On some days, we think we should re-name this blog. How about: “The Obscure, But Important, Stuff Blog”?
Nah. After three years, we’ll stick with the moniker we chose originally.
But we’ll report on In re Ford Motor Co., No. 09-50109, slip op. (5th Cir. Aug. 21, 2009) (link here), which addresses obscure, but important stuff.
To keep this post short, we’re abbreviating the facts here. Read the whole opinion if you’re ever truly interested in this issue.
The MDL Panel coordinated the Ford Explorer – Firestone Tire cases before Judge Sarah Evans Barker in the Southern District of Indiana. Plaintiffs in the particular case at issue here are Mexican citizens allegedly injured in Mexico in accidents involving Ford Explorers equipped with Firestone tires. Plaintiffs filed a complaint in Texas state court, which Ford and Firestone removed and had transferred to the MDL in Indiana. Ford and Firestone then moved to dismiss the complaint on the ground of forum non conveniens — a case involving Mexican citizens and an accident that occurred in Mexico should be heard by a Mexican court. After a convoluted procedural history, Judge Barker denied the forum non motion on the ground that Mexico was not an available alternative forum to hear the dispute.
The MDL Panel later remanded the case to the Western District of Texas. Ford and Firestone moved for reconsideration of the denial of the forum non motion. The Texas federal judge denied the motion to reconsider, and defendants took a writ to the Fifth Circuit.
If memory serves, some scholar (was it Joan Steinman of Chicago-Kent, maybe?) published an article saying that Churchill’s maxim about the Soviet Union applied equally to choice of law in the MDL context: “It is a riddle, wrapped in a mystery, inside an enigma.” Think about it for a second: The case we’re describing today started in federal court in Texas, within the umbrella of the Fifth Circuit’s appellate power; was transferred to Indiana, which is governed by Seventh Circuit law, for pretrial purposes; and was remanded to Texas (and the Fifth Circuit again) for trial. What’s a party — or a court — supposed to do if Fifth and Seventh Circuit law differ?
And what power does the Indiana judge have to reconsider decisions entered by the Texas judge before transfer, or the Texas judge have to reconsider decisions made by the Indiana judge before remand?
Churchill was right — 30 years before Congress even created the MDL Panel!
In the new Ford case, the Fifth Circuit says:
1. After remand, the Texas [transferor] federal judge must give “some deference” to the Indiana [transferee] judge’s decisions. Id. at 5.
2. That deference is not absolute; the Texas judge has the power (and, we take it, occasionally the duty) to reverse decisions made by the MDL transferee judge. Id. at 6.
3. That deference is not free-standing, but rather is rooted in the “law of the case” doctrine. Id. at 7. Once a court has decided an issue, it should not lightly change the decision.
4. “In reviewing transferee court decisions under the law of the case doctrine, transferor courts should rarely reverse, because any widespread overturning of transferee court decisions would frustrate the principle aims of the MDL process and lessen the system’s effectiveness. The law of the case doctrine ‘requires attention to the special authority granted to the multidistrict transferee judge’ and ensures that transferor courts respect the transferee court’s decisions . . . . That doctrine also has the virtue of allowing transferor courts to correct serious errors of the transferee court.” Id.
5. In this particular case, the Fifth Circuit had repeatedly held (in earlier decisions) that “Mexico is an available forum for tort suits against a defendant that is willing to submit to jurisdiction there.” Id. at 8 (discussing those earlier cases).
6. Because, under Fifth Circuit law, Mexico is an available alternative forum, Judge Barker was wrong to deny the motion to dismiss for forum non conveniens, and the Texas judge was wrong to refuse to reconsider it. Id. at 15. The Fifth Circuit granted a writ of mandamus to reverse. Id.
There were two possible ways for the Fifth Circuit to resolve the choice of law question facing Judge Barker in Indiana (and other federal judges overseeing MDLs), but both would have led to the same result in the Ford case. The Fifth Circuit said that Judge Barker (in Indiana) should have applied Fifth Circuit precedents when she considered the defendants’ forum non motion in Indiana “because forum-availability law is ‘geographically non-uniform,'” so “‘a transferee court should use the rule of the transferor forum'” to ensure that the transfer accomplishes no more than a “change of courtrooms.” Id. at 10 n.15. If Judge Barker had applied Fifth Circuit law to the forum non motion filed before her in Indiana, she would have realized that Mexico was an available alternative forum. Id.
Although the Fifth Circuit didn’t mention this, the Fifth Circuit could have reached the same result by a different route — by applying the law-of-the-case doctrine. Co-equal courts (such as federal trial courts) owe deference to each others’ decisions under law of the case. But unequal courts (such as the Southern District of Indiana trial court vs. the Fifth Circuit appellate court) do not. Thus, if Judge Barker’s decision had been appealed to, and affirmed by, the Seventh Circuit, the Fifth Circuit might have found itself bound by law of the case. But there had been no such appeal. Absent an appeal to (and a decision by) a court co-equal to the Fifth Circuit, the Fifth Circuit was free to rule independently.
Using that second approach would make life easier in several respects. It would make life simpler for MDL transferee judges, because they could apply the law of their home circuits to all federal questions, rather than having to check the law of the transferor circuit in each case and thus occasionally reaching different results in similar cases pending before them. (Suppose the Fifth Circuit says that Mexico is an adequate alternative forum, but the Ninth Circuit says that it is not. It would be odd to have an Indiana MDL judge grant forum non motions filed in cases that originated in Texas, but to deny identical motions filed in cases that originated in California. That’s not necessarily wrong or legally improper, but it’s odd.)
We perceive other benefits to using the law-of-the-case approach, too, but we’re forced to be a little cryptic here. (We’re confident that legal scholars, more able to speak about these topics than we are, will pick up on the point and pursue it appropriately.)
In any event, it’s good to see appellate courts chiming in with proposed solutions to riddles and enigmas and mysteries.
And, of course, for companies defending themselves in multidistrict litigation, “we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.”