Chapter § 4.07 Arguments the MDL May Not Consider

• Jurisdiction: United States
• Publication year: 2020

§ 4.07 Arguments the MDL May Not Consider

[1] Motions Are Pending in Transferor Court

The existence of pending motions before the transferor court, including a motion to remand, is generally not a proper basis to deny transfer.¹¹¹ The presumption is that the transferee court is competent to rule on any pending motions after transfer. Besides, the Panel has frequently pointed out that because the transferor court retains jurisdiction to rule on pending motions until transfer is ordered (or, in the case of tag-along actions, the conditional transfer order (CTO) is made permanent), there is no reason to delay transfer while pending motions are resolved. A transferor court that wants to rule on a pending motion before transfer may do so.¹¹²

[2] Effect of Law of a Particular Jurisdiction

The MDL Panel doesn’t consider what law the transferee court might apply or the effect of that application when deciding whether to transfer actions. In the seminal case on this issue, the MDL Panel issued a CTO, and the plaintiff filed an objection. The plaintiff asked the Panel to deny transfer because “the transferee court would apply the statute of limitations law of the transferee circuit rather than the transferor circuit” (the case was timely under the limitations period of the transferor circuit).¹¹³ The Panel rejected this objection, stating that, “[w]hen determining whether to transfer an action under [s]ection 1407, . . . it is not the business of the Panel to consider what law the transferee court might apply.”¹¹⁴ Later decisions confirm that the Panel has not departed “from this longstanding practice.”¹¹⁵ Besides, transferee judges routinely apply the laws of one or more jurisdictions.¹¹⁶

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Notes:

^[111] See In re Asbestos Prods. Liab. Litig. (No. VI), No. 875, 1996 WL 143826, at *1 n.1 (J.P.M.L. Feb. 16, 1996) (emphasizing that transferor court retains jurisdiction to rule on any pending motions, including remand motions, even after conditional transfer order has issued).

^[112] See, e.g., Albert Fadem Tr. v. Worldcom, Inc., Nos. 02 Civ. 3288, 02 Civ. 3416, 02 Civ. 3419, 02 Civ. 3508, 02 Civ. 3537, 02 Civ. 3647, 02 Civ. 3750, 02 Civ. 3771, 02 Civ. 4985, 2002 WL 1485257, at *2 (S.D.N.Y. July 12, 2002) (filing of motion before Judicial Panel does not require transferor court to defer consideration of motions for consolidation and appointment of lead plaintiff); see also, e.g., Clark v. BHP Copper, Inc., No. C10–1058, 2010 WL 1266392 (N.D. Cal. Mar. 30, 2010)...