Case Time and Cost Management for Plaintiffs in Multidistrict Litigation

Author:Leonard A. Davis - Philip A. Garrett
Position:Partner in the law firm of Herman, Herman & Katz
Pages:483-505
 
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Case Time and Cost Management for Plaintiffs in Multidistrict
Litigation
Leonard A. Davis
Philip A. Garrett∗∗
Multiple civil actions involving one or more common questions
of fact pending in several different United States federal district courts
may be transferred by the Judicial Panel on Multidistrict Litigation
(JPML) to a single United States federal district court (the transferee
court) for coordinated or consolidated pretrial proceedings, upon the
JPML’s determination that transfer will be for the convenience of
parties and witnesses and will promote the just and efficient conduct
of such actions.1 Every action transferred by the JPML, unless
previously terminated, is to be remanded by the JPML at or before the
conclusion of the pretrial proceedings.2 Each action is transferred
back to the district court from which the action originated and was
transferred (the transferor court), unless the JPML separates any
claim, cross-claim, counterclaim, or third-part y claim and remands
any such claims before the remainder of the action is remanded.3 The
judge to whom the actions are assigned by the JPML (the transferee
judge) conducts the coordinated or consolidated pretrial proceedings.4
Copyright 2014, by LEONARD A. DAVIS AND PHILIP A. GARRETT.
* Partner in the law firm of Herman, Herman & Katz, L.L.C., 820 O’Keefe
Avenue, New Orleans, LA 70113, PH: (504) 581-4892, ldavis@hhklawfirm.com.
∗∗ Phillip A. Garrett, CPA, 117 Fairgrounds Blvd., Bush, LA 70431, PH:
(985) 746-9165, pgarrett@garrettco.com. The authors thank Madelyn O’Brien,
Kate Danahay, and Lillian Flemming for their assistance with citations, their
patience, and their formatting of this Article.
1. 28 U.S.C. § 1407(a) (2006) (“When civil actions involving one or more
common questions of fact are pending in different districts, such actions may be
transferred to any district for coordinated or consolidated pretrial proceedings.
Such transfers shall be made by the judicial panel on mult idistrict litigation
authorized by this section upon its determination that transfers for such
proceedings will be for the convenience of parties and witnesses and will promote
the just and efficient conduct of such actions. Each action so transferred shall be
remanded by the panel at or before the conclusion of such pretrial proceedings to
the district from which it was transferred unless it shall have been previously
terminated: Provided, however, That the panel may separate any claim, cross-
claim, counter-claim, or third-party claim and remand any of such claims before
the remainder of the action is remanded.”).
2. Id.
3. Id.
4. Id. § 1407(b) (“Such coordinated or consolidated pretrial proceedings
shall be conducted by a judge or judges to whom such actions are assigned by the
judicial panel on multidistrict litigation. For this purpose, upon request of the
panel, a circuit judge or a district judge may be designated and assigned
484 LOUISIANA LAW REVIEW [Vol. 74
After the JPML transfers a matter, the transferee judge exercises
the judicial powers of the transferor court in the transferee district,
as well as the powers of a district judge in any district for the
purpose of conducting pretrial depositions in the coordinated or
consolidated pretrial proceedings.5 The JPML has no authority to
direct the transferee judge in the exercise of their powers and
discretion in supervising the multidistrict proceedings in the case
(MDL).6 The transferee judge has no jurisdiction to conduct a trial
in the MDL because the MDL is created solely for pretrial
proceedings, but the transferee judge may terminate any action by
ruling on motions to dismiss, for summary judgment, or pursuant to
settlement and may enter consent decrees.7
The transferee judge typically, at an early state of the MDL,
establishes a management plan for the litigation.8 Ordinarily, tag-
temporarily for service in the transferee district by the Chief Justice of the United
States or the chief judge of the circuit, as may be required, in accordance with the
provisions of chapter 13 of this title. With the consent of the transferee district
court, such actions may be assigned by the panel to a judge or judges of such
district. The judge or judges to whom such actions are assigned, the members of
the judicial panel on multidistrict litigation, and other circuit and district judges
designated when needed by the panel may exercise the powers of a district judge
in any district for the purpose of cond ucting pretrial depositions in such
coordinated or consolidated pretrial proceedings.”).
5. See, e.g., In re Korean Air Lines Co., Ltd., Antitrust Litig., 642 F.3d 685,
699 (9th Cir. 2011) (“A district judge exercising authority over cases transferred
for pretrial proceedings ‘inherits the entire pretrial jurisdiction that the transferor
district judge would have exercised if the transfer had not occurred.’” (quoting 15
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE & PROCEDURE § 3866 (3d ed. 2010))). Such authority is broad and
encompasses the power to decide dispositive pretrial motions. In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir.
2006) (stating that a transferee judge’s power “includes authority to decide all
pretrial motions, including dispo sitive motions such as motion s to dismiss,
motions for summary judgment, motions for involun tary dismissal under Rule
41(b), motions to strike an affirmative defense, and motions for judgment pursuant
to a settlement”). See In re Patenaude, 210 F.3d 135, 144 (3d Cir. 2000).
6. § 1407(b); MANUAL FOR COMPLEX LITIGATION § 20.132 (4th ed. 2004).
See, e.g., In re Sundstrand Data Control, Inc. Pat ent Litig., 443 F. Supp. 1019,
1021–22 (J.P.M.L. 1978) (“[T]he Panel has neither the power nor the inclination
to dictate in any way the manner in which the coordinated or consolidated pretrial
proceedings are to be conducted by the transferee judge. The scope of those
proceedings, including the extent to which discovery is permitted, is a matter
exclusively within the control of the transferee judge.”).
7. MANUAL FOR COMPLEX LITIGATION, supra note 6, § 20.132. See, e.g., In
re Donald J. Trump Casino Sec. Litig.–Taj Mahal Litig., 7 F.3d 357, 367–68 (3d
Cir. 1993).
8. MANUAL FOR COMPLEX LITIGATION, supra note 6, § 22.6. See, e.g., Solis
v. Lincoln Elec. Co., No. 1:04-CV-17363, 2006 WL 266530, at *1 (N.D. Ohio

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