Gaboury v. Canadian Pacific Railway Company et al

Filing 62

PROCEDURAL ORDER re: Telephone Conference set for 4/21/2016 10:00 AM in Magistrate Judge Nivison's Chambers before MAGISTRATE JUDGE JOHN C. NIVISON. By JUDGE JON D. LEVY. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANNICK ROY, as Special
Administrator of the Estate of
Jean-Guy Veilleux, Deceased,
et al.,
Plaintiffs,
v.
CANADIAN PACIFIC RAILWAY
COMPANY, et al.,
Defendants.

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1:14-cv-00113-JDL
1:16-cv-00120-JDL
1:16-cv-00121-JDL
1:16-cv-00122-JDL
1:16-cv-00123-JDL
1:16-cv-00124-JDL
1:16-cv-00125-JDL
1:16-cv-00126-JDL
1:16-cv-00127-JDL
1:16-cv-00128-JDL
1:16-cv-00129-JDL
1:16-cv-00130-JDL
1:16-cv-00131-JDL
1:16-cv-00132-JDL
1:16-cv-00133-JDL
1:16-cv-00134-JDL
1:16-cv-00135-JDL
1:16-cv-00136-JDL
1:16-cv-00137-JDL

1:15-cv-00250-JDL
1:16-cv-00138-JDL
1:16-cv-00139-JDL
1:16-cv-00140-JDL
1:16-cv-00141-JDL
1:16-cv-00142-JDL
1:16-cv-00143-JDL
1:16-cv-00144-JDL
1:16-cv-00145-JDL
1:16-cv-00146-JDL
1:16-cv-00147-JDL
1:16-cv-00148-JDL
1:16-cv-00149-JDL
1:16-cv-00150-JDL
1:16-cv-00151-JDL
1:16-cv-00153-JDL
1:16-cv-00154-JDL
1:16-cv-00156-JDL
1:16-cv-00105-JDL
1:16-cv-00106-JDL

PROCEDURAL ORDER
On March 30, 2016, the parties in each of the thirty-seven cases arising from
the train derailment in Lac Mégantic, Québec, that were recently transferred to the
District of Maine (the “Recently Transferred Cases”) filed a Joint Motion for Entry
of a Procedural Order Regarding Motions Filed in Related Matters and Request for
Hearing (the “Joint Motion”). See e.g., 1:16-cv-00120-JDL, ECF No. 56.
In their Joint Motion, the parties propose that the two previously-transferred
cases—the Roy case, 1:14-cv-00113-JDL, and the Grimard case, 1:15-cv-00250JDL—serve as “bellwether cases” on a limited basis to avoid the need for identical
motions to be filed in all 39 cases and to allow the court to immediately consider and

hold hearings on the four fully-briefed substantive motions that the parties have
filed in each case. The four fully-briefed motions, defined in the Joint Motion as the
“Common Motions,” are:


Plaintiffs’ Motion for Leave to File a Second Amended Complaint
(1:14-cv-00113-JDL, ECF No. 248; 1:15-cv-00250-JDL, ECF No. 83);



Plaintiffs’ Motion to Find that Settlement with Defendants was
Made in Good Faith (1:14-cv-00113-JDL, ECF No. 249; 1:15-cv00250-JDL, ECF No. 84);



Canadian Pacific Railway Company’s Amended Motion to Dismiss
(1:14-cv-00113-JDL, ECF No. 244; 1:15-cv-00250-JDL, ECF No. 79);



Canadian Pacific Railway Company’s Cross-Motion for an Order
Applying Canadian Non-Pecuniary Damage Limitations (1:14-cv00113-JDL, ECF No. 268; 1:15-cv-00250-JDL, ECF No.102).

The parties also request that I enter a consent order which deems the
Common Motions as having been filed in all of the Recently Transferred Cases and
renders the Amended Complaints that were filed by the Plaintiffs in 1:16-cv-00105JDL and 1:16-cv-00106-JDL to be ineffective and subject to the Plaintiffs’ Motion for
Leave to File a Second Amended Complaint filed in 1:14-cv-00113-JDL at ECF No.
248 and 1:15-cv-00250-JDL at ECF No. 83.
On April 6, 2016, I granted the Plaintiffs’ Motion to Dismiss the Released
Parties Pursuant to Federal Rule of Civil Procedure 54(b) which was filed in all
cases. See, e.g., 1:14-cv-00113-JDL, ECF No. 285. This leaves Canadian Pacific
Railway Company as the remaining sole defendant at this time in all cases except
1:16-cv-00105-JDL and 1:16-cv-00106-JDL.

I wish to consider a different procedural approach that is similar to, but
different from that requested by the parties, but which should accomplish the same
objectives as those of the Joint Motion. First, I would grant the Joint Motion in part
and order the Amended Complaints that were filed by the Plaintiffs in 1:16-cv00105-JDL and 1:16-cv-00106-JDL to be deemed “provisionally filed” and subject to
the Plaintiffs’ Motion for Leave to File a Second Amended Complaint, supra. This
would fold all of the plaintiffs’ attempts at amending their complaints into one
motion, and would prevent Canadian Pacific and its affiliates from being required to
file an answer or otherwise respond to the Amended Complaints in 1:16-cv-00105JDL and 1:16-cv-00106-JDL until I have ruled on the motion. I would also deem the
Common Motions as having been filed in all of the Recently Transferred Cases.
Second, I would deny as moot the Estate Representative’s Cross-Motion for
Entry of an Order (A) Enforcing the Releases and Injunctions Contained in the
Order Adopting the Confirmation Order and Dismissing the Released Parties From
the Derailment Actions and (B) Exempting the Released Parties From Compliance
with the Local Counsel Requirement. See, e.g., 1:14-cv-00113-JDL, ECF No. 278.
Third, I would grant in part the plaintiffs’ motion for waiver of pro hac vice
fees filed in 1:15-mc-00355-JDL at ECF No. 48, and waive the fee requirement for
parties whose attorneys have previously complied with Local Rule 83.1. I will deny
the motion in part for any parties whose attorneys have not previously complied
with the rule.

Finally, now that all defendants have been dismissed except Canadian Pacific
Railway Company and its affiliates1, I would consolidate into one docket all thirtynine cases arising from the Lac Mégantic derailment pursuant to Federal Rule of
Civil Procedure 42(a), to be captioned “In re Lac Mégantic Train Derailment
Litigation.” This would result in one docket with the four Common Motions as the
only motions presently under advisement, and subject to my determination later in
the case that severance of some or all of the actions is appropriate pursuant to
Federal Rule of Civil Procedure 21.
Once the preceding steps have been completed, a hearing would be held on
the issues raised by the Common Motions as requested in the Joint Motion.
In light of the foregoing, this matter is referred to Magistrate Judge John C.
Nivison to conduct a telephonic case status conference with all parties on Thursday,
April 21, 2016 at 10:00 a.m., at which he will solicit the parties’ comments to the
proposed course of action described above, and to then issue an appropriate case
management order.
SO ORDERED.
Dated this 6th day of April, 2016.
/s/ Jon D. Levy
U.S. DISTRICT JUDGE

Subject, as discussed above, to my decision on the Plaintiffs’ Motion for Leave to File a Second
Amended Complaint in Roy, 1:14-cv-00113-JDL, ECF No. 248 and Grimard, 1:15-cv-00250-JDL, ECF
No. 83.
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