When Remand is Appropriate in Multidistrict Litigation

Author:Edward F. Sherman
Pages:455-474
 
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When Remand is Appropriate in Multidistrict
Litigation
Edward F. Sherman
*
INTRODUCTION
The 1968 Multidistrict Litigation Act (the “MDL Act”) created
the Panel on Multidistrict Litigation (the “Panel”) to transfer
multiple cases with “common questions of fact” to a single federal
judge for coordinated or consolidated pretrial proceedings.
1
Transfer is authorized if the Panel determines 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.”
2
The transfer to a single district court is made without
consideration of personal jurisdiction over the parties and without
having to meet federal venue requirements.
3
The transferee court
has broad authority to dispose of all motions and issues that arise
in the pretrial context, including all discovery matters and
dispositive motions such as those for dismissal and summary
judgment. The Act provides that: “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 . . . .”
4
No
guidelines are provided for determining when “the conclusion” of
the proceedings occurs, and now, after almost fifty years of
practice under the Act, significant issues remain as to when
remand should take place.
I. SELF-TRANSFER AND LEXECON
For several decades after passage of the MDL Act, it became
an accepted practice for transferee judges to use the power under
section 1404(a) to transfer to a more convenient forum in order to
keep MDL cases in their district for trial or disposition.
5
Writing in
Copyright 2014, by EDWARD F. SHERMAN.
1. 28 U.S.C. § 1407(a) (2012).
2. Id.
3. For an account of these developments, see Richard L. Marcus, Cure–All
for an Age of Dispersed Litigation? Toward a Maximalist Use of the
Multidistrict Panel’s Transfer Power, 82 TUL. L. REV. 2245 (2008).
4. 28 U.S.C. § 1407(a) (2012).
5. See id. § 1404(a) (“For the convenience of the parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought . . . .”).
456 LOUISIANA LAW REVIEW [Vol. 75
1978, Judge Stanley Weigel reported that “[i]n point of fact,
slightly less than five percent of the actions transferred by the
Panel have been remanded.”
6
It remains true that the great majority
of cases are resolved in the transferee forum, and that most are
resolved by some sort of settlement.
7
But over time, the practice of
transferee courts to dispose of the cases transferred to them came
into question.
From the start, there was a debate over whether transferring
cases under the Act should allow transferee courts to do more than
just prepare cases for trial.
8
It was argued that the transferee judge
would develop expertise in managing the litigation that could be of
great benefit if that judge could hold on to the cases for trial, either
individually or in the aggregate. This view was reflected in the
practice of “self-transfer” that became dominant and was enshrined
in a Panel regulation.
9
The debate over allowing transferee courts
to hold onto cases for trial mirrored the long-time debate over
whether to aggregate cases in the first place. The interests of
efficiency, economy, and consistency in resolution of like cases
were cited in favor of aggregation.
10
In opposition to aggregation
were concerns for honoring the plaintiff’s choice of forum,
individualized due process, and the jurisdictional integrity of the
court where the suit was originally filed.
11
That debate is still
ongoing, enhanced in recent years by court hostility to class actions
6. Stanley A. Weigel, The Judicial Panel on Multidistrict Litigation,
Transferor Courts and Transferee Courts, 78 F.R.D. 575, 583 (1978).
7. M. MARCUS, E. SHERMAN, & H. ERICHSON, COMPLEX LITIGATION:
CASES AND MATERIALS ON ADVANCED CIVIL PROCEDURE 169 (5th ed. 2010).
8. See Stephen Scotch-Marmo & Michael James Ableson, At What Price
Efficiency? – Judicial Self-Assignment for Trial in Multidistrict Litigation, Prod.
Safety & Liab. Rep. (BNA) No. 42, at 934 (Aug. 25, 2014) (reviewing the
debate in the context of the passage of the Act).
9. The JPML has blessed self-transfer by Rule 14(b), which provides that
the Panel will not send a case back for trial if the district court handling pretrial
matters transfers the case to itself, and by case law holding that the JPML will
not even consider remanding so long as the district court is considering a self-
transfer motion. See Rules of Procedure of the Judicial Panel on Multidistrict
Litigation, Rule 14(b), 277 F.R.D. 480 (2011) [hereinafter Panel Rules]
(superseded, in part, by Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998)); see also In re CBS Color Tube Patent Litig., 342
F. Supp. 1403, 1405 (J.P.M.L. 1972) (“In view of the pendency of [a section
1404(a)] motion, we expressly refrain from granting this motion for remand and
interfering in matters within the discretion of the transferee judge.”).
10. Edward F. Sherman, Aggregate Disposition of Related Cases: The
Policy Issues, 10 REV. LITIG. 231 (1991) (comparing policies favoring
aggregation—such as economy, efficiency, and consistency of result—with
policies disfavoring litigant autonomy and fairness in individual treatment).
11. Scotch-Marmo & Ableson, supra note 8 (discussing congressional
testimony and court concerns over aggregation).

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