Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 1 of 13 Page ID #207
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
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`Case No. 3:21-cv-00807-MAB
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`v.
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`NETFLIX, INC., et al.,
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`Plaintiff,
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`Defendants.
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`VILLAGE OF SHILOH,
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`DISH DEFENDANTS’ AMENDED MOTION TO RECONSIDER REMAND ORDER
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`Pursuant to Fed. R. Civ. P. 59(e), Defendants DISH Network Corp. and DISH Network
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`L.L.C. (together, “DISH”) respectfully request that this Court reconsider its remand order of March
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`24, 2022 (“Order”). Dkt. 68. In the Order, the Court noted the absence of a “motion or formal
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`request asking this Court to consolidate, stay, or dismiss this case.” Id. at 13. Under Seventh
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`Circuit precedent, however, the words the Defendants used amount to an effective alternative
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`request for consolidation. As the Defendants put it: “[t]his Court has several case management
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`options that it may exercise in its discretion, including [] consolidating this action, in full or in
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`part, with the East St. Louis Case . . . .” Dkt. 58 at 2 n.1. The absence of a formal request should
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`not stand in the way of the Court’s considering the substantial efficiencies of consolidation and,
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`conversely, the inefficiencies of two separate proceedings on exactly the same subject. As
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`explained below, there is good reason to consolidate this case with the first-filed East St. Louis
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`case because the factors favoring consolidation outweigh the comity abstention factors addressed
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`in the Court’s Order. Accordingly, DISH respectfully requests that the Court recall its mandate to
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`the state court and grant leave to file a formal motion to consolidate.
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`1
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 2 of 13 Page ID #208
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`I.
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`Background
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`This Court is already familiar with the relevant facts and procedural posture. This case is
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`identical to an earlier filed case styled City of East St. Louis v. Netflix, Inc., et al., No. 3:21-cv-561
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`(“East St. Louis Action”), which is pending before this Court. This case is duplicative litigation;
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`it asserts the same claims under the same statute on behalf of the same putative class seeking the
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`same relief against five of the same defendants named in the East St. Louis Action (i.e., Netflix,
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`Hulu, Disney, DISH, and DIRECTV).
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`Plaintiff has not disputed that this Court has diversity jurisdiction over this case pursuant
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`to the Class Action Fairness Act (“CAFA”). However, Plaintiff contends that remand is proper
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`under the discretionary doctrine of comity abstention.
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`In the Order, the Court “acknowledge[d] that remand will result in a situation where
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`duplicative lawsuits are proceeding in state and federal court” and that the East St. Louis Action
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`“will remain in this District.” Order at 14. But the Court did not view the situation as something
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`to be resolved sua sponte without a formal consolidation request and formal briefing. Id. at 15.
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`Consolidation is appropriate, and the arguments made by Defendants amount to an effective
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`request for consolidation. DISH stands ready to make a formal request if the Court will permit
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`one.
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`II.
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`Argument
`A.
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`This Court has jurisdiction to reconsider its remand order.
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`The threshold inquiry is whether this Court still has jurisdiction to reconsider its remand
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`Order. It does. The Seventh Circuit permits district courts to reconsider their remand orders if
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`those orders are appealable. See J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 273–274
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`(7th Cir. 1990). As the Seventh Circuit explained, “[w]hen we would have jurisdiction to review
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`a remand order, it would be efficient to allow the district court also to retain jurisdiction to
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`2
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 3 of 13 Page ID #209
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`reconsider its order….” Id. at 273. Accordingly, “where an exception to the general bar against
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`the nonreviewability of remand orders applies, the district court has the power to reconsider its
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`order during the time for filing a notice of appeal.” Id. at 273-74; see also Hudson United Bank v.
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`LiTenda Mortg. Corp., 142 F.3d 151, 158 (3d Cir. 1998) (“[I]f § 1447(d) does not deny an appellate
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`court jurisdiction to review a remand order, it cannot deny the district court jurisdiction to entertain
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`a motion for reconsideration before the notice of appeal is filed.”).
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`This holding applies equally here. The Order was based on a comity abstention doctrine,
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`and is a reviewable remand order that can be appealed. See City of Fishers v. Netflix, Inc., 5 F.4th
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`750 (7th Cir. 2021) (finding jurisdiction over appeal of comity-based remand order). Additionally,
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`this motion is brought within the time for reconsideration under Fed R. Civ. P. 59 and the time for
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`an appeal under Fed R. App. P. 4. Thus, this Court has the power to reconsider its Order.
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`It does not matter that the Court has already issued its letter returning the case to the state
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`court. Dkt. 69. Although the Seventh Circuit did not address this scenario directly, its holding
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`contemplated that reconsideration could occur even if state court proceedings had resumed. See
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`J.O., 909 F.2d at 274 (observing that “both reconsideration and an appeal present the danger that
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`the remand order will be rescinded thereby disrupting state proceedings that may have restarted
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`after the remand”). Other courts have considered the issue and held that transmitting the remand
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`order to the state court does not deprive the federal court of jurisdiction to entertain a motion for
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`reconsideration of a reviewable remand order. See Academy of Country Music v. Continental
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`Casualty Company, 991 F.3d 1059, 1064-65 (9th Cir. 2021) (construing precedent and concluding
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`that “the transmittal of a remand order to the state court does not deprive a court of jurisdiction to
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`review that order if review is not barred by § 1447(d)”); Hudson United Bank, 142 F.3d at 158
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`(concluding “that the mailing of a remand order does not divest a district court of jurisdiction to
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 4 of 13 Page ID #210
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`entertain a motion for reconsideration following a remand order issued under § 1367(c)”). In that
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`circumstance, the district court may “recall[] the remand” and “notify the [state court] that the
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`district court has resumed jurisdiction over the action.” Academy of Country Music, 991 F.3d at
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`1070.
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`B.
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`Defendants’ arguments amount to an effective alternative request.
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`The Seventh Circuit has recognized that a de facto request generally suffices for relief. See
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`Goka v. Bobbitt, 862 F.2d 646, 648 (7th Cir. 1988) (“defendants opposed the amended complaint
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`in what the district court (J. Aspen) referred to as a ‘de facto motion to dismiss’”); U.S. v. Jones,
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`369 F.2d 217, 220 (7th Cir. 1966) (refusal to take witness stand is, “in effect,” a request for a
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`continuance). Indeed, the Northern District of Illinois has granted consolidation where defendants
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`expressed their agreement with consolidation in briefs, but no formal motion was ever filed. See
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`Midwest Community Council, Inc. v. Chicago Park Dist., 98 F.R.D. 491, 492 (N.D. Ill. 1983)
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`(granting consolidation, sua sponte, where “[b]riefs have been filed in which defendants express
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`their agreement with consolidation but plaintiffs object to one joint trial for both cases”). Here,
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`Defendants have done more: not only have they “express[ed] their agreement with consolidation,”
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`as in Midwest; they have emphatically stated that “[t]his Court has several case management
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`options that it may exercise in its discretion, including [] consolidating this action, in full or in
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`part, with the East St. Louis Case . . . .” Dkt. 58 at 2 n.1. They have also explained that Congress
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`sought to promote “efficiencies in the judicial system by allowing overlapping and ‘copycat’ cases
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`to be consolidated in a single federal court (id. at 3), invoked the Court’s “duty to avoid duplicative
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`litigation of overlapping class actions in accordance with Congress’s objective” (id. at 1),
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`distinguished City of Fishers on the grounds that it did not implicate such duty (id.), and pointed
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`out that, under the case law, consolidation can outweigh comity. See Dkt. 40 at 5-6. Plaintiff, too,
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`understood that consolidation was exactly what was being requested, arguing in its motion to
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 5 of 13 Page ID #211
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`remand that Defendants’ judicial efficiency argument lacks merit. Dkt. 46 at 8-9. In short,
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`Defendants made no qualm about consolidation as a requested alternative and there was no obvious
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`reason not to wait for the Court first to resolve its jurisdiction, which is typically the threshold
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`issue, before turning to consolidation in a formal motion. In any event, the Court could have
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`proceeded to consolidate the cases sua sponte even without this request, as in Midwest. Finally,
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`as mentioned, DISH stands ready to file a formal consolidation motion with the leave of this Court.
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`C.
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`The factors favoring consolidation outweigh the factors favoring remand.
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`It is well-established that federal courts have a duty to avoid duplicative litigation, which
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`favors consolidating this case with the East St. Louis Action. Federal courts in this District
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`routinely consolidate duplicative cases under these circumstances, and consolidation for pre-trial
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`purposes is in accordance with CAFA’s objective of “allowing overlapping and ‘copycat’ cases to
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`be consolidated in a single federal court.” See S. Rep. No. 109–14 at 4–5 (2005), as reprinted in
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`2005 U.S.C.C.A.N. 3, 5–6. The comity abstention doctrine does not override the federal policy of
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`avoiding duplicative class actions.
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`1.
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`Consolidation is appropriate to avoid duplicative litigation.
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`Consolidation is governed by Fed. R. Civ. P. 42, which permits consolidation of actions
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`that involve “a common question of law or fact.” Fed. R. Civ. P. 42(a). It is appropriate to avoid
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`the unnecessary waste of judicial resources and additional cost and delay to the parties. Blair v.
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`Equifax Check Servs., Inc., 181 F.3d 832, 839 (7th Cir. 1999) (“By far the best means of avoiding
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`wasteful overlap when related suits are pending in the same court is to consolidate all before a
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`single judge.”); see also 9A Charles Alan Wright, et al., Fed. Prac. & Proc. Civ. § 2381 (3d ed.)
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`(the objective of consolidation “is to give the district court broad discretion to decide how cases
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`on its docket are to be tried so that the business of the court may be dispatched with expedition
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`and economy while providing justice to the parties”). “[Consolidation] is a matter committed to
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 6 of 13 Page ID #212
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`the sound discretion of the trial judge.” Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994);
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`see also McKnight v. Illinois Cent. R. Co., No. 09-CV-201-DRH, 2009 WL 1657581, at *1 (S.D.
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`Ill. June 12, 2009) (same).
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`Where, as here, the claims, parties, facts, and relief in the second case overlap with the first
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`case, the two cases should be consolidated. See Ikerd v. Lapworth, 435 F.2d 197, 204 (7th Cir.
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`1970) (consolidation is appropriate where “cases involve common questions of fact, and share
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`some identical questions of law”); McKnight, 2009 WL 1657581, at *1 (S.D. Ill. June 12, 2009)
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`(“The purpose behind a Rule 42(a) consolidation is to promote judicial efficiency ….”). “District
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`courts are accorded a great deal of latitude and discretion in determining whether one action is
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`duplicative of another, but generally, a suit is duplicative if the claims, parties, and available relief
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`do not significantly differ between the two actions.” Serlin v. Arthur Anderson & Co., 3 F.3d 221,
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`223 (7th Cir. 1993) (quotations omitted).
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`This case is a candidate for consolidation because it is duplicative of the East St. Louis
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`Action. This action was in fact filed after, and is less advanced than, the East St. Louis Action.
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`The two cases present the same claims on behalf of the same putative class. They raise the same
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`legal and factual issues under the same Illinois law, alleging the same claim for video service
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`provider fees. It is therefore likely that the same defenses under state and federal law will be
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`available to defendants in both cases, including defenses on the merits and defenses on the issue
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`of whether class certification is appropriate.1
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`1 The Rule 42 analysis of overlapping parties and issues between two separate putative class
`actions is distinct from the Rule 23 analysis of commonality among the putative class members’
`claims. Rule 42 involves “an entirely different standard than that for class actions under Rule 23.”
`In re Forty-Eight Insulations, Inc., 212 B.R. 938, 944 (Bankr. N.D. Ill. 1997); see also Blue Cross
`Blue Shield of Massachusetts, Inc. v. BCS Ins. Co., 671 F.3d 635, 640 (7th Cir. 2011) (explaining
`that Rule 42 “leaves to a district judge’s discretion—and without any of Rule 23’s procedures and
`safeguards—the decision whether to consolidate multiple suits”). Indeed, one overlapping issue
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 7 of 13 Page ID #213
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`Moreover, all defendants in this action are also defendants in the East St. Louis action. It
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`does not matter that the East St. Louis action includes some defendants who are not named in this
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`action. Rule 42 only requires there be overlapping issues of law or fact and does not require
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`overlapping, let alone identical, parties. See U.S. Bank Nat’l Assocs v. Springfield Prairie Props.,
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`LLC, 2015 WL 13333510, at *2 (C.D. Ill. Dec. 16, 2015) (“strict identity between the parties is
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`not required for consolidation to be appropriate”); see also Wolm v. Ahearn, No. 14-CV-3978 JFB
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`GRB, 2014 WL 5171763, at *1 (E.D.N.Y. Oct. 8, 2014) (“Cases may be consolidated where, as
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`here, there are different parties in the complaints.”).
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`2.
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`This case is duplicative of, and should be consolidated with, the East
`St. Louis Action.
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`Because this case and the East St. Louis Action are duplicative, the former should be
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`consolidated with the latter. See Jentz v. ConAgra Foods, 2011 WL 13234406, at *2 (S.D. Ill.
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`Dec. 23, 2011) (finding that consolidation “will conserve judicial resources” by eliminating the
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`need for “duplicative testimony and possible inconvenience or hardship to witnesses” and “also
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`prevents inconsistent verdicts”). Consolidation—not remand—will serve the important federal
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`interest expressed in CAFA of “providing a singular federal forum” in order “to protect
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`defendants from this type of activity, where different class members file separate class action
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`lawsuits in varying jurisdictions.” DeHart v. BP America, Inc., No. 09-cv-0626, 2010 WL
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`231744, at *12 (W.D. La. Jan. 14, 2010) (denying remand of class action where first-filed action
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`remained pending in federal court); see also S. Rep. No. 109–14 at 4–5 (2005), as reprinted in
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`2005 U.S.C.C.A.N. 3, 5–6 (noting that “[m]ultiple class action cases purporting to assert the
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`same claims on behalf of the same people often proceed simultaneously in different state courts,
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`between this case and the East St. Louis Action is that neither presents a putative class that satisfies
`the criteria for certification. Defendants do not waive, and hereby expressly reserve, their rights
`to contest class certification at the appropriate time.
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 8 of 13 Page ID #214
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`causing judicial inefficiencies and promoting collusive activity” as one of the abuses which
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`CAFA was intended to address by “creat[ing] efficiencies in the judicial system by allowing
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`overlapping and ‘copycat’ cases to be consolidated in a single federal court ....”).
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`CAFA “expand[s] federal jurisdiction so that overlapping actions can be coordinated and
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`decided by a single judge to promote judicial efficiency and ensure consistent treatment of legal
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`issues.” Millman v. United Tech. Corp., No. 16-cv-312, 2017 WL 1165081, at *5 (N.D. Ind.
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`Mar. 28, 2017) (collecting cases). Once an overlapping class action has been removed to federal
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`court under CAFA, consolidation is favored even if there are reasons to abstain. See id. at *4-5
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`(ordering consolidation of removed class action, denying remand, and declining to abstain under
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`CAFA’s local controversy exception).
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`In addition to CAFA, the first-to-file rule imposes a duty on courts “to avoid duplicative
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`litigation in more than one federal court.” Ozinga v. U.S. Dep’t of Health & Hum. Servs., No. 13-
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`cv-3292, 2013 WL 12212731, at *1 (N.D. Ill. Aug. 14, 2013) (citation and quotation omitted); see
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`also Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995). If
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`deferring to the first-filed case is consistent with “considerations of judicial and litigant economy,
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`and the just and effective disposition of disputes,” courts should so defer. MLR, LLC v. U.S.
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`Robotics Corp., No. 02-cv-2898, 2003 WL 685504, at *1 (N.D. Ill. Feb. 26, 2003). Indeed, Judge
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`Yandle transferred this action to this Court “[u]nder the logic” of the 7th Circuit’s Smith v. Check-
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`n-Go of Illinois decision, and for evidently these same purposes. Smith v. Check-n-Go of Illinois,
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`200 F.3d 511, 513 n.1 (7th Cir. 1999) (district court should have consolidated cases where “the
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`issues and parties have substantial overlap” before a single judge).
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`In these circumstances, federal courts have not hesitated to consolidate overlapping class
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`actions. See, e.g., Hedick v. Kraft Heinz Co., 2019 WL 4958238, at *3 (N.D. Ill. Oct. 8, 2019)
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`8
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 9 of 13 Page ID #215
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`(consolidating securities class actions); Brunner v. Jimmy John's, LLC, 2016 WL 7232560 (N.D.
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`Ill. Jan. 14, 2016) (consolidating two unpaid overtime FLSA class actions); Lewis v. Straka, 2005
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`WL 8163042 (C.D. Ill. Apr. 12, 2005) (consolidating two class action claims); Taubenfeld v. Career
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`Educ. Corp., 2004 WL 554810 (N.D. Ill. Mar. 19, 2004) (consolidating six securities fraud class
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`actions); Mayo v. Apropos Tech., Inc., 2002 WL 193393, at *2 (N.D. Ill. Feb. 7, 2002)
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`(consolidating securities fraud class actions for pre-trial purposes); see also Gibbs v. Uponor Corp.,
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`2012 WL 13019081 (S.D. Ill. Oct. 12, 2012) (granting transfer to a different court to allow parties
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`to consolidate class actions).
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`It makes no difference that this second-filed action was removed from state court. Federal
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`courts routinely apply the first-to-file rule to actions removed from state court. See, e.g., Norrid
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`v. D.A.R.P., Inc., No. 17-CV-401, 2018 WL 2977384, at *2 (E.D. Okla. June 13, 2018) (“When a
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`state action is removed to federal court, for first-to-file purposes, the state court filing date is the
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`date used.”) (quoting Medspring Group, Inc. v. Atl. Healthcare Group, Inc., No. 1:05-CV-115,
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`2006 WL 581018, at *3 (D. Utah March 6, 2006)); Heritage Schooner Cruises, Inc. v. Acadia Ins.
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`Co., No. 09-CV-22579, 2009 WL 10699880, at *1 (S.D. Fla. Nov. 30, 2009) (same);
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`Manufacturers Hanover Tr. Co. v. Palmer Corp., 798 F. Supp. 161, 166 (S.D.N.Y. 1992) (same);
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`see also Diversified Metal Prod., Inc. v. Odom Indus., Inc., No. 1:12-CV-162, 2012 WL 2872772,
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`at *2 (D. Idaho July 12, 2012) (collecting additional cases).
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`3.
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`Comity does not warrant remand in lieu of consolidation.
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`As the Seventh Circuit recognized in City of Fishers, comity-based abstention “pushes
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`against this [unflagging] obligation” to exercise federal jurisdiction under CAFA, and therefore,
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`abstention “is the exception, not the rule.” City of Fishers, 5 F.4th at 753 (quotation omitted).
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`This is why the comity abstention doctrine is “seldom invoked” (id.); and when it is invoked, the
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`decision whether to remand is left to the discretion of the district court. Id. at 755 (“the question
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 10 of 13 Page ID #216
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`becomes whether the district court abused its discretion by remanding under Levin”). Because
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`comity abstention-based remand is discretionary, not mandatory, a district court must take care not
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`“to subvert the fairness concerns underlying [CAFA].” Rothner v. City of Chicago, 879 F.2d 1402,
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`1407–08 (7th Cir. 1989).
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`As explained in detail in Defendants’ opposition (Dkt. 58) to Plaintiff’s remand motion,
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`the City of Fishers case is not dispositive because it did not involve a copycat litigation filed a
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`week after the same claims were filed in federal court on behalf of the same putative class. Thus,
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`City of Fishers did not implicate the duty of federal courts—pursuant to CAFA and the first-to-
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`file rule—to avoid duplicative litigation, either by staying or consolidating the second-filed action.
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`Moreover, the comity analysis in City of Fishers was driven primarily by the view that remand
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`would avoid the need for a federal court to rule on the state revenue-generating scheme at issue.
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`Not so here because the first-to-file East St. Louis Plaintiff has already chosen to litigate in federal
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`court on behalf of itself and a putative class of other local government units in Illinois that includes
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`Shiloh. Whatever discretion comity may afford to remand this case is outweighed by the duty to
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`avoid duplicative litigation of putative class actions, like these actions, that are properly before the
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`federal court.
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`An analogy can be drawn to the situation in which federal courts are asked to exercise
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`supplemental jurisdiction over state-law claims. For example, in Brooks v. HSHS Medical Group,
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`at the time of removal, the federal court had subject matter jurisdiction over both cases that were
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`ultimately consolidated. No. 18-cv-1097, 2019 WL 2139993, at *3 (S.D. Ill. May 16, 2019).
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`Subsequently, the federal claims from one case were voluntarily dismissed, but the court found
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`that the interest in efficient resolution of the remaining state-law claim warranted keeping the two
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`cases consolidated in federal court. The court declined to exercise its discretion to remand, citing
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`10
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 11 of 13 Page ID #217
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`the “good reason to retain jurisdiction over state law claims” including avoiding the “duplication
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`of time, energy, and expense to decide” one case in state court and one in federal court. Id.; see
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`also Washington v. Burley, No. CIV.A. 3-12-154, 2012 WL 5289682, at *5 (S.D. Tex. Oct. 23,
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`2012) (denying remand and finding that comity factor was outweighed by benefits of
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`consolidation).
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`Like supplemental jurisdiction, comity abstention implicates the district court’s discretion.
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`If the avoidance of duplicative litigation is sufficiently weighty for a district court to exercise
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`“supplemental” jurisdiction over state-law claims even after the basis for federal jurisdiction has
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`vanished, then a fortiori it is sufficiently weighty to support the exercise of jurisdiction over state-
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`law claims pursuant to the district court’s unquestioned diversity jurisdiction under CAFA. This
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`is particularly true given Congress’s stated objective in CAFA of “providing a singular federal
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`forum” in order “to protect defendants from … separate class action lawsuits in varying
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`jurisdictions.” DeHart, 2010 WL 231744, at *12. Nothing in City of Fishers or the comity
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`doctrine in general requires this Court to ignore Congress’s objectives and disregard the virtually
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`unflagging obligation to exercise the jurisdiction it has been given.
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`III. Conclusion
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`DISH respectfully requests that the Court issue an order recalling its mandate to the state
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`court and granting leave to file a formal motion to consolidate this case with the East St. Louis
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`Action.
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`Date: April 22, 2022
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`Respectfully submitted,
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`/s/ Matthew R. Friedman
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`Pantelis Michalopoulos (pro hac vice)
`Matthew R. Friedman (pro hac vice)
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, N.W.
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`11
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 12 of 13 Page ID #218
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`Washington, DC 20036
`Tel: (202) 429-3000
`Fax: (202) 429-3902
`Email: pmichalopoulos@steptoe.com
`Email: mfriedman@steptoe.com
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`Jared R. Butcher (pro hac vice)
`CROSSCASTLE PLLC
`1701 Pennsylvania Avenue, NW
`Suite 200
`Washington, DC 20006
`Tel: (202) 960-5800
`Email: jared.butcher@crosscastle.com
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`Jeffrey L. Schultz
`ARMSTRONG TEASDALE LLP
`7700 Forsyth Blvd., Suite 1800
`St. Louis, Missouri 63105
`Tel: (314) 621-5070
`Fax: (314) 621-5065
`Email: jschultz@atllp.com
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`Counsel for Defendants DISH Network Corp. and
`DISH Network L.L.C.
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`12
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`Case 3:21-cv-00807-MAB Document 73 Filed 04/22/22 Page 13 of 13 Page ID #219
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on April 22, 2022, a true and correct copy of the foregoing was
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`filed electronically. Service of this filing will be made on all ECF-registered counsel by
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`operation of the Court’s electronic filing system.
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`/s/ Matthew R. Friedman
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