United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO STAY, DEFERRING PLAINTIFFS' MOTION TO REMAND,
AND DEFERRING DEFENDANTS' MOTION TO DISMISS
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
civil action arises out of plaintiffs' purchase of
allegedly defective flooring from Lumber Liquidators for
their home. In this civil action, plaintiffs assert claims
for breach of express warranty, negligence, fraud,
misrepresentation, and violations of the West Virginia
Consumer Credit and Protection Act
before the Court are three fully briefed motions: (1)
defendants' motion to dismiss (ECF No. 4); (2)
defendants' motion to stay (ECF No. 7); and (3)
plaintiffs' motion to remand.
reasons set forth below, this Court grants defendants'
motion to stay (ECF No. 7), defers defendants' motion to
dismiss (ECF No. 4), and defers plaintiffs' motion to
remand (ECF No. 11).
filed their complaint in the Circuit Court of Ohio County, West
Virginia, and this case was removed to this Court pursuant to
28 U.S.C. § 1332. ECF No. 1.
Lumber Liquidators, Inc. and Lumber Liquidators Holdings,
Inc. (collectively, "Lumber Liquidators") then
filed a motion to dismiss for failure to state a claim. ECF
also filed a motion to stay all proceedings in the action
filed by plaintiffs Bryan Gaus and Danielle Gaus
(collectively, "plaintiffs"), pending the Judicial
Panel on Multidistrict Litigation's ("JPML")
resolution of Plaintiffs' Opposition to Conditional
Transfer Order ("CTO") 40 transferring this case to
MDL 2627: In re: Lumber Liquidators Chinese-Manufactured
Flooring Products Marketing, Sales Practices and Products
Liability Litigation. ECF No. 7.
pursuant to 28 U.S.C. §1446, filed a motion to
remand (ECF No. 11) this case to the Circuit
Court of Ohio County, West Virginia asserting that defendants
have "failed to satisfy their burden of proving the $75,
000 amount-in-controversy requirement." ECF No. 11 at 1.
civil action is subject to a Conditional Transfer Order
(CTO-40, Document No. 579) as entered by the United States
Judicial Panel on Multidistrict Litigation on December 11,
of background, the plaintiffs Bryan Gaus and Danielle Gaus,
previously filed suit in the Circuit Court of Ohio County,
West Virginia, on February 28, 2017, against the defendants.
That civil action was removed to the United States District
Court for the Northern District of West Virginia pursuant to
28 U.S.C. § 1332 before United States District Judge
John Preston Bailey.Defendants sought transfer of the action to
the United States Court for the Eastern District of Virginia
for inclusion in MDL No. 2627, pointing out that the factual
allegations of the first complaint shared extensive common
questions of fact with the cases already pending in the MDL,
and moved to stay the action pending in the Northern District
of West Virginia until the Judicial Panel on Multidistrict
Litigation ("JPML") ruled upon the transfer of the
action to the MDL.
Bailey entered an order granting defendants' motion to
pending the Judicial Panel on Multidistrict Litigation's
resolution of plaintiffs' opposition to conditional
transfer order 29 transferring the case to MDL 2627: In
re: Lumber Liquidators Chinese-Manufactured Flooring Products
Marketing, Sales Practices and Products Liability
Litigation. Judge Bailey noted in the order that
plaintiffs' motion to remand was also pending before the
Court, and deferred ruling on the motion to remand pending
action from the MDL Panel.
August 2, 2017, the first action was transferred to the
United States Court for the Eastern District of Virginia for
inclusion in the MDL assigned to Judge Anthony John Trenga.
The JPML denied plaintiffs' objections to transfer,
finding that the action had extensive factual overlap with
the approximately 125 cases pending in the MDL, and
transferred the case to the MDL over plaintiffs'
as a threshold matter, while plaintiffs' arguments may be
different, this Court finds that this instant action involves
the same plaintiffs, the same defendants, and arises out of
the same operative facts as the first action brought by
plaintiffs which was previously pending before Judge Bailey
in the Northern District of West Virginia and then
transferred to the MDL in the Eastern District of Virginia.
This Court agrees with Judge Bailey's analysis and finds
that the same reasoning is applicable here. This Court is
also fully of the opinion, like Judge Bailey, that staying
this case pending the MDL Panel's decision on the