& Sales Practices Litig., No. 09-md-02023, ECF No. 184 (E.D.N.Y. Aug. 17, 2012) (centralizing enforcement of subpoenas and finding that “this Court has jurisdiction to enforce subpoenas issued by plaintiffs in other jurisdictions pursuant to 28 U.S.C. § 1407, which grants judges who have been assigned multi-district actions ‘the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated proceedings’ . . . . this power includes the ability to quash, modify, or enforce a subpoena directed to an extra-district nonparty”) (quoting 28 U.S.C. § 1407(b)); In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. 30, 32-33 (D.P.R. 1987) (the MDL court found that it was “empowered to order compliance with a subpoena duces tecum issued in a deposition court other than the transferee court” where non-party witness objected to production of documents in a subpoena); In re Electronic Books Antitrust Litig., 11-md-2293, ECF No. 255 (S.D.N.Y. Oct. 19, 2012) (transferring action regarding subpoena issued to Amazon to the MDL) (a copy is attached to the Declaration of Thomas M. Sobol as Exhibit I.). 51 See, e.g., In re Actos (Pioglitazone) Prods.

com Counsel for Plaintiff Blake Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 16 of 34 PageID #:1126 EXHIBIT B Case: 1:10-cv-05469 Document #: 127 Filed: 08/29/12 Page 17 of 34 PageID #:1127 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: ENHANCED RECOVERY COMPANY, LLC TELEPHONE CONSUMER PROTECTION ACT LITIGATION ) ) ) ) MDL No. 2398 Soppet v. Enhanced Recovery Co., LLC, No. 1:10-cv-05469 (N.D. Ill.) RESPONSE BY ILLINOIS BELL TELEPHONE COMPANY d/b/a/ AT&T ILLINOIS TO MOTION FOR TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C. § 1407 FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS Pursuant to Rule 6.1(c) of the Rules of the Judicial Panel on Multidistrict Litigation (“Panel”), Defendant Illinois Bell Telephone Company d/b/a AT&T Illinois (“AT&T”) hereby submits its response to Motion of Certain Plaintiffs for Transfer of Actions to The Northern District of Illinois Pursuant to 28 U.S.C. § 1407 for Coordinated or Consolidated Pretrial Proceedings (“Motion”), filed July 11, 2012. While AT&T denies that plaintiffs properly (a) invoke the district courts’ jurisdiction with respect to AT&T,1 (b) allege common questions of fact relating to AT&T, or (c) allege proper causes of action against AT&T, AT&T does not oppose coordination or consolidation of 1 AT&T expressly reserves (a) any jurisdictional defenses that may be available to it under Rule 12 of the Federal Rules of Civil Procedure, (b) any affirmative defenses under Rule 8 of the Federal Rules of Civil Procedure and (c) any other statutory or common law defenses that may be available to it.

The Kansas Plaintiffs Inappropriately Seek to Consolidate the Minnesota Action into the MDL Action under 28 U.S.C. § 1407 Under 28 U.S.C. § 1407, cases may be consolidated by the JPML where: (1) the actions “involv[e] one or more common questions of facts”; (2) transfer “will be for the convenience of parties and witnesses”; and (3) transfer “will promote the just and efficient conduct of such actions.” See 28 U.S.C. § 1407; see also In re Skinnygirl Margarita Beverage Marketing & Sales Practices Litig., 829 F. Supp. 2d 1380, 1381 (J.P.M.L. 2011) (refusing to consolidate under § 1407 because the cases shared some factual questions but “the common material disputed facts may be limited in number.”).

Counsel for plaintiff expects that the motion will be heard on the MDL Panel’s next hearing session on May 29, 2014.”); Glazer v. Whirlpool Corp., No. 08-cv-1624, 2008 WL 4490117, at *1 (N.D. Ohio Oct. 1, 2008) (“[On September 28, 2008,] Defendant Whirlpool filed a motion to transfer the case before the [MDL Panel], pursuant to 28 U.S.C. § 1407…. The MDL Panel will consider the motion at its next hearing session, scheduled for November.”)

As such, Midland expects that the JPML will transfer this case pursuant to 28 U.S.C. § 1407. Thus, a stay will not prejudice the parties, but would benefit all parties and the Court. III. CONCLUSION For the foregoing reasons, Midland respectfully requests that the Court grant its motion to stay and enter an Order staying the proceedings until the JPML has ruled on the transfer of this case pursuant to 28 U.S.C. § 1407. Respectfully submitted this 21st day of April, 2015.

Thus, a stay will not prejudice the parties, but would benefit all parties and the Court. II. CONCLUSION For the foregoing reasons, Midland respectfully requests that the Court grant its motion to stay and enter an Order staying the proceedings until the JPML has ruled on the transfer of this case pursuant to 28 U.S.C. § 1407. Respectfully submitted this 8th day of May, 2015.

The assertion of state law claims does not significantly affect the decision whether MDL transfer is appropriate, because the JPML transfers actions for consolidated and/or coordinated proceedings where, as here, they share “common questions of fact,” regardless of whether additional state law causes of action are asserted in any of the complaints. See 28 U.S.C. § 1407(a) (“When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.”); see also In re Pineapple Antitrust Litig., 342 F. Supp. 2d 1348, 1349 (J.P.M.L. 2004) (centralizing nine antitrust actions pending in three states because “these nine actions involve common questions of fact,” notwithstanding the fact that “[c]ertain of the constituent actions also allege that defendants’ conduct violated other statutory and common law proscriptions of various states”).

Id. Case: 1:11-cv-05468 Document #: 535 Filed: 06/27/12 Page 16 of 23 PageID #:20226   ‐ 14 ‐  Moreover, centralization among claims involving multiple products from a single manufacturer are often consolidated in one MDL in order to properly effectuate the purpose of 28 U.S.C. § 1407. See generally In re: Kugel Mesh Hernia Patch Prods.

at 42. It is therefore no surprise that courts recognize that an MDL transferee court cannot grant a Rule 42 motion to consolidate for all purposes – beyond only pretrial proceedings – because that would extend the jurisdiction of the transferee court in violation of 28 U.S.C. §1407(a). See, e.g., In re Cessna 208 Series Aircraft Prods.

See Astarte Shipping, 767 F.2d at 87; see also Pinney v. Nokia, Inc., 402 F.3d 430, 452-453 (4th Cir. 2005) (transferee court for MDL litigation could decide motion to dismiss on preemption grounds even though, in one transferred case, transferor court had already denied motions to dismiss); In re Multi-Piece Rim Products Liability Litigation, 653 F.2d 671, 676 (D.C. Cir. 1981) (“[The transferee] judge has the power to set aside pretrial rulings of transferor courts, and courts performing auxiliary roles must be guided by the transferee judge’s rulings.”); Degulis v. LXR Biotech., Inc., 928 F. Supp. 1301, 1309 (S.D.N.Y. 1996) (“A transferee court … has the power to modify interlocutory orders entered by the transferor court prior to transfer under 28 U.S.C. § 1407.”) (citation omitted).