Opinion
CAUSE NO. 3:02-CV-0877 AS
February 6, 2004
Mike Miller PHV, Solberg Stewart Miller Tjon Ltd, Fargo, ND, for Plaintiff Clarence Klabo, on behalf of himself and others similarly situated
Jordan M Lewis, Siegel Brill Greupner Duffy Foster PA, Milwaukee, WI, for Plaintiff Clarence Klabo, on behalf of himself and others similarly situated
Richard A Waples, Waples and Hanger, Indianapolis, IN, for Plaintiff Clarence Klabo, on behalf of himself and others similarly situated
Timothy M O'Keeffe PHV, Solberg Stewart Miller Johnson, Fargo, ND, for Plaintiff Clarence Klabo, on behalf of himself and others similarly situated
Wood R. Foster Jr PHV, Siegel Brill Greupner Duffy Foster PA, Minneapolis, MN, for Plaintiff Clarence Klabo, on behalf of himself and others similarly situated
Joseph R Fullenkamp, Barnes Thornburg, South Bend, IN, for Intervenor Plaintiff Julie and Randy Myhre
Lawrence R King PHV, Larson King LLP, Saint Paul, MN, for Intervenor Plaintiff Julie and Randy Myhre
Mark A Solheim PHV, Larson King LLP, Saint Paul, MN, for Intervenor Plaintiff Julie and Randy Myhre
Shawn M Raiter PHV, Larson King LLP, Saint Paul, MN, for Intervenor Plaintiff Julie and Randy Myhre
T. Joseph Snodgrass PHV, Larson King LLP, Saint Paul, MN, for Intervenor Plaintiff Julie and Randy Myhre
Thomas R. Thibodeau PHV, Thibodeau Johnson Feriancek PLLP, Duluth, MN, for Intervenor Plaintiff Julie and Randy Myhre
Timothy J. Maher, Barnes Thornburg, Bend, IN, for Intervenor Plaintiff Julie and Randy Myhre
Evelyn L. Becker PHV, O'Melveny and Myers, Washington, DC, for Defendant Easy Heat Inc
John H Beisner PHV, O'Melveny Myers LLP, Washington, DC, for Defendant Easy Heat Inc
Matthew M Shors PHV, O'Melveny and Myers, Washington, DC, for Defendant Easy Heat Inc
Philip E Kalamaros, Hunt Suedhoff Kalamaros LLP, South Bend, IN, for Defendant Easy Heat Inc
Theodore H Frank PHV, O'Melveny Myers LLP, Washington, DC, for Defendant Easy Heat Inc
MEMORANDUM, ORDER AND REPORT AND RECOMMENDATION
This case arises out of a proposed class action against Defendant Easy Heat, Inc., currently pending in the Northern District of Indiana, and a competing class action currently underway in Minnesota state court. At the time this case was referred to the undersigned magistrate judge, the named Plaintiff and Defendant in the present action had reached a tentative settlement agreement. Because the proposed agreement would preclude all other litigation, two intervening Plaintiff's from the Minnesota action sought to stay the current proceeding, while the Defendant in the present case requested that this Court enjoin the Minnesota action. This Court conducted a hearing on January 28, 2004, on the parties' cross motions to stay. Because this Court finds that the action currently underway in Minnesota is preferable to the present case, this Court recommends that the intervening Plaintiff's' motion to stay be granted and Defendant's motion to enjoin the Minnesota action be denied as moot.
I. RELEVANT BACKGROUND
A. Klabo v. Easy Heat Inc.
Plaintiff Clarence Klabo initiated the present action, on his behalf and of those persons similarly situated, in the St. Joseph Circuit Court on November 13, 2002, against Defendant Easy Heat, Inc., alleging breach of implied warranties of habitability and merchantability as well as unjust enrichment stemming from Defendant's sale of radiant heating systems. Plaintiff is a resident of Portland, North Dakota, and Defendant is a Delaware Corporation with its principal place of business in New Carlisle, Indiana. The vast majority of Defendant's product was sold outside of Indiana, and most, if not all, of the anticipated class members live outside of the state. Defendant removed the case to federal court on December 5, 2002; and, following multiple briefings and oral argument, the court denied Plaintiff's motion to remand without prejudice on June 9, 2003.
Plaintiff filed an amended complaint on February 24, 2003. The only significant difference between the two documents is the omission of a prayer for injunctive relief from the amended complaint.
Very little occurred in the case since that time until December 22, 2003, when Defendant moved for preliminary approval of a class settlement agreement and an order conditionally certifying the class with notice. The court granted Defendant's motion the next day. Class certification within the order, however, was not made pursuant to an in depth analysis under Fed.R.Civ.P. 23. See (Ord. at 1) (stating that the tentative approval was made "for purposes of settlement only" and "without regard to the certifiability of this matter for litigation purposes."). No litigation class has ever been certified, and there has been no hearing on the fairness of the parties' tentative settlement.
The "relatively little" action occurring in this litigation reflects more than the lack of litigated motions before the court. At this Court's January 28, 2004, hearing, counsel stated that Plaintiff took no depositions of Defendant, and both parties relied heavily on discovery information obtained in the Minnesota action. See infra § I.B (describing the Minnesota action). Compare to (February 2, 2004, Affi. of attorney Mike Miller for plaintiff Clarence Klabo at ¶ 10) (stating that depositions of Mr. and Mrs. Klabo took place as well as the exchange of "over 15 boxes of documents" pending settlement). Regardless of whether little or no discovery occurred in the Indiana action, the parties do not dispute the fact that the majority of the discovery concerning Defendant's heating system took place in Minnesota.
B. The Minnesota Litigation — Sushoreba, et al. v. Easy Heat, Inc., et al.
Prior to Mr. Klabo's filings in St. Joseph County, a similar action was initiated in the St. Louis County District Court in Minnesota in February 2002, by a class of plaintiff's against Defendant Easy Heat, Inc. and affiliated agencies. Unlike its companion case in this district, the Minnesota action has been subject to extensive litigation and discovery in both federal and state court. With regard to jurisdiction, the federal district court in Minnesota remanded the action to state court, an opinion affirmed by the Eighth Circuit Court of Appeals, finding that the Defendants were unable to satisfy the requisite amount in controversy under 28 U.S.C. § 1332.
Following remand, the Minnesota court conditionally granted class certification pursuant to Minn. R. Civ. P. 23.03, and appointed class counsel on May 21, 2003. The Minnesota class includes purchasers of the contested heating systems in a five state region, including Mr. Klabo's home state of South Dakota. Strikingly, over 70% of the of the products at issue were installed in the state of Minnesota.
Specifically, the Minnesota court classified the class plaintiff's as follows:
All persons and entities that own a building, house, or other structure located within the States of Minnesota, North Dakota, South Dakota, Iowa or Wisconsin ("the Five States Region") and that contains Easy Heat XDETS cable. The proposed class includes, without limitation, all such persons or entities who contacted Easy Heat or its representatives about their XDETS flooring system and were denied, partially denied and/or did receive some form of limited compensation in lieu of their full measure of damages.
(St. Ord. at 2).
An intimation of the sheer number of plaintiff's in the Minnesota action can be gleaned from plaintiff counsel's website. See http://www.easyheatclassaction.com.
In addition to certification, the Minnesota action has been the situs for extensive discovery between the parties. The court appointed a special master to oversee discovery matters shortly after remand. Since that time, the Defendants have produced over 50,000 documents, over 40 depositions have taken place, dozens of discovery and procedural motions have been adjudicated, both at the trial, appellate, and state supreme court levels, and the attorney general for the state of Minnesota has filed an amicus brief on behalf of the class. Apart from discovery motions, the Minnesota court ruled on the Defendant's motion to dismiss in December 2003, allowing the Minnesota plaintiff's to proceed on 12 of their 13 original claims. Trial of the Minnesota matter is tentatively scheduled for fall of 2004.
C. Intersection of Klabo and Sushoreba
Concurrently with the Minnesota action, Defendant entered into settlement discussions with plaintiff's' counsel in Klabo. As indicated by the intervening plaintiff's' briefs and attorney representations at this Court's January 28, 2004, hearing, plaintiff's' counsel inSushoreba were aware of the Indiana action, but did not participate in settlement discussions. Concomitant with the district court's preliminary approval of the Indiana parties' settlement on December 23, 2003, Minnesota plaintiff's Randy and Julie Myhre moved to intervene for the limited purpose of opposing the settlement and staying all proceedings in Klabo. The intervening plaintiff's' formal motion to stay this proceeding was filed on December 30, 2003. Defendant Easy Heat filed a competing motion to enjoin the Minnesota action the same day. This Court may rule on the parties' motions pursuant to its referral order and 28 U.S.C. § 636(b)(1)(B).
Because this order addresses both dispositive and nondispositive matters, the parties are advised that different standards of review apply to this Court's decisions. See Fed.R.Civ.P. 72.
II. PRELIMINARY MATTERS
A. Randy and Julie Myhre's Motion to Intervene
On December 23, 2003, intervening plaintiff's Randy and Julie Myhre filed a motion to intervene for the limited purpose of opposing the settlement and staying all proceedings in Klabo. Under N.D. L.R. 7.1(a) an adverse party shall have fifteen days after service of a motion in which to serve and file a response. N.D. L.R. 7.1(a). Failure to file a response within the time prescribed may subject the motion to summary ruling. Id. Because no party has objected to the Myhres' motion, their motion [Doc. No. 48] is granted.
B. Attorney Appearance of Thomas R. Thibodeau
On January 28, 2004, attorney Thomas R. Thibodeau filed a motion to appear pro hac vice for the intervening plaintiff's. Hearing no objection at this Court's January 28, 2004, hearing, Mr. Thibodeau's motion [Doc. No. 78] is granted.
III. ANALYSIS
Both Defendant and the intervening plaintiff's moved to stay proceedings, in either Indiana or Minnesota, adverse to their immediate interests. In seeking to stay the Indiana proceeding, the Myhres presented two complementary arguments. First, the Myhres request that this Court simply stay the present action based on issues of comity. In the alternative, the Myhres request that this Court apply the Colorado River abstention doctrine and abstain from hearing Mr. Klabo's claim. Both methods yield similar results, See e.g. CIGNA Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 851-52 (7th Cir. 2002)(Posner, J.) (finding that abstention under Colorado River is properly implemented through a stay). Since this Court determines that abstention underColorado River is proper, this Court shall base its decision on those grounds. Legal Standards for Colorado River Abstention
In classifying the district court's use of Colorado River abstention as a stay, rather than a dismissal, Judge Posner stated:
A federal court is authorized to stay proceedings in a lawsuit before it because parallel proceedings are pending in another court, either federal or state . . . It should not dismiss the proceedings before it, however . . . That would be illogical; the fact that a parallel case, especially one brought by the opposing party, is pending says nothing about the merits or propriety of the suit in the abstaining court. Logic aside, a stay "permits the federal court to retain jurisdiction in case the state court action does not meet its anticipated end. A stay has the additional advantage of bringing the case back before the same federal judge if a determination is needed as to the preclusive effects of the state judgment or decisions."CIGNA, 294 F.3d at 851-52 (internal citations omitted): see also LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1561-62 (7th Cir. 1989) (implementing a stay under federal abstention doctrine).
In addition to CGNA, other federal courts have used various abstention doctrines with regard to state and federal class actions. See e.g. Romine v. CompuServe Corp., 160 F.3d 337 (6th Cir. 1998) (staying a federal action); Eric C. Surette, J.D., Annotation When Are Proceedings Parallel so as to Permit Federal Court Abstention Under Colorado River Water Conservation Dist. v. U.S. 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, 9 Env't. Rep. Cas. (BNA) 1016, 176 A.L.R. Fed. 517, §§ 2(a), 4 (listing cases in which federal courts abstain jurisdiction). Further authority for this Court to stay a class proceeding can be found in Rule 23 itself. See Fed.R.Civ.P. 23(d)(1) ("In the conduct of actions to which this rule applies, the court may make appropriate orders: determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument . . ."); see also 7B Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d § 1792 at 288 (1986) (discussing methods to avoid repititous proceedings in class litigation).
Generally, the fact that a similar action is pending in state court "is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." McClellan v. Garland, 217 U.S. 268, 282 (1910). Much the opposite, federal courts have a "virtually unflagging obligation" to exercise the jurisdiction conferred on them by Congress.Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); See also Allendale Mut. Ins. Co. v. Bull Data Sys., 10 F.3d 425, 430 (7th Cir. 1993) ("the presumption is against abstention"). Despite this presumption, "there is no hard and fast rule as to when parallel-proceeding abstention is proper, and the close relation between the decision to abstain and normal docket control (a district judge is routinely required to decide how fast to move particular cases along) makes it appropriate to give at least some weight to the judge's decision to abstain." CIGNA, 294 F.3d at 852 (internal citations omitted); see also Microsoftware Computer Sys., Inc. v. Ontel Corp., 686 F.2d 531, 537 (7th Cir. 1982) ("The many factors to be considered in deciding whether to postpone exercising jurisdiction make the decision, in the last analysis, a matter committed to the court's discretion."). When applied under appropriate conditions, abstention from litigation conserves judicial resources by allowing a suit to be resolved comprehensively in a single forum. See Colorado River, 424 U.S. at 817 ("The general principle is to avoid duplicative litigation.").
Colorado River involves a two-step inquiry. The first seeks to determine whether the federal and state proceedings are parallel. Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. 1999). See also Medema v. Medema Builders, Inc., 854 F.2d 210, 213 (7th Cir. 1988) (defining the determination of parallel proceedings as a "threshold inquiry"). Upon finding parallel litigation, the second step seeks to balance eight judicial factors.
B. Application of Colorado River
1. Parallel Proceedings
A federal suit is considered parallel to a state action where "substantially the same parties are contemporaneously litigating substantially the same issues in another forum." AXA Corporate Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272, 278 (7th Cir. 2003). Exact parallelism is not required. Rather, the initial prong of Colorado River is satisfied where the suits at issue are "substantially the same."Caminiti and Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700-01 (7th Cir. 1992) (cases parallel despite additional claim in federal court because they litigated the same "basic issue."). The presence of additional issues will not necessarily stave off abstention. Rather, the primary inquiry is whether there is a "substantial likelihood" that the non-federal litigation "will dispose of all claims presented in the federal case." Day v. Union Mines, Inc., 862 F.2d 652, 656 (7th Cir. 1988) see also Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 567 (1984); In re Chicago Flood Litig., 819 F. Supp. 762, 764 (N.D. Ill. 1993) (in determining case parallelism "whether the parties may be bound by the result in the state litigation under principles of collateral estoppel or issue preclusion" should be considered).
The Indiana and Minnesota actions are parallel under these principles. Both actions consist of classes, whether putative or certified, of persons injured by Defendant's allegedly defective heating device. Neither party cites any instance where an individual class member is included in the Minnesota action, but not in the present action. Mr. Klabo himself, the named plaintiff in the Indiana action, is a class member in the Minnesota case. With regard to the number of counts alleged, the Minnesota action clearly covers more issues than the present case. While the Indiana action seeks relief under three theories, the Minnesota case sounds in twelve causes of action. Hence, the state court's ultimate decision will dispose of all claims set forth in the present action to all parties in the five state region. The two proceedings are parallel.
2. Colorado River Factors
Following a determination that the federal and state actions are parallel, the second step of the Colorado River analysis requires that this Court consider eight factors to determine whether the requisite "exceptional circumstances" are present for abstention. Colorado River, 424 U.S. at 818-19. The initial four factors have been established by the Supreme Court in Colorado River: (1) whether the state court has assumed jurisdiction over the property at issue; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; and (4) the order in which jurisdiction was obtained by the concurrent fora. Id. The Court has identified at least four additional factors to be weighed in cases following Colorado River: (1) the source of governing law, Moses H. Cone Mem'l Hosp, v. Mercury Constr. Corp., 460 U.S. 1, 23-26 (1983); (2) the adequacy of the state court action to protect the federal plaintiff's rights, Id. at 26-28; (3) the relative progress of the state and federal proceedings, Id. at 21-23; and (4) the presence or absence of concurrent jurisdiction, Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 (1978). In addition to the Supreme Court's analysis, the Seventh Circuit has given credence to factors such as the availability of removal,Microsoftware Computer Sys., Inc., 686 F.2d at 537, and the vexatious or contrived nature of the federal claim, Calvert Fire Ins. Co. v. American Mut. Reinsurance Co., 600 F.2d 1228, 1234 (7th Cir. 1979). "No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise is required." Colorado River, 424 U.S. at 818-19.
a) Whether the State Court has Assumed Jurisdiction Over the Property at Issue
The first factor, whether the state court has assumed jurisdiction over the property at issue, weighs neither for nor against abstention. Defendant is subject to personal jurisdiction in both Indiana and Minnesota, but there is no res over which the state court could preside. If anything, the majority of the heating units at issue, more than 70%, are located in Minnesota, making the state court's interest in the subject matter of the litigation slightly more favorable. By contrast, Defendant argues that the tentative settlement agreement is a res over which this Court has dominion. See e.g. In re First Commodity Corp., Customer Accounts Litigation, 89 B.R. 283, 290 (D. Mass. 1988) (finding a res existing as a result of a class action settlement). While Defendant's argument is founded in law, this Court notes that the class settlement is tentative, not final; and, in light of the following factors, does not compel this Court to maintain the present action.
b) The Inconvenience of the Federal Forum
The second factor, the inconvenience of the federal forum, favors the Minnesota action in the same vein as the first factor, only more significantly. As with the first factor, the majority of units sold are located in Minnesota, indicating a slight convenience to the state court. More importantly, however, is the fact that extensive discovery, including the adjudication of numerous nondispositive motions, has taken place in state court. The case record is thus more developed in Minnesota, lending itself to a more apt adjudication of the issues. This factor also weighs against a settlement determination in Indiana. Because so little discovery occurred at the federal level, the district court will require extensive briefing on whether or not the Indiana settlement is fair with regard to all issues in the case. Since any settlement in this case would bind all parties in the Minnesota case who fail to opt out, a proper determination of settlement is crucial, and the dearth of information in this Court may significantly inhibit an adequate settlement.
c) The Desirability of Avoiding Piecemeal Litigation
The third factor, avoiding piecemeal litigation, favors abstention. Piecemeal litigation occurs when different courts adjudicate an identical issue, thereby duplicating judicial efforts and possibly reaching different results. LaDuke, 879 F.2d at 1560; Day v. Union Mines, Inc., 862 F.2d 652, 659 (7th Cir. 1988). In the present situation, the Minnesota court has overseen substantial discovery, litigated jurisdiction, and set trial, while this Court has seen relatively little interaction between the parties absent the pending settlement. From a mere quantitative standpoint, the Minnesota court has invested far more judicial hours into the consideration of this case. Further, it is doubtful that a settlement entered in the Indiana action would bring an end to this suit either in whole or in part. The record demonstrates that tentatively certified class members in the Indiana action have already chosen to opt out of the proposed settlement agreement, and intervening counsel informed this Court at its January 28, 2004, hearing that many more Plaintiff's will opt out as well. Hence, even assuming that the proposed settlement is fair, litigation will not cease, and further piecemeal actions of the sort Colorado River is meant to prevent will undoubtedly continue.
See e.g. (Doc. No. 75) (January 22, 2004, letter from Edwin Bergstedt regarding settlement) ("I would like to be excluded from theKlabo v. Easy Heat Inc., settlement. This settlement offers about 10 — 15% of what it would cost to repair my in-floor heating system . . .").
d) The Order in Which Jurisdiction Was Obtained by the Concurrent Fora
The fourth factor, the order in which jurisdiction was obtained by the concurrent fora, also favors abstention. The Minnesota action was filed in February 2002, and certified under Rule 23 in May 2003, nearly six months before the competing action was filed in St. Joseph County.
e) The Source of Governing Law
The fifth factor, the source of governing law, also weighs in favor of abstention inasmuch as there are no federal issues before this Court. The Seventh Circuit has stated that district courts "are not free to treat the diversity litigant as a second-class litigant . . . [by] allowing a weaker showing of judicial economy to justify abstention in a diversity than in a federal question case." Evans Transp. Co. v. Scullin Steel Co., 693 F.2d 715, 717 (7th Cir. 1982). While taking heed of the appellate court's admonition, this Court is mindful that "the presence of federal law issues must always be a major consideration weighing against surrender" of federal jurisdiction in deference to state proceedings. Moses H. Cone, 460 U.S. at 26; see also Microsoftware Computer Sys., Inc., 686 F.2d at 531 (court may consider abstention where there is no "peculiarly federal interest" rendering federal court action preferable to state action.) Here, the absence of a federal question in a federal action, when considered along with all of the other Colorado River factors militates in favor of abstention.
This Court also notes that, were it to proceed with a fairness hearing on the parties' settlement, many of the class Plaintiff's' claims would be determined under foreign law. See Klaxon Co. v. Stentor Electric Manu. Co., 313 U.S. 487, 496-97 (1941) (compelling this Court to adopt Indiana's choice of law rules); General Motors Corp. v. Northrop Corp., 685 N.E.2d 127, 134-135 (Ind.Ct.App. 1997) ("Contractual disputes brought in Indiana courts are governed by the law of the forum with the most intimate contacts with the facts."). While there is no need to undertake a choice of law analysis at this time, any consideration of an adequate settlement would have to take Minnesota contract law — the situs of approximately 70% of the claimants — into account. The determination of such law is better left to the Minnesota court.
f) The Adequacy of the State Court Action to Protect the Federal Plaintiffs' Rights
The sixth factor, the adequacy of the state court to protect the federal Plaintiff's' rights, cuts neither in favor nor against abstention due to the limited size of the plaintiff class in Minnesota. The settlement currently pending before this Court offers, as Defendant aptly states, "a global — rather than piecemeal — solution" (Dft. Resp. at 10) to the nationwide array of claims concerning Defendant's heating system. By contrast, the Minnesota action limits itself to Plaintiff's from Minnesota, North and South Dakota, Iowa, and Wisconsin. While the Minnesota action protects the interests of Plaintiff's in the class's five state region, it fails to consider the claims of Plaintiff's outside those states. This failure, however, does not impair those Plaintiff's' rights. Because those Plaintiff's are not partaking in the Minnesota action, they cannot be impaired by any decision — via settlement, court order, or otherwise — issued by the state court. Rather, in staying the present action, those Plaintiff's will retain their rights in this Court, and may even benefit from decisions issued by the state court on a preclusionary basis.
This Court notes that "the general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where . . . the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. Because a plaintiff who opts out of a class action easily could have joined it, that plaintiff generally will not be permitted to invoke offensive estoppel." Becherer v. Merrill Lynch, Pierce, Fenner Smith, Inc., 193 F.3d 415, 433 (6th Cir. 1999) (internal quotations omitted); Polk v. Montgomery County, 782 F.2d 1196, 1202 (4th Cir. 1986)(same). This rule, however, is not absolute. See In re Transocean Tender Offer Sec. Litigation, 455 F. Supp. 999, 1008 (N.D. Ill. 1978) (allowing Plaintiff's who opted out of a prior class action to use offensive collateral estoppel against the former defendant.). The present situation also deviates from the general rule in that any plaintiff not included in the five state region encompassing the Minnesota action cannot be accused of abusing the opt out provisions of Minn. R. Civ. P. 23.03 because they were never part of the state case.
g) The Relative Progress of the State and Federal Proceedings
The seventh factor, the relative progress of the state and federal proceedings, "should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions." Moses H. Cone, 460 U.S. at 21. The Supreme Court has stated that, among other factors to be weighed in the overall abstention calculus, district courts can take account of whether there has been an "absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss." Colorado River, 424 U.S. at 820. The present situation is not in lockstep with the Supreme Court standard.
The parties greatly contest whether the seventh factor favors the Minnesota or Indiana suit. The intervening Plaintiff's argue that the ample discovery, numerous trial and appellate rulings, and the tentative trial establish that the state action has progressed further than the present case. By contrast, Defendant contends that the Indiana action is further advanced because the litigants have bypassed the need to try the case and proceeded to settlement — i.e. abstention should not be determined by judging who is the first to file, but rather who is the first to finish.
With little caselaw to guide its decision, this Court finds that the Minnesota action, with its intricate history and tentative trial, has progressed, further than the action pending before this Court. As previously stated, the Minnesota court has provided a venue for virtually all discovery concerning Defendant's product, has been subject to a determinative ruling on jurisdiction, and shall be the situs for an ultimate trial on the merits of this case. By contrast, this Court has seen little progression between the parties since the inception of this matter. No discovery disputes have come before the court, jurisdiction was only settled tentatively, and no trial has been set. While Defendant's argument that a tentative settlement indicates progression toward the completion of litigation has merit, in light of the long history before the Minnesota court, this Court cannot hold that the Indiana case is further advanced than its state counterpart.
h) The Presence or Absence of Concurrent Jurisdiction
The last enumerated factor, the presence or absence of concurrent jurisdiction, also favors abstention. As previously stated, the issue of jurisdiction has been litigated, appealed, and remanded in Minnesota, while Plaintiff's' motion to remand was only denied without prejudice in this case. See (June 9, 2003, Ord. at 2) ("The right to raise such issue [Plaintiff's motion to remand] is reserved to be done so on its merits at trial"). While this Court's jurisdiction over the present class has been conditionally allowed, the Eighth Circuit has conclusively held that the a federal court cannot decide the Minnesota Plaintiff's' claims. Thus, jurisdiction is not concurrent, and abstention is favored.
i) Additional Factors
In addition to the aforementioned factors, the Seventh Circuit instructs that this Court also examine the availability of removal and whether the federal claim is the product of a vexatious or contrived nature. As reasoned in the preceding section, removal of the Minnesota Plaintiff's is impossible. This factor thus favors abstention. The final factor, whether the present action is an attempt to circumvent the Minnesota court judgment, has not been formally brought before this Court. While it may be feasible to conceive of such conduct on behalf of the Indiana parties, see e.g. CIGNA Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849 (7th Cir. 2002) (concerning a contrived settlement agreement), this Court will not be so cynical, especially when the overwhelming majority of the Colorado River factors favor abstention.
j) Ultimate Balance of Colorado River Factors
Upon balancing the factors enumerated in Colorado River and its progeny, this Court determines that abstention is proper. The two cases are parallel, and the litigation in Minnesota state court has progressed significantly beyond the proceedings in this Court. Further, the state court will provide a more convenient forum for the class proceedings. That court was first to obtain jurisdiction over this matter, its law will govern the outcome of the proceedings, and an eventual judgment will assist in the avoidance of piecemeal litigation.
IV. ANCILLARY MATTERS
Because this Court has determined that abstention is proper underColorado River, Defendant's corresponding motion to stay the Minnesota action, as well as its motion to scheduling a fairness hearing on the proposed settlement [Doc. Nos. 49 51] are denied as moot. Because circuit precedent warrants that this case be stayed rather than dismissed under Colorado River, the Indiana parties are free to reintroduce their settlement agreement following determination of the Minnesota action.
V. CONCLUSION
Abstention, especially in matters of great magnitude concerning multiple litigants, should not be granted haphazardly, and this Court recognizes the well-settled adage that a plaintiff is the master of his claim. A Plaintiff's control over his choice of forum, however, must yield to the needs of the case, the court, and national judicial economy. This is especially true, as here, with the inclusion of numerous parties and the delicate relationship between state and federal court.
For the foregoing reasons, this Court rules as follows:
• Intervening Plaintiff's Randy and Julie Myhre's Motion to Intervene [Doc. No. 48] is GRANTED.
• Defendant Easy Heat's Motion to Stay Litigation and Enjoin Competing Actions Pending Resolution of the Class Settlement Proposal [Doc. No. 49] is DENIED AS MOOT.
• Defendant Easy Heat's Motion to Schedule a Hearing on Fairness [Doc. No. 51] is DENIED AS MOOT.
• This Court RECOMMENDS that Intervening Plaintiff's Randy and Julie Myhre's Motion to Intervene for Limited Purpose to Oppose Proposed Class Action Settlement and to Stay Proceedings [Doc. No. 53] be GRANTED.
• In conjunction with this Court's recommendation, this Court further RECOMMENDS that this action be STAYED pending final judgment in Sushoreba, et al. v. Easy Heat, Inc. et al.
• Attorney Thomas R. Thibodeau's motion to appear pro hac vice [Doc. No. 78] is GRANTED.SO ORDERED. NOTICE IS HEREBY GIVEN that within ten (10) days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. Fed.R.Civ.P. 72(b). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Thomas v. Arn , 474 U.S. 140 (1985); Lerro v. Quaker Oats Co. , 84 F.3d 239 (7th Cir. 1996); Lockert v. Faulkner , 843 F.2d 1015 (7th Cir. 1988); Video Views. Inc. v. Studio 21 Ltd. , 797 F.2d 538 (7th Cir. 1986).
Filing Date # Docket Text 11/13/2002 1 CLASS ACTION COMPLAINT (filed in St. Joseph Circuit Court), Jury demand by: Plaintiff (mm) Modified on 12/06/2002 (Entered: 12/05/2002) 12/05/2002 2 NOTICE OF REMOVAL from St. Joseph Circuit Court; Case Number: 71C010211PL00460 (rmn) (Entered: 12/05/2002) 12/05/2002 FILING FEE PAID: on 12/5/02 in the amount of $150.00, receipt #3310774. (rmn) (Entered: 12/05/2002) 12/05/2002 3 ATTORNEY APPEARANCE for defendant Easy Heat Inc. by Philip E Kalamaros (rmn) (Entered: 12/05/2002) 12/05/2002 4 ANSWER by defendant Easy Heat Inc. to complaint [1-1] (rmn) (Entered: 12/05/2002) 12/30/2002 5 MOTION by plaintiff Clarence Klabo for attorney to appear pro hac vice (rmn) (Entered: 01/02/2003) 12/30/2002 PRO HAC VICE FILING FEE PAID: on 12/30/02 in the amount of $30.00, receipt #331 1094. (rmn) (Entered: 01/02/2003) 12/30/2002 6 MOTION by plaintiff Clarence Klabo for attorney Timothy M O'Keeffe to appear pro hac vice (rmn) (Entered: 01/02/2003) 12/30/2002 PRO HAC VICE FILING FEE PAID: on 12/30/02 in the amount of $30.00, receipt #331 1094. (rmn) (Entered: 01/02/2003) 01/06/2003 7 ORDER by Judge Allen Sharp granting motion for attorney Mike Miller to appear pro hac vice [5-1]. Number of pages: 1 (cc: all counsel) (rmn) (Entered: 01/07/2003) 01/06/2003 8 ORDER by Judge Allen Sharp granting motion for attorney Timothy M O'Keeffe to appear pro hac vice [6-1]. Number of pages: 1 (cc: all counsel) (rmn) (Entered: 01/07/2003) 01/08/2003 9 NOTICE: before Judge Allen Sharp; Pretrial conference set 2:00 2/7/03 w/consent form (cc: all counsel) (saj) (Entered: 01/08/2003) 01/24/2003 10 ATTORNEY APPEARANCE for plaintiff Clarence Klabo, on behalf of himself all others similarly situated, by Jordan M Lewis (mjk) (Entered: 01/28/2003) 01/30/2003 13 ATTORNEY APPEARANCE for defendant Easy Heat Inc. by Matthew M Shors (rmn) (Entered: 02/05/2003) 01/30/2003 PRO HAC VICE FILING FEE PAID: on 1/30/03 in the amount of $30.00, receipt #3311842. (rmn) (Entered: 02/05/2003) 01/31/2003 11 MOTION by plaintiff Clarence Klabo for attorney Wood R. Foster Jr to appear pro hac vice (rmn) (Entered: 02/03/2003) 01/31/2003 PRO HAC VICE FILING FEE PAID: on 1/31/03 in the amount of $30.00, receipt #3311855. (rmn) (Entered: 02/03/2003) 02/01/2003 12 ORDER by Judge Allen Sharp granting motion for attorney Wood R. Foster Jr to appear pro hac vice [11-1] Number of pages: 1 (cc: all counsel) (rmn) (Entered: 02/03/2003) 02/04/2003 14 MOTION by defendant Easy Heat Inc. for attorney Matthew M Shors to appear pro hac vice (rmn) (Entered: 02/05/2003) 02/04/2003 15 PETITION FOR LIMITED ADMISSION by Philip Kalamaros, counsel for defendant Easy Heat Inc, for attorney Matthew Shors to appear pro hac vice (rmn) (Entered: 02/05/2003) 02/05/2003 16 ORDER by Judge Allen Sharp granting motion for attorney Matthew Shors to appear pro hac vice [15-1], granting motion for attorney Matthew M Shors to appear pro hac vice [14-1] Number of pages: 1 (cc: all counsel) (saj) (Entered: 02/06/2003) 02/07/2003 17 PRETRIAL CONFERENCE: before Judge Allen Sharp Plaintiff to file amended complaint by 2/24/03; Counsel to file simultaneous briefs on jurisdiction issue on 3/24/03 — No page limits (cc: all counsel) (saj) (Entered: 02/07/2003) 02/10/2003 18 NOTICE OF ENTRY of order granting admission of Mike Miller (PHV) by plaintiff Clarence Klabo (rmn) (Entered: 02/11/2003) 02/14/2003 TRANSCRIPT filed no. of volumes: 1 for dates: 2/7/03 Oral Argument; Court Reporter: Loretta Spromberg (rmn) (Entered: 02/18/2003) 02/24/2003 19 AMENDED CLASS ACTION COMPLAINT [1-1] by plaintiff Clarence Klabo; jury demand (rmn) (Entered: 02/24/2003) 03/24/2003 20 MEMORANDUM by plaintiff Clarence Klabo in support of minutes directing parties to file brief re: jurisdiction [17-3] (rmn) (Entered: 03/26/2003) 03/24/2003 21 AFFIDAVIT of Clarence Klabo to memorandum [20-1] (rmn) (Entered: 03/26/2003) 03/24/2003 22 SUPPLEMENTAL memorandum concerning jurisdiction by defendant Easy Heat Inc. re minutes [17-3] (rmn) (Entered: 03/26/2003) 04/03/2003 23 NOTICE: before Judge Allen Sharp Oral Argument on 3/24/03 filings set for 3:00 5/9/03 (cc: all counsel) (saj) (Entered: 04/03/2003) 05/09/2003 24 ORAL ARGUMENT: before Judge Allen Sharp regarding [22-1], regarding [21-1], regarding [20-1], regarding [19-1]; Court heard oral argument from all counsel and the court will rule in writing (cc: all counsel) (saj) (Entered: 05/09/2003) 06/09/2003 TRANSCRIPT filed no. of volumes: 1 for dates: 5/9/03 Court Reporter: Loretta M Spromberg (jjj) (Entered: 06/09/2003) 06/09/2003 25 ORDER by Judge Allen Sharp that pursuant to discussions held 2/7/03 the Motion to Remand is now denied without prejudice Number of pages: 2 (cc: all counsel) (jjj) (Entered: 06/12/2003) 07/30/2003 26 LETTER from plaintiff Clarence Klabo regarding class action (jjj) (Entered: 07/31/2003) 07/30/2003 27 ORDER by Judge Allen Sharp regarding letter [26-1]; Pretrial conference 4:00 PM (SBT) on 8/18/03 before Judge Allen Sharp Number of pages: 2 (cc: all counsel) (jjj) (Entered: 07/31/2003) 08/12/2003 28 MOTION by defendant Easy Heat Inc. for attorney Evelyn L Becker to appear pro hac vice (jjj) (Entered: 08/13/2003) 08/13/2003 PRO HAC VICE FEE PAID: on 8/13/03 in the amount of $60.00, receipt #3315182. (jjj) (Entered: 08/13/2003) 08/18/2003 29 FURTHER PRETRIAL CONFERENCE before Judge Allen Sharp; parties appear and file Rule 26(f) Report and Joint Motion for Protective Order which are granted in open court; arguments heard on class certification — plaintiff to have class certification decision to Court by end of calendar year (12/31/2003); Pltf admonished to inform Ccourt on Rule 23 (cc: all counsel) (jld) (Entered: 08/19/2003) 08/18/2003 30 JOINT MOTION for protective order filed in open court (jld) (Entered: 08/19/2003) 08/18/2003 31 ORDER by Judge Allen Sharp on Rule 26(f) Report entered in Open Court. Number of pages: 7 (cc: all counsel) (jld) (Entered: 08/19/2003) 08/18/2003 32 ORDER by Judge Allen Sharp granting motion for attorney Evelyn L Becker to appear pro hac vice [28-1] Number of pages: 1 (cc: all counsel) (jjj) (Entered: 08/20/2003) 08/18/2003 (Utility Event) granting motion for protective order [30-1] in open court on 8/18/03 (saj) (Entered: 09/23/2003) 08/25/2003 TRANSCRIPT filed no. of volumes: 1 for dates: 8/18/03 Court Reporter: Joanne Hoffman (jjj) (Entered: 08/25/2003) 10/02/2003 33 NOTICE OF SERVICE by defendant Easy Heat Inc. of Initial Disclosures (jjj) (Entered: 10/03/2003) 10/28/2003 34 NOTICE: before Judge Allen Sharp Further Pretrial conference set 3:00 12/12/03 (cc: all counsel) (saj) (Entered: 10/28/2003) 10/31/2003 DISCLOSURE of Rule 26 filed by Clarence Klabo.(jjj) (Entered: 35 11/03/2003) 10/31/2003 ORDER regarding new standards of filing for proceedings in this Court 36 and a reminder from [29] Minutes that class status under Rule 23, (Fed.R.Civ.P.) must bebefore this Court by 12/31/03. Signed by Judge Allen Sharp on 10/31/03. (jjj) (Entered: 11/03/2003) 12/10/2003 MOTION to Continue 12/12/03 Status Conference by Defendant Easy 37 Heat Inc. (Kalamaros, Philip) Modified on 12/11/2003 (jjj) — (Entered: 12/10/2003) 12/11/2003 ORDER granting 37 Motion to Continue the 12/12/03 status conference. 38 Signed by Judge Allen Sharp on 12/11/03. (sdf,) (Entered: 12/16/2003) 12/11/2003 Status conference of 12/12/03 terminated (sdf,) (Entered: 12/16/2003) 12/19/2003 PRETRIAL CONFERENCE held before Judge Allen Sharp on 39 12/19/2003. Attys Waples, Lewis, Becker, Kalamaros Beisner present. Papers due to court as soon as possible. (Court Reporter Hoffman.) (saj,) (Entered: 12/22/2003) 12/19/2003 MOTION for Leave to Appear Pro Hac Vice as to Attorney John H 44 Beisner by Defendant Easy Heat Inc. (sdf,) (Entered: 12/30/2003) 12/19/2003 Pro Hac Vice Filing fee: $30.00, receipt number 3317149 (sdf,) (Entered: 12/30/2003) 12/19/2003 ORDER granting 44 Motion for Leave of Attorney John H Beisner to 45 Appear Pro Hac Vice on behalf of defendant Easy Heat Inc. Signed by Judge Allen Sharp on 12/19/03. (sdf,) (Entered: 12/30/2003) 12/22/2003 MOTION for Settlement For Preliminary Approval of Class Settlement 40 and Order Conditionally Certifying the Class and Approving Notice by Defendant Easy Heat Inc. (Kalamaros, Philip) (Entered: 12/22/2003) 12/22/2003 MEMORANDUM in Support of 40 MOTION for Settlement For 41 Preliminary Approval of Class Settlement and Order Conditionally Certifying the Class and Approving Notice filed by Easy Heat Inc. (Attachments: # 1 Exhibit A)(Kalamaros, Philip) (Entered: 12/22/2003) 12/22/2003 SETTLEMENT AGREEMENT by Easy Heat Inc. (Attachments: # 1 42 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit El# 6 Exhibit E2# 7 Exhibit Fl# 8 Exhibit F2# 9 Exhibit G# 10 Exhibit H)(Kalamaros, Philip) (Entered: 12/22/2003) 12/23/2003 AMENDED DOCUMENT by Easy Heat Inc. Amendment to 42 43 Settlement Agreement Amended Exhibit E2. (Kalamaros, Philip) (Entered: 12/23/2003) 12/23/2003 ORDER granting 40 Motion for Preliminary Approval of Settlement. 46 Signed by Judge Allen Sharp on 12/23/03. (sdf,) (Entered: 12/30/2003) 12/23/2003 NOTICE OF APPEARANCE by Attorney Joseph R Fullenkamp on 47 behalf of members of the class Randy and Julie Myhre (sdf,) (Entered: 12/30/2003) 12/23/2003 MOTION to Intervene for a limited purpose by Randy and Julie Myhre. 48 (sdf,) (Entered: 12/30/2003) 12/30/2003 MOTION to Stay Litigation and Enjoin Competing Actions Pending 49 Resolution of the Class Settlement Proposal by Defendant Easy Heat Inc. (Kalamaros, Philip) (Entered: 12/30/2003) 12/30/2003 MEMORANDUM in Support of 49 MOTION to Stay Litigation and 50 Enjoin Competing Actions Pending Resolution of the Class Settlement Proposal filed by Easy Heat Inc. (Kalamaros, Philip) (Entered: 12/30/2003) 12/30/2003 MOTION for Hearing on Fairness by Defendant Easy Heat Inc. 51 (Kalamaros, Philip) (Entered: 12/30/2003) 12/30/2003 MOTION to Intervene for limited purpose to oppose proposed class 53 action settlement, MOTION to Stay proceedings by Intervenor Plaintiffs Julie and Randy Myhre. (jjj) (Entered: 01/02/2004) 12/30/2003 MEMORANDUM in Support of 53 MOTION to Intervene for limited 54 purpose and MOTION to Stay proceedings filed by Julie and Randy Myhre. (jjj) (Entered: 01/02/2004) 12/30/2003 AFFIDAVIT OF JOSEPH R FULLENKAMP in Support re 53 55 MOTION to Intervene and MOTION to Stay filed by Julie and Randy Myhre. (jjj) (Entered: 01/02/2004) 12/31/2003 MOTION for Leave to Appear Counsel for Proposed Intervenors and 52 Motion for Expedited Hearing on Pending Motions. (Attachments: # !)(Maher, Timothy) (Entered: 12/31/2003) 12/31/2003 SEALED OBJECTIONS by Julie and Randy Myhre re 46 Preliminary 56 Approval of Purported Class Settlement, (jjj) (Entered: 01/05/2004) 01/05/2004 ORDER REFERRING CASE to Magistrate Judge Christopher A 60 Nuechterlein to conduct such proceedings including all scheduling conferences, to conduct such proceedings including evidentiary hearings, and when appropriate enter into record a written order setting disposition of all nondispositive pretrial matters; to conduct such other proceedings as required. Signed by Judge Allen Sharp on 1/5/04. (jjj) (Entered: 01/08/2004) 01/06/2004 MEMORANDUM in Opposition to 49 defendant's MOTION to Stay 58 Litigation and Enjoin Competing Actions Pending Resolution of the Class Settlement Proposal filed by proposed intervenors Julie and Randy Myhre. (jjj) (Entered: 01/08/2004) 01/06/2004 AFFIDAVIT IN SUPPORT of T Joseph Snodgrass re 58 Memorandum 59 in Opposition to Motion to Stay/Enjoin by proposed intervenors Julie and Randy Myhre. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4).(jjj) (Entered: 01/08/2004) 01/07/2004 RESPONSE to Motion re 53 MOTION to Intervene MOTION to Stay, 57 52 MOTION for Leave to Appear Counsel for Proposed Intervenors and Motion for Expedited Hearing on Pending Motions filed by Easy Heat Inc. (Kalamaros, Philip) (Entered: 01/07/2004) 01/08/2004 MOTION for Leave to Appear Pro Hac Vice for Lawrence R King, 61 Mark A Solheim, T Joseph Snodgrass and Shawn M Raiter by Intervenor Plaintiff Julie and Randy Myhre. (Attachments: # I Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D).(jjj) (Entered: 01/12/2004) 01/08/2004 NOTICE of Appearance by Shawn M Raiter PHV on behalf of Julie and 62 Randy Myhre. (jjj) (Entered: 01/12/2004) 01/12/2004 REPLY to Response to Motion re 53 MOTION to Intervene MOTION 63 to Stay filed by Julie and Randy Myhre. (Attachments: # I Affidavit of T. Joseph Snodgrass)(Fullenkamp, Joseph) Additional attachment(s) added on 1/13/2004 (jjj,). (Entered: 01/12/2004) 01/13/2004 ORDER granting 52 MOTION for Leave to Appear Counsel for 66 Proposed Intervenors and Motion for Expedited Hearing on Pending Motions filed by Julie and Randy Myhre; Granting 61 MOTION for Leave to Appear Pro Hac Vice filed by Julie and Randy Myhre. In-Court Hearing to be held on 1/28/2004 at 10:00 AM at South Bend Signed by Judge Christopher A Nuechterlein on 1/13/04. (jjj) (Entered: 01/14/2004) 01/14/2004 OBJECTION by Julie and Randy Myhre Sushoreba Defendants to 64 Proposed Settlement. (Maher, Timothy) (Entered: 01/14/2004) 01/14/2004 RESPONSE in Support re 49 MOTION to Stay Litigation and Enjoin 65 Competing Actions Pending Resolution of the Class Settlement Proposal filed by Easy Heat Inc. (Kalamaros, Philip) (Entered: 01/14/2004) 01/22/2004 MOTION for Leave to Appear Pro Hac Vice by Defendant Easy Heat 67 Inc. Received Application for Admission to Practice Pro Hac Vice and $30.00 fee, Receipt 3317754. (jjj) (Entered: 01/22/2004) 01/23/2004 ORDER granting 67 Motion for Leave to Appear Pro Hac Vice in this 68 matter. Signed by Judge Christopher A Nuechterlein on 1/23/04. (jjj) (Entered: 01/23/2004) 01/23/2004 MEMORANDUM IN RESPONSE to Intervenors' Multiple Submissions 69 filed by Plaintiff Clarence Klabo. (jjj) (Entered: 01/26/2004) 01/23/2004 AFFIDAVIT of Jordan M Lewis. (Attachments: # 1 Exhibit 1# 2 Exhibit 70 2).(jjj) (Entered: 01/26/2004) 01/23/2004 AFFIDAVIT of Angle Cameron, (jjj) (Entered: 01/26/2004) 71 01/23/2004 AFFIDAVIT #2 of Angie Cameron. (jjj) (Entered: 01/26/2004) 72 01/26/2004 NOTICE by Julie and Randy Myhre re 66 Order, Set Hearings, 73 Terminate Motions . . . filing of orders from related action (Attachments: # 1 # 2 # 3 # 4)(Maher, Timothy) (Entered: 01/26/2004) 01/26/2004 BRIEF re 69 Brief (Other) Myhres' memorandum in response to Klabo's 74 submission on pending matters filed by Julie and Randy Myhre. (Attachments: # l)(Maher, Timothy) (Entered: 01/26/2004) 01/26/2004 Letter from Edwin Bergstedt requesting exclusion from Klabo v. Easy 75 Heat Inc. settlement, (jjj) (Entered: 01/27/2004) 01/27/2004 Letter from Roger Hurd regarding settlement, (jjj) Modified on 2/9/2004 77 (smp,). (Entered: 01/28/2004) 01/28/2004 Minute Entry for proceedings held before Judge Christopher A 76 Nuechterlein: Motion Hearing held on 1/28/2004 re 53 MOTION to Intervene MOTION to Stay filed by Julie and Randy Myhre, 48 MOTION to Intervene, 49 MOTION to Stay Litigation and Enjoin Competing Actions Pending Resolution of the Class Settlement Proposal filed by Easy Heat Inc.; Pltf by J Lewis, M Miller; Interv Pltf by J Fullenkamp, L R King, S Raiter, T Snodgrass, T Maher and T Thibedeau; Dfts by E Becker, J Beisner, P Kalamaros and T Frank (Court Reporter L Spromberg.) (sim,) (Entered: 01/28/2004) 01/28/2004 MOTION for Leave to Appear Pro Hac Vice as to Thomas R Thibodeau 78 by hitervenor Plaintiff Julie and Randy Myhre. Fee Paid: $30.00 Receipt # 3317807. (Attachments: # I Affidavit).(jjj) (Entered: 01/29/2004) 01/28/2004 AMENDED NOTICE by Clarence Klabo. Amendment to 58 79 Memorandum in Opposition to Stay, (jjj) (Entered: 01/29/2004) 02/02/2004 NOTICE by Easy Heat Inc. of Filing of Response to the Sushoreba 80 Plaintiffs' First Amended Notice of Opposition to Stay (Kalamaros, Philip) (Entered: 02/02/2004) 02/02/2004 REPLY by Clarence Klabo to 74 Intervenors 1/26/04 Brief, (jjj) 81 (Entered: 02/03/2004) 02/02/2004 AFFIDAVIT of attorney Jordan M Lewis for plaintiff Clarence Klabo. 82 (jjj) in support of Reply. (Entered: 02/03/2004) 02/02/2004 AFFIDAVIT of attorney Mike Miller for plaintiff Clarence Klabo. (jjj) 83 in support of Reply. (Entered: 02/03/2004) 02/06/2004 MEMORANDUM AND ORDER REPORT AND 84 RECOMMENDATION granting Intervening Plaintiffs' 48 MOTION to Intervene. Denies as moot 49 MOTION to Stay Litigation and Enjoin Competing Actions Pending Resolution of the Class Settlement Proposal filed by Easy Heat Inc. Denies as moot 51 MOTION for Hearing on Fairness filed by Easy Heat Inc. Recommends that Intervening Plaintiffs Julie and Randy Myhre's 53 MOTION to Intervene for Limited Purpose to Oppose Proposed Class Action Settlement and MOTION to Stay Proceedings be granted. RECOMMENDS that this action be STAYED pending final judgment in Sushoreba et al v. Easy Heat Inc. et al. Granting 78 MOTION for Leave to Appear Pro Hac Vice filed by Julie and Randy Myhre as to attorney Thomas R Thibodeau. Objections to RR due by 2/17/2004. Signed by Judge Christopher A Nuechterlein on 2/6/04. (jjj) Modified Docket Text on 2/10/2004 (jjj). (Entered: 02/09/2004) 02/10/2004 NOTICE by Easy Heat Inc. of Filing of Motion to Transfer and 85 Coordinate For Pretrial Proceedings (Attachments: #I#2#3#4# 5)(Kalamaros, Philip) (Entered: 02/10/2004) 02/12/2004 MOTION to Withdraw as parties from case by Roert Ames, Bonnie 89 Hanson-Ames. (sdf,) (Entered: 02/24/2004) 02/13/2004 MEMORANDUM in Opposition to 84 Memorandum Opinion, 86 Report and Recommendations, Set/Clear Flags, Terminate Motions, filed by Easy Heat Inc. (Kalamaros, Philip) (Entered: 02/13/2004) 02/13/2004 AFFIDAVIT in Opposition re 84 Memorandum Opinion, Report and 87 Recommendations, Set/Clear Flags, Terminate Motions, Declaration of Philip E. Kalamaros filed by Easy Heat Inc. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Kalamaros, Philip) (Entered: 02/13/2004) 02/20/2004 OBJECTION by Clarence Klabo to 84 Report and Recommendation, 88 (sdf,) (Entered: 02/23/2004) 02/25/2004 Letter from Attorney Mike Miller regarding the Report and 90 Recommendation by Magistrate Judge Nuechterlein (sdf,) (Entered: 02/26/2004) 02/26/2004 Letter from Terrell Hodges, Chairman MDL Panel addressed to Judge 91 Allen Sharp regarding jurisdiction of pending MDL cases (sdf,) (Entered: 02/27/2004) 02/26/2004 MEMORANDUM AND ORDER: It would seem prudent for this Court 92 to stay its hand at least until the Judicial Panel on Multidistrict Litigation has had a full opportunity to consider and act. Therefore, this Court will do so. Signed by Judge Allen Sharp on 2/26/04. (sdf,) Modified on 3/1/2004 (smp,). (Entered: 02/27/2004) 03/02/2004 BRIEF Regarding Application of Pending Deadlines to Intervenors filed 93 by Julie and Randy Myhre. (Maher, Timothy) (Entered: 03/02/2004) 03/10/2004 TRANSCRIPT of Oral Argument Proceedings held on 1/28/04 before 94 Judge Magistrate Judge Christopher A Nuechterlein. (sdf,) (Entered: 03/11/2004)