United States District Court, E.D. Missouri, Eastern Division
CITY OF CREVE COEUR, MISSOURI, on behalf of itself and all others similarly situated, Plaintiffs,
DIRECTV, LLC, et al., Defendants. CITY OF CREVE COEUR, MISSOURI, on behalf of itself and all others similarly situated, Plaintiffs,
NETFLIX, INC., et al., Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff City of Creve Coeur,
Missouri's Motion to Consolidate Its Cases (ECF No. 24),
Defendants DISH Network Corp. and DISH Network L.L.C.'s
Motion to Dismiss Complaint (ECF No. 26) and accompanying
Request for Oral Argument (ECF No. 28), Defendant DIRECTV,
LLC's Motion to Dismiss (ECF No. 29), and Plaintiffs
Motions to Remand to State Court (No. 4:18CV1453, ECF No. 39;
No. 4:18CV1495 SNLJ, ECF No. 28). The motions are fully
briefed. After careful consideration, the Court grants the
motion to consolidate this case with City of Creve Coeur,
Missouri, et al, v. Netflix, Inc. and Hulu,
LLC, No. 4:18CV1495 SNLJ and remands both cases to the
Twenty-First Judicial Circuit of Missouri in St. Louis
filed two putative class actions on behalf of itself and
similarly situated Missouri political subdivisions seeking
declaratory judgment and other relief against DIRECTV, LLC,
DISH Network Corp. and DISH Network L.L.C. (referred to
collectively as "Satellite Defendants") in one case
and against Netflix, Inc. and Hulu LLC (referred to
collectively as "Streaming Defendants") in the
other. In each case, Plaintiff alleges the service providers
do business within the state but fail to remit fees as
required by the 2007 Video Services Providers Act
("VSPA"), Mo. Rev. Stat. § 67.2675, et
seq., and local code provisions. The separate actions against
the Satellite Defendants and the Streaming Defendants were
filed on the same day in the Twenty-First Judicial Circuit of
Missouri in St. Louis County. Within days of each other, both
cases were removed to federal court: the case against
Satellite Defendants was assigned to the undersigned and case
against Streaming Defendants was assigned to the Honorable
Stephen N. Limbaugh, Jr.
now seeks to consolidate the two separate cases. Pursuant to
Local Rule 4.03, Plaintiff filed its Motion to Consolidate in
the case before the undersigned as it bears the lowest cause
number. Satellite Defendants and Streaming
Defendants (all four defendants are referred to
collectively as "Defendants") filed Memoranda in
Opposition (ECF Nos. 44, 45, 46, & 47) and Plaintiff
filed a Joint Reply in Support of Consolidation (ECF No. 48).
days after Plaintiff filed its Motion to Consolidate, each
Satellite Defendant filed separate Motions to Dismiss. (ECF
Nos. 26 & 29) Streaming Defendants have also filed
Motions to Dismiss in the case before Judge Limbaugh. (No.
4:18CV1495 SNLJ, ECF Nos. 9 & 12) In addition, Plaintiff
filed Motions to Remand to State Court in each case. (No.
4:18CV1453, ECF No. 39; No. 4:18CV1495 SNLJ, ECF No. 28) The
motions to dismiss and motions to remand are all fully
briefed and also ready for disposition.
42(a) of the Federal Rules of Civil Procedure governs
consolidation of cases and provides: "If actions before
the court involve common questions of law or fact, the court
may: (1) join for hearing or trial any or all maters at issue
in the actions; (2) consolidate the actions; or (3) issue any
other orders to avoid unnecessary cost or delay." A
district court has broad discretion in determining whether to
order consolidation. Enter. Bank v. Saettele, 21
F.3d 233, 235 (8th Cir. 1994). "The threshold issue is
whether the proceedings involve a common party and common
issues of fact or law. The mere existence of common issues,
however, does not mandate that the cases be joined."
A.O.A. v. Doe Run Res. Corp., No. 4:11CV44 CDP, 2016
WL 1182631, at *2 (E.D. Mo. Mar. 28, 2016) (citation
omitted). "The party seeking consolidation has the
burden of showing the commonality of factual and legal
issues, and the Court must examine 'the special
underlying facts' with 'close attention' before
ordering consolidation." PB & J Software, LLC v.
Acronis, Inc., No. 4:12-CV-690 SNLJ, 2012 WL 4815132, at
*2 (E.D. Mo. Oct. 10, 2012) (quoting In re Repetitive
Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993)).
The purpose of consolidation is to promote convenience and
economy in the administration of actions. Saettele,
21 F.3d at 235 (citation omitted). However, consolidation is
not appropriate if it leads to inefficiency, inconvenience,
or unfair prejudice to a party. E.E.O.C. v. HEE
Corp., 135 F.3d 543, 551 (8th Cir. 1998).
initial matter, Defendants argue the Court should deny
Plaintiffs Motion to Consolidate because Plaintiff
chose to file separate cases. While perhaps
uncommon, it is not dispositive that Plaintiff is the one to
file the instant Motion to Consolidate after initially
choosing to file separate cases in state court. See,
e.g., PB & J Software, 2012 WL 4815132, at *1.
Further, Defendants argue consolidation would be premature
because of the other pending motions. See, e.g., Thompson
v. City of St. Peters, No. 4:15CV404 RLW, 2016 WL
1625373, at *2 (E.D. Mo. Apr. 21, 2016). Other courts in this
district, however, have ruled on motions to consolidate
before other pending motions. See, e.g., Capitol Indem.
Corp. v. March, Nos. 1:13CV75 SNLJ, 1:13CV142 LMB, 2013
WL 6838778, at *4 (E.D. Mo. Dec. 27, 2013).
cases involve a common party: Plaintiff on behalf of itself
and "all Missouri political subdivisions that collect
video-service-provider fees, and in which Defendants have
provided or continue to provide video service." (No.
4:18CV1453, ECF No. 6, at ¶ 11; No. 4:18CV1495 SNLJ, ECF
No. 5, at ¶ 12) The fact that each defendant is a
separate entity does not defeat this commonality factor.
See St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass
'n of New Orleans, Inc., 712 F.2d 978, 989 (5th Cir.
1983) ("The fact that a defendant may be involved in one
case and not the other is not sufficient to avoid
consolidation."). Therefore, the Court must consider
whether the cases involve common questions of law or fact and
determine whether consolidation would promote convenience and
economy in the administration of the actions. See
Fed. R. Civ. P. 42(a); Saettele, 21 F.3d at 235.
argues these cases involve common questions of law and fact.
Plaintiff asserts the same three claims against the Satellite
Defendants and the Streaming Defendants: declaratory
judgment, injunctive relief, and accounting (Count I); unjust
enrichment (Count II); and unpaid fees, interest, and
penalties (Count III). Cf. PB & J Software, 2012
WL 4815132, at *2 (denying the plaintiffs motion to
consolidate four separate patent infringement cases because,
of the plaintiffs 18 claims, the plaintiff "simply
alleges that 'at least one claim' of the Patent has
been infringed by each defendant, so it is not at all clear
that the defendants are alleged to infringe the same
claim"). The ad damnum clauses of each petition
also seek the same relief. According to Plaintiff, both cases will
center on common questions of fact to prove its claims: e.g.,
whether Defendants provide video service in Missouri and
whether each defendants' programming is delivered in part
over wireline facilities located in public right-of-way.
defendant opposes consolidation and uses similar reasoning.
Defendants argue the relevant statutes and local codes will
apply differently to Satellite Defendants compared to
Streaming Defendants as the former have historically provided
their service via satellite communication and the latter via
internet streaming. According to Streaming Defendants, this
distinction means they are not "video service
providers" as defined under the VSPA. Additionally,
Satellite Defendants argue a provision of the federal
Telecommunications Act of 1996 preempts municipalities from
imposing taxes or fees on satellite video service providers.
See Pub. L. No. 104-104, Title VI, § 602(a),
110 Stat. 144(a) (1996) (reprinted in 47 U.S.C. § 152,
historical and statutory notes) ("Preemption.-A provider
of direct-to-home satellite service shall be exempt from the
collection or remittance, or both, of any tax or fee imposed
by any local taxing jurisdiction on direct-to-home satellite
service."). Defendants also argue consolidation will
make discovery and trial more inefficient and inconvenient
because each defendant will have its own documents, discovery
responses, witnesses, as well as local and national counsel
that will need to coordinate with each other for all
on this analysis, the Court finds that Plaintiffs cases
against Satellite Defendants and Streaming Defendants present
common issues of fact or law that warrant consolidation. The
cases will clearly involve similar questions of law related
to the interpretation of the VSPA even if the act applies
differently to Satellite Defendants compared to Streaming
Defendants. Further, any such differences can be litigated
and adjudicated in the same consolidated
action. The Court also finds judicial economy is
best served by deciding the issue of consolidation first in
order to avoid potentially conflicting rulings on the other
pending motions. While the Court has sympathy for the parties
and attorneys given the possible logistical difficulties that
might arise coordinating between Plaintiff and all
Defendants, cases involving multiple parties are commonplace
in modern corporate litigation and do not outweigh the risk
of conflicting rulings. Lastly, and significantly, no party
will be unfairly inconvenienced or prejudiced as both cases
are at the same stage in litigation because both cases were
initially filed in state court on the same day, removed to
federal court within days of each other, no ...