Plaintiffs try all sorts of funny business to defeat federal jurisdiction – fraudulent joinder, fraudulent misjoinder, jurisdictional amount – you name it, they’ll tinker with it. Defendants for their part, do what they can to match the plaintiffs stratagem for stratagem. Can you say “removal before service?”
In any removal/remand situation, a competent plaintiff will try to push remand as hard and fast as possible, on the theory that the longer the case stays in federal court the more likely it will stay in federal court. Defendants, on the other hand, frequently move that remand motions be held in abeyance pending transfer to multi-district litigation, and that such motions be decided by the MDL judge.
Is that a proper thing to ask for? Can a case with questionable subject matter jurisdiction be the subject of an MDL transfer?
Well, last week, the Sixth Circuit said “yes” – at least in the context of a mandamus standard of review (for you non-lawyers, “mandamus” is a special, immediate sort of appeal, and is subject to tougher standards). There’s not a lot of law on the subject, so we thought we’d mention this event. In In re McConnell, No. 11-4265, slip op. (6th Cir. April 26, 2012) (unpublished), the federal district court to which the case (a hip implant action) had originally been removed waved it on through to the MDL without deciding a remand motion raising jurisdictional issues. Upset about finding herself in the MDL, plaintiff McConnell (or rather, her lawyer) filed an appellate mandamus petition against the Judicial Panel for Multidistrict Jurisdiction demanding that the transfer order be vacated.
The Sixth Circuit found nothing in its precedents for the proposition that transfer of a case with pending jurisdictional motions was a per se abuse of discretion. The closest case that the plaintiff found was a mandamus addressing the merits of a jurisdictional issue – hardly the same thing. That wasn’t enough for mandamus to issue:
The court was not asked, and did not consider, whether the MDL Panel is authorized to transfer a case before the transferor court has ruled on a pending jurisdictional issue . . . and the court was careful to note that “[t]his is not to say that mandamus is appropriate at any time there is an issue of subject matter jurisdiction.”
McConnell, slip op. at 2 (quoting BancOhio Corp. v. Fox, 516 F.2d 29, 32-33 (6th Cir. 1975)). Lack of controlling precedent alone defeated mandamus (which the court observed was the only way to challenge an MDL transfer order, id.).
Mandamus was also improper, McConnell held, because the nature of the order had not foreclosed any substantive right of the plaintiff:
The transfer order does not prevent [plaintiff] from challenging the defendants’ removal of her case from state court because, pursuant to the transferee court’s scheduling orders, [plaintiff] may re-file her motion to remand and obtain a ruling by the transferee judge on the merits of her motion. This leads us to conclude that the extraordinary circumstances necessary to utilize a writ of mandamus are not present in this case.
Slip op. at 3.
This is not a published opinion, to be sure, but once it is accepted that mandamus is the only basis for challenging an MDL transfer order, the result seems right. Mandamus is: (1) reserved for slam dunk error, and (2) limited to situations of substantial prejudice, neither of which will be present in a mere transfer situation.
It’s of course a matter of pure discretion whether, in the first place, a federal court decides to hold a remand motion in abeyance pending MDL transfer. If the court chooses to remand, there’s essentially no review at all. But for those judges that are inclined to transfer, McConnell is a clear indication that such an order won’t get reversed.