Free Case Transferred In - District Transfer - District Court of Delaware - Delaware

· Case 1 :05-cv-O0914;JJF Document 21 -37 Filed 01/12/2006 Page 1 of 4
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IN THE UNITED STATES DISTRICT COURT w
FOR THE WESTERN DISTRICT OF TENNESSEE ,% (
` WESTERN DIVISION ·;·, 32% » *6*
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CORY WILES, individually and on behalf 22,% is %\ A
of himself and all persons similarly situated, % $9:%
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INTEL CORPORATION, a Delaware
C °‘P°'“ t i G ~ i f
Defendant. um.
DEFENDANT INTEL CORPORATION ’S REPLY
IN SUPPORT OF ITS MOTION TO STAY
Defendant Intel Corporation ("Intel") respectfully submits this reply in support of its I
motion to stay consideration of Plaintiff Corey Wiles’ Motion to Remand pending transfer of this
n action to MDL 1717, In re Intel Microprocessor Antitrust Litigation. Plaintiff does not dispute
that such a stay is the recognized general rule; further plaintiffs unsupported assertion that his
case is ‘different’ from the other MDL cases does not alter the reality that his remand motion
implicates factual and legal issues that overlap extensively with other actions that are part of
MDL 1717. Thus, the MDL court should decide plaintiffs remand motion.
ARGUMENT _
NOTHING ABOUT THE PLAINTIFF’S CASE JUSTIFIES
DEPARTING FROM THE GENERAL RULE
TO STAY REMAND MOTIONS IN MDL ACTIONS
Plaintiff does not dispute the general rule in this District that remand motions should be
resolved by the MDL court. See eg., Jackson v. Johnson & Johnson, Inc., 2001 WL 34048067,
SH21640467.1 U /J

= Case 1 :05-cv-00914-ikll: Document 21 -37 Filed 2/2006 Page 2 of 4
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*3 (WD. Tenn., Apr. 3, 2001); Studard v. Merck & Co, Inc., 2005 WL 1700905, *2 (W.D.
Tenn., July 19, 2005); West v. Merck & Co., Inc., 2005 WL 1630034, *1-2 (W.D. Temi. July 7,
2005). Nor does plaintiff contest that the transferee court will be fully competent to address
plaintiffs remand arguments in due course. Rather, plaintiffs sole argument against a stay is
that his case is somehow ‘different’ from the now more than 70 copy-cat class actions pending in
federal court because it was the only one filed in Tennessee state court and the only one to allege
that its amount in controversy is less than $5 million. (Docket Entry 15 (“Plaintiff’ s Reply") at
4).
These arguments are specious. The original forum for this action is innnaterial to an
assessment of whether a remand motion raises isolated issues the resolution of which would not
affect any of the other MDL cases; rather, it is the type of claims he asserts. As lntel previously
explained, at least 53 of the pending federal cases — including one filed in the Eastern District of
Tennessee - assert identical Tennessee Antitrust Act ("TAA") claims on behalf of the same
purported class of Tennessee residents. (Docket Entry ll ("lntel Brief ’) at 2). Similarly, using
. the fact that plaintiff pleaded an amount in controversy less than $5 million to justify a departure
from the general rule begs the question. As lntel established in its opening brief under CAFA,
plaintiffs naked assertion of a value below $5 million is insufficient.] (Docket Entry 9 ("lntel
Opp.") at 6).
1 Plaintiffs position regarding who bears the burden to demonstrate subject matter
jurisdiction is wrong. (Plaintiffs Reply at 3). Plaintiff cites the only case, Schwartz v. Comcast
Corp., 2005 WL 1799414 (ED. Pa., July 28, 2005), that ignored the express intention of
Congress on this point. Nearly every other reported decision on this point has held that CAFA
shifted the burden to the party opposing removal. (See Intel Opp. at 6). Accord Yeroushalmi v.
Blockbuster Inc., 2005 WL 2083008, *3 (C.D. Cal., July 11, 2005); Waitt v. Merck & C0., 2005
WL 1799740, *2 (W.D. Wash., July 27, 2005); Berry v. American Express Publ jg, 2005 WL
1941151, *4 (C.D. Cal., June 15, 2005); Harvey v. Blockbuster, Inc., 384 F. Supp. 2d 749, 752
(D.N.J. 2005); In re Textainer P ’sh1io Secs. Litig., 2005 WL 1791559, *3 (ND. Cal., July 27,
2005).
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· V Case 1 :05-cv-O0914;JilF Document 21 -37 Filed 2/2006 Page 3 of 4
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Intel presented objective evidence regarding the aggregate value of this particular claim,
to which the plaintiff conclusorily objects without rebutting facts.2 Plaintiff however, does not
contest that resolution of this dispute will affect the 53 Related Actions that assert these same
TAA claims. Consequently, this question is best handled by the MDL court.
CONCLUSION
For the foregoing reasons, as well as those presented in 1ntel’s opening papers, this Court
should stay plaintiff s remand motion pending transfer of this action to the MDL court.
Respectfully submitted,
BURCH, PORTER & JOHNSON, PLLC
DATED: October 18, 2005 i ` *5*%;/
I ef e` n (#7677)
Mary al (#21878)
130 North Court Avenue
Memphis, TN 38103
Telephone: 901 .524.5000
Facsimile: 901.524.5024
[email protected]
U and
David M. Balabanian (CA# 37638)
Christopher B. Hockett (CA# 121539)
Joy K. Fuyuno (CA # 123890)
BINGHAM McCUTCHEN LLP
Three Embarcadero Center
San Francisco, CA 9411 1~4067
2 Plaintiff disparages Intel’s estimate as "speculation" and "hearsay." (Plaintiffs Reply at
4). Intel, however, has presented objective facts from which the Court can estimate the
aggregate value of the asserted claim based upon plaintijfs own factual allegations. This is
proper under CAFA. See, ag., Senteijitt v. Sumfrust Mortgage, Inc., 2005 WL 2100594, *4 (S.D.
Ga. Aug. 31, 2005) (accepting defendant”s estimate of the transactions for which plaintiff sought
$15 statutory damages).
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· n- Case 1:05-cv—00914;g:1F Document 21-37 Filed 2/2006 Page 4 of 4
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Richard A. Ripley (DC# 412959)
BIN GHAM McCUTCHEN LLP
1120 20th Street, NW, Suite 800
Washington, DC 20036
Attorneys for Defendant
- INTEL CORPORATION
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe foregoing has been served via U.S. Mail,
postage prepaid, B.] . Wade, Esq., Glassman, Edwards, Wade & Wyatt, P.C., 26 North Second
Street, Memphis, Tennessee, 38103, on this 18th day of October 2005.
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Mary e
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