Before the United States Judicial Panel on Multi-District Litigation

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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTI-DISTRICT LITIGATION

IN RE: PILOT FLYING J FUEL REBATE MDL Docket No. 2515 CONTRACT LITIGATION (No. II)

RESPONSE OF PLAINTIFF SHORELINE TRANSPORTATION OF ALABAMA U.S.A., INC. IN OPPOSITION OF DEFENDANTS’ MOTION FOR CONSOLIDATION AND TRANSFER

COMES NOW, the Plaintiff Shoreline Transportation of Alabama U.S.A., Inc.

(hereinafter referred to as “Shoreline”) and, pursuant to 28 U.S.C. § 1407 and the Rules of

Procedure of the Judicial Panel on Multi-District Litigation, respectfully submits this Response in Opposition to Defendants’ Motion to Consolidate and Transfer this Action to the Eastern

District of Tennessee.

PRELIMINARY STATEMENT

The undersigned represents Plaintiff Shoreline Transportation of Alabama USA, Inc., in

Shoreline Transportation of Alabama USA, Inc. v. Pilot Corporation, et al., 2:13-cv-00362

(M.D. Ala.). Plaintiff filed its action in the Circuit Court of Butler County, Alabama on April 25,

2013 (Civil Action No. 10-CV-2013-900041.00). The case was removed to the Middle District of Alabama on May 28, 2013, and the case was assigned to the Honorable Judge W. Harold

Albritton, III, Montgomery Division. Defendants Pilot Corporation, Pilot Oil Corporation, and

Pilot Travel Centers, LLC were served, and their answers were originally due on June 4, 2013.

On June 4, 2013, the parties filed a joint motion for an extension of time for Defendants to respond to Plaintiff’s Complaint, and that motion was granted by Judge Albritton on June 5,

2013. Defendants’ responsive pleadings are due July 8, 2013. On June 14, 2013, Defendants filed an Unopposed Motion to Stay. The stay was granted by Judge Albritton on June 17, 2013.

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ARGUMENT

Shoreline originally supported consolidation and transfer in MDL 2468, when it appeared that possibly hundreds of lawsuits could be filed regarding Pilot’s fraudulent conduct. Shoreline now opposes consolidation where there are only a few opt out cases remaining. 28 U.S.C. §1407 makes clear that an MDL transfer and pretrial coordination is only appropriate when: (i) the actions “involve one or more common questions of fact; (ii) transfer would “be for the convenience of the parties and witnesses”; and (iii) the transfer “will promote the just and efficient conduct of the actions.” See 28 U.S.C. §1407(a) (2012). Prior to the original Motion for consolidation (MDL No. 2468), these factors appeared to have been met. Now that most of the actions have been consolidated in a separate proceeding and only a limited amount of cases remain, consolidation and transfer are no longer warranted

I. THE PILOT ACTIONS SHOULD NOT BE CONSOLIDATED

In Defendants’ Motion for Consolidation, they state that the Panel has already found that

“common questions of fact exist.” While this may have been accurate when faced with hundreds of potential lawsuits, it is no longer the case. The limited number of cases that remain will surely have different factual scenarios and likely will have different wrongdoers (i.e. sales associates) in each case. Each Plaintiff that was affected by Pilot’s fraudulent schemes, including Shoreline

Transportation, will likely have been defrauded in unique manners and by different Pilot employees, negating the common questions of fact that would have been present with hundreds of lawsuits pending. For this reason, consolidation is not appropriate.

Even if there are still common questions of fact, the Panel has held time and time again that common questions alone are not sufficient to warrant MDL coordination, but rather the

Panel must also be satisfied that the transfer would “be for the convenience of the parties and

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witnesses”; and “promote the just and efficient conduct of the actions.” See Evans v. Equinox

Holdings, Inc., 764 F. Supp. 2d 1347 (J.P.M.L. 2011) (refusing transfer and holding, “[w]hile we agree that common factual issues exist, the Panel is not persuaded that Section 1407 centralization is necessary either to assure the convenience of the parties and witnesses or for the just and efficient conduct of this litigation at this time.”); In re Drowning Incident at Quality Inn

Northeast, Washington, D.C., 405 F. Supp. 1304, 1306 (J.P.M.L. 1976) (stating, “the existence of common questions of fact between actions is, as we have often noted, but one condition precedent to transfer under Section 1407. Before a transfer will be ordered, the Panel must be satisfied that all the statutory criteria have been met.”); In re Highway Accident Near Rockville,

Connecticut, on December 30, 1972, 388 F. Supp. 574, 575 (J.PM.L. 1975) (finding, “the fact that these two actions arise from the same disaster does not ipso facto mean that their coordination or consolidation under Section 1407 is appropriate. Before transfer will be ordered, the Panel must be satisfied that all of the statutory criteria have been met.”); In re Truck Accident

Near AlamaGordo, New Mexico, 387 F. Supp. 732, 733 (J.P.M.L 1975).

In In re Truck Accident Near AlamaGordo, the Panel refused to Order an MDL transfer despite the fact that the cases at issue contained substantially identical allegations, which has also been argued by the Pilot Defendants. Id. at 733. In so holding the Panel explained that:

Indeed we recognize the existence of common, if not identical, questions of fact among these actions. Nevertheless, a mere showing that common questions of fact exist amongst the actions for which Section 1407 treatment is proposed is not sufficient, in and of itself, to warrant transfer by the Panel. The other criteria of the statute must also be satisfied. And we are not persuaded that with respect to this particular litigation the overall convenience of the parties and witnesses and the just and efficient conduct of the litigation will be enhanced by a Section 1407 transfer.

Id.

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While the seven actions at issue here may share some common issues of fact, transfer and coordination pursuant to 28 U.S.C. §1407 is inappropriate because the overall convenience of the parties and witnesses and the just and efficient conduct of the litigation will not be enhanced by a

Section 1407 transfer. To the contrary, consolidation will now inconvenience the parties to this litigation, mainly the Plaintiffs, where plaintiff counsel will be forced to conduct discovery and attend depositions irrelevant to their own individual cases, which in turn will increase the costs of litigation for each Plaintiff. For example, a wrongdoer in Shoreline’s case (i.e. the specific sales representative that defrauded Shoreline) is likely not the same wrongdoer in one of the New

Jersey cases (i.e. the New Jersey sales representative that defrauded the New Jersey trucking company). If consolidated, plaintiff counsel for each individual case will be subjected to the other actions’ discovery, making it more inconvenient and costly for the Plaintiffs. Although consolidation may be more convenient to the Pilot Defendants, convenience to a Defendant who has admitted to defrauding its customers and has had several employees indicted for their misconduct should not be taken into consideration.

Moreover, the discovery in each case will likely be minimal where Pilot has already admitted to wrongdoing and the Federal Bureau of Investigation has already conducted a substantial investigation into Pilot’s misconduct. It is significant to note that in denying Motions for MDL coordination where there is not extensive discovery to be conducted, but where there is some discovery needed, this Panel has routinely held that the parties and the presiding courts

“can easily take steps to coordinate whatever discovery needs to be accomplished.” See In re

Magic Marker Securities Litigation, 470 F. Supp. 862, 865-66 (J.P.M.L. 1979); In re Home

Depot U.S.A. Inc., Wage and Hour Litigation, 818 F. Supp2d 1367 (J.P.M.L. 2011); In re

Raymond Lee Organization, Inc. Securities Litigation, 446 F. Supp. 1266, 1268 (J.P.M.L. 1978)

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(noting “communication and cooperation between the California and New York courts, if deemed appropriate by the courts, along with cooperation of the parties, would minimize the possibility of conflicting pretrial rulings.”). For example, where some overlapping discovery is necessary, the Panel has often suggested the following: (1) that notices of a particular deposition, interrogatories and requests for production could be served in all of the actions, thereby making them applicable in each action; (2) the parties could seek to agree upon a stipulation that any past and future discovery relevant to each of the actions may be used in any action; and (3) any party could seek orders from the involved courts directing the parties to coordinate their pretrial efforts. In re: Children’s personal Care Products Liability Litigation, 655 F.Supp.2d 1365

(J.P.M.L. 2009); In re Magic Marker Securities Litigation, 470 F. Supp. 862, 865 (J.P.M.L.

1979); In re Commercial Lighting Products, Inc. Contract Litigation, 415 F. Supp. 392, 393

(J.P.M.L. 1976). These are measures that certainly could be taken, if necessary, in the seven cases at issue here.

WHEREFORE, the Pilot Defendants’ Motion to Consolidate and Transfer should be denied.

II. IN THE ALTERNATIVE, IF CONSOLIDATION IS WARRANTED, THE

PILOT ACTIONS SHOULD BE TRANSFERRED TO THE NORTHERN

DISTRICT OF ALABAMA

In the alternative, if this Panel believes that consolidation and transfer is appropriate,

Shoreline Transportation submits that the MDL should not be consolidated in the Eastern District of Tennessee, but should be consolidated in the Northern District of Alabama.

Plaintiff respectfully requests that the cases be transferred and consolidated in the

Northern District of Alabama, Southern Division. The Northern District of Alabama, Southern

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Division, is the best location for the transferee court, if a transferee court is necessary, and is the most convenient location for all of the remaining parties to this litigation. The majority of the filed opt out cases are already pending in Alabama and the Defendant is headquartered in the adjacent District. The Defendant also has ten store locations in the state of Alabama. See http://www.pilotflyingj.com/locations.

This Panel has previously found the Northern District of Alabama to be an appropriate forum for MDL proceedings, including: IN RE: Chantix (Varenicline) Products Liability

Litigation (MDL No. 2092). The Northern District of Alabama also has a well-managed docket: the median time from filing to trial was 21.9 (during a 12 month period ending March 31, 2013).1 The Northern District of Alabama is an efficient district with only one pending MDL. Moreover, other outside factors weigh against selection of a court in the State of Tennessee. The Chief Executive Officer of the Defendant is James A. “Jimmy” Haslam, III, also a Defendant in some actions. Most importantly, Mr. Haslam’s brother, William Edward “Bill” Haslam, is the Governor of Tennessee and has a substantial ownership interest in Pilot, which unlike the Governor’s other assets, is not part of a blind trust.2 Moreover, the Haslam family owns fifty-nine (59) percent of Pilot.3 Adding to the political sensitivities, one of the current United States Senators from Tennessee, Bob Corker, was CEO Haslam’s roommate at the University of Tennessee.4 Furthermore, unlike Tennessee, the Northern District of Alabama is outside the Sixth Circuit providing additional insulation from possible accusations of political influence. These actions are based on events that have been widely publicized in the media, especially in Knoxville, Tennessee, where the Eastern District of Tennessee is located.

1 See http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/caseload-statistics-2013.aspx 2 See http://www.newsnet5.com/dpp/sports/football/browns/tennessee-governor-bill-haslam-doesnt-know-not- seeking-details-of-pilot-flying-j-raid 3 See http://www.bizjournals.com/nashville/morning_call/2013/06/who-owns-pilot-flying-j.html 4 See http://en.wikipedia.org/wiki/Jimmy_Haslam

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Consolidation in the Northern District of Alabama may avoid any potential questioning of the impartiality of the MDL’s proceedings, whether by any party or by the public, solidify a public perception of impartiality, and ultimately help insulate the transferee Court from criticism or public clamor. At the same time, the Northern District of Alabama is directly adjacent to the Eastern District of Tennessee, making it the most convenient location outside of the State of Tennessee. Consolidation in the Northern District of Alabama, Southern Division, offers specific advantages in addition to its efficient docket. Birmingham is the largest city in Alabama5 and is home to a number of hotels that can affordably accommodate the needs of out of state counsel. The newly renovated Birmingham-Shuttlesworth International Airport offers more than 100 daily flights from over 25 cities throughout the United States.6 Three major interstates run through Birmingham, including I-65, I-20 and I-59, and the drive from Knoxville can be made in approximately four hours.7 The Hugo L. Black United States Courthouse in Birmingham, Alabama is a state-of-art facility that is located approximately six miles from the Birmingham- Shuttlesworth International Airport. Birmingham is also within driving distance to the Atlanta

Hartsfield-Jackson International Airport, the largest airport in the world based on airport traffic. The efficiency and caseload of the Northern District of Alabama, Southern Division, supports its selection as the location for MDL No. 2515, if this Court believes that consolidation is warranted. Under 28 U.S.C. § 1407, the transfer and coordination will serve the convenience of the parties, witnesses, counsel, and the judicial system better than the Eastern District of Tennessee. WHEREFORE, Plaintiff Shoreline Transportation of Alabama USA, Inc. respectfully requests that the Honorable Panel enter an Order denying Defendants’ Motion for Transfer and Consolidation, and, in the alternative, if this Court believes that consolidation is warranted that such coordination be centralized in the Northern District of Alabama, Southern Division.

5 http://www.togetherweteach.com/TWTIC/uscityinfo/01al/alpopr/01alpr.htm 6 http://www.flybirmingham.com/ 7 http://www.mapquest.com/

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Dated: January 6, 2014 FRIEDMAN, DAZZIO, ZULANAS & BOWLING P.C.

/s/ Matt Conn _____ Jeff Friedman (FRI018) J. Michael Bowling (BOW046) Matt Conn (CON062) FRIEDMAN, DAZZIO, ZULANAS & BOWLING, P.C. Post Office Box 43219 Birmingham, Alabama 35243-3219 Phone: (205) 278-7000 Fax: (205) 278-7001 [email protected] [email protected] [email protected] Attorneys for Shoreline Transportation

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PROOF OF SERVICE

In compliance with Rule 4.1(a) of the Rules of Procedure for the United States Judicial Panel on Multidistrict Litigation, I hereby certify that copies of the foregoing were served on all parties electronically via ECF, or as indicated below, on January 6, 2014:

Also Served Via Email:

Timothy K. Saia, Esq. Shawn J. Organ, Esq. MORGAN, MELHUISH, ABRUTYN Douglas R. Cole, Esq. 651 West Mount Pleasant Avenue, Suite 200 ORGAN COLE + STOCK, LLP Livingston, NJ 07039 1335 Dublin Road, Suite 104D (973) 994-2500 Columbus, OH 43215 [email protected] (614) 481-0900 (Tel) Attorney for Mario’s Express Service, Inc. (614) 481-0904 (Fax) (2:13-cv-05398); and, [email protected] National Retail Transportation, Inc., [email protected] Keystone Freight Corp. Attorneys for FST Express, Inc., (2:13-cv-04798) J.F. Freight Company, Inc. (2:13-cv-01005)

F. Michale Haney, Esq. Jeffrey C. Kirby, Esq. Matthew P. Skelton, Esq. William T. Johnson, III, Esq. INZER HANDEY MCWHORTER & HANEY, LLC KIRBY JOHNSON, PC PO Box 287 One Independence Plaza Dr., Ste 520 Gadsden, AL 35902-0287 Birmingham, AL 35209 (256) 546-1615 (Tel) (205) 458-3553 (Tel) (256) 546-1093 (Fax) (205) 458-3589 (Fax) [email protected] [email protected] [email protected] [email protected] Attorney for Osborn Transportation, Inc. Attorneys Osborn Transportation Inc (4:13-cv-00897) (4:13-cv-00897)

Roger E. Yarbro, Esq. Stephen D. Brody, Esq. YARBRO & ASSOCIATES O’MELVENY & MYERS, LLP PO Box 480 1625 Eye Street NW Cloudcroft, NM 88317-0480 Washington, D.C. 20006 (575) 682-3614 (Tel) (202) 383-5167 (Tel) (575) 682-3642 (Fax) [email protected] [email protected] Attorney for James A. Haslam Attorney for Triple D Supply, LLC and (1:13-cv-00352 & 2:13-cv-04798) Don Doak (2:13-cv-00655)

Martin G. Durkin, Jr., Esq. Gordon Ball, Esq. HOLLAND & KNIGHT, LLP GORDON BALL ATTORNEY 131 S. Dearborn Street, 30th Floor 7001 Old Kent Drive Chicago, IL 60603 Knoxville, TN 37919 (312) 263-3600 (Tel) (865) 525-7028 (Tel) (312) 578-6666 (Fax) (865) 525-4679 (Fax) [email protected] [email protected] Attorney for John Freeman and Brian Mosher Attorney for Mark Hazelwood (1:13-cv-00352 & 2:13-cv-04798) (1:13-cv-00352 & 2:13-cv-04798)

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Glen M. Kurtz, Esq. James F. Logan, Jr. Esq. WHITE & CASE, LLP LOGAN-THOMPSON, PC 1155 Avenue of the Americas 30 2nd Street NW New York, NY 10036 Cleveland, TN 37311 (212) 819-8200 (Tel) (423) 716-6262 (Tel) (212) 354-8113 (Fax) (423) 472-0211 (Fax) [email protected] Attorney for Jay Stinnett Attorney for Pilot Corporation, Pilot Travel (2:13-cv-04798) Centers, LLC, Pilot Flying J (1:13-cv-00352 & 2:13-cv-04798)

Stephen M. Tunstall STEPHEN M. TUNSTALL, P.C. PO Box 152 Mobile, AL 36601 (251) 432-2221 (Tel) (251) 432-2218 (Fax) [email protected] Attorney for Wright Transportation, Inc.

Served Via U.S. Mail:

Ashley Judd Pilot Travel Centers, LLC d/b/a Pilot Flying J 5508 Lonas Drive Knoxville, TN 37909 Defendant (2:13-cv-04798)

Kevin Clark Pilot Travel Centers, LLC d/b/a Pilot Flying J 5508 Lonas Drive Knoxville, TN 37909 Defendant (2:13-cv-04798)

Holly Radford Pilot Travel Centers, LLC d/b/a Pilot Flying J 5508 Lonas Drive Knoxville, TN 37909 Defendant (2:13-cv-04798)

Arnold Ralenkotter Pilot Travel Centers, LLC d/b/a Pilot Flying J 5508 Lonas Drive Knoxville, TN 37909 Defendant (2:13-cv-04798)

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Dated: January 6, 2014 FRIEDMAN, DAZZIO, ZULANAS & BOWLING P.C.