No Motion Left Behind: Adjudicating Motions to Remand in Cases Snap Removed to Mdls

• Publication year: 2022

No Motion Left Behind: Adjudicating Motions to Remand in Cases Snap Removed to MDLs

Millie Price
University of Georgia School of Law

No Motion Left Behind: Adjudicating Motions to Remand in Cases Snap Removed to MDLs

Cover Page Footnote
J.D. Candidate, 2023, University of Georgia School of Law; B.S., 2017, Georgetown University

NO MOTION LEFT BEHIND: ADJUDICATING MOTIONS TO REMAND IN CASES SNAP REMOVED TO MDLS

Millie Price^*

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Under the current wording of the federal removal statute, 28 U.S.C. § 1441, defendants in some jurisdictions may remove a state action to federal court before an in-state defendant is served. These defendants are taking advantage of the forum defendant rule in 28 U.S.C. § 1441(b)(2). This phenomenon has been coined "snap removals." Three federal courts of appeals allow such removals, whereas many federal district courts say it is improper. The "home" district court might not be the end point for the case, though. Corporate defendants often ask for the case to be transferred to a pending Multidistrict Litigation (MDL) that may be in a district court across the country. Once granted, the plaintiffs will not only find themselves in federal court but also will see their cases consolidated with possibly thousands of others in the MDL. Plaintiffs will likely file motions to remand in the MDL, but as this Note shows, those motions are often left pending indefinitely by the MDL judge. This Note argues that because the current MDL practice provides many problems for individual plaintiffs, special attention should be given to snap removals that end up in an MDL. Further, this Note argues that rulings on motions to remand should be mandatory to ensure that snap-removed plaintiffs have an opportunity to be heard.

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Table of Contents

I. Introduction..................................................................1371

II. Multidistrict Litigation............................................1373

A. from one to 1,000................................................ 1374
B. problems with the current mdl system..........1375

III. Snap Removals............................................................1377

A. the trickiness of snap removals......................1378
B. mdls and snap removals....................................1379

IV. The Opiates MDL.........................................................1384

V. Analysis.........................................................................1386

A. snap removal to mdl data.................................1388
B. mdl judges should rule on snap-removed motions to remand.............................................1390
C. potential reforms to ensure mdl judges rule on snap-removed motions to remand....................1394
D. addressing possible responses and counterarguments............................................1397

VI. Conclusion..................................................................1398

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I. Introduction

Defendants often remove an action from state court to federal court when the case could have been brought in federal court in the first place, such as when there is complete diversity between parties.¹ Diversity jurisdiction "serves to protect out-of-state parties from the perceived prejudices against them in state courts."² Notably, the right to removal is not without limitations: the forum defendant rule limits this right if one of the defendants is sued in their home state.³ If the right to removal protects out-of-state defendants from biased litigation, this issue disappears when the defendants are sued in their home state.⁴

Defendants may take advantage of the forum defendant rule's wording by removing to federal court before the in-state defendant is properly joined and served, a process called "snap removal."⁵ Under the snap removal loophole, a case may end up in federal court even though one (or more) of the defendants are "at home," especially because corporate defendants often prefer federal court.⁶

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Many scholars have examined the snap removal phenomenon,⁷ but none has looked at it solely in connection with multidistrict litigation (MDL). Also, while three federal courts of appeals have found snap removals proper under the plain language of the forum defendant rule,⁸ the debate is still ongoing and widespread within the district courts.⁹

Imagine a plaintiff sues Purdue Pharma, among other defendants, in a New Mexico state court. Purdue Pharma monitors the electronic state dockets and sees the suit filed. Purdue immediately files a notice of removal before an in-state co-defendant is joined. Then, once in federal court, Purdue asks to be transferred across the country to the Opiate MDL, a consolidation of 3,061 cases in the Northern District of Ohio.¹⁰ After this request is granted, the plaintiff now finds themselves in a federal court across the country alongside thousands of other cases and in front of a judge who has admitted that he does not like ruling on motions to remand.¹¹ The plaintiff will likely file a motion to remand arguing that removal was improper under the forum defendant rule, but that motion may

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stay pending for years. This Note argues that MDL judges should rule on motions to remand, especially ones about snap removal, because plaintiffs deserve the opportunity to argue the impropriety of snap removals even if the MDL judges ultimately deny their motions.

Once consolidated in front of an MDL judge, "few cases ever return home, and the MDL's gravitational pull over often thousands of cases demolishes all the normal expectations of individual process and federalism."¹² The plaintiff who filed individually in state court has been dragged into litigation with thousands of other cases in a federal district court across the country. Part II of this Note provides an overview of MDL and examines the problems with the current MDL practice. Part III then explains the snap removal phenomenon and details how it often combines with MDLs. Part IV introduces the Opiate MDL. Part V shows that defendants are snap removing into MDLs and explains why MDL judges should rule on plaintiffs' motions to remand. Part V also proposes three related reforms and addresses potential counterarguments.

II. Multidistrict Litigation

MDL is the consolidation of hundreds, often thousands, of individual cases involving the same questions and similar claims in front of one federal district court judge.¹³ Congress created MDLs by statute in 1968, enacting 28 U.S.C. § 1407 to promote efficiency in litigation by bringing all similar cases together in one district for more cohesive resolution.¹⁴ Congress hoped that § 1407 would

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"provide centralized management under court supervision of pretrial proceedings of multidistrict litigation."¹⁵ More than half a century later, as of February 2022, there are 424,720 actions pending in 185 MDLs across forty-five federal districts.¹⁶ MDLs range from the most common products liability cases to less frequent antitrust, sales practices, intellectual property, and common disaster cases.¹⁷

A. from one to 1,000

MDL consolidates an unlimited amount of separately filed cases across the country under one federal judge.¹⁸ Consolidation of thousands of cases is a big decision, so in § 1407 Congress created the Judicial Panel on Multidistrict Litigation (JPML) to determine "[w]hen civil actions involving one or more common questions of fact are pending in different districts" and should thus be consolidated in front of one district court judge.¹⁹ The JPML "consist[s] of seven circuit and district judges designated . . . by the Chief Justice of the United States."²⁰

Specifically, these seven judges determine whether the transfer "will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions."²¹ Section 1407 lays out two routes to MDL: either (1) the JPML transfers the case, or (2) a party to the case files a motion to the JPML asking for

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transfer to the MDL court.²² Once transferred, a case joins what is often hundreds, and sometimes thousands, of similar actions before one district court judge who could be across the country.²³ Once in the MDL court, the plaintiff's counsel is no longer in control of the individual's case because MDL judges appoint a group of lead plaintiffs' counsel to manage the case, replacing the individual attorneys' roles.²⁴

In theory, each individual case should only be in the MDL for pretrial proceedings.²⁵ The MDL statute provides that "[e]ach 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."²⁶ Therefore, at the end of pretrial proceedings, an individual case should return to its initial district with its original plaintiff's counsel back in charge.²⁷

B. problems with the current mdl system

Many scholars have pointed out a number of problems in the current MDL practice, suggesting why individual plaintiffs often prefer to stay away from MDL.²⁸ First, if the court awards a plaintiff a money judgment while in the MDL, the lead plaintiff's counsel will receive a portion of the settlement, taking away a percentage from

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the plaintiff's counsel for the individual case.²⁹ Yet, these individual plaintiff's counsels, who see only part of the monetary award, are the lucky ones: once a case is sucked into an MDL, the case may lay dormant for years, delaying litigants' day in court.³⁰ This leads to a second major problem with MDL practice. Many lawyers and litigants see MDLs as "black holes" because cases often sit in their respective MDLs for years with no movement.³¹ Even though the MDL statute calls for remand back to the home forum at the end of pretrial proceedings, this procedure has proven to be a fiction.³² Since the creation of MDL in 1968, just 1.8% of all civil actions consolidated in MDLs have been remanded.³³ In fact, Judge Robreno, who...