United States of America et al v. Dish Network LLC

Filing 258

OPINION: (1) The Motion to Dismiss (d/e 6 ) in Case No. 12-3221 is DENIED. However, Case No. 12-3221 is DISMISSED WITHOUT PREJUDICE with leave granted to Plaintiffs to file the claim in Case No. 09-3073 and without prejudice to Dish raising a res ju dicata defense in Dish I. (2) The Opinion (d/e 155 ) denying Plaintiffs Motion for Leave to File Second Amended Complaint in Case No. 09-3073 is VACATED. Plaintiffs Motion for Leave to File Second Amended Complaint (d/e 135 ) is GRANTED. The Clerk is DIRECTED to file the Second Amended Complaint (d/e 135 -1). The Second Amended Complaint is deemed filed as of May 18, 2012. (3) Dish's Motion for Leave to File Document Under Seal (d/e 251 ) is DENIED. The Court intends to unseal all of th e documents filed under seal in this case. However, before doing so, the parties are granted 30 days from the March 5, 2013 hearing, to identify those sealed documents that they believe should remain sealed or should have portions redacted. The oppos ing party may thereafter, within 14 days, file a response. (4) Within 14 days of the March 5, 2013 hearing, the parties shall submit either a joint Scheduling Order or their own Scheduling Order if the parties cannot reach an agreement. This matter i s set for jury trial beginning on April 8, 2014. (5) Dish's Motion to Strike/Preclude Plaintiffs' December 14, 2012 Discovery Responses (d/e 242 ) is DENIED AS MOOT in light of the anticipated new scheduling order. Entered by Judge Sue E. Myerscough on 3/11/2013. (ME, ilcd)

E-FILED

Tuesday, 12 March, 2013 04:02:32 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
FEDERAL TRADE COMMISSION,

)
)
Plaintiff,
)
)
v.
)
No. 12-3221
)
DISH NETWORK L.L.C.,
)
)
Defendant.
)
_________________________________________________________________
UNITED STATES OF AMERICA
)
and the STATES OF CALIFORNIA, )
ILLINOIS, NORTH CAROLINA,
)
and OHIO,
)
)
Plaintiffs,
)
)
v.
)
No. 09-3073
)
DISH NETWORK, L.L.C.,
)
)
Defendant.
)
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On March 5, 2013, this Court held a status hearing in the two cases
captioned above. At this hearing, the Court addressed several matters,
including whether the two cases should proceed individually or be

consolidated, and whether Plaintiffs in Case No. 09-3073 (Dish I) should
be granted leave to amend the Complaint in that case to add the claim
brought in Case No. 12-3221 (Dish II).
After considering the arguments at the hearing and the briefing
previously provided on several of these issues, the Court DISMISSES
Dish II and GRANTS leave to amend in Dish I.
I. BACKGROUND
A.

The United States and States of California, Illinois, North
Carolina, and Ohio File Lawsuit Against Dish–Case NO. 09-3073
(Dish I)
In March 2009, the United States of America and the States of

California, Illinois, North Carolina, and Ohio filed an action against
Dish, Case No. 09-3073 (Dish I). In April 2009, Plaintiffs amended
their complaint. See d/e 5.
In the Amended Complaint, Plaintiffs allege that Dish violated the
Telemarketing Sales Rule (TSR) (16 C.F.R. §§ 310.4, 310.3), the
Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227), and
various state statutes. Specifically, Count I alleges Dish engaged in or

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caused a telemarketer to engage in initiating an outbound telephone call
to a telephone number on the National Do Not Call Registry in violation
of the TSR. Count II alleges that Dish abandoned or caused
telemarketers to abandon outbound telephone calls in violation of the
TSR. Count III alleges that Dish provided substantial assistance or
support to certain dealers when Dish knew or consciously avoided
knowing that the dealers were abandoning outbound telephone calls in
violation of the TSR. Counts I through III are brought by the United
States and seek injunctive relief and civil penalties.
In Counts IV and V, the State Plaintiffs seeks injunctive relief and
damages for violations of the TCPA. Count IV alleges that Dish, either
directly or through third parties acting on its behalf, called telephones on
the Do Not Call List in violation of the TCPA. Count V alleges that
Dish, either directly or through third parties acting on its behalf, used
pre-recorded sales pitches in violation of the TCPA.
Finally, in Counts VI, VII, VIII, IX, X, and XI, each state Attorney
General seeks relief under each state’s respective statute that prohibt

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these forms of telephone solicitations.
Dish raised several affirmative defenses. See d/e 26. One of those
affirmative defenses included the TSR’s Safe Harbor provisions. See d/e
26. See 16 C.F.R. § 310.4(b)(4).
In December 2010, Dish filed a Motion to Stay this Action
Pursuant to the Doctrine of Primary Jurisdiction, or in the Alternative to
Stay All Counts IV-XI to the Extent They Claim “On Behalf Of” Liability
and Refer that Issue to the Federal Communications Commission (FCC).
See d/e 67.
In February 2011, the Court allowed the motion in part. The
Court stayed all matters related exclusively to the TCPA but allowed the
parties to proceed on discovery and other matters related to any nonTCPA claims. See Opinion (d/e 86). The Court also ordered the parties
to jointly file an administrative complaint with the FCC seeking the
FCC’s interpretation of the phrase “on behalf of.” See Opinion (d/e 86).
In addition, the Court directed the parties to file a status report once the
FCC resolves the administrative complaint. Because the parties have not

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filed a status report, the Court assumes the FCC has not resolved the
administrative complaint.
On May 22, 2012, Dish filed a Motion for a Stay of the Case
Pending Resolution of Issues Referred to the Federal Communication
Commission (d/e 133) and an Amended Motion to Stay (d/e 140). Dish
asserted that a complete stay of the action upon the close of fact
discovery, pending a determination of the issues referred to the FCC,
would serve the interests of judicial economy.
On June 21, 2012, this Court denied the Motion and Amended
Motion, finding that a stay of the entire case would not reduce the
burden of litigation on the parties and the Court and would not serve the
interests of judicial economy. This Court noted that Counts I through III
and the State Plaintiffs’ statutory claims were not predicated on the
TCPA and do not depend on the FCC’s ultimate ruling.
On May 18, 2012, Plaintiffs filed their Motion for Leave to File
Second Amended Complaint (d/e 135). When Plaintiffs filed that
motion, fact discovery was set to close on May 25, 2012. The parties

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later agreed to extend that deadline to June 22, 2012 for certain limited
outstanding discovery. See Consent Motion (d/e 139); Text Order
granting Consent Motion May 23, 2012 (also extending additional
deadlines).
In the Motion for Leave to File Second Amended Complaint,
Plaintiffs sought to conform the pleadings to Plaintiffs’ discovery of
evidence that Dish made 10.1 million telemarketing calls to consumers
on Dish’s own internal Do Not Call List. Plaintiffs sought to add one
count alleging that Dish violated the entity-specific do-not-call provision
of the TSR, 16 C.F.R. § 310.4 (b)(1)(iii)(A). Specifically, Plaintiffs
sought to add the following paragraphs of legal background and factual
allegations:
17. Since December 31, 1995, sellers and
telemarketers have been prohibited from initiating
an outbound telephone call to any person who
previously has stated that he or she does not wish
to receive an outbound telephone call made by or
on behalf of the seller whose goods or services are
being offered. 16 C.F.R. § 310.4(b)(1)(iii)(A).
34. Defendant DISH Network and some of its
authorized dealers maintain or cause to be
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maintained lists of phone numbers of persons who
have stated that they do not wish to receive an
outbound telephone call made by or on behalf of
DISH Network.
39. Since on or about October 17, 2003, DISH
Network has initiated outbound telephone calls to
phone numbers of persons who have stated that
they do not wish to receive an outbound telephone
call made by or on behalf of DISH Network.
Plaintiffs also sought to add a new Count II (and renumber the other
counts):
67. In numerous instances, in connection with
telemarketing, DISH Network has engaged in or
caused other telemarketers to engage in initiating
an outbound telephone call to a person who has
previously stated that he or she does not wish to
receive such a call made by or on behalf of DISH
Network, in violation of the TSR, 16 C.F.R. §
310.4(b)(1)(iii)(A).
In June 2012, United States Magistrate Judge Byron G. Cudmore
denied the Motion for Leave to File Second Amended Complaint. See
Opinion (d/e 155). Judge Cudmore found that Plaintiffs unduly delayed
filing the proposed amendment and that the delay prejudiced Dish.
Judge Cudmore also noted: “If the FTC elects to authorize a new suit,

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then both the United States and Dish will have a full opportunity to
litigate that claim.” Opinion, p. 16 (d/e 155).
B.

The Federal Trade Commission Files a New Lawsuit– Case No. 123221 (Dish I)
On August 22, 2012, the Federal Trade Commission (FTC) filed

Case No. 12-3221 (Dish II). The Complaint in Dish II raised essentially
the claim Plaintiffs were denied leave to add to their Complaint in Dish I.
Specifically, the Complaint alleged, in relevant part, that:
8. Since December 31, 1995, sellers and
telemarketers have been prohibited from initiating
an outbound telephone call to any person who
previously has stated that he or she does not wish
to receive an outbound telephone call made by or
on behalf of the seller whose goods or services are
being offered. 16 C.F.R. § 310.4(b)(1)(iii)(A).
26. Defendant DISH Network and some of its
authorized dealers maintain or cause to be
maintained lists of phone numbers of persons who
have stated that they do not wish to receive an
outbound telephone call made by or on behalf of
DISH Network.
28. Since on or about September 1, 2007, in
connection with telemarketing, DISH Network
has engaged in initiating millions of outbound
telephone calls to phone numbers of persons who
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have previously stated that they do not wish to
receive an outbound telephone call made by or on
behalf of DISH Network.
29. Since on or about September 1, 2007, in
connection with telemarketing, DISH Network
has caused one or more telemarketers to engage in
initiating millions of outbound telephone calls to
phone numbers of persons who have previously
stated that they do not wish to receive an
outbound telephone call made by or on behalf of
DISH Network.
Count I, the sole count of the Complaint, alleged the following violation
of the entity specific do-not-call rule:
33. In numerous instances, in connection with
Telemarketing, DISH Network has engaged in or
caused other telemarketers to engage in initiating
an outbound telephone call to a person who has
previously stated that he or she does not wish to
receive such a call made by or on behalf of DISH
Network, in violation of the TSR, 16 C.F.R. §
310.4(b)(1)(iii)(A).
See Complaint (d/e 1).
On September 15, 2012, Dish filed a Motion to Dismiss asserting
that the claim was barred by (1) claim preclusion or the doctrine against
claim splitting and/or (2) the statute of limitations. The case, which had

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been assigned to United States District Judge Richard Mills, was
reassigned to this Judge on November 7, 2012.
Upon review of the Motion to Dismiss, the Court set the matter for
hearing with Dish I to determine whether the cases should be
consolidated or whether the Court should grant Plaintiffs leave to amend
their Complaint in Dish I. See Text Order of January 17, 2013 (both
Dish I and Dish II).
II. ANALYSIS
A.

The Claims Should Be Brought in the Same Lawsuit
The Court set the status hearing because the Court was inclined to

deny the Motion to Dismiss in Dish II and consolidate the two cases.
The Court was alternatively considering overruling Judge Cudmore’s
denial of leave of the Second Amended Complaint in Dish I and allowing
the claim to proceed solely in Dish I. The Court addresses each in turn.
1.

Dish II Is Not Barred by Res Judicata or the Statute of
Limitations

Federal res judicata has three elements: (1) the same parties, either
directly or through privity; (2) a dispute arising from the same operative
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facts; and (3) a final decision in the first lawsuit. United States ex rel.
Lusby v. Rolls-Royce Corp., 570 F.3d 849, 851 (7th Cir. 2009). In this
case, there is no final decision in Dish I as Dish I is still pending.
The Court recognizes that courts in other jurisdictions have held
that the denial of a motion for leave to amend is a final judgment, even if
the case in which it was brought is still pending. See, e.g., Crystal Import
Corp. v. Avid Identification Systems, Inc., 582 F. Supp. 2d 1166 (D.
Minn. 2008) (holding that the denial of a motion for leave to amend is a
final judgment on the merits, even though the first action remained
pending). The parties dispute whether courts in the Seventh Circuit have
held the same.
As stated by Plaintiff in its Opposition to Dish’s Motion to Dismiss
(d/e 13), the cases cited by Dish in support of its argument that the
Seventh Circuit would find that the denial of a motion for leave to
amend is a final judgment are distinguishable. Specifically, in the cases
cited by Dish, a substantive ruling that ended the first case occurred
before res judicta applied to the second suit. See, e.g., Johnson v.

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Cypress Hill, 641 F.3d 867, 874 (7th Cir. 2011) (finding that second suit
attempting to bring the claim that the plaintiff was not granted leave to
file in the first lawsuit was barred by res judicata; however, summary
judgment had been entered in the first lawsuit by the time the plaintiff
filed the second lawsuit).
In this case, the denial of the motion for leave to amend in Dish I is
not a final judgment because Dish I is still pending. Further, the order
denying leave does not contain Federal Rule of Civil Procedure 54(b)
language directing final judgment and determining there was no just
reason for delaying enforcement or appeal. See Fed.R.Civ.P. 54(b)
(providing that without such language, an order that adjudicates fewer
than all of the claims, rights, or liabilities of fewer than all the parties
may be revised at any time prior to entry of a judgment adjudicating all
the claims). In fact, a motion for leave to amend is considered a
nondispositive motion for purposes of Rule 72. Fed.R.Civ.P. 72(a) (a
magistrate judge may hear and determine matters that are not dispositive
of a claim or defense); Hall v. Norfolk, S.Ry.Co., 469 F.3d 590, 595 (7th

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Cir. 2006). Therefore, the ruling on the motion for leave to amend in
Dish I can still be revised and does not become final until entry of
judgment adjudicating all the claims.
In addition, res judicata does not apply because Judge Cudmore
expressly left open the possibility of a second action when he denied the
motion for leave to amend in 09-3073. Specifically, on page 16 of the
Opinion, Judge Cudmore wrote, in response to the Plaintiffs’ argument
that the amendment promoted judicial economy because the FTC could
authorize a new action on the proposed new claim:
If the FTC elects to authorize a new suit, then
both the United States and Dish will have a full
opportunity to litigate that claim.
Therefore, the new lawsuit is not barred by res judicata or the doctrine
against claim splitting. See Central States, Southeast & Southwest Areas
Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 629 (7th Cir.
2002) (noting the exception to res judicata if the court in the earlier
action expressly reserved the litigant’s right to bring a claim in a later
action); Parvati Corp. v. City of Oak Forest, 2012 WL 957479, at *6

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(N.D. Ill. 2012) (finding that the court in the first action maintained the
plaintiff’s right to bring the action in a second lawsuit when it “expressly
anticipated the possibility of a second lawsuit”).
Because Dish II will not be dismissed on res judicata grounds, the
Court next looks at whether Dish II should be dismissed on statute of
limitations grounds.
A complaint does not have to anticipate affirmative defenses to
survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842
(7th Cir. 2005); Hollander v. Brown, 457 F.3d 688, 691 n.1 (2006)
(“[A] federal complaint does not fail to state a claim simply because it
omits facts that would defeat a statute of limitations defense”). The FTC
did not plead itself out of court because it did not allege facts sufficient
to establish the defense of statute of limitations. The Dish II Complaint
alleges that “[s]ince on or about September 1, 2007,” Dish initiated the
calls in question. That language suggests the complained of conduct
continued through the filing of the complaint. Moreover, the Court
notes, without deciding, that the parties dispute whether a statute of

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limitations even applies and the length of that statute of limitations. See
Dish’s Motion (d/e 7) (arguing that a three-year statute of limitations
applies); Plaintiff’s Opposition (d/e 13) (arguing that no statute of
limiations is applicable to Section 13(b), a five year statute of limitations
applies to Section 5(m)(1)(A), and a three-year statute of limitation
applies only to actions for consumer redress for rule violations).
If the Court does not dismiss Dish II, then consolidation of the two
cases is a possibility. See Connecticut General Life Ins. Co. v. Sun Life
Assur. Co. of Canada, 210 F.3d 771, 774 (7th Cir. 2000) (noting that in
appropriate circumstances, a court may consolidate cases “whether or not
the parties want the cases consolidated”). However, for the reasons set
forth below, the Court finds that the best approach is to grant Plaintiffs
leave to amend in Dish I and to dismiss Dish II without prejudice.
2.

Leave to Amend is Granted to Add the Claim in Dish I

As noted above, Plaintiffs tried to bring the claim in Dish II by way
of amendment in Dish I, which Judge Cudmore denied. Although
Plaintiffs did not object to that order, this Court is not precluded from

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reviewing it. See Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752,
760-61 (7th Cir. 2009); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.
2000).
A magistrate judge’s disposition will be set aside only if it is clearly
erroneous or contrary to law. Fed.R.Civ.P. 72(a). A disposition is clearly
erroneous when “the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessmer City, 470 U.S. 564, 573 (1985), quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Under
the particular circumstances of the case, leave should have been granted.
Federal Rule of Civil Procedure 15(a) provides that leave to amend
shall be freely given when justice so requires. Fed.R.Civ.P. 15(a).
Nonetheless, a court may deny a party leave to amend “where there is
undue delay, bad faith, dilatory motive, repeated failure to cure
deficiencies, undue prejudice to the defendants, or where the amendment
would be futile.” Cypress Hill, 641 F.3d at 871-72 (holding that
allowing the plaintiff to “change the court of the litigation four years into

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the case would be prejudicial” to the defendant), quoting Hukic v. Aurora
Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (affirming denial of leave
to amend where the plaintiff sought leave three days before the close of
fact discovery and sought to add eleven new causes of action and another
defendant).
In this case, Judge Cudmore found both undue delay and undue
prejudice. However, Plaintiffs adequately justified the delay. Moreover,
any prejudice Dish would suffer by allowing the new claim can be
remedied.
As Judge Cudmore noted, Plaintiffs knew in October 2011, at the
latest, that they had evidence to support the new claim. Judge Cudmore
found, however, that Plaintiffs had failed to offer an adequate
explanation for waiting until the close of discovery to seek leave to add
the new claim.
Plaintiffs adequately explained that the delay between finding the
information in October 2011 and filing the motion for leave to amend in
May 2012 was due to Dish’s purported delay in confirming the findings

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in Plaintiffs’ call record analysis. See Plaintiffs’ Motion, p. 7 (d/e 135)
(asserting that Plaintiffs expected that Dish would respond to the
information with its own analysis and also noting Dish’s obligation to
respond to discovery depending on Dish confirming the findings in
Plaintiffs’ call record analysis); December 23, 2011 Letter (d/e 135-21)
(letter providing what the Plaintiffs’ analysis of the calls found, noting
the alleged entity-specific violations); February 3, 2012 letter (d/e 13522) (noting that the results of the analysis should allow Dish to respond
to the discovery; the letter specifically notes that Plaintiffs provided
information about whether particular calls were made to persons with
whom Dish had an established business relationship). The documents
attached to Plaintiffs’ Motion and Reply showed that Plaintiffs
reasonably sought and waited for confirmation and additional discovery
responses from Dish before seeking leave to amend. Moreover, once it
became clear that Dish was not going to respond, Plaintiffs did seek
leave.
Judge Cudmore also found that Dish would be prejudiced because

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Plaintiffs’ undue delay denied Dish “the opportunity to conduct
discovery regarding potential liability for hundreds of billions of dollars in
civil penalties that would be added by the proposed new claim.” Opinion
p. 15 (d/e 155 ).
However, the issue of Dish’s compliance with its own internal donot-call lists is already a part of Dish I. According to Plaintiffs, Dish’s
primary defense to Plaintiffs’ claim that Dish made calls to numbers on
the national do-not-call list is that Dish had an established business
relationship for that phone number. However, Dish cannot assert an
established business relationship for calls to numbers where the owner of
the number requested to be placed on Dish’s internal do-not-call list. See
16 C.F.R. § 301.4(b)(1)(iii)(B)(ii); 47 C.F.R. § 64.1200(f)(4)(i) (2009).
The internal call list is also relevant to a safe harbor affirmative defense.
In addition, any prejudice can be cured by, as this Court noted at
the hearing, reopening discovery on this issue. The Court is going to
enter a new scheduling order with input by the parties. Dish will be
entitled to conduct the discovery necessary to protect its rights. Dish

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would have had to conduct such discovery in Dish II even if the
amendment in Dish I were denied.
As for delay, resolution of the entire case is already going to be
delayed because of the referral of the “on behalf of” issue to the FCC.
Dish recognized this by asking for a stay in May 2012. Finally, judicial
economy will be best served by addressing all of these claims in one
lawsuit.
The Opinion denying Plaintiff’s Motion for Leave to File Second
Amended Complaint in Case No. 09-3073 (d/e 155) is VACATED, and
the Motion is GRANTED. The Second Amended Complaint is deemed
filed the date Plaintiffs sought leave, May 18, 2012. See Moore v. State
of Indiana, 999 F.2d 1125, 1131 (7th Cir. 1999) (submission of a
motion for leave to amend accompanied by a proposed amended
complaint tolls the statute of limitations); Gold v. YouMail, Inc., 2013
WL 652549, at *2 (S.D.Ind. February 21, 2013) (amended complaint is
deemed filed as of the date of the motion for leave).
B. Motion for Leave to File Certain Documents Under Seal

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The Court also asked the parties to address at the hearing Dish’s
Motion (d/e 251) for leave seeking to file certain documents under seal in
Dish I. See Text Order of February 27, 2013. Plaintiffs object to Dish’s
Motion. See d/e 254.
The Court has reviewed the documents Dish seeks to seal. The
Court also notes that numerous pleadings are sealed in this Court file by
both Plaintiffs and Dish.
A presumption exists that the court record will be open absent
compelling reasons. Charvat v. Echostar Satellite, LLC, 269 F.R.D. 654,
656 (S.D. Ohio 2010). The Seventh Circuit has “insisted that litigation
be conducted in public to the maximum extent consistent with respecting
trade secrets, the identities of under cover agents, and other facts that
should be held in confidence.” Hicklin Eng’g L.C. v. R.J. Bartell, 439
F.3d 346, 348 (7th Cir. 2006); see also Citizens First Nat. Bank of
Princeton v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999)
(documents should be sealed only for good cause, such as to protect trade
secrets). The documents here do not appear to contain trade secrets or

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confidential information.
Therefore, this Court orders that the sealed documents be unsealed.
However, before the Clerk of the Court unseals those documents, Dish
and Plaintiffs are given 30 days to identify specific documents that
should remain sealed. Either party may object to the opposing party’s
identification of document that should remain sealed within 14 days of
the submission.
C. Parties Shall Meet and Confer Regarding a Joint Scheduling Order
Because of the filing of the Second Amended Complaint, a new
scheduling order is necessary. At the hearing, the Court set this case for a
three-week jury trial beginning April 8, 2014. See Opinion (d/e 66)
(finding the Government had a right to demand a jury trial on the issue
of liability on its claim for civil penalties). The parties shall attempt to
reach an agreement regarding scheduling. The parties shall file either a
joint Rule 16 Scheduling Order or, if the parties cannot agree, separate
proposed Rule 16 Scheduling Orders within 14 days of the March 5,
2013 hearing.

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D. Motion to Strike is Denied as Moot
Because new deadlines will be set in the new scheduling order,
Dish’ Motion to Strike Plaintiffs’ December 14, 2012 Discovery
Responses (d/e 242) is DENIED AS MOOT.
E. Additional Matters
The Court reminds the parties that Judge Cudmore is available for
mediation if the parties so desire. Moreover, this Judge is also willing to
conduct a mediation by agreement of the parties.
The parties may appear at future hearings by way of telephone or
video-conferencing. The Court’s video-conferencing system can
accommodate up to 20 people. The parties should notify the Clerk’s
office if they wish to appear by telephone or video-conferencing.
The Court commends the attorneys for their extremely helpful
arguments and exemplary briefing of the issues.
III. CONCLUSION
For the reasons stated herein and at the March 5, 2013 hearing, the
Court enters the following orders:

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1.

The Motion to Dismiss (d/e 6) in Case No. 12-3221 is
DENIED. However, Case No. 12-3221 is DISMISSED
WITHOUT PREJUDICE with leave granted to Plaintiffs to
file the claim in Case No. 09-3073 and without prejudice to
Dish raising a res judicata defense in Dish I.

2.

The Opinion (d/e 155) denying Plaintiffs’ Motion for Leave
to File Second Amended Complaint in Case No. 09-3073 is
VACATED. Plaintiffs’ Motion for Leave to File Second
Amended Complaint (d/e 135) is GRANTED. The Clerk is
DIRECTED to file the Second Amended Complaint (d/e 1351). The Second Amended Complaint is deemed filed as of
May 18, 2012.

3.

Dish’s Motion for Leave to File Document Under Seal (d/e
251) is DENIED. The Court intends to unseal all of the
documents filed under seal in this case. However, before
doing so, the parties are granted 30 days from the March 5,
2013 hearing, to identify those sealed documents that they

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believe should remain sealed or should have portions
redacted. The opposing party may thereafter, within 14 days,
file a response.
4.

Within 14 days of the March 5, 2013 hearing, the parties
shall submit either a joint Scheduling Order or their own
Scheduling Order if the parties cannot reach an agreement.
This matter is set for jury trial beginning on April 8, 2014.

5.

Dish’s Motion to Strike/Preclude Plaintiffs’ December 14,
2012 Discovery Responses (d/e 242) is DENIED AS MOOT
in light of the anticipated new scheduling order.

ENTER: March 11, 2013
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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