Earlier this week, we posted about how the MDL court in the Nuvaring litigation denied outright a defense motion to dismiss on the entirely procedural ground that the master complaint was an “administrative tool” and not intended for motion practice under Fed. R. Civ. P. 12. In re Nuvaring Products Liability Litigation, 2009 WL 2425391, at *1 (E.D. Mo. Aug. 6, 2009). Needless to say, we were unhappy with that result. We commented on how we thought the Nuvaring decision had improvidently relied on some loose language in In re Trasylol Products Liability Litigation, 2009 WL 577726 (S.D. Fla. Mar. 5, 2009), to impose what amounted to a mass waiver of Rule 12 motion practice on the defendant.

The court in Nuvaring seemed to be under the mistaken impression that master complaints in multi-district litigation should not be subject to Rule 12 motions, or the requirements of Fed. R. Civ. P. 8 – because Trasylol decided not to expose fraud claims in that master complaint to the otherwise applicable standards of Fed. R. Civ. P. 9(b). Where did that come from? Haven’t master complaints always been subject to motions to dismiss?

If not, then why have master complaints at all?

We’re getting ahead of ourselves a bit.

Back to the first question. The answer there is pretty definitely “yes.” Courts have used master complaints for pleading-related motion practice under Rule 12 for … well, since there have been master complaints, it appears. See In re Katrina Canal Breaches Litigation, 309 Fed. Appx. 836, 838 (5th Cir. 2009) (proper to move to dismiss master complaint; it subsumed individual complaints); King v. Cessna Aircraft Co., 505 F.3d 1160, 1163 (11th Cir. 2007) (reversing dismissal of master complaint on merits, no objection to procedure); In re FEMA Trailer Formaldehyde Products Liability Litigation, 2008 WL 5217594 (E.D. La. Dec. 12, 2008) (granting in part and denying in part motion to dismiss master complaint); In re FEMA Trailer Formaldehyde Products Liability Litigation, 570 F. Supp.2d 851 (E.D. La. 2008) (granting motion to dismiss master complaint); Barasich v. Shell Pipeline Co., LP, 2008 WL 6468611 (E.D. La. June 19, 2008) (granting motion to dismiss master complaint); In re ConAgra Peanut Butter Products Liability Litigation, 2008 WL 2132233 (N.D. Ga. May 21, 2008) (granting in part and denying in part motion to dismiss master complaint); In re World Trade Center Disaster Site Litigation, 2008 WL 1927265 (S.D.N.Y. May 1, 2008) (granting motion to dismiss master complaint); In re Katrina Canal Breaches Consolidated Litigation, 533 F. Supp.2d 615 (E.D. La. 2008) (granting motion to dismiss parts of master complaint); In re Ford Motor Co. Speed Control Deactivation Switch Products Liability Litigation, 2007 WL 2421480 (E.D. Mich. Aug. 24, 2007) (granting motion to dismiss several counts of master complaint); In re Bextra & Celebrex Marketing, Sales Practices & Product Liability Litigation, 2007 WL 2028408 (N.D. Cal. July 10, 2007) (granting in part and denying in part motion to dismiss master complaint); In re Educational Testing Service Praxis Principles of Learning & Teaching, Grades 7-12 Litigation, 517 F. Supp.2d 832 (E.D. La. 2007) (granting in part and denying in part motion to dismiss master complaint); In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, 484 F. Supp.2d 973 (D. Minn. 2007) (granting motion to dismiss several counts of master complaint); Gray v. Derderian, 464 F. Supp.2d 105 (D.R.I. 2006) (granting motion to dismiss several defendants from master complaint); Gray v. Derderian, 371 F. Supp.2d 98 (D.R.I. 2005) (granting motion to dismiss several counts of master complaint); In re September 11 Litigation, 280 F. Supp.2d 279 (S.D.N.Y. 2003) (granting and denying various motions to dismiss parts of master complaint); In re Bridgestone/Firestone, Inc. Products Liability Litigation, 2001 WL 34136021 (S.D. Ind. Sept. 6, 2001) (granting in part and denying in part motion to dismiss master complaint); In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 175 F. Supp.2d 593 (S.D.N.Y. 2001) (granting in part and denying in part motion to dismiss master complaint); In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 153 F. Supp.2d 935 (S.D. Ind. 2001) (granting motion to dismiss particular counts of master complaint); In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 155 F. Supp.2d 1069 (S.D. Ind. 2001) (granting in part and denying in part motion to dismiss master complaint); In re Grain Land Co-op, 978 F. Supp. 1267 (D. Minn. 1997) (granting motion to dismiss several counts of master complaint); In re Orthopedic Bone Screw Products Liability Litigation, 1997 WL 305257 (E.D. Pa. March 28, 1997) (granting motion to dismiss parts of master complaint), reversed, 159 F.3d 817 (3d Cir. 1998), reversed sub nom. Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001) (reinstating dismissal); In re Ford Motor Co. Vehicle Paint Litigation, 1996 WL 426548 (E.D. La. July 30, 1996) (granting in part and denying in part motion to dismiss master complaint and parallel individual complaints); Air Master Sales Co. v. Northbridge Park Co-op, Inc., 1989 WL 149967 (E.D. Pa. Dec. 7, 1989) (granting motion to dismiss master complaint).

Nor is there anything in the Manual for Complex Litigation suggesting that ordinary rules of pleading don’t apply to master complaints. It observes only that filing of a “master complaint. . .may serve as the vehicle for determination of common issues.” Manual for Complex Litigation (4th) §22.36, at p. 373. We agree that master complaints do have such uses – but there’s nothing in the manual supportive of fudging the Rules of Civil Procedure. See “Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges” (which we featured here), likewise containing no implication that the rules are different for master complaints.

So now – after decades of routine use of Rule 12 against master complaints in any number of situations – all of a sudden in 2009 we’re faced with: (1) a decision in Nuvaring that the master complaints are virtually immune from Rule 12 motions (if there’s nothing in the record suggesting otherwise); (2) dictum in Trasylol that “strict application of Rule 9(b)” is somehow not the rule “in an MDL product liability claim,” 2009 WL 577726, at *6; and (3) additional dictum about the administrative nature of master complaints in In re Digitek Products Liability Litigation, 2009 WL 2433468, at *8 (S.D.W. Va. Aug. 3, 2009), although it’s unclear whether that actually affected the outcome of the motion to dismiss (which was granted in part and denied in part) in any way.

These three cases rely on statements about the “administrative” nature of master complaints in other MDLs – but those statements all occurred in the choice of law context. See In re Propulsid Products Liability Litigation, 208 F.R.D. 133, 141-42 (E.D. La. 2002), In re Vioxx Products Liability Litigation, 239 F.R.D. 450, 454 (E.D. La. 2006), In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D. 46, 56 (D.N.J. 2009); In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, 489 F.Supp.2d 932, 935-36 (D. Minn. 2007). None of these cases considered any sort of Rule 12 motion.

In a nutshell, when a “master” complaint is filed, should the choice of law rules of the forum where that master complaint is filed (almost always the situs of the MDL) govern? Alternatively, should the relevant choice of law rules be those of the forum where the particular complaint at issue was filed? This kind of conundrum often arises in the class action context, as choice of law is an important constraint on class certification (see our posts, here and here on that subject). That’s exactly what Vioxx, Propulsid, and Mercedes Benz were all about – did the filing of a master complaint change the choice-of-law calculus for class certification, when the class action complaint at issue was originally filed elsewhere? In all those cases, the court said no. Guidant, on the other hand, involved a straight-forward motion for the application of a particular state’s law.

Not one of them involved a motion to dismiss, Rule 12, Rule 8 or Rule 9.

What’s going on?

We see this as another aspect of the changes that the tightening of pleading rules in Twombly/Iqbal are having on litigation in federal court. With the demise of anything goes pleading, Rule 12 looms a lot larger than it used to. In a learned intermediary rule case, for example, the plaintiff is actually going to have to allege enough facts (contact with the prescriber at the right time; some sort of prescriber response) to make a “plausible” case that the allegedly inadequate warning actually caused the injury. Consumer fraud and regular fraud claims have to allege causation and (sometimes) reliance as well.

Alleging plaintiff-specific facts is anathema to the other side’s mass tort practice – which is what MDLs are. that practice is all about using word processors and multi-plaintiff joinder to file as many suits as possible as quickly and cheaply as possible. They can’t be bothered with whether there’s actually a viable claim.

Thus, MDL plaintiffs don’t want Twombly/Iqbal to upset their applecart. One result is the new-found reliance on “administrative” master complaints as a basis for immunizing themselves from Rule 12 dismissals.

MDL defendants, naturally, want the exact opposite. Rule 12 motions, after all, precede discovery. And discovery is where most of the huge litigation expenses – expenses that drive settlement decisions – are incurred. If defendants can eliminate or significantly prune back MDL litigation before plaintiffs can make them spend these sums on, say, electronic discovery, then defendants are obviously better off.

MDL plaintiffs have responded, and the Nuvaring line of cases is the result. Defendants need to respond as well. What to do?

Without giving away all our litigation ideas, we can suggest a few things.

First, what good is a master complaint if it, in effect, waives Rule 12 in a post-Twombly/Iqbal world? Do defendants want one at all? We loved them in Bone Screw, where a motion to dismiss fraud on the FDA claims from a set of “master” allegations (if more than one complaint) turned into Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001).

But times, and tactics, change.

So maybe master complaints aren’t what we need anymore, at least if Nuvaring is the consequence. We’re coming around to the view that we want each plaintiff required to allege some fact to establish how, say, some supposedly improper or illegal product promotion actually affected that plaintiff’s prescribing physician. That’s information in each plaintiff’s control, since plaintiffs can more freely talk to their own doctors than our side can.

So while we don’t mind standardization of allegations across large numbers of complaints, we may be better off putting plaintiffs to their pleadings individually. If Rule 12 requires a plaintiff at least to plead in good faith one fact affirmatively indicating that the defendant’s promotion affected his or her prescriber, then that requires more than a cookie-cutter complaint churned out by a mindless word processor. So defendants should consider whether master complaints do them any good after Twombly/Iqbal .

Second, in Nuvaring the court held that the defendant “had already filed answers in the individual lawsuits which precluded any 12(b) motion practice.” 2009 WL 2425391, at *2. If plaintiffs are going to argue, and courts are going to agree, that answering individual complaints in an MDL/mass tort setting precludes any Rule 12 challenge to a later filed master complaint, defendants really ought to be reconsidering whether to answer all those underlying complaints. It’ll be a little more work to file Rule 12 motions rather than answers to hundreds of complaints, but not all that much more. Cookie-cutter complaints beget cookie-cutter motions, after all. With Rule 12 motions more likely to succeed after Twombly/Iqbal, MDL defendants should avoid anything that creates the sort of waiver arguments that the court credited in Nuvaring.

Third, MDL defendants shouldn’t agree to “administrative” pleadings of any sort – master complaints, consolidated class action complaints, etc. – without getting it in writing (usually in a case management order) that doing so is without prejudice to their rights to move under Rule 12 (or make other motions under other rules). The court stated in Nuvaring:

I too conclude that the filing of the master consolidated complaint in this action was simply meant to be an administrative tool to place in one document all of the claims at issue in this litigation. Neither Plaintiffs when they consented to filing a master complaint, nor I when I entered the order directing a master complaint to be filed, contemplated that Rule 12(b) motion practice would be pursued by [defendant] against the master complaint.

2009 WL 2425391, at *2. Obviously, the role of the master complaint was one can that shouldn’t have been kicked down the road. Likewise, in Trasylol, the court decided that it would dispense with strict compliance with Rule 9(b). 2009 WL 577726, at *6. Defendants need to make the record clear that they’re not agreeing to “federal rules lite” for adminstrative convenience. A court’s outright refusal to apply the Federal Rules of Civil Procedure could even be grounds for seeking mandamus.

With Rule 12 no longer defanged, MDL defendants cannot afford to allow such misunderstandings to exist – or to be manufactured by the other side. MDL defendants need to evaluate their litigation strategies ahead of time and decide exactly how they want motion practice to play out. Those decisions need to be put on the record in negotiations for case management orders. Doing so may result in mean fewer agreements to file master complaints, since plaintiffs don’t have to agree to anything our side wants. But as we’ve discussed already, after Twombly/Iqbal, fewer master complaints and more Rule 12 motions may well be in the best interests of the defense in any event.

MDL practice is like three-dimensional chess. Any significant change in the law, like Twombly/Iqbal, is going to affect the entire process in new and subtle ways. The stakes are too high for it to be otherwise. In this fluid situation, MDL defendants need to take care that they aren’t caught flat-footed doing what they’ve always done.