American Chemicals & Equipment Inc 401(K) Retirement Plan v. Principal Management Corporation et al

MOTION to Consolidate Cases And For Other Related Relief

S.D. IowaSeptember 5, 2014

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION AMERICAN CHEMICALS & ) EQUIPMENT INC. 401(k) RETIREMENT ) CASE NO.: 4:14-cv-00044-JAJ-HCA PLAN, ) ) Plaintiff, ) ) v. ) ) PRINCIPAL MANAGEMENT, ) CORPORATION and PRINCIPAL GLOBAL ) INVESTORS, LLC ) ) Defendants. ) ______________________________________________________________________________ AGREED MOTION TO CONSOLIDATE ACTIONS AND FOR OTHER RELATED RELIEF Plaintiff American Chemicals & Equipment Inc. 401(k) Retirement Plan and Defendants Principal Management Corporation and Principal Global Investors, LLC (the “parties”) jointly move the Court to consolidate for all purposes Case No. 4:14-cv-00335-JAJ-HCA, with the above-captioned case. As explained below, the two cases are brought by the same plaintiff, against the same defendants, are based on the same facts, and assert the same two substantive claims. As the complaint in the newly-filed action explains, the reason that the second action was filed was to ensure that plaintiff could seek damages for a subsequent period of time. Both parties agree that consolidation of these two cases for all purposes is appropriate. The parties also jointly request that the Court’s anticipated order on the pending motion to dismiss the Complaint in the above-captioned case apply to the complaint in the newly filed action. In support of this motion, the parties state as follows: Case 4:14-cv-00044-JAJ-HCA Document 83 Filed 09/05/14 Page 1 of 5 1. This action was filed in August 2013 in the Northern District of Alabama, and subsequently transferred to this Court. Before the case was transferred, Defendants filed a Rule 12(b)(6) motion to dismiss, and that motion is and was fully briefed, and is awaiting decision from this Court. 2. On August 27, 2014, Plaintiff filed a second, nearly identical action in this Court, which was assigned Case No. 4:14-cv-00335-JAJ-HCA (the “Second Action”). The complaint in the Second Action is entitled “Anniversary Complaint.” The Anniversary Complaint specifically refers to this action and explains that the Second Action was filed on the one-year anniversary of this action “out of an abundance of caution” and solely to preserve plaintiff’s claim for damages in the one-year period following the filing of this action. (Compl. ¶¶ 1-2). 3. The Anniversary Complaint is nearly identical to the Complaint in this action: it is brought by the same plaintiff, against the same defendants, and asserts the same two substantive claims. The only difference between the two complaints is that the Anniversary Complaint has been supplemented with publicly available information for the period from August 28, 2013 to August 27, 2014. 4. Following the filing of the Anniversary Complaint, counsel for Plaintiff and counsel for Defendants consulted, and they agree that the two cases should be consolidated for all purposes. Defendants also agreed to waive service of the summons for the Anniversary Complaint. 5. The parties respectfully request that the Court consolidate the Second Action with this original action for all purposes. 6. The parties also agree that Defendants’ Motion to Dismiss (Dkt. No. 21), which is fully briefed and remains pending, should be treated as a motion to dismiss both the Complaint Case 4:14-cv-00044-JAJ-HCA Document 83 Filed 09/05/14 Page 2 of 5 in this action and the Anniversary Complaint in the Second Action. Accordingly, the parties respectfully request that the Court’s decision on the Motion to Dismiss apply to both the Complaint in this action and the Anniversary Complaint in the Second Action. WHEREFORE, the parties respectfully request that the Court enter an order (1) consolidating Case No. 4:14-cv-00335-JAJ-HCA with this action for all purposes, and (2) apply its decision on the Defendants’ Motion to Dismiss (Dkt. No. 21) to both complaints. Case 4:14-cv-00044-JAJ-HCA Document 83 Filed 09/05/14 Page 3 of 5 Dated September 5, 2014 /s/ Michael C. McKay (with permission) Respectfully submitted, /s/ Sarah H. Newman J. Barton Goplerud AT0002983 jbgoplerud@hudsonlaw.net HUDSON MALLANEY SHINDLER & ANDERSON PC 5015 Grand Ridge Drive, Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 Todd M. Schneider (admitted pro hac vice) Garrett W. Wotkyns (admitted pro hac vice) Michael C. McKay (admitted pro hac vice) SCHNEIDER WALLACE COTTRELL KONECKY LLP 8501 N. Scottsdale Road, Suite 270 Scottsdale, Arizona 85253 Telephone: (480) 428-0143 Facsimile: (866) 505-8036 Richard S. Frankowski Rob Norton BURKE HARVEY & FRANKOWSKI, LLC 2151 Highland Avenue, Suite 120 Birmingham, AL 35205 Telephone: (205) 588-8671 Facsimile: (205) 930-9054 Peter J. Mougey Laura S. Dunning LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR 316 S. Baylen Street, Suite 600 Pensacola, FL 32502 Telephone: (850) 435-7121 Facsimile: (850) 436-6147 Counsel for Plaintiff American Chemicals & Equipment Inc. 401 (k) Retirement Plan Angel West, AT0008416 aaw@nyemaster.com Matthew R. Eslick mreslick@nyemaster.com 700 Walnut Street Suite 1600 Des Moines, Iowa 50309 Telephone: (515) 283-3167 Fax: (515) 283-3108 Mark B. Blocker (admitted pro hac vice) mblocker@sidley.com Sarah H. Newman (admitted pro hac vice) snewman@sidley.com Jen C. Won (admitted pro hac vice) jwon@sidley.com Sidley Austin LLP One South Dearborn St. Chicago, IL 60603 Telephone: (312) 853-7000 Facsimile: (312) 853-7036 Alex. J. Kaplan (admitted pro hac vice) ajkaplan@sidley.com Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 839-5300 Facsimile: (212) 839-5599 Counsel for Defendants Principal Management Corporation and Principal Global Investors, LLC Case 4:14-cv-00044-JAJ-HCA Document 83 Filed 09/05/14 Page 4 of 5 CERTIFICATE OF SERVICE I certify that on September 5, 2014, I electronically filed the foregoing with the Clerk of Court using the ECF system, which will send notification of such filing to the parties participating in the Court’s electronic filing system. /s/ Sarah H. Newman Case 4:14-cv-00044-JAJ-HCA Document 83 Filed 09/05/14 Page 5 of 5