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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`In re: Refrigerant Compressors
`Antitrust Litigation
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`___________________________/
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`Case No. 2:09-md-02042
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`Honorable Sean F. Cox
`United States District Court
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`OPINION & ORDER DENYING
`INDIRECT PURCHASER PLAINTIFFS’ MOTION FOR ENTRY OF FINAL
`JUDGMENTS AND CERTIFICATION OF CLAIMS FOR INTERLOCUTORY APPEAL
`(DOCKET ENTRY NO. 358)
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`This Multi District Litigation matter involves putative class action claims asserted against
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`multiple corporate Defendants by: 1) Direct Purchaser (“DP”) Plaintiffs (who assert federal
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`antitrust claims); and 2) Indirect Purchaser (“IP”) Plaintiffs (who assert state-law antitrust,
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`consumer protection act, and unjust enrichment claims). The claims are all based upon the same
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`alleged antitrust conspiracy. This matter is currently before the Court on the IP Plaintiffs’
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`“Motion For (1) Entry Of Final Judgments Under Rule 54(b) As To Certain Indirect Purchaser
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`Plaintiffs And (2) Certification Of Certain Claims For Interlocutory Appeal Under 28 U.S.C. §
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`1291(b)” (Docket Entry No. 358). The Court finds that the issues have been adequately
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`presented in the parties’ briefs and that oral argument would not aid the decisional process. See
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`Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore
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`orders that the motion will be decided upon the briefs. For the reasons that follow, the Court
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`shall DENY the motion.
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`BACKGROUND
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`Beginning in February 2009, the DP Plaintiffs and IP Plaintiffs filed complaints in
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`various jurisdictions asserting claims against Defendants. The DP Plaintiffs asserted federal
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`antitrust claims, while the IP Plaintiffs asserted state-law antitrust, consumer protection act, and
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`unjust enrichment claims. The claims are all based upon the same alleged antitrust conspiracy.
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`These various actions were consolidated for pretrial proceedings in this Court by the United
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`States Judicial Panel on Multi District Litigation.
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`On May 26, 2010, the Court issued Case Management Order No. 1 (the “CMO”) – which
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`was proposed by and agreed to by the parties. (Docket Entry No. 152). Among other things, the
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`CMO provides that the DP and IP Plaintiffs would separately file Master Amended Complaints
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`including each Defendant no later than June 30, 2012. (Id. at 8). It also provides that Defendants
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`may thereafter file motions to dismiss the master amended complaints. (Id. at 9-10).
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`Status Of The DP Plaintiffs’ Case
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`Following the CMO, the DP Plaintiffs filed a Master Amended Complaint on June 30,
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`2010. Defendants then filed motions seeking to dismiss the claims asserted by the DP Plaintiffs.
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`After extensive briefing by the parties and oral argument, this Court issued an Opinion & Order
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`on June 13, 2011, ruling upon the challenges to the DP Plaintiffs’ claims. Following this Court’s
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`rulings, the DP Plaintiffs ultimately filed a Second Amended Master Amended Complaint on
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`June 20, 2012. Thus, as of June 20, 2012, this Court had resolved all motions seeking to dismiss
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`the claims asserted by the DP Plaintiffs. The DP Plaintiffs’ case is ready to proceed to discovery.
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`Several, but not all, Defendants have reached a settlement with the DP Plaintiffs and have
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`a motion pending before the Court seeking preliminary approval of the settlement.
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`Status Of The IP Plaintiffs’ Case
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`Following the CMO, the IP Plaintiffs filed several master amended complaints. The IP
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`Plaintiffs filed their original Consolidated Amended Complaint on June 30, 2010. (Docket Entry
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`No. 154).
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`On September 21, 2010, the IP Plaintiffs filed their Second Consolidated Amended
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`Complaint (“SCAC”). (Docket Entry No. 174). There were seventeen named IP Plaintiffs in the
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`SCAC (see SCAC at ¶¶ 20-36), which consist of four corporate entities and thirteen individuals
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`who reside in various states. In the SCAC, the IP Plaintiffs seek certification of a nationwide
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`class, and assert state-law antitrust claims, consumer protection / unfair competition claims, and
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`unjust enrichment claims against Defendants. The SCAC describes the nature of the case as
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`follows. This case arises from “a long-running, world-wide conspiracy” among Defendants “to
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`fix, raise, maintain, and/or stabilize the prices of, and to allocate customers and markets for,
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`Hermetic Compressors,” thus artificially raising the prices for Hermetic Compressors and
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`products containing Hermetic Compressors.” (SCAC at ¶ 1).
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`Thereafter, pursuant to the CMO, Defendants filed several motions seeking to dismiss the
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`IP Plaintiffs’ claims. Those motions raised multiple grounds for relief.
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`On June 7, 2009, this Court heard oral argument on the “Twombly challenge” set forth in
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`Defendants’ Joint “Motion to Dismiss the Indirect Purchaser Plaintiffs’ Consolidated Amended
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`Complaint” (Docket Entry No. 162). After that hearing, the Court ruled that “the Indirect
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`Purchaser Plaintiffs’ current operative complaint, the ‘Second Consolidated Amended
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`Complaint’, fails to state a claim under Twombly, except as to the claims asserted against
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`Defendants Panasonic Corporation and Embraco North America, Inc., for the approximately
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`three-year period set forth in the respective plea agreements.” (Docket Entry No. 294). On June
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`11, 2012, this Court also issued a Memorandum Opinion, setting forth the basis for that ruling.
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`(Docket Entry No. 300).
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`Pursuant to the parties’ agreement (see Docket Entry No. 313), on July 6, 2012, the IP
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`Plaintiffs filed a revised Third Consolidated Amended Complaint. (Docket Entry No. 314).
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` After extensive briefing by the parties, the Court issued Opinions & Order ruling on
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`other issues raised in Defendant’s pending motions to dismiss.
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`On July 10, 2012, this Court ruled that based upon the allegations in the IP Plaintiffs’
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`Third Consolidated Amended Complaint: 1) there is at least one named IP Plaintiff with
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`constitutional standing to assert claims under the laws of the following states/territories: Arizona;
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`California; District of Columbia; Kansas; New Hampshire; New Mexico; New York; North
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`Carolina; Michigan; West Virginia; Wisconsin; Rhode Island; Maine; Nebraska; Minnesota;
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`Florida; Tennessee; and Massachusetts; and 2) the named IP Plaintiffs lack constitutional
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`standing to bring claims under the laws of states/territories where no named IP Plaintiff claims to
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`reside or have been injured. The Court therefore dismissed the IP Plaintiffs’ claims asserted
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`under the laws of the following states/territories: Arkansas; Hawaii; Iowa; Louisiana;
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`Mississippi; Nevada; North Dakota; Puerto Rico; South Dakota; Utah; and Vermont. (See Docket
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`Entry Nos. 318 & 319).
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`On April 9, 2013, this Court issued an Opinion & Order on the remaining challenges in
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`the motions seeking to dismiss the IP Plaintiffs’ claims. (Docket Entry No. 343). This Court
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`dismissed the IP Plaintiffs’: 1) claims under the antitrust statutes of twelve states, for lack of
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`antitrust standing; 2) the antitrust claims under Tennessee’s antitrust statute for failure to allege a
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`substantial effect on intrastate commerce; 3) consumer protection act claims under the laws of
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`five states; and 4) unspecified unjust enrichment claims. Those rulings left claims under four
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`consumer protections acts (California, Massachusetts, New Mexico, and Rhode Island), and
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`claims under two antitrust statutes (North Carolina and Minnesota), still pending in this action.
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`Because this Court’s opinions and orders ruling on the motions to dismiss did not resolve
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`all claims asserted in the IP Plaintiffs’ Third Consolidated Amended Complaint, this Court has
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`not yet issued a judgment.
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`Nevertheless, on May 8, 2013, Counsel for the IP Plaintiffs filed a Notice of Appeal,
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`indicating that seven of the named plaintiff’s in the IP Plaintiffs’ Third Consolidated Amended
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`Complaint “individually and on behalf of all other similarly situated, hereby appeal to the United
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`States Court of Appeals for the Sixth Circuit from the final order, entered in this action on April
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`9, 2013 [DE #343].” (Docket Entry No. 354).
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`On May 9, 2013, the IP Plaintiffs filed the pending “Motion For (1) Entry Of Final
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`Judgments Under Rule 54(b) As To Certain Indirect Purchaser Plaintiffs And (2) Certification Of
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`Certain Claims For Interlocutory Appeal Under 28 U.S.C. § 1291(b).” (Docket Entry No. 358).
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`Defendants filed a joint brief in opposition to the motion. (Docket Entry No. 364).
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`ANALYSIS
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`I.
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`This Court Shall Deny The IP Plaintiffs’ Request For Entry Of Final Judgment
`Under Fed. R. Civ. P. 54(b).
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`The pending motion asserts that on April 9, 2013, this Court “dismissed all of the
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`remaining claims asserted by fourteen IP Plaintiffs (the “Dismissed Plaintiffs”). Because six of
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`the Dismissed Plaintiffs had individual complaints on file, it appears that the Court’s April 9,
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`2013 order is final as to them” and therefore they may appeal as of right. (IP Pls.’ Br. at 1,
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`motion at ¶ 3). It further states that the “other eight of the Dismissed Plaintiffs were named on
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`complaints with IP Plaintiffs that have surviving claims, and they therefore seek entry of a final
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`judgment pursuant to Rule 54(b).” (IP Pls.’ Br. at 1). Nevertheless, the motion states that out of
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`“an abundance of caution,” those named IP Plaintiffs who believe they may appeal as of right
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`also ask the Court to enter judgments on their behalf.
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`A.
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`This Court Concludes That No IP Plaintiffs May Appeal This Court’s April
`9, 2013 Opinion & Order As Of Right.
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`As a preliminary matter, this Court concludes that none of the named IP Plaintiffs in the
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`Third Consolidated Amended Complaint may appeal, as of right, any of this Court’s rulings on
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`the motions to dismiss. Counsel for the IP Plaintiffs appear to be under mistaken belief that the
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`various complaints that were originally filed in other jurisdictions are still operative. They are
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`not.
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`Cases that are consolidated for trial or pretrial purposes do not lose their separate identity
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`by virtue of the act of consolidation alone. Klyce v. Ramirez, 1988 WL 74155 (6th Cir. 1988);
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`Manhattan Railway Co., 289 U.S. 479, 496-97 (1933) (consolidation alone “does not merge the
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`suits into a single cause”); Beil v. Lakewood Eng. & Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994).
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`Here, however, the actions were not merely consolidated. Notably, after the actions were
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`consolidated, the IP Plaintiffs elected to file master amended complaints that superceded their
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`previously-filed complaints.
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`It is well-established that “[u]nder the Federal Rules, an amended complaint supercedes
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`the original complaint.” Klyce, supra, at *3 (quoting Fritz v. Standard Sec. Life Ins. Co., 676
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`F.2d 1356, 1358 (11th Cir. 1982) and citing numerous other decisions).
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`In proposing and agreeing to the CMO in this MDL action, the IP Plaintiffs chose to
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`abandon their previously filed complaints in order to file a single, “master” amended complaint.
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`Accordingly, when the IP Plaintiffs filed a single master amended complaint (and other
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`subsequent master amended complaints), which incorporated the claims of the IP Plaintiffs who
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`had filed complaints in various jurisdictions, that pleading “entirely superceded” the original
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`separate complaints, ultimately leaving one Third Consolidated Amended Complaint with
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`multiple named IP Plaintiffs. Klyce, supra. This Court’s April 9, 2013 Opinion Order, which
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`did not dismiss all claims asserted in the Third Consolidated Amended Complaint, “was not,
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`therefore, a final appealable order, that would invoke the jurisdiction” of the appellate court. Id.
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`B.
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`This Court Concludes That This Is Not The “Infrequent Harsh Case” In
`Which 54(b) Certification Is Warranted.
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`Having concluded that no IP Plaintiffs may currently appeal as of right, this Court shall
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`consider the IP Plaintiffs’ request that this Court issue final judgments, under Fed. R. Civ. P.
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`54(b), as to fourteen named IP Plaintiffs.
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`Rule 54(b) of the Federal Rules of Civil Procedure governs the issuance of judgment on
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`multiple claims or involving multiple parties and provides, in pertinent part:
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`When an action presents more than one claim for relief . . . or when multiple
`parties are involved, the court may direct entry of a final judgment as to one or
`more, but fewer than all, claims or parties only if the court expressly determines
`that there is no just reason for delay. Otherwise, any order or other decision,
`however designated, that adjudicates fewer than all the claims or the rights and
`liabilities of fewer than all the parties does not end the action as to any of the
`claims or parties and may be revised at any time before the entry of a judgment
`adjudicating all the claims and all the parties’ rights and liabilities.
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`Fed. R. Civ. P. 54(b).
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`“Rule 54(b) should not be used routinely,” but rather “should be reserved for the
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`‘infrequent harsh case,’ where certification serves the interest of justice and judicial
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`administration.” Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155, 1159 (6th Cir.
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`1988). The determination of whether to allow an interlocutory appeal pursuant to Fed. R. Civ. P.
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`54(b) is a matter left to the sound discretion of the district court. Akers v. Alvey, 338 F.3d 491,
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`496 (6th Cir. 2003).
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`In making a Rule 54(b) certification decision, a district court “must determine whether
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`‘the needs of the parties’ outweigh the efficiency of having one appeal at the conclusion of the
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`case in its entirety, and it must spell out its reasons for concluding that prompt review is
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`preferable.” Gencorp, Inc. v. Olin Corp., 390 F.3d 433, 442 (6th Cir. 2004). The Sixth Circuit
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`has set forth a non-exhaustive list of factors that a district court may consider, including: 1) the
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`relationship between the adjudicated and unadjudicated claims; 2) the possibility that the need for
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`review might be mooted by future developments in the district court; 3) the possibility that the
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`reviewing court might be obligated to consider the same issue a second time; and 4)
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`miscellaneous factors such as delay, economic and solvency considerations, and the like. Akers,
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`338 F.3d at 495.
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`This Court concludes that consideration of the above factors weighs against granting the
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`relief requested. The interests of judicial economy and the need to avoid “piecemeal litigation”
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`militate against a final judgment certification at this stage of the litigation. This Court concludes
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`that judicial economy will best be served by delaying appeal until all the issues can be confronted
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`by the appellate court in a unified package. This is especially so here, where the adjudicated and
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`pending claims are closely related and stem from the same factual allegations. Solomon v. Aetna
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`Life Ins. Co., 782 F.2d 58, 62 (6th Cir. 1986). Indeed, both the IP Plaintiffs’ claims and the DP
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`Plaintiffs’ claims stem from the very same alleged conspiracy, over the same time period, among
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`the same Defendants.
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`This Court has ruled upon all motions seeking to dismiss the DP Plaintiffs’ claims and
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`the IP Plaintiffs’ claims and the matter can now proceed to discovery. Given that both the IP
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`Plaintiffs’ claims and the DP Plaintiffs’ claims stem from the very same alleged conspiracy, there
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`will be substantial overlap in the discovery sought by the parties. Granting the relief requested
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`by the IP Plaintiffs’ motion will result in either: 1) this Court staying all discovery in this matter
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`– which would unnecessarily delay the resolution of the DP Plaintiffs’ claims, and delay the
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`resolution of those IP Plaintiffs who still have claims pending; or 2) placing the IP and DP
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`Plaintiff cases on different discovery tracks – which would eliminate the efficiency advantages of
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`this matter proceeding as an MDL.
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`Accordingly, this Court concludes that this is not the “infrequent harsh case” in which
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`54(b) certification should be granted.
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`II.
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`This Court Shall Deny The IP Plaintiffs’ Request For Certification Of Interlocutory
`Appeal Pursuant To 28 U.S.C. § 1292(b) For Similar Reasons.
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`Given the above ruling by this Court, the IP Plaintiffs’ motion asks this Court to certify
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`all of the following issues for interlocutory appeal under 28 U.S.C. § 1292(b):
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`1) “whether the IP Plaintiffs in California and New Mexico lack antitrust standing
`under the laws of their respective states;”
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`2) “whether the dismissed plaintiffs lack antitrust standing under the laws of their
`respective states;”
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`3) “whether IP Plaintiffs have Article III standing to assert claims, as
`representative plaintiffs, on behalf of a class of individuals that includes residents
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`in another state;”
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`4) “whether Fed. R. Civ. P. 9(b) applies to non-fraud antitrust claims under
`Florida’s Deceptive and Unfair Trade Practices Act;” and
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`5) “whether substantial effects on the price of an article widely distributed in
`interstate commerce and in the state of Tennessee satisfies the requirement of a
`‘substantial effect’ on Tennessee commerce required for application of
`Tennessee’s antitrust law.”
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`(Docket Entry No. 358 at 1-2).
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`The statute that governs interlocutory decisions, 28 U.S.C. § 1292(b), provides, in
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`pertinent part, that:
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`When a district judge, in making in a civil action an order not otherwise
`appealable under this section, shall be of the opinion that such order involves a
`controlling question of law as to which there is substantial ground for difference
`of opinion and that an immediate appeal from the order may materially advance
`the ultimate termination of the litigation, he shall so state in writing in such order.
`The Court of Appeals which would have jurisdiction of an appeal of such action
`may thereupon, in its discretion, permit an appeal to be taken from such order, if
`application is made to do it within ten days after the entry of the order: Provided,
`however, That application for an appeal hereunder shall not stay proceedings in
`the district court unless the district judge or the Court of Appeals or a judge
`thereof shall so order.
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`28 U.S.C. § 1292(b) (emphasis in original). Thus, this Court has the discretion to certify an order
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`for interlocutory appeal if: 1) the order involves a controlling question of law; 2) a substantial
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`ground for difference of opinion exists regarding the correctness of the decision; and 3) an
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`immediate appeal may materially advance the ultimate termination of the litigation. Id.; In re
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`City of Memphis v. City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002) (emphasis added); see
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`also In re Baker & Getty Fin. Svs., Inc. v. Nat’l Union Fire Ins. Co., 954 F.2d 1169, 1172 (6th
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`Cir. 1992).
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`The Sixth Circuit has stated that “[r]eview under § 1292(b) is granted sparingly and only
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`in exceptional cases.” In re City of Memphis, 293 F.3d 350. The determination of whether to
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`allow for an interlocutory appeal pursuant to Fed. R. Civ. P. 54(b) is a matter left to the sound
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`discretion of the district court. Akers v. Alvey, 338 F.3d 491, 496 (6th Cir. 2003); see also
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`Wolvin Underwriters, Inc. v. Great Southwest Fire Ins. Co., 1987 WL 38786 (6th Cir. 1987) (“A
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`district court’s order refusing to certify an interlocutory appeal under 28 U.S.C. § 1292(b) is not
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`appealable.”); Calvert v. Xerox Corp., 1995 WL 109000 (6th Cir. 1995) (same).
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`The Court concludes that this is not the exceptional case where review under § 1292(b) is
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`appropriate.
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`Assuming arguendo that the first two requirements could be met here, § 1292(b) also
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`requires that the district court be of the opinion that an immediate appeal may materially advance
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`the ultimate termination of the litigation. This third requirement is fatal to the IP Plaintiffs’
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`motion for the same reasons why this Court is denying 54(b) certification.
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`This is a complex multidistrict litigation action that has already been pending for several
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`years. The interests of judicial economy and the need to avoid piecemeal litigation weigh against
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`an interlocutory appeal. This Court concludes that judicial economy is best served by delaying
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`appeal until all the issues can be confronted by the appellate court in a unified package.
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`This Court has ruled upon all motions seeking to dismiss the DP Plaintiffs’ claims and
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`the IP Plaintiffs’ claims. Both the IP Plaintiffs’ case and the DP Plaintiffs’ case are ready to
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`proceed to discovery. Given that both the IP Plaintiffs’ claims and the DP Plaintiffs’ claims stem
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`from the very same alleged conspiracy, there will be substantial overlap in the discovery sought
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`by the parties. Granting the relief requested by the IP Plaintiffs’ motion would result in either: 1)
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`this Court staying all discovery in this matter – which would unnecessarily delay the resolution of
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`the DP Plaintiffs’ claims, and also delay resolution of those IP Plaintiffs who still have claims
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`pending; or 2) placing the IP and DP Plaintiff cases on different discovery tracks – which would
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`eliminate the efficiency advantages that an MDL provides.
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`Accordingly, the Court shall deny the IP Plaintiffs’ request for certification of an
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`interlocutory appeal under § 1292(b).
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`CONCLUSION & ORDER
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`For the reasons set forth above, IT IS ORDERED that the IP Plaintiffs’ “Motion For (1)
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`Entry Of Final Judgments Under Rule 54(b) As To Certain Indirect Purchaser Plaintiffs And (2)
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`Certification Of Certain Claims For Interlocutory Appeal Under 28 U.S.C. § 1291(b)” (Docket
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`Entry No. 358) is DENIED.
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`IT IS SO ORDERED.
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`S/Sean F. Cox
`Sean F. Cox
`United States District Judge
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`Dated: August 5, 2013
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`I hereby certify that a copy of the foregoing document was served upon counsel of record on
`August 5, 2013, by electronic and/or ordinary mail.
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`S/Jennifer McCoy
`Case Manager
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