In re Long-Distance Tele. Ser. Fed. Excise Tax, 1798.

• Decision Date: 28 December 2006
• Docket Number: No. 1798.,1798.
• Citation: 469 F.Supp.2d 1349
• Parties: In re LONG-DISTANCE TELEPHONE SERVICE FEDERAL EXCISE TAX REFUND LITIGATION Oscar Gurrola, et al. v. United States of America, et al., C.D. California, C.A. No. 2:06-3425 Virginia Sloan, et al. v. United States of America, D. District of Columbia, C.A. No. 1:06-483 Neiland Cohen v. United States of America, E.D. Wisconsin, C.A. No. 2:05-1237 Radioshack Corp. v. United States of America, Fed. CI., C.A. No. 1:06-28
• Court: Judicial Panel on Multidistrict Litigation

469 F.Supp.2d 1349

In re LONG-DISTANCE TELEPHONE SERVICE FEDERAL EXCISE TAX REFUND LITIGATION

Oscar Gurrola, et al. v. United States of America, et al., C.D. California, C.A. No. 2:06-3425

Virginia Sloan, et al. v. United States of America, D. District of Columbia, C.A. No. 1:06-483

Neiland Cohen v. United States of America, E.D. Wisconsin, C.A. No. 2:05-1237

Radioshack Corp. v. United States of America, Fed. CI., C.A. No. 1:06-28

No. 1798.

Judicial Panel on Multidistrict Litigation.

December 28, 2006.

Before WM. TERRELL HODGES, Chairman, D. LOWELL JENSEN, J. FREDERICK MOTZ,^* ROBERT L. MILLER, Jr., KATHRYN H. VRATIL, DAVID R. HANSEN and ANTHONY J. SCIRICA, Judges of the Panel^**

TRANSFER ORDER

WM. TERRELL HODGES, Chairman.

This litigation currently consists of three district court actions pending in the Central District of California, the District of District of Columbia, and the Eastern District of Wisconsin, and one action pending in the Court of Federal Claims. Pursuant to 28 U.S.C. § 1407, plaintiff in the Eastern District of Wisconsin action has submitted a motion seeking centralization of these four actions in the Eastern District of Wisconsin for coordinated or consolidated pretrial proceedings.¹ Plaintiffs in the Central District of California action support centralization, but in the District of District of Columbia or, alternatively, the Central District of California. Opposed to centralization are plaintiffs in the District of District of Columbia and Court of Federal Claims actions, the United States, which is the sole defendant in three of the four actions and a co-defendant in the fourth, and various telecommunication companies that are, sued only in the Central District of California action. In the event the Panel orders transfer over their objections, then plaintiffs in the District of District of Columbia action support selection of that district as transferee district; and the responding telecommunication company defendants request that the claim against them in the Central District of California action be severed and simultaneously remanded under Section 1407 to that district.

On the basis of the papers filed and hearing session held, the Panel finds that the three district court actions in this litigation involve common questions of fact, and that centralization under Section 1407 in the District of District of Columbia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In each of the three district court actions now before the Panel, plaintiffs seek, on behalf of a putative nationwide class, reimbursement of the communications excise tax on long-distance telephone service, where the charge for such service was not based on the distance of the telephone call. Centralization under Section 1407 is necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (especially with respect to class certification matters), and conserve the resources of the parties, their counsel and the judiciary. The Panel is persuaded, however, that the single California state law claim brought against the telecommunication provider defendants in the Central District of California action is unique and therefore should not be included in the MDL-1798 proceedings at the present time.

The Panel has never reached the issue of whether Section 1407 authorizes transfer of a Court of Federal Claims action, and the Panel sees no need to resolve that issue here. As the moving plaintiff himself points out, prior...