Oxbow Carbon & Minerals LLC v. Union Pacific Railroad Company ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
In re RAIL FREIGHT FUEL SURCHARGE )
ANTITRUST LITIGATION )
) MDL Docket No. 1869
) Miscellaneous No. 07-0489 (PLF)
This document relates to: )
)
ALL DIRECT PURCHASER CASES )
__________________________________________)
OXBOW CARBON & MINERALS LLC, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-1049 (PLF)
)
UNION PACIFIC RAILROAD CO., et al., )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION AND ORDER
The Court has reviewed the submissions of all parties in the above-captioned
cases concerning setting a briefing schedule for summary judgment motions as to the issue of
liability.1 Upon careful consideration of these submissions, the Court concludes that it is
appropriate to enter a summary judgment briefing schedule at this time.
1
The Court has reviewed the following documents in connection with the pending
request filed in the Rail Freight case: Transcript of Nov. 14, 2019 Status Conference
(“Nov. 14, 2019 Status Conf. Tr.”) [Dkt. No. 888]; Joint Submission Concerning Proposed
Schedules Per November 14, 2019 Minute Order (“Dec. 4, 2019 Joint Submission”) [Dkt.
No. 900] at 8, 15; Joint Submission Concerning Proposed Schedule (“Dec. 16, 2019 Joint
Submission”) [Dkt. No. 917]; Plaintiffs’ Notice of Request for the Court to Set Briefing
Schedule for Summary Judgment Motions Addressing Liability (“Pl. Notice”) [Dkt. No. 1009];
Defendants’ Response to Plaintiffs’ Request for Briefing Schedule and Preemptive Arguments
Against Certification for Interlocutory Appeal (“Def. Resp.”) [Dkt. No. 1011]; Plaintiffs’ Reply
The parties previously agreed that briefing on summary judgment as to liability
would follow this Court’s ruling on the application of 49 U.S.C. § 10706. See Dec. 4, 2019 Joint
Submission at 8, 15; Dec. 16, 2019 Joint Submission at 2-5. The Court adopted this view and
ordered that “[t]he schedule for briefing of summary judgment on the question of liability will be
set after the Court rules on the Section 10706 issue.” December 19, 2019 Order (“Dec. 19, 2019
Order”) [Dkt. No. 918] at 4. The Court recently issued its ruling on Section 10706 and will
accordingly set a briefing schedule for summary judgment as to liability. See February 19, 2021
Opinion [Dkt. No. 1008].
The Court finds it necessary to emphasize that this Order concerns briefing on
summary judgment as to liability only. The Court made plain when it agreed to maintain
jurisdiction over these cases, reluctantly and at the parties’ urging, that it would do so only
through a decision on the Section 10706 issue and on summary judgment as to liability. See
Dec. 19, 2019 Order at 2 (“[T]he summary judgment motions to be resolved by this Court will
relate only to liability.”); see also Nov. 14, 2019 Status Conf. Tr. at 25:8-26:11, 31:14-20,
34:16-35:11, 45:19-21, 46:1-2, 69:7-16, 74:1-24. Thereafter, the matter would be transferred to
Chief Judge Howell before whom related cases are pending. See Nov. 14, 2019 Status Conf. Tr.
in Support of Request for the Court to Set Briefing Schedule for Summary Judgment Motions on
Liability (“Pl. Reply”) [Dkt. No. 1012]; Joint Statement in Response to the Court’s
March 23, 2021 Minute Order (“March 24, 2021 Joint Statement”) [Dkt. No. 1014].
The Court has reviewed the following documents in connection with the pending request
filed in the Oxbow case: Plaintiffs’ Notice of Request for the Court to Set Briefing Schedule for
Summary Judgment Motions Addressing Liability [Dkt. No. 219]; Defendants’ Response to
Oxbow’s Request for Briefing Schedule [Dkt. No. 221]; Plaintiffs’ Reply in Support of Request
for the Court to Set Briefing Schedule for Summary Judgment Motions on Liability [Dkt.
No. 222]; Joint Submission [Dkt. No. 224].
Unless otherwise noted, references in this document to docket entry numbers are to the
docket for In re Rail Freight Fuel Surcharge Antitrust Litigation, Miscellaneous No. 07-0489.
2
at 74:1-5, 74:11-14. To the extent that the defendants perceived any ambiguity regarding the
scope of summary judgment briefing, see March 24, 2021 Joint Statement at 2, the Court
reiterates that with this Memorandum Opinion and Order it is directing the parties to submit
briefing on summary judgment as to liability only. The defendants’ suggestion that summary
judgment briefing should not commence before the conclusion of expert discovery is therefore
unpersuasive and contrary to the defendants’ prior representations. See Def. Resp. at 4-5;
Dec. 16, 2019 Joint Submission at 5 (“Defendants do not believe that either the expert
disclosures or any subsequent Daubert or damages-related summary judgment motions must be
resolved before the Court resolves Defendants’ Section 10706 Motion or any liability-related
summary judgment motions[.]”). Expert discovery concerning damages is proceeding on a
“separate track[]” before Magistrate Judge Harvey. December 19, 2019 Order at 3.
The Court also is not persuaded that its ruling on Section 10706 presents a cause
for delay. The defendants suggest that “[t]he Court’s unanticipated rulings make drafting
summary judgment motions far different from what Defendants expected.” Def. Resp. at 6. Yet
neither the Court’s December 19, 2019 Order nor the parties’ prior submissions agreeing that
summary judgment briefing on the issue of liability should follow a Section 10706 ruling were
predicated on the Court resolving the Section 10706 issue in the manner requested by the
defendants. The defendants also suggest that prompt summary judgment briefing would be
inefficient in light of their recently filed Motion for Certification Pursuant to 28 U.S.C. § 1292(b)
[Dkt. No. 1010]. Def. Resp. at 7. This assertion rests on several untested assumptions. First, for
that motion to lead to immediate appellate review, this Court must determine that its ruling on
Section 10706 meets the criteria outlined in 28 U.S.C. § 1292(b). Second, the D.C. Circuit must
choose “in its discretion” to “permit an appeal to be taken.” 28 U.S.C. § 1292(b). Finally, even
3
if this Court certifies its order and the D.C. Circuit accepts the appeal, this “shall not stay
proceedings in the district court unless the district judge or the Court of Appeals or a judge
thereof shall so order.” Id. The prospect of appellate review, and of obtaining a stay of this
action during the pendency of that review, is too speculative to justify delay. Briefing on and
resolution of the Section 1292(b) motion will proceed in parallel to and on a separate track from
briefing on summary judgment as to liability.
For the foregoing reasons, it is hereby ORDERED that:
1. The defendants’ motions and opening briefs in support of summary judgment
as to liability shall be filed on or before May 14, 2021.
2. The plaintiffs’ memoranda in opposition to summary judgment motions as to
liability shall be filed on or before July 13, 2021.
3. The defendants’ reply briefs in support of summary judgment motions as to
liability shall be filed on or before August 12, 2021. Oral argument will be
scheduled promptly thereafter.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: March 30, 2021
4