Dunstan et al v. comScore, Inc.

Filing 316

FILED on incorrect docket (Bowland, Robyn) (Docket Text Modified by Clerk's Office) (mr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LILLY MARTIN, JEAN TOURVILLE, JANE
GOULD, and ALFREDO MENDOZA, individually,
and on behalf of all other similarly situated,
Plaintiffs,

Civil Action No. 1:13-cv-08376
Judge John J. Tharp, Jr.

v.
KCBX TERMINALS COMPANY, et al.
Defendants.

KCBX TERMINALS COMPANY, KM RAILWAYS, LLC AND KOCH CARBON, LLC’S
RESPONSE TO PLAINTIFFS’ MOTION TO
REASSIGN RELATED CASES PURSUANT TO LOCAL RULE 40.4
Defendants KCBX Terminals Company (“KCBX”), KM Railways, LLC (“KMR”) and
Koch Carbon, LLC (“Koch Carbon”) (collectively “Defendants”) agree with the Plaintiffs that
Murphy, et al. v. BP Prods. North America, Inc. et al., No. 1:13-CV-04899 (N.D. Ill. Nov. 25,
2013) (“Murphy”) and Figueroa, et al. v. BP Prods. North America, Inc. et al., No. 1:13-CV09038 (N.D. Ill. Dec. 18, 2013) (“Figueroa”) should be reassigned to Judge Tharp’s calendar
pursuant to Northern District of Illinois Local Rule 40.4. Reassignment to Judge Tharp’s
calendar specifically is proper because the above captioned case was removed to federal court on
November 20, 2013, Dkt. 1, before either Murphy or Figueroa was filed, and is therefore the
earliest-numbered case under Local Rule 40.4(b).

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FACTUAL BACKGROUND
Martin, Murphy, and Figueroa are separate class action lawsuits proceeding before three
different judges in the Northern District of Illinois. The complaints’ allegations against KCBX,
KMR, and Koch Carbon1 derive from KCBX’s operation of two bulk material transfer facilities
along the Calumet River in Chicago between East 100th Street and East 107th Street. KCBX has
operated its North facility for more than 20 years, and its South Facility for approximately one
year. At both facilities, KCBX transfers bulk products—including petroleum coke
(“petcoke”)—from one mode of transportation to another. In the interim, it stores the petcoke
on-site in open air piles.
The classes defined in each complaint consist of property owners or persons located in
the neighborhoods surrounding the Defendants’ facilities. Dkt. 1, Ex. A at ¶ 52; Dkt. 44, Ex. 2 at
¶ 31; Dkt. 44, Ex. 3 at ¶ 33. The class Plaintiffs generally allege that Defendants’ operations
result in petcoke dust blowing onto Plaintiffs’ property. Dkt. 1, Ex. A at ¶ 2; Dkt. 44, Ex. 2 at ¶¶
29-30; Dkt. 44, Ex. 3 at ¶¶ 1-2.
ARGUMENT
Cases may be reassigned pursuant to Local Rule 40.4 if the cases are “related.” Cases are
related if any of the following conditions is met: “(1) the cases involve the same property; (2) the
cases involve some of the same issues of fact or law; (3) the cases grow out of the same
transaction or occurrence; or (4) in class action suits, one or more of the classes involved in the
cases is or are the same.” Local Rule 40.4(a). If the court determines that one or more cases is
related, it may reassign the cases to the earliest-numbered case, if all of the following criteria is
present: “(1) both cases are pending in this Court; (2) the handling of both cases by the same

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Koch Carbon is named as a Defendant in Martin and Murphy, but not Figueroa.
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judge is likely to result in a substantial saving of judicial time and effort; (3) the earlier case has
not progressed to the point where designating a later filed case as related would be likely to delay
the proceedings in the earlier case substantially; and (4) the cases are susceptible of disposition
in a single proceeding.” Local Rule 40.4(b).
A.

The Cases Involve the Same Issues of Fact and Law, Grow out of the Same
Occurrence, and have Overlapping Class Members

Because three of the relatedness conditions under Local Rule 40.4 are present, the
Martin, Murphy, and Figueroa cases are clearly related. First, the cases involve some of the
same legal issues. Specifically, all three complaints allege a cause of action for private nuisance.
Dkt. 1, Ex. A at 15; Dkt. 44, Ex. 2 at 14; Dkt. 44, Ex. 3 at 12. And at least two of the complaints
allege causes of action in trespass, Dkt. 1, Ex. A at 17; Dkt. 44, Ex. 2 at 12, negligence, Dkt. 1,
Ex. A at 18; Dkt. 44, Ex. 3 at 9, and strict liability. Dkt. 44, Ex. 2 at 11; Dkt. 44, Ex. 3 at 11.
Further, the cases involve some of the same issues of fact. For example, each complaint contains
allegations pertaining to Defendants’ operations, the presence of petcoke dust in the proximity of
Plaintiffs’ property, and the characteristics of petcoke dust. See, e.g., Dkt. 1, Ex. A at ¶¶ 1-6;
Dkt. 44, Ex. 2 at ¶¶ 2, 29-30; Dkt. 44 Ex. 3 at ¶¶ 1-2, 11. Additionally, all three cases grow out
of the same occurrence—specifically, Defendants’ operation of its facilities.
Further, the classes as defined in Martin, Murphy, and Figueroa are overlapping.
Martin’s subclasses encompass persons and entities “in the South Deering and Elgin
neighborhoods” who have been harmed by petcoke dust from Defendants’ facilities. Dkt. 1, Ex.
A at ¶ 52. And Figueroa’s class is defined as property owners located within “the area
surrounding the Storage Facilities where property has been contaminated by and/or coated with
Petcoke emanating from such facilities.” Dkt. 44, Ex. 3 at ¶ 33. Because the area surrounding
the facilities is the neighborhoods identified in Martin, the Martin and Figueroa classes are the
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same. Murphy’s class is defined as “All persons who own real property that has been
contaminated with petcoke waste produced from the Whiting Refinery.” Dkt. 44, Ex. 2 at ¶ 31.
Given that the Murphy Plaintiffs allege that the petcoke produced at the Whiting Refinery is
transferred to Defendants’ facilities, Murphy’s class is also the same as the Martin and Figueroa
classes. Dkt. 44, Ex. 2 at ¶ 31. Because the cases involve some of the same factual and legal
issues, grow out of the same occurrence, and involve the same classes, the cases are related.
B.

The Cases Should Be Reassigned to Judge Tharp in the Interest of Judicial
Efficiency

Not only are the cases related, but the four criteria for reassignment are also met.
Therefore, the cases should be reassigned to Judge Tharp to promote the efficient use of judicial
time and resources. First, all three cases are pending in the Northern District of Illinois. Second,
all three cases remain in the pleading stage. Although motions to dismiss were filed in Martin on
January 15, 2014, and responses to the complaints have yet to be filed in Murphy and Figueroa,
no dispositive motions have been ruled upon in any of the cases to date. And in light of how
recently the motions to dismiss were filed (and the fact that Plaintiffs’ motion for reassignment
was filed at the Court’s direction), Martin has not advanced to the point where it would be
“substantially” delayed by the reassignment of Murphy and Figueroa to Judge Tharp’s docket.
Further, the cases are susceptible to disposition in a single proceeding because of the overlapping
claims and defenses. Even to the extent that the causes of actions are not identical, the causes of
action are nonetheless based upon the same facts, and therefore amenable to resolution in a
single proceeding.2

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Cases may be consolidated pursuant to Federal Rule of Civil Procedure 42(a) if the
“actions before the court involve a common question of law or fact.”
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Lastly, the reassignment of the cases to Judge Tharp’s calendar is likely to result in a
substantial saving of the court’s (and the parties’) time and effort. Particularly, reassignment will
eliminate duplicative discovery and motion practice, minimize inconsistent rulings on the same
or substantially similar legal issues, and capitalize upon a single judge’s knowledge of the facts.
Reassignment is consistent with the efficient resolution of the claims and defenses in these cases.
CONCLUSION
Defendants respectfully request that this Court grant Plaintiffs’ Motion to Reassign
Related Cases Pursuant to Local Rule 40.4, and reassign Murphy and Figueroa to Judge Tharp’s
calendar.
Dated: January 27, 2014
Respectfully submitted,
/s/ Stephen A. Swedlow
Stephen A. Swedlow (ARDC No. 6234550)
Quinn Emanuel Urquhart & Sullivan, LLP
500 W. Madison St., Suite 2450
Chicago, IL 60661
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for KCBX Terminals Company, KM
Railways, LLC, and Koch Carbon, LLC

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CERTIFICATE OF SERVICE
I, Stephen Swedlow, hereby certify that I caused a copy of the foregoing to be served on
January 27, 2014 to all counsel of record via the Court’s ECF notification system.
/s/ Stephen A. Swedlow
Stephen A. Swedlow
Attorney for KCBX Terminals Company, KM
Railways, LLC, and Koch Carbon, LLC

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