiff's application for preliminary injunction.³ On October 7, 1977, the Defendants in this case filed a Motion and Brief to Dismiss or Stay, requesting that the Court dismiss this proceeding or stay the same pending conclusion of the Delaware litigation. The aforementioned October 5, 1977 opinion of the Delaware court is attached to Defendants' Motion. Plaintiffs have filed a Brief in Opposition to Defendants' Motion and Brief to Dismiss or Stay.

The basis of the Motion to Dismiss or Stay filed herein is that there are now pending in the District of Delaware and the Eastern District of Louisiana actions involving the same issues as are involved in this case. Defendants claim that all groups affected by the challenged regulation, to include manufacturers, retailers, pharmacists, physicians and consumers, are represented in the Delaware litigation.

In opposition to Defendants' Motion, Plaintiffs claim that there are factors existing in this case which militate against it being stayed while the Delaware action goes forward. Plaintiffs state that this Court, as the Court whose action was first filed, has priority; that the parties in the Delaware and Oklahoma cases are not identical; that simultaneous litigation in Delaware and Oklahoma would not tax FDA's manpower abilities; that where the question is one of national importance, the appellate court may welcome the interim expression of views by more than one lower court; that there is no reason to expect protracted litigation in this case whereas it would appear that it would be four to nine months before a decision in the Delaware case would be rendered; that the rights of the Plaintiffs in this case are not receiving attention in the Delaware litigation; that the issues presented in this case are apparently not being considered by the Delaware court; and the Plaintiffs are unable to intervene in the Delaware case as venue would be improper.

Defendants' Motion, insofar as it seeks dismissal of this action, is denied for the reason that it does not assert any of the defenses enumerated in Rule 12(b), Federal Rules of Civil Procedure. Ainsworth v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 298 F.Supp. 479 (W.D.Okla.1969).

However, inherent in the power of every Court to control its docket is the power to stay proceedings in the interest of justice. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Hines v. D'Artois, 531 F.2d 726 (Fifth Cir. 1976). The granting of a stay ordinarily lies within the sound discretion of the district court. Pet Milk Co. v. Ritter, 323 F.2d 586 (Tenth Cir. 1963); SEC v. Standard Life Corp., 413 F.Supp. 84 (W.D.Okla.1976).

The Supreme Court in Landis v. North American Co., supra, made several general statements relevant to district court stay orders:

"The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. . . . True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a bare possibility that the stay for which he prays will work damage to some one

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