Case transferred to Southern Florida per certified copy of Conditional Transfer Order Number 1. The Transferring Clerk's Office hereby attests the record and the docket sheet available through CM/ECF to be the certified list. (asni, ) (Entered: 02/18/2015)
TEXT ORDER: This matter is before the court pursuant to Plaintiff Angelina Sujata's ("Plaintiff") Emergency Motion for the Preservation of Evidence of All Takata Ruptured Inflators Removed from Accident Vehicles and All Non-ruptured Inflators being Replaced under Ongoing Honda Recalls ("Motion for Preservation of Evidence"). (ECF No. 12.) In her Motion for Preservation of Evidence, Plaintiff requests that the court order Defendants Takata Corporation, Takata, Inc., and TK Holdings Inc. (collectively "Takata Defendants"), and Defendants Highland Industries, Inc., Honda Motor Co., Ltd., Honda R&D Co., Ltd., American Honda Motor Co., Inc., and Honda of America Mfg., Inc. (collectively "Honda Defendants"), to (1) secure and preserve [in the United States], in unaltered form: (a.) Any and all ruptured inflators previously removed from accident or defective field vehicles in the[ir] possession... and (b.) Any and all un-ruptured canisters removed under recall proceedings by and/or currently in the[ir] possession...." (Id. at 1-2.) Honda Defendants oppose the Motion for Preservation of Evidence asserting that (1) Plaintiff has not made the requisite demonstration of an "emergency" because "there is no colorable threat that evidence that should be preserved will be destroyed"; (2) the relief requested by Plaintiff "would interfere with Takata [Defendants'] ongoing testing of inflators"; and (3) Plaintiff's actions would impede "efforts to coordinate more than 75 personal injury and class actions in a... multi-district litigation." (ECF No. 21 at 1.) Takata Defendants agree with Honda Defendants that there is not an emergency requiring a preservation order and argue that such an order from the court is unnecessary because they have already "voluntarily undertaken to preserve ruptured inflators retrieved from accidents," and will further voluntarily undertake "to preserve those inflators until an MDL court addresses any actual preservation issue in a comprehensive and coordinated fashion." (ECF No. 27 at 1.) In addition to the opposition voiced by Takata Defendants and Honda Defendants, the National Highway Traffic Safety Administration ("NHTSA") entered an appearance pursuant to 28 U.S.C. § 517 and filed opposition to Plaintiff's Motion for Preservation of Evidence asserting that a preservation order would undermine the interests of the United States and the general public because the order would halt Takata Defendants' "ongoing testing efforts essential to NHTSA's safety investigation" and "would require the delivery and preservation of hundreds of thousands of recalled Takata inflators at a single location, and thereby would prohibit any transfer of inflators to other entities for further testing, whether carried out by vehicle manufacturers or NHTSA itself." (ECF No. 26 at 2.) Litigants owe a duty to preserve evidence in a pending lawsuit even without a discovery request or order. See Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) ("The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.") (Citation omitted). The court observes that Plaintiff's Motion for Preservation of Evidence is akin to a motion seeking to preliminarily enjoin Takata Defendants and Honda Defendants from altering (i.e., testing) any ruptured inflators or un-ruptured canisters. To be entitled to the type of relief he seeks, Plaintiff must establish that (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 34647 (4th Cir. 2009). Upon review, the court agrees with Honda Defendants and Takata Defendants that Plaintiff fails to establish irreparable harm because the injuries she suffered in a 2001 Honda Civic do not entitle her to demand preservation of any and all inflators from millions of other Honda vehicles. The court further finds that NHTSA's opposition effectively establishes that the public interest would not be served by granting Plaintiff's Motion for Preservation of Evidence. (See ECF No. 40 at 7 ("Entering the preservation order sought by Plaintiff in this private litigation would effectively prohibit any and all further testing efforts on recalled inflators.... A limitation on that testing would substantially hinder the agency's mission to protect public safety.").) Therefore, based on the foregoing, the court DENIES WITHOUT PREJUDICE Plaintiff's Motion for Evidence. denying 12 Motion to Preserve Evidence. Signed by Honorable J Michelle Childs on 2/17/2015.(asni, ) (Entered: 02/17/2015)
SUMMONS Returned Executed by Angelina C Sujata. TK Holdings Inc served on 2/11/2015, answer due 3/4/2015. (Dean, Kevin) (Main Document 43 replaced on 2/13/2015) (mbro, ). (Additional attachment(s) added on 2/13/2015: # 1 Proof of Service) (mbro, ). Modified on 2/13/2015 to replace incorrect document with correct document as provided by filing user(mbro, ). (Entered: 02/12/2015)
SUMMONS Returned Executed by Angelina C Sujata. Honda of America Mfg Inc served on 2/11/2015, answer due 3/4/2015. (Dean, Kevin) (Main Document 42 replaced on 2/13/2015) (mbro, ). (Additional attachment(s) added on 2/13/2015: # 1 Proof of Service) (mbro, ). Modified on 2/13/2015 to replace incorrect document with correct document as provided by filing user(mbro, ). (Entered: 02/12/2015)
SUMMONS Returned Executed by Angelina C Sujata. Highland Industries Inc served on 2/11/2015, answer due 3/4/2015. (Dean, Kevin) (Main Document 41 replaced on 2/13/2015) (mbro, ). (Additional attachment(s) added on 2/13/2015: # 1 Proof of Service) (mbro, ). Modified on 2/13/2015 to replace incorrect document with correct document as provided by filing user (mbro, ). (Entered: 02/12/2015)
SUMMONS Returned Executed by Angelina C Sujata. American Honda Motor Co Inc served on 2/11/2015, answer due 3/4/2015. (Dean, Kevin) (Main Document 40 replaced on 2/13/2015) (mbro, ). (Additional attachment(s) added on 2/13/2015: # 1 Proof of Service) (mbro, ). Modified on 2/13/2015 to replace incorrect document with correct document as provided by filing user (mbro, ). (Entered: 02/12/2015)
RESPONSE in Opposition re 28 First MOTION to Stay All Proceedings Response filed by Angelina C Sujata.Reply to Response to Motion due by 2/20/2015 (Attachments: # 1 Exhibit CTO # 1, # 2 Exhibit Senate Ltr to NHTSA)(Dean, Kevin) (Entered: 02/09/2015)
TEXT ORDER: This matter is before the Court pursuant to TK Holdings, Inc. and Highland Industries, Inc.'s (collectively the "Takata Defendants") Motion to Stay All Proceedings. (ECF No. 28.) In their motion, Takata Defendants seek to have this action stayed "pending a ruling by the Judicial Panel on Multidistrict Litigation ("JPML") on a motion for consolidation and transfer of the Takata airbag litigation to a transferee MDL court." (Id.) While the Motion to Stay All Proceedings was pending, the JPML heard argument on the motion for consolidation and transfer on January 29, 2015, and entered a conditional transfer order on February 6, 2015, which ruling included this case as one of the matters transferred. (See attached ECF No. 306 (In re: Takata Airbag Prods. Liab. Litig., MDL No. 2599 (U.S.J.P.M.L. Feb. 6, 2015) ("Pursuant to Rule 7.1 of the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation, the action(s) on the attached schedule are transferred under 28 U.S.C. § 1407 to the Southern District of Florida for the reasons....")).) Therefore, since the event has occurred for which Takata Defendants' sought the stay, the court DENIES AS MOOT Takata Defendants' Motion to Stay All Proceedings. denying as moot 28 Motion to Stay. Signed by Honorable J Michelle Childs on 2/9/2015.(asni, ) (Entered: 02/09/2015)
MOTION to Appear Pro Hac Vice by Larry E. Coben ( Filing fee $ 250 receipt number 0420-5762089) by Devon Rideout, Michael Schafle, Scian Schafle. Response to Motion due by 2/17/2015. (Attachments: # 1 Affidavit Application/Affidavit for Larry Coben Pro Hac Vice Admission)No proposed order.(Lewis, Arthur) (Entered: 01/30/2015)
MOTION to Intervene by Devon Rideout, Michael Schafle, Scian Schafle. Response to Motion due by 2/17/2015. (Attachments: # 1 Exhibit A-verifications)No proposed order.(Lewis, Arthur) (Entered: 01/30/2015)
RESPONSE in Opposition re 12 MOTION for Discovery Evidence Preservation Response filed by USA.Reply to Response to Motion due by 2/2/2015 (Attachments: # 1 Declaration of Frank Borris)(Bowens, Barbara) (Entered: 01/21/2015)
TEXT ORDER granting (33) Motion to Appear Pro Hac Vice. in case 5:14-cv-04485-JMC; granting (19) Motion to Appear Pro Hac Vice. in case 3:15-cv-00112-JMC Signed by Honorable J Michelle Childs on 1/21/2015.Associated Cases: 3:15-cv-00112-JMC, 5:14-cv-04485-JMC(asni, ) (Entered: 01/21/2015)
TEXT ORDER granting 22 Motion for Extension of Time to File Response/Reply re 12 MOTION to preserve evidence. Response to Motion due by 1/21/2015. Signed by Honorable J Michelle Childs on 1/21/2015.(asni, ) (Entered: 01/21/2015)
MOTION for Extension of Time to File Response/Reply as to 12 Motion to preserve evidence by Highland Industries Inc, TK Holdings Inc. Response to Motion due by 2/6/2015. Proposed order is being emailed to chambers with copy to opposing counsel.(Hood, James) (Entered: 01/20/2015)
RESPONSE in Opposition re 12 MOTION for Discovery Evidence Preservation Response filed by American Honda Motor Co Inc, Honda of America Mfg Inc.Reply to Response to Motion due by 1/30/2015 (Attachments: # 1 Exhibit A - 11-24-2008 PHMSA Classification of Explosives (PSDI-4 Inflator), # 2 Exhibit B - 11-24-2008 PHMSA Classification of Explosives (PSDI-3 Inflator), # 3 Exhibit C - Parts Information Bulletin Safety Recall Drivers Air Bag Inflator (Revised 08-30-13), # 4 Exhibit D - Parts Information Bulletin Safety Recall Passengers Side Air Bag Inflator 2001-2003 Civic, 2002-03 CR-V, and 2002 Odyssey, # 5 Exhibit E - JPML 2599 Dkt. 140, # 6 Exhibit F - JPML 2599 Dkt. 177, # 7 Exhibit G - JPML 2599 Sujata Notice of Appearance, # 8 Exhibit H - FLSD 24009 Dkt. 101, # 9 Exhibit I - FLSD 24009 Dkt. 100)(Smith, Joel) (Entered: 01/20/2015)
NOTICE of Appearance by Barbara Murcier Bowens on behalf of USA (Attachments: # 1 Affidavit Declaration Frank Borris and Exhibits)(Bowens, Barbara) (Entered: 01/20/2015)
MOTION to Appear Pro Hac Vice by Michael Andrew Zee by USA. Response to Motion due by 2/6/2015. (Attachments: # 1 Application-Affidavit for Pro Hac Vice Admission)No proposed order.(Bowens, Barbara) (Entered: 01/20/2015)
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings, motion hearing held on January 13, 2015, before Judge J. Michelle Childs. Court Reporter/Transcriber Dan Mayo, Telephone number/E-mail Daniel_Mayo@scd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 2/5/2015. Redacted Transcript Deadline set for 2/17/2015. Release of Transcript Restriction set for 4/15/2015. (dmayo, ) (Entered: 01/15/2015)
TEXT ORDER: This matter is before the court to preliminarily address issues raised by Plaintiff in an Emergency Motion for the Preservation of Evidence of All Takata Ruptured Inflators Removed from Accident Vehicles and All Non-ruptured Inflators being Replaced under ongoing Honda Recalls ("Motion for the Preservation of Evidence") filed on January 9, 2015. (ECF Nos. 26 (5:14-cv-04485-JMC), 12 (3:15-cv-00112-JMC).) Specifically, in the Motion for Preservation of Evidence, Plaintiff asks the court to order Defendants to (1) secure and preserve [in the United States], in unaltered form: [] Any and all ruptured inflators previously removed from accident or defective field vehicles in the[ir] possession... and [] [a]ny and all un-ruptured canisters removed under recall proceedings by and/or currently in the[ir] possession... and (2) "deliver any and all defective or suspect ruptured and/or recalled but un-ruptured inflators previously removed from accident, defective, and/or recalled field vehicles within 10 days to some jointly agreed upon and/or Court-designated location in the United States to ensure preservation and competent storage of those items." (Id. at 12.) Although Defendants have not had the opportunity to respond to Plaintiff's Motion for the Preservation of Evidence, the court nevertheless conferred with the parties via teleconference on January 13, 2015. Thereupon, as to issue (2) above-referenced, the court learned that Defendants had voluntarily agreed with Plaintiff's consent to maintain specified ruptured and un-ruptured canisters at TK Holdings, Inc.'s facility located near Detroit, Michigan while the court adjudicated Plaintiff's Motion for Preservation of Evidence. The court finds this arrangement to be a satisfactory resolution of issue (2). As to issue (1) above, the court reserves adjudication of this issue until after the parties have finished briefing issues relevant to the Motion for Preservation of Evidence. Signed by Honorable J Michelle Childs on 1/13/2015. Associated Cases: 3:15-cv-00112-JMC, 5:14-cv-04485-JMC(asni, ) (Entered: 01/13/2015)
TEXT ORDER: This matter is before the court to address the unintended consequences of a text order that was entered on January 12, 2015 in this matter. In the January 12, 2015 text order, the court required Defendants "to preserve the evidence until the court's ruling in this case." (ECF Nos. 27 (5:14-cv-04485-JMC), 13 (3:15-cv-00112-JMC).) After conferring with counsel for the parties on January 13, 2015, the court vacates the January 12, 2015 text order to the extent that it hinders or prevents ongoing destructive testing and/or investigation of recovered inflators/canisters being conducted to determine the cause(s) of airbag ruptures. The court did not intend for this effect and orders the immediate lifting of this "stay." vacating in part 13 Order Signed by Honorable J Michelle Childs on 1/13/2015. (asni, ) (Entered: 01/13/2015)
Minute Entry. Proceedings held before Honorable J Michelle Childs: taking under advisement (26) Motion for Discovery in case 5:14-cv-04485-JMC; taking under advisement 12 Motion for Discovery; Telephone Conference held on 1/13/2015 in case 3:15-cv-00112-JMC. Written order forthcoming. Court Reporter Dan Mayo. Associated Cases: 3:15-cv-00112-JMC, 5:14-cv-04485-JMC(mbro, ) (Entered: 01/13/2015)
NOTICE of Hearing: Telephone Conference set for 1/13/2015 11:00 AM before Honorable J Michelle Childs. Plaintiff's counsel shall initiate the call and have all parties on the line prior to contacting the court at 803-765-5063.Associated Cases: 3:15-cv-00112-JMC, 5:14-cv-04485-JMC(asni, ) (Entered: 01/13/2015)
TEXT ORDER: Defendant is directed to respond to the plaintiff's emergency motion for the preservation of evidence by January 20, 2015. Defendant is instructed to preserve the evidence until the court's ruling in this case. ( Response to Motion due by 1/20/2015.) Signed by Honorable J Michelle Childs on 1/12/2015. Associated Cases: 3:15-cv-00112-JMC, 5:14-cv-04485-JMC(asni, ) (Entered: 01/12/2015)
MOTION for Discovery Evidence Preservation by Angelina C Sujata. Response to Motion due by 1/26/2015. No proposed order.(Dean, Kevin) (Entered: 01/09/2015)
COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0420-5727273.), filed by Angelina C Sujata. Service due by 5/15/2015(asni, ) (Entered: 01/09/2015)
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