When you play regularly in the MDL sandbox, you become accustomed to receiving the frantic call: “Plaintiffs just filed a motion with the MDL Panel to coordinate our cases! What do we do?”
There are a bunch of strategic things to consider, and there are ways to predict whether the Panel will grant the motion to coordinate. (See, for example, our earlier posts on that topic here and here.)
And the rules are pretty straightforward. They’re right there on your credenza in your Federal Rules of Civil Procedure book. And those rules are pretty easy to summarize. Here’s how we’ve summarized them for others in the past:
Deadline for response: The response is due within twenty (20) days of filing. JPML Rule 7.2(c) (“Within twenty days after filing of a motion, all other parties shall file a response thereto. Failure of a party to respond to a motion shall be treated as that party’s acquiescence to the action requested in the motion.”).
Notification from Clerk of the Panel: Upon the filing of a motion for MDL transfer, the Clerk of the Panel shall notify recipients of a motion of the filing date, caption, MDL docket number, briefing schedule and pertinent Panel policies. JPML Rule 7.2(b).
Extension of time to respond: A party can file a written application for an extension of time to file a response. The application must request a specific number of additional days, may be acted upon by the Clerk of the Panel, and will be evaluated in relation to the impact on the Panel’s calendar as well as on the basis of the reasons set forth in support of the application. Any party aggrieved by the Clerk of the Panel’s action on such application may submit its objections to the Panel for consideration. JPML Rule 6.2.
Brief, page limits, and exhibits: The response should include a brief in support thereof in which the background of the litigation and factual and legal contentions of the respondent shall be concisely stated in separate portions of the brief with citation of applicable authorities. JPML Rule 7.2(a)(i). Except with the approval of the Panel, each brief submitted for filing with the Panel shall be limited to twenty pages, exclusive of exhibits. JPML 7.2(f). Exhibits exceeding a cumulative total of 50 pages shall be fastened separately from the accompanying pleading. JPML Rule 7.1(g).
Form of response: Averments in any motion seeking action by the Panel shall be made in numbered paragraphs, each of which shall be limited, as far as practicable, to a statement of a single factual averment. Responses to averments in motions shall be made in numbered paragraphs, each of which shall correspond to the number of the paragraph of the motion to which the responsive paragraph is directed. Each responsive paragraph shall admit or deny wholly or in part the averment of the motion, and shall contain the respondent’s version of the subject matter when the averment or the motion is not wholly admitted. JPML Rule 7.2(a)-(b); see also id. 7.2(e) (“Motions, their accompaniments, responses, and replies shall also be governed by Rules 5.12, 5.2 and 7.1 of these Rules.”).
Notification of developments that would moot motion: With respect to any action that is the subject of Panel consideration, counsel shall promptly notify the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel. JPML Rule 7.2(f).
Additional filing possibility–Statement regarding oral argument: Each party filing a response to a motion for MDL transfer may file simultaneously therewith a separate statement limited to one page setting forth reasons why oral argument should, or need not, be heard. Such statements shall be captioned “Reasons Why Oral Argument Should [Need Not] Be Heard,” and shall be filed and served in conformity with Rules 5.12 and 5.2 of these Rules. JPML Rule 16.1(b).
Necessity for oral argument: No transfer determination regarding any action pending in the district court shall be made by the Panel when any party timely opposes such transfer or remand unless a hearing session has been held for the presentation of oral argument except that the Panel may dispense with oral argument if it determines that: (i) the dispositive issue(s) have been authoritatively decided; or (ii) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. JPML Rule 16.1(c). JPML Rule 16.1 contains additional details about oral arguments.
Additional filing required–Appearance of designated attorney for service: Within eleven (11) days of the filing of a motion for MDL transfer, each party or designated attorney must notify the Clerk of the Panel, in writing, of the name and address of the attorney designated to receive service of all pleadings, notices, orders and other papers relating to practice before the Judicial Panel on Multidistrict Litigation, and only one attorney shall be designated for each party. JPML Rule 5.2(c).
Additional filing required–Corporate disclosure statements: Within eleven (11) days of the filing of a motion for MDL transfer, any nongovernmental corporate party to a matter before the Panel shall file a statement identifying all its parent corporations and listing any publicly held company that owns 10% or more of the party’s stock. Once a corporate disclosure statement by a party has been filed in an MDL docket pursuant to subsection (b) of this Rule, such a party is required to update the statement to reflect any change in the information therein i) until the matter before the Panel is decided, and ii) within eleven (11) days of the filing of any subsequent motion to transfer or remand, order to show cause, or motion to vacate a conditional transfer order or a conditional remand order in that docket. JPML Rule 5.3.
Tag-along action notification: Any party or counsel in a new group of actions under consideration by the Panel for transfer under 28 U.S.C. sec. 1407 shall promptly notify the Clerk of the Panel of any potential tag-along action in which that party is also named or in which that counsel appears. JPML Rule 7.2(i). A “tag-along action” refers to a civil action pending in a district court and involving common questions of fact with actions previously transferred under Section 1407. JPML Rule 1.1.
Filing and service requirements: The response and any other papers must be filed with the Clerk of the Panel at the address provided in JPML Rule 5.11. JPML Rule 5.11. JPML Rules 5.11, 5.12, and 5.2 provide specific rules for the number of copies and originals to file, the manner of filing, and service and proof of service requirements.
In an even smaller nutshell, here’s a summary of the relevant deadlines:
Filing of motion for MDL transfer: Filing date
Appearance of designated attorney for service: 11 days
Corporate disclosure statements: 11 days
Response to motion for MDL transfer: 20 days
Statement regarding oral argument: 20 days
See? No need to fret.