Knutson v. Sirius XM Radio Inc.

Filing 21

ORDER DENYING TRANSFER re: pldg. (17 in CAS/3:12-cv-00418, 18 in CAS/3:15-cv-00044, 21 in ILN/1:15-cv-02093, 30 in MDL No. 2635, 17 in NCE/7:15-cv-00037, 21 in VAE/4:13-cv-00003), ( 1 in MDL No. 2635) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 8/7/2015. Associated Cases: MDL No. 2635, CAS/3:12-cv-00418, CAS/3:15-cv-00044, ILN/1:15-cv-02093, NCE/7:15-cv-00037, VAE/4:13-cv-00003 (TL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: SIRIUS XM RADIO, INC., TELEPHONE
CONSUMER PROTECTION ACT (TCPA) LITIGATION

MDL No. 2635

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in three putative nationwide class actions move under 28
U.S.C. § 1407 to centralize this litigation in the Eastern District of Virginia. This litigation currently
consists of five actions pending in four districts, as listed on Schedule A.1 Plaintiffs in all actions
generally allege that defendant Sirius XM Radio, Inc. (Sirius XM) made unauthorized telemarketing
calls that were placed by automated telephone dialing systems to plaintiffs’ cellular telephones.
Plaintiffs allege that these calls, which sought to enroll plaintiffs in paid subscriptions to Sirius XM
radio, typically following a vehicle purchase in which plaintiffs received a free trial subscription to
Sirius XM radio, violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
Plaintiff in the relatively advanced Eastern District of Virginia Hooker action opposes
centralization and, alternatively, suggests the Eastern District of Virginia as the transferee forum
(though at oral argument, counsel stated that his opposition to centralization had “softened”
somewhat). Common defendant Sirius XM Radio, Inc., (Sirius XM) also opposes centralization and,
alternatively, suggests centralization in the Eastern District of Virginia. Plaintiff in an individual
action pending in the Eastern District of North Carolina did not respond to the motion for
centralization.
On the basis of the papers filed and the hearing session held, we conclude that centralization
will not serve the convenience of the parties and witnesses or further the just and efficient conduct
of the litigation. The Eastern District of Virginia Hooker action is significantly advanced, with fact
and expert discovery completed and class certification briefing poised to commence. All other
actions remain at relatively initial stages of litigation. Centralization in these circumstances may

*

Certain Panel members who could be members of the putative classes in this docket have
renounced their participation in these classes and have participated in the decision.
1

Plaintiffs’ motion for centralization included two actions (District of New Jersey Gebhardt
and Western District of Washington Robinson) that have since been dismissed, and the Panel
received responses to the motion for centralization from two defendants that have since been
dismissed, Career Horizons, Inc. d/b/a Teleservices, Inc. and Toyota Motor Sales U.S.A., Inc.
Additionally, the parties notified the Panel of a related action pending in the Middle District of
Florida.

-2delay the proceedings in Hooker.
Where only a minimal number of actions are involved, the proponents of centralization bear
a heavier burden to demonstrate that centralization is appropriate. See In re: Transocean Ltd. Sec.
Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010). Plaintiffs have not met that burden
here. Although we have centralized other TCPA litigation that involved fewer cases, the cases here
already are being managed in an orderly and efficient manner, and the issues that they present are
neither factually nor legally complex.
In our view, cooperation among the parties will be the best route to resolving these actions.
Plaintiffs in the two Southern District of California actions and the Northern District of Illinois
action appear amenable to cooperation, given that they are joint Section 1407 movants. These
plaintiffs also have agreed, in their reply brief, not to seek to redo any of the discovery that has
occurred in Hooker or revisit rulings reached in that action. Further, common defendant Sirius XM
is willing to litigate these cases where they were filed. Given the procedural disparity among the
actions, the few involved counsel, and the limited number of actions, informal cooperation among
the involved attorneys and courts is both practicable and preferable to centralization. Should the
need arise, we encourage the parties to employ available alternatives to transfer to minimize the
potential for duplicative discovery and inconsistent pretrial rulings. See, e.g., In re: Eli Lilly & Co.
(Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual
for Complex Litigation, Fourth, § 20.14 (2004); 28 U.S.C. § 1407(a).
IT IS THEREFORE ORDERED that the motion for centralization of the actions listed on
Schedule A is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: SIRIUS XM RADIO, INC., TELEPHONE
CONSUMER PROTECTION ACT (TCPA) LITIGATION

SCHEDULE A

Southern District of California
KNUTSON v. SIRIUS XM RADIO INC., C.A. No. 3:12!00418
TRENZ v. SIRIUS XM RADIO, INC., ET AL., C.A. No. 3:15!00044
Northern District of Illinois
ELICKMAN v. SIRIUS XM RADIO, INC., C.A. No. 1:15!02093
Eastern District of North Carolina
COMBS v. SIRIUS XM RADIO INC., C.A. No. 7:15!00037
Eastern District of Virginia
HOOKER v. SIRIUS XM RADIO, INC., C.A. No. 4:13!00003

MDL No. 2635