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Malden Transportation, Inc. v. Uber Technologies, Inc.

United States District Court, D. Massachusetts

November 3, 2017

Malden Transportation, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc., Defendant. Anoush Cab, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc., Defendant. Dot Ave Cab, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc., Defendant. Max Luc Taxi, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc., Defendant. Gill & Gill, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc. et al, Defendant. Sycoone Taxi, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc., Defendant. Taxi Maintenance, Inc. et al., Plaintiffs,
v.
Uber Technologies, Inc., Travis Kalanick, and Garrett Camp, Defendants.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE

         On October 5, 2017, this session ordered the consolidation for pre-trial matters of the seven above-captioned actions, pursuant to Fed.R.Civ.P. 42(a)(2). The Court found that the actions involve common questions of law and fact and that their consolidation would serve the interests of judicial economy and efficiency. Counsel for the various plaintiffs were also directed to “consult and submit to this Court a proposal for coordination of the prosecution of such actions.” Plaintiffs, accordingly, submitted a “motion for entry of coordination order”, including a “proposed coordination order”. Because the Court finds that proposal inadequate to ensure a workable consolidation of the cases, plaintiffs' motion for proposed entry of coordination order (Docket No. 68) will be denied without prejudice.

         Plaintiffs' proposed coordination order (“the plan”) is a marked improvement over their proposal offered in opposition to defendants' motion to consolidate cases. The proposed Executive Committee, which the Court considers to be essential, is a welcome development. The provisions for ensuring protection of sensitive information are also acceptable. Nonetheless, the plan falls short.

         This Court directed that the cases be consolidated, yet the plaintiffs' proposal continues to describe coordination rather than consolidation. The difference is more than semantic. Plaintiffs' proposed order fails to ensure that these cases will proceed as one action. The plan provides, for instance, that “[t]he Actions will be prosecuted, as much as possible, collectively by the Executive Committee” (emphasis added). In addition, plaintiffs propose that

Counsel for plaintiffs who disagree with the Executive Committee or who have individual or divergent positions may present written and oral arguments, conduct examinations of deponents, and otherwise act separately on behalf of their clients as appropriate[.]

         Both provisions jeopardize effective consolidation. Plaintiffs' proposal “may waste time and money, confuse and misdirect the litigation, and burden the court unnecessarily.” See Manual for Complex Litigation (Fourth) § 10.221 (2004). The Court consolidated these cases to avoid such pitfalls and intends to do so. Accordingly, the Court will not adopt the first sentence of Paragraph 4 or the entirety of Paragraph 9 of the proposed order. Plaintiffs are free to resolve intramural disputes as they see fit but they need to present their cases to the defendant and to the Court uniformly.

         In addition to the Court's power to consolidate actions under Fed.R.Civ.P. 42, a court may “issue any other orders to avoid unnecessary cost or delay.” Fed.R.Civ.P. 42(a)(3). Under the aegis of that Rule, “the appointment of lead counsel is now commonplace in complex litigation.” 9A Charles A. Wright et al., Federal Practice & Procedure § 2385 (3d ed. 2007) (collecting cases). Less drastic than the appointment of lead counsel is the appointment of liaison counsel. The Manual for Complex Litigation describes liaison counsel as typically

[c]harged with essentially administrative matters, such as communications between the court and other counsel (including receiving and distributing notices, orders, motions, and briefs on behalf of the group), convening meetings of counsel, advising parties of developments, and otherwise assisting in the coordination of activities and positions. Such counsel may act for the group in managing document depositories and in resolving scheduling conflicts.

         Manual for Complex Litigation (Fourth) § 10.221 (2004) (citing In re San Juan Dupont Plaza Hotel Fire Litig., 1989 WL 168401, at *19-20 (D.P.R. Dec. 2, 1988)) (emphasis added).

         These responsibilities can be contrasted with those of lead counsel who is:

Charged with formulating (in consultation with other counsel) and presenting positions on the substantive and procedural issues during the litigation. Typically they act for the group-either personally or by coordinating the efforts of others-in presenting written and oral arguments and suggestions to the court, working with opposing counsel in developing and implementing a litigation plan, initiating and organizing discovery requests and responses, conducting the principal examination of deponents, employing experts, arranging for support services, and seeing that schedules are met.

Id.

         The appropriate choice for a particular case is the role that will achieve “efficiency and economy without jeopardizing fairness to the parties.” See Id. Here, the Court believes that an Executive Committee, acting through an identified liaison counsel, should be charged to do just that. Cf. State of N.J. Dep't of Envtl. Prot. v. Gloucester Envtl. Mgmt. Servs., Inc., 138 F.R.D. 421, 429 (D.N.J. 1991) (discussing the appropriateness of liaison counsel). In fact, the measures that defendants propose align more with the duties of liaison counsel than to the lead counsel responsibilities described above.

         Defendants request that the court appoint, or direct plaintiffs to identify, ...


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