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In Re: National Association of Music Merchants

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 17, 2012

IN RE: NATIONAL ASSOCIATION OF MUSIC MERCHANTS, MUSICAL INSTRUMENTS AND EQUIPMENT ANTITRUST LITIGATION

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

USDC Case No. 09cv2002; 09cv2146; 09cv2151; 09cv2211; 09cv2267; 09cv2285; 09cv2332; 09cv2418; 09cv2423

ORDER SUMMARILY DENYING MOTION TO ALTER JUDGMENT

On August 20, 2012, the Court dismissed Plaintiff's claims under the Sherman Act and, pursuant to Fed. R. Civ. P. 54(b),*fn1 certified that issue for appeal. Supplemental state-law claims raised in some member cases were not adjudicated or certified for appeal.

On September 10, Plaintiffs filed a notice of appeal. Then on September 17, Defendants filed a motion to alter or amend the judgment. The motion argues that the Court should have adjudicated all issues, because they must fail if the Sherman Act claim fails. Implicit in this argument is the suggestion that the Court must adjudicate all claims, even claims particular to just a few member cases or arising under state law, rather than remanding to allow each district court to make that determination.

The Court rejects the suggestion that the state law claims are necessarily coextensive with federal claims and therefore, for reasons of economy, clearly ought to be adjudicated now by this Court. In the end it might turn out that they are coextensive, but the Second Amended Complaint has pleaded them as having somewhat different parameters.*fn2 In any event, those claims are particular to only some of the member cases, and not to the member cases generally. It is not at all clear that this Court's adjudication of claims raised in some member cases but not others would be appropriate. See 28 U.S.C. § 1407(a) (providing for transfer of cases in order to promote the "just and efficient conduct of such actions" and for remand of cases or claims at any time after that); Manual for Complex Litigation, Fourth, § 20.133, pp. 225--26 (2004) (discussing issues to be considered when deciding whether claims should be remanded to transferor courts).

Furthermore, Plaintiffs' filing of the notice of appeal divested this Court of jurisdiction over the matters appealed. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58--59 (1982) (per curiam) (holding that filing of a notice of appeal divests district court of its control over those aspects of the case involved in the appeal). Even if altering the judgment to expand the scope of the matters appealed would be helpful to the Ninth Circuit, as Defendants argue, that is now beyond this Court's power.*fn3

There is therefore no need to hold a hearing on these issue. The Court lacks jurisdiction to grant Defendants' request now, and will not regain jurisdiction until after the Ninth Circuit has completed its review of the Sherman Act claim, at which time Defendants' request will be moot. The motion is DENIED.

IT IS SO ORDERED.


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