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

Case 1:03-cv-00607-JLK

Document 132

Filed 07/14/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-0607-JLK DOMINION VIDEO SATELLITE, INC., Plaintiff, v. ECHOSTAR SATELLITE L.L.C., Defendant. ______________________________________________________________________________ MOTION TO CONSOLIDATE AND FOR HEARING ON MOTION FOR PRELIMINARY INJUNCTION IN AID OF ARBITRATION, AND BRIEF IN SUPPORT ______________________________________________________________________________ INTRODUCTION Once again, EchoStar has chosen to act unilaterally and engage in "self-help" remedies rather than arbitrate disputes arising out of the parties' Agreement. The most recent conflict involves EchoStar's opinion that Dominion's broadcast of family friendly programming under an exception to the Agreement's exclusivity provisions is a breach, and its declaration that it intends to terminate the parties' Agreement. As the Court knows, without the satellite transponder lease provisions of the Agreement, Dominion will have no broadcast outlet for its Sky Angel network, and will be driven out of business while it seeks to arbitrate as required by the contract. Because of the common questions of law and fact, pursuant to Fed. R. Civ. P. 42(a) Plaintiff Dominion Video Satellite, Inc. ("Dominion") respectfully asks that the Court consolidate this action with Civil Action No. 05-cv-1295-EWN-PAC, which was filed two days

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ago and is pending before Judge Edward W. Nottingham. Dominion further asks that the Court set a hearing on Dominion's Motion for Preliminary Injunction in Aid of Injunction, filed concurrently with its latest complaint. PROCEDURAL BACKGROUND Two days ago, Dominion brought an action in this Court to prevent EchoStar from following through on threats to terminate its contract with Dominion, and to compel EchoStar's continued contract performance while the parties arbitrate their most recent contract dispute. The case was designated Civil Action No. 05-cv-1295-EWN-PAC and was assigned to Judge Edward W. Nottingham. Yesterday, on July 13, 2005, Judge Nottingham granted Dominion's request for a temporary restraining order and set a hearing for Dominion's request for a preliminary injunction for Thursday, July 21, 2005. The new action pending before Judge Nottingham involves Dominion's request for an injunction preserving the status quo pending arbitration with EchoStar. The facts behind EchoStar's termination notice are set forth in Dominion's Complaint, Motion for Preliminary Injunction in Aid of Arbitration, and Brief in Support, filed in Case No. 05-1295, which are attached as Exhibits 1, 2, and 3 to this Motion. ARGUMENT Dominion's new action and request for injunctive relief pending arbitration should be consolidated with this case. A. Legal standard.

Whether to grant a Rule 42(a) motion to consolidate is in this Court's discretion. See Shump v. Balka, 574, F.2d 1341, 1344 (10th Cir. 1978). Under the Rule, this Court may consolidate this action with Case No. 05-1295 if the cases involve a common question of law or fact. Fed. R. Civ. P. 42(a). The objective of the Rule is "'to give the court broad discretion to 2

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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. Am. Family Mut. Ins. Co., 220 F.R.D. 366, 367 (D. Colo. 2004) (quoting 9 C. Wright & A. Miller, Fed. Practice & Procedure § 2381, at 427 (1995)). B. There are common questions of law and fact justifying consolidation of the cases.

Dominion has twice been before this Court seeking injunctive relief in aid of arbitration. This time, however, is the first that EchoStar has threatened to terminate the Agreement and put Dominion out of business. Here, the lawsuits are between the same parties, arise out of the same complex contractual relationship, and depend on contract provisions with which the Court is well versed. Courts have held that a common factual issue, such as two lawsuits pending in the same court brought by the same plaintiff, may be a sufficient basis for consolidation if it will simplify the litigation process. See Prudential Ins. Co. of America v. Saxe, 134 F.2d 16, 31-32 (D.C. Cir. 1943) (consolidation of competing suits to cancel and enforce insurance policy because the parties and contract involved were the same); Allfirst Bank v. Progress Rail Services Corp., 178 F. Supp. 2d 513, 520 (D. Md. 2001) (consolidation of assignee's claims for breach and specific performance with assignor's action for declaratory judgment and injunction appropriate in the interests of justice and efficiency given common parties and arguments, among other things); Hanes Co. v. Ronson, 712 F. Supp. 1223, 1230 (M.D.N.C.) (court found that consolidation of two cases filed by same plaintiff involving the same contractual arrangements "enhance[d] efficiency and economy for all concerned.").

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Case 1:03-cv-00607-JLK

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WHEREFORE, Dominion respectfully asks that the Court grant this Motion. A proposed order is attached. DATED: July 14, 2005 Respectfully submitted, s/ Thomas D. Leland, Esq. Thomas D. Leland, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 Email: [email protected] Attorney for Plaintiff Dominion Video Satellite, Inc. and Mark D. Colley, Esq. Cameron W. Fogle, Esq. Holland & Knight LLP 2099 Pennsylvania Avenue, N.W., Ste. 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Fax: (202) 955-5564 Email: [email protected] Attorneys for Plaintiff Dominion Video Satellite, Inc.

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CERTIFICATE OF CONFERENCE Pursuant to D.C. COLO. LCivR 7.1A., undersigned counsel for Dominion has attempted to communicate with opposing counsel in order to resolve the matters that are the subject of this Motion to Consolidate and for Hearing on Motion for Preliminary Injunction. Specifically, at 8:23 (MT) on the morning of July 14, 2005, counsel for Dominion sent an email to opposing counsel in this action, as well as to in-house counsel for EchoStar (because no counsel has yet entered an appearance for EchoStar in Action No. 05-cv-1295-EWN-PAC). Given the timeframes involved, EchoStar counsel was asked to respond immediately whether EchoStar would consent to this motion. As of noon (MT) today, EchoStar counsel had not responded. DATED: July 14, 2005 Respectfully submitted, s/ Thomas D. Leland, Esq. Thomas D. Leland, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 Email: [email protected] and Mark D. Colley, Esq. Cameron W. Fogle, Esq. Holland & Knight LLP 2099 Pennsylvania Avenue, N.W., Ste. 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Fax: (202) 955-5564 Email: [email protected] Attorneys for Plaintiff Dominion Video Satellite, Inc. 5

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CERTIFICATE OF SERVICE I certify that on July 14, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: T. Wade Welch: [email protected] Ross W. Wooten: [email protected] And I hereby certify that I have mailed and faxed the foregoing to the following nonCM/ECF participants: David K. Moskowitz, Esq. General Counsel and Senior Vice President EchoStar Satellite LLC 9601 S. Meridian Blvd. Englewood, Colorado 80112 Christopher Kuelling EchoStar Satellite LLC 9601 S. Meridian Blvd. Englewood, Colorado 80112 Todd A. Jansen Cockrell, Quinn 7 Creighton 1700 Broadway, Suite 1516 Denver, Colorado 80290

s/Thomas D. Leland Thomas D. Leland Attorney for Plaintiff Dominion Video Satellite, Inc. HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6026 Fax: (720) 904-6006 Email: [email protected]

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