What is going on in Nuvaring? Defendant first moved against Plaintiffs’ “master” complaint. Plaintiffs withdrew it. Then it moved against Plaintiffs’ individual complaints (all 200+ of them). Now the court won’t hear those either. No wonder our eyebrows go up a little more with each ruling. (Here, here, and here). At this point, we’re afraid we might freeze into a permanently supercilious (literally, Latin for “raised eyebrows”) skepticism of anything coming out of that MDL.
- In November 2008, shortly after the the first MDL conference, Defendant asks for a Master Complaint so that, inter alia, Rule 12 challenges could be streamlined. The court agrees. So far, so good.
- Plaintiffs then file a Master Complaint that falls far short of Rule 8, Rule 9, Iqbal, and Twombly. So far, so predictable.
- Defendant then files Rule 12 motions. One motion seeks to strike class allegations. That one wins. But the motion challenging the pleadings under Rules 9(b) and 12(b)(6) is denied. Check that – it’s sidestepped. The merits remain elusive because the Master Complaint was “simply meant to place in one document all of the claims at issue in this litigation.” In re Nuvaring Products Liability Litigation, 2009 WL 2425391, at *2 (E.D. Mo. Aug. 6, 2009).
And bad, bad, Defendant. Shame on you for not seeking a Master Complaint for a year (forget that there wasn’t even an MDL for a lot of that time), and why did Defendant stop answering the complaints and start moving against them?
And, as we pointed out before that sort of reasoning will make defendants leery of doing anything other than file motions. Be careful what you ask for, you just might get it.
- Next, Defendant seeks certification of the first order for interlocutory appeal, so that the Eight Circuit could address whether MDL master complaints are somehow immune from the pleading requirements of Rule 9, Iqbal, and Twombly.
- That gets some action. In October 2009, the court denies the request to certify – and strikes the Master Complaint. In re Nuvaring Products Liability Litigation, 2009 WL 3427974 (E.D. Mo. Oct. 23, 2009). Interesting.
Our response was to express relief that the MDL judge “came around.” It looked like a retreat from the untenable position that defendants can’t move against master complaints (otherwise, why have them?). Master complaints can be an efficient tool for separating the pleading-wheat from the pleading-chaff (and we’re betting that most of the Nuvaring cases – like most MDL cases everywhere – ain’t wheat), but if a court would rather plow under the individual complaints one at a time, that’s OK.
In sum, that looked like a viable procedural choice of to how to undertake motion practice.
How wrong could we be?