TO STAY OR NOT TO STAY: COMPETING MOTIONS IN THE SHADOW OF MULTIDISTRICT LITIGATION.

• Author: Bowling, Emily M.
• Position: National Prescription Opiate Litigation, In re

Multidistrict litigation (MDL) is a procedural mechanism by which the claims of hundreds or even thousands of alleged victims of the same or similar set of wrongs are consolidated before a single federal judge. (1) In other words, it is "something of a cross between the Wild West, twentieth-century political smoke-filled rooms, and the Godfather movies." (2) MDL criticism is legion. In more other words, MDLs are a "proverbial 'black hole,' taking in cases with virtually no hope of fair and efficient resolution," (3) latent with "[s]ystemic pathologies" that call parties' consent to settlement into question, (4) a land where "the ordinary Federal Rules of Civil Procedure apply sporadically, if at all." (5) The list of criticisms goes on, and it is growing. Recent publicity surrounding In re National Prescription Opiate Litigation (the "Opioid MDL"), (6) an MDL in the Northern District of Ohio involving thousands of claims against opioid manufacturers and distributors for their alleged involvement in the opioid crisis, (7) has triggered a fresh wave of scholarship and public interest in multidistrict litigation. What all this discourse misses is what lies just beyond the boundary of the aggregate proceeding--an issue silently stewing in the transferor courts that, by the time it reaches the Opioid MDL and comes to fruition, is at once at its most detrimental and most hidden by the haze of the MDL frenzy. This Note seeks to change that.

All over the country, plaintiffs are filing actions in state court, alleging boilerplate state law claims against opioid manufacturers and distributors, only to end up stuck in the Opioid MDL--a federal forum--where some have remained stranded for nearly four years. The typical procedure is this: After a case is filed in state court, defendants remove the action to federal court and contemporaneously file a notice of potential tag-along action with the Judicial Panel on Multidistrict Litigation ("JPML" or "Panel"). The Panel is tasked with determining whether to transfer and consolidate the action with an ongoing MDL, and the notice alerts the Panel to a case that might meet the transfer criteria. If the case shares "one or more common questions of fact" with the ongoing MDL--a notoriously "low bar"-then the Panel will issue a conditional transfer order tagging the action for transfer and consolidation. (8) Assuming plaintiff wishes to remain in the state court forum of her initial choosing, plaintiff files a motion to remand the action back to state court before the action is transferred on the ground that federal subject-matter jurisdiction is lacking. Immediately after, and sometimes before an action is even tagged by the Panel, defendants request a stay of proceedings. (9)

The motion to stay is a request that the judge sit tight and refrain from addressing plaintiffs motion to remand (10) given the claimed likelihood that the action will soon be transferred to an ongoing MDL where all pending motions can be resolved by the MDL judge. The initial districtjudge must now grapple with dueling motions to remand or to stay, all in the shadow of likely MDL consolidation. If the judge grants the stay, the action will remain on the federal docket where the Panel is free to sweep plaintiff off to some faraway MDL forum. The JPML has made clear that it will neither assess jurisdictional issues nor block a transfer when remands are left unresolved.

More often than not, judges are granting the stay without regard for the merits of the remand or notwithstanding the recognition of a potentially fatal jurisdictional Haw. The JPML transfers plaintiffs action to a faraway MDL proceeding, and her remand is put on hold until the MDL judge eventually resolves it. Her remand might remain on hold for years. Plaintiffs claim is now one of potentially thousands--her remand motion likely one of tens of thousands of motions--pending before the single federal judge presiding over the MDL. And if plaintiff has the misfortune of ending up in the Opioid MDL, a substantial wait is certain. There, her remand will be met with the jurisdictional brick wall of a moratorium on all remand filings.

On December 14, 2017, the judge presiding over the Opioid MDL issued a "moratorium on all substantive filings" except those expressly authorized therein. (11) That moratorium prohibits nongovernmental parties from making motions regarding requests that their cause be remanded back to state court. As of September 9, 2021, nearly four years later, the moratorium still stands. (12)

What this means for our unlucky plaintiff, and any number of cases currently pending before the Opioid MDL, is that three judicial entities--the transferor judge, the JPML, and the MDL judge--have declined to address her jurisdictional argument. It means that any number of cases currently pending before the Opioid MDL may have spent nearly four years stranded before a federal court that does not have the power to ultimately decide the case and issue relief.

The harm of what will hereinafter be referred to as "the Opioid outcome," that is, the stranding of nonfederal cases in a federal MDL, reaches every corner of the legal system. A plaintiffs Due Process rights are offended when she is stripped of her choice of forum and the opportunity to have her jurisdictional argument heard in a reasonable amount of time in the more local federal court her cause was originally removed to. It means that while she waits, she will have-to comply with and bear the cost of an MDL judge's pretrial orders. Adding insult to injury is the risk that repeat defendants are taking strategic advantage of the opportunity to remove actions on the most loose of jurisdictional bases with an eye toward burying a claim in an MDL. This means more actions are removed to federal court, which means more removals, remands, and stays are added to the already overworked transferor judges' to-do lists. It means more cases aggregated in MDLs and more motion practice taxing the already overworked MDL judge. It means the MDL judge must resolve a jurisdictional issue that could have been resolved earlier, on a less crowded docket. It means the squandering of judicial resources.

This outcome sounds in doctrinal disaster for anyone familiar with the understanding of subject-matter jurisdiction as the foremost limitation on the power of a court. At the Supreme Court, in "law school classrooms, courtroom chambers, congressional buildings, and law offices," the term jurisdiction is "bandied about" as the ultimate limitation on judicial power. (13) Decades of Supreme Court jurisprudence insisting that subject-matter jurisdiction is judicial power, that in every case, the "first and fundamental question is that of jurisdiction" (14) and that "[w]ithout jurisdiction the court cannot proceed at all in any cause" (15) would seem to outright prohibit the Opioid outcome from occurring. Without jurisdiction, how can three federal judicial entities (the transferor judge, the JPML, and the transferee judge) have kept hold of an action for so long?

Enter, inherent authority. Inherent authority enables courts "to control and direct the conduct of civil litigation without any express authorization in a constitution, statute, or written rule of court." (16) Inherent authority is what authorizes courts to take steps toward assessing their own jurisdiction before it is verified, like by ordering jurisdictional discovery. It is what allows courts to circumvent the issue of subject-matter jurisdiction altogether in favor of some alternative issue, like personal jurisdiction or forum non conveniens. (17) Inherent authority is the space between jurisdiction and power which might legitimize each step toward the Opioid outcome--which might transform what looks like judicial failure into the unfortunate reality of modern litigation.

But answering the question of whether it does is no simple task. The inherent power is notoriously broad and amorphous. (IK) Questions surrounding its source and scope have "never been answered satisfactorily" (19) and have "bedeviled commentators for years." (20) As a result, "there is no clear standard establishing when courts may legitimately invoke their inherent powers." (21) What is more, the doctrine on inherent authority's ability to manage the process of ongoing litigation and the power's relationship to positive procedural law are the least developed and most convoluted subspecies of inherent authority doctrine. (22)

This Note attempts to bring just enough clarity to inherent authority doctrine to answer the question of whether and at what point something went wrong--whether any power beyond the blurry boundaries of inherent authority was exerted, or any of its convoluted doctrine misapplied--to produce the Opioid outcome. It contributes to the literature by (i) calling much needed attention to the possibility that any number of cases transferred to a multidistrict proceeding are improperly positioned on the federal docket--an issue not yet addressed by scholarship to date; (23) (ii) unearthing and investigating the district court decisions and current approaches to inherent authority that have produced the Opioid outcome; (iii) concluding that those approaches are inconsistent with inherent authority doctrine; and (iv) proposing a solution that hoth corrects a systemic misapplication of law at the district court level and has the potential to prevent the Opioid result from ever accruing. Its central argument is that the opportunity and ohligation to avoid the Opioid outcome arises at the point of" the stay.

For district judges facing dueling motions to remand or stay an action pending likely MDL transfer, the threshold question before the court is which motion to address first. Should the judge resolve the motion to remand or the request to stay? This threshold question will hereinafter be referred to as "the ordering inquiry."

At present, many district judges...