Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Landau v. Viridian Energy PA, LLC

United States District Court, E.D. Pennsylvania

April 3, 2017

STEVEN LANDAU, on behalf of himself and all others similarly situated, Plaintiff,


          Gerald Austin McHugh United States District Judge

         This is a putative class action brought by a Pennsylvania consumer who alleges that Viridian Energy PA LLC (Viridian) enticed him to shift his electric service with promises of meaningful savings that never materialized. Viridian now moves on the basis of the “first-filed rule” to transfer this case to the District of Connecticut where it is defending four similar cases. Alternatively, Viridian asks that I stay this case pending resolution in the Connecticut cases. For the reasons below, Viridian's Motion to Transfer is denied, but its Motion to Stay is granted.


         Defendant Viridian is an energy services company that markets electricity to retail customers in Pennsylvania. Plaintiff Steven Landau claims that, in July 2013, Viridian lured him from his local utility with promises of low, stable electricity rates. Six months after he signed up with Viridian, Landau's account was transferred to a Variable Rate Plan and his rates more than doubled. On these facts, Landau alleges that Viridian breached the terms of its contract and violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL). Landau asserts these claims on behalf of himself and current and former Viridian customers in Pennsylvania.[1]

         On November 30, 2016, I granted in part and denied in part Viridian's Motion to Dismiss Landau's claims and denied its Motion to Strike Class Allegations. --- F.Supp.3d ---, 2016 WL 6995038 (E.D. Pa. Nov. 30, 2016). The surviving claims include breach of contract and violation of the UTPCPL.

         Viridian is defending four similar actions in the District of Connecticut: Sanborn v. Viridian Energy, Inc., No. 14-cv-1731 (D. Conn. filed Nov. 19, 2014); Steketee v. Viridian Energy, Inc., No. 15-cv-585 (D. Conn. filed Apr. 22, 2015); Mirkin v. Viridian Energy, Inc., No. 15-cv-1057 (D. Conn. filed July 10, 2015); and Hembling v. Viridian Energy, LLC, No. 15-cv-1258 (D. Conn. filed Aug. 21, 2015). The plaintiffs' counsel in Sanborn, Steketee, and Mirkin recently filed a five-count consolidated complaint in which they seek relief for breach of contract, breach of the covenant of good faith and fair dealing, and violations of the Connecticut Unfair Trade Practices Act, the Massachusetts Unfair Trade Practices Act, the New Jersey Consumer Fraud Act, and the New York General Business Law. Hembling is currently stayed pending motions for class certification in the other three Connecticut cases.

         The putative classes in Sanborn, Steketee, and Mirkin-current and former Viridian customers in Massachusetts, Connecticut, New York, and New Jersey-do not overlap with Landau's putative class of current and former Pennsylvania consumers. Hembling, by contrast, purports to bring claims on behalf of a broader class of Viridian customers in 13 states, including Pennsylvania.

         Although Sanborn, Steketee, and Mirkin concern different parties and legal claims, the underlying allegations in the consolidated complaint bear a meaningful resemblance to the allegations in Landau's Complaint. As in Landau, the plaintiffs in Sanborn, Steketee, and Mirkin argue that Viridian breached its contractual obligation to base fluctuations in variable rates on wholesale market conditions. The Mirkin plaintiffs have also amended their complaint to assert a breach of contract claim identical to the one that I recognized in Landau, namely, that Viridian's “Welcome Letter” to new customers included promises of affordable rates, that this Welcome Letter was incorporated into the contract by an integration clause, and that Viridian failed to deliver cost savings as promised. Finally, all plaintiffs allege that Viridian's marketing promises were deceptive or misleading.

         In an effort to streamline litigation, Judge Underhill has imposed a common pretrial schedule on Sanborn, Steketee, and Mirkin.[2] Counsel in those cases have also agreed to share with counsel in Hembling and Landau any documents produced in discovery without the need for document requests. Viridian now asks that I further consolidate these cases by transferring Landau to Judge Underhill's docket, or, alternatively, that I stay Landau pending resolution of the Connecticut cases.


         A. Applicability of the “First-Filed Rule”

         Viridian moves for transfer under the first-filed rule and 28 U.S.C. § 1404(a). Under the first-filed rule, when two courts possess the same case at the same time, “the court which first has possession of the subject must decide it.” Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941) (quoting Smith v. McIver, 22 U.S. 532, 535 (1824) (Marshall, C. J.)). “The rationale for the rule is the desire for sound judicial administration and comity among federal courts of equal stature. It is also designed to relieve a party who first brings a controversy into a court of competent jurisdiction from vexation of multiple litigations covering the same subject matter.” Synthes, Inc. v. Knapp, 978 F.Supp.2d 450, 455 (E.D. Pa. 2013).

         In application, the first-filed rule[3] easily encompasses cases involving the same parties and the same transaction. Many such cases involve intellectual property disputes, where a suit for infringement of a patent in one district is met by a declaratory judgment action brought by the alleged infringer against the holder of the patent in another district. See, e.g., Crosley Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 475-76 (3d Cir.), cert. denied, 317 U.S. 681 (1942). Except in such archetypal cases, the contours of the first-filed rule are harder to discern and courts in this District disagree over its scope. Some courts take a narrow view of the first-filed rule and apply it only when the parties and claims in the later-filed suit are a “mirror image” of the first. Palagano v. NVIDIA Corp., No. CV 15-1248, 2015 WL 5025469, at *2 (E.D. Pa. Aug. 25, 2015) (listing cases). Others have embraced a broader, close-enough-for-government-work approach to the rule and applied it to “disputes involving similar, concurrent actions.” Shire U.S., Inc. v. Johnson Matthey, Inc., 543 F.Supp.2d 404, 407 (E.D. Pa. 2008) (emphasis added). According to proponents of the broader approach, the “substantive touchstone of the first-to-file inquiry is subject matter, ” rather than identity of legal claims or parties. Id. at 409; see also Palagano, 2015 WL 5025469, at *2 (listing cases that apply the broader approach).

         The Third Circuit has not definitively ruled on the scope of the first-filed rule. Proponents of the mirror-image approach point to a footnote in Grider v. Keystone Health Plan Center, Inc., 500 F.3d 322, 333 n.6 (3d Cir. 2007), where the Third Circuit said that the first-filed rule applied only when “the later filed case [is] . . . on all fours with the other” and “the issues . . . have such an identity that a determination in one action leaves little or nothing to be determined in the other.” Courts favoring a broader interpretation of the first-filed rule dismiss the language in Grider as mere dicta. See Synthes, 978 F.Supp. at 456 (collecting cases).

         There appears to be consensus that if the first-filed rule applies, there is a presumption that the later-filed action should be dismissed, transferred, or stayed. Koresko v. Nationwide Life Ins. Co., 403 F.Supp.2d 394, 403 (E.D. Pa. 2005). But even this presumption gives way when “fundamental fairness dictates” a departure from the ordinary course.[4] Univ. of Pa., 850 F.2d at 977.

         Confounding the picture still further, many district courts have held that even when the rule applies, a party seeking transfer of a later-filed case must nonetheless show that the conditions of 28 U.S.C. § 1404 are satisfied. See Thompson v. Glob. Mktg. Research Servs., Inc., No. CV 15-3576, 2016 WL 233702, at *3 (E.D. Pa. Jan. 20, 2016) (listing cases that apply § 1404 after finding that the first-filed rule applies).

         I am persuaded that much of the disagreement in the reported cases can be reconciled by recognizing that there are two distinct scenarios where the rule has been applied. The first-filed rule started with cases like Crosley, where earlier- and later-filed actions involved the same parties and arose out of the same transaction, agreement, or encounter. Only later was it extended to cases that were not truly related but raised similar issues. In cases where two actions arise out of an integrated dispute, transfer, stay, or dismissal of the later-filed action should be required in the absence of exceptional circumstances. The Third Circuit's statement in Grider, even if dicta, supports that view. Such cases are genuinely related, in the technical sense, making transfer (where it is sought) an obvious remedy. As a matter of simple logic, however, the rule does not carry the same force when (1) different parties are involved, (2) the underlying dispute involves similar but not identical issues, and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.