Opinion
CAUSE NO. IP 99-C-9313 H/K, MDL DOCKET NO. 1313
September 10, 2002
ENTRY ON MOTION OF KELLEY FARMS, INC. FOR NOTICE
Attorneys Irwin Levin and Scott Gilchrist of the Indianapolis law firm of Cohen Malad have filed an appearance and motion on behalf of Kelley Farms, Inc. Kelley Farms is not a named party to any action pending before the court, but it appears to be a member of the nationwide plaintiff class certified by the Hamilton Superior Court in Hinshaw v. ATT Corp., No. IP 98-1300-C, before that action was removed to this court. Kelley Farms asserts that it owns property in LaPorte County, Indiana that is crossed by an active railroad line along which ATT has laid fiber optic cable.
Kelley Farms, through attorneys Levin and Gilchrist, has moved for an order directing the parties to serve it with notice of "the filing of any papers related to the submission and request for preliminary approval of any settlement agreement" — presumably any settlement under the umbrella of MDL No. 1313 — and notice of the scheduling of any hearing or proceeding on preliminary approval of any settlement agreement.
Plaintiffs have agreed to give Levin and Gilchrist notice of any preliminary approval hearing of a settlement involving Kelley Farms' property, but plaintiffs have objected to providing broader notice of proceedings that do not directly affect Kelley Farms' property.
A little background information is helpful here. Attorneys Levin and Gilchrist have represented plaintiffs in other similar cases involving fiber optic cables and the rights of property owners. Competition between different groups of plaintiffs' attorneys, including the lead plaintiffs in MDL No. 1313 and Levin and Gilchrist and others associated with them, has led to controversies over which of several federal district courts (and which lead plaintiffs' attorneys) should handle some of these cases. See, e.g., Zografos v. Qwest Communications Corp., Civil No. 00-6201-AA (D. Ore. July 12, 2002) (dismissing amended complaint in District of Oregon as "judge-shopping" effort to avoid scrutiny being given to proposed settlement pending before Northern District of Illinois).
Because Kelley Farms appears to be a member of the nationwide class in Hinshaw, it is entitled to appear by counsel in that action. See Fed.R.Civ.P. 23(c)(2)(C). That appearance may have little practical consequence, though. At this time, no class-wide notice has been sent to class members in Hinshaw, and the case is at least temporarily dormant while the parties have managed the overall controversy through a series of statewide class actions that have been transferred to this court pursuant to 28 U.S.C. § 1407.
Pursuant to Rule 23(d) of the Federal Rules of Civil Procedure, the court may issue orders requiring, for the protection of members of the class or otherwise for the fair conduct of the action, that notice of pending proceedings be given to absent class members. Such notice is appropriate for any proceedings directly involving Kelley Farms, such as a proposed settlement that would include Kelley Farms as a class member. The court sees no persuasive reason, however, to require notice to Kelley Farms and its counsel of a proposed settlement limited, for example, to property owners in Wisconsin or Ohio. In those proceedings, Kelley Farms would not be a member of any prospective class and would not be a party to any settlement. Although attorneys Levin and Gilchrist might have a practical interest in such proceedings, their client would not have a legally protected interest in such proceedings. To the extent their client is curious about what is happening, they can review the court's public file.
But the court will not impose on the parties an obligation of notice and service for persons in Kelley Farms' position.
Accordingly, the court orders as follows: (1) the clerk shall docket the appearance of counsel for Kelley Farms, Inc. in Cause No. IP 98-1300-C; (2) counsel in MDL No. 1313 shall promptly notify counsel for Kelley Farms, Inc. of any hearing scheduled on a proposed settlement that would include Kelley Farms, Inc. and its property in LaPorte County, Indiana. To the extent Kelley Farms seeks additional relief, such requests are denied.
So ordered.