You can waive remand. That’s Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). But, if you agree to remand, you’re going back whence you came. So said the Judicial Panel on Multidistrict Litigation earlier this month in In re: Biomet M2A Magnum Hip Implant Products Liability Litigation, 2018 WL 6426830 (JPML Dec. 6, 2018).
That’s pretty much all the 4-paragraph opinion says on this issue of first impression. The JPML cannot “redirect the remand” to a non-originating court. What the opinion doesn’t tell is why the request was being made in the first place. So, we did a little digging. At issue were three cases selected for remand from this MDL. The Chadwick case had been originally filed in state court in New Jersey and subsequently removed to federal court. Plaintiffs included as a defendant a company whose sole role in relation to the device at issue was to supply raw materials. That company, a New Jersey company, was the only thing establishing venue in New Jersey. Memo. Of Law in Support of Motion of Defs. To Vacate Conditional Remand Order, No. TXS/4:14-cv-00232, Dkt. No. 12-1 (JPML), at 2-3. Plaintiff is a resident of Wyoming and Biomet is an Indiana company. The New Jersey defendant filed a motion to dismiss based on the immunity afforded raw material suppliers under the Biomaterials Access Assurance Act (“BAAA”). Feels like the New Jersey company was present simply to allow some forum shopping by plaintiff. Prior to remand, however, plaintiff agreed to dismiss the raw material supplier and with that dismissed the only link to New Jersey. Id.
The second case, Carter, was filed in the Southern District of New York before being transferred to the MDL. Plaintiff Carter, however, lived in Virginia and had surgeries in Virginia and North Carolina. Her complaint does not include any allegation why venue would be appropriate in New York. Id. at 3-4. Similarly, the plaintiff in the Richards case filed suit in the Southern District of Texas, but she resides and had surgery in cities that fall in the Northern District of Texas. Id. at 4.
At the time of remand, the MDL judge was willing to grant the parties’ request that these three cases be transferred to appropriate venues that were not their originating courts. However, in the suggestion of remand, the judge concluded that he had no authority to grant the relief requested by the parties and listed the remand jurisdiction for each case as the original transferor courts. Id. at 5.
Defendants argued that the logic of Lexecon should apply. In effect, that there was no difference between waiving remand to the transferor court to allow trial to take place in the MDL and waiving remand to the transferor court to allow trial to take place in a different, but appropriate venue. Id. at 6. Defendants also made the points that denying the request now was simply inefficient because they would file change of venue motions post-remand that were highly likely to succeed and that at least as to New Jersey and New York there were also personal jurisdiction issues. Residents of Wyoming and Virginia were suing Indiana companies in New Jersey and New York. And that hasn’t been allowed since Daimler AG v. Bauman, 571 U.S. 117 (2014).
But the JPML was unpersuaded finding that the statute, 28 U.S.C. § 1407(a), afforded it “no discretion.” The only remand destination allowed is the original transferor court, even if the parties agree that jurisdiction is improper. In re: Biomet, at *1.
So, other than this now being the rule of law, to us it is also indicative that Congress did not contemplate the current forum shopping practices. Cases should be remanded from where they came because they should have been filed in appropriate jurisdictions from the outset. But, we know that’s not the reality. We are optimistic that the issue will be resolved correctly post-remand, but where venue is so clearly not present, we don’t see the harm in arming the JPML with the tools to get the job done.