Free Motion to Consolidate Cases - District Court of Colorado - Colorado

Case 1:04-cv-00781-REB-KLM

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Filed 11/29/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 04-CV-0781-REB-PAC SHRINERS HOSPITALS FOR CHILDREN, a Colorado Corporation, Plaintiff, v. QWEST COMMUNICATIONS INTERNATIONAL INC., a Delaware Corporation having its principal office and place of business in Denver, et al., Defendants. ________________________________________________________________ QWEST COMMUNICATIONS INTERNATIONAL INC.'S UNOPPOSED MOTION TO CONSOLIDATE ________________________________________________________________

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Defendant Qwest Communications International Inc. ("Qwest") respectfully moves this Court pursuant to Federal Rule of Civil Procedure 42(a) and Local Rule 42.1 to consolidate Shriners Hospitals for Children v. Arthur Andersen & Company, et al., No. 06-MSK-02189 (MEH) ("Shriners II") with Shriners Hospitals for Children v. Qwest Communications International Inc., et al., No. 04-CV-0781-REB-PAC ("Shriners I "). In support of this motion, Qwest states as follows: 1. In Shriners I, initially filed in March 2004, Plaintiff Shriners Hospitals for

Children ("Shriners") brought securities fraud-related claims against Qwest and a number of individuals, alleging that Shriners had lost approximately $17 million as a result of accounting fraud perpetrated at Qwest by the defendants between April 19, 2000 and February, 2002.1 2. In October 2006, Shriners filed a new action, Shriners II, and asserted

securities fraud-related claims against Qwest and a number of related defendants, in which it alleged that Shriners had lost approximately $20 million as a result of accounting fraud perpetrated at Qwest by the defendants between May 24, 1999 to March 15, 2005.2 This period includes the entire period at issue in Shriners I. Shriners I, Amended Complaint ¶ 41. 3. A court has broad discretion to consolidate actions involving common

questions of law or fact if consolidation will facilitate the administration of justice. Katz v. Realty Equities Corp. of New York, 521 F.2d 1354, 1358 (2d Cir. 1975). Rule 42(a) of

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Shriners I, Amended Complaint, filed July 26, 2004, ¶ 41. Shriners II, Complaint ¶¶ 28, 33. Exhibit A attached hereto. 2

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the Federal Rules of Civil Procedure provides that "[w]hen actions involving a common question of law or fact are pending before the court, ... it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Fed. R. Civ. P. 42(a). The objective of the rule is "to give the court broad discretion to decide how cases on its docket are to be tried so that the business of the court may be dispatched with expedition and economy while providing justice to the parties." Breaux v. Amer. Family Mut. Ins. Co., 220 F.R.D. 366, 367 (D. Colo. 2004). 4. Consolidating Shriners I with Shriners II is appropriate because the cases

are identical in many respects. They share: (1) the same plaintiff; (2) the same Court; (3) many of the same defendants, including Qwest and others; (4) allegations of accounting fraud; (5) overlapping periods of time; (6) roughly the same amount of damages; and (7) the same basic universe of trades in Qwest securities. (See Exhibit B attached hereto.) 5. Consolidation is appropriate even though all claims and parties in the two

actions are not identical. As this Court acknowledged in its March 29, 2005 Order Granting Defendants' Motion To Consolidate Stichting Pensioenfonds ABP v. Qwest, et al. (In re Qwest Securities Litigation; Case No. 01-CV-1451-REB-PAC; Docket No. 610) (Exhibit C attached hereto), even where an action involves some parties not named in the consolidated action or asserts some claims not asserted in the consolidated action, where the additional claims "involve proof of the same type" as the claims at issue in the consolidated action, such that there are "questions of law and fact [in] common," "these

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differences do not make consolidation unreasonable or inefficient." Id. at 2. Given the significant similarities and commonalities between Shriners I and Shriners II, and their shared procedural history, the two actions are "sufficiently related" that consolidation is appropriate. 6. Undersigned counsel has conferred with counsel for all parties to Shriners

I and Shriners II pursuant to D.C.Colo.L.R. 7.1. Counsel have no objection to this motion. Wherefore, Qwest respectfully requests that Shriners Hospitals for Children v. Arthur Andersen & Company, et al., No. 06-MSK-02189 (MEH) be consolidated with this case. A proposed order is attached. DATED: November 29, 2006 Respectfully submitted, __/s/ Alfred P. Levitt_____________ Jonathan D. Schiller David Boyd Alfred Levitt BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W. Washington, DC 20015 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 Terence C. Gill SHERMAN & HOWARD, L.L.C. 633 Seventeenth Street, Suite 300 Denver, CO 80202 Telephone: (303) 297-2900 Facsimile: (303) 298-0940 Attorneys for Qwest Communications International Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of November, 2006, a copy of the foregoing QWEST COMMUNICATIONS INTERNATIONAL INC.'S UNOPPOSED MOTION TO CONSOLIDATE was electronically filed with the Clerk of the Court using the USDC CM/ECF system, which will send notification of such filing to the following e-mail addresses: Terence C. Gill [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Qwest Communications Int. Inc. Counsel for Qwest Communications Int. Inc. Counsel for William L. Eveleth Counsel for Richard L. Weston Counsel for William L. Eveleth Counsel for Plaintiff Counsel for John M. Walker Counsel for Douglas K. Hutchins Counsel for Bryan K. Treadway

Marcy M. Heronimus Karoline E. Jackson Douglas P. Lobel Larry A. Mackey Charles G. Michaels Stephen C. Peters John M. Richilano M. Robert Thornton

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and, I also certify that I have served same by depositing in the U.S. Mail, first-class postage prepaid, addressed to the following: I. Walton Bader Bader & Bader, LLP 50 Main Street; PMB 1029 Suite 1000 White Plains, NY 10606 Counsel for Plaintiff

/s/ Jed Donaldson Jed Donaldson

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