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Law of the Case: a Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation

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Law of the Case: a Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation LAW OF THE CASE: A JUDICIAL PUZZLE IN CONSOLIDATED AND TRANSFERRED CASES AND IN MULTIDISTRICT LITIGATION JOAN STEINMANt TABLE OF CONTENTS INTRODUCTION .................................... 596 I. LAW OF THE CASE ................................ 597 A. A Primer ................................. 597 B. Conflicts among the Circuits ................. 613 II. COMPLICATING FACTORS ........................... 618 A. Change of Judge ........................... 618 B. Consolidation ............................. 622 C. Transfer ................................. 626 1. Section 1404 Transfers .................. 627 a. Resolving Choice of Law Issues ....... 628 b. The Effects of Appellate Jurisdictional Limits and of the "Competence" Principle.......................... 641 c. Forum Shopping and the Decision to Transfer .......................... 648 2. Section 1406 Transfers .................. 651 a. The Nature of the Tranferor Court's Rulings ........................... 652 b. The Effects of Appellate Jurisdictional Limits and Choice of Law in Section 1406 Transfers .................... 656 c. Forum Shopping and the Decision to Transfer ......................... 656 D. Transfer Together with Consolidation ......... 660 III. SECTION 1407 LITIGATION ......................... 662 t Professor of Law, Illinois Institute of Technology Chicago-Kent College of Law. A.B. 1969, University of Rochester; J.D. 1973, Harvard University. The author thanks Linda Kleszynski, a law student at Illinois Institute of Technology Chicago- Kent College of Law, for her unusual dedication in providing research assistance in the preparation of this Article. The author also thanks her colleague Margaret Stewart, for her comments on drafts of this Article, and the Marshall Ewell Research Fund for providing financial support. (595) 596 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 135:595 A. Section 1407 Purposes...................... 664 B. Law of the Case in Section 1407 Litigation .... 665 1. Panel Reconsideration ................... 671 2. Transferor Court Rulings in the Section 1407 Transferee Court ....................... 672 3. Discovery Courts and Their Rulings ....... 685 4. Transferee Court Rulings ................ 695 5. Reconsideration in the Remand Court ...... 700 6. Reconsideration in the Ultimate Transferee Court ................................ 704 CONCLUSION ...................................... 706 INTRODUCTION The Judicial Panel on Multidistrict Litigation ("JPMDL" or "Panel") has been functioning effectively for almost 20 years.' Indeed, "multidistrict consolidation for pretrial proceedings has become an es- sential factor in the federal courts' ability to carry their increasing bur- den of complex litigation."12 Yet the same court that thus acknowledged the benefits of multidistrict consolidation also recognized that such con- solidation has sometimes "spawn[ed] procedural dilemmas of its own." In the last few years two areas of uncertainty have emerged that inter- fere with the optimal operation of the multidistrict litigation system. First, courts are perplexed as to the application of "law of the case" doctrine in multidistrict litigation, where cases may fall within the ju- risdiction of two or three federal district courts consecutively, having landed briefly in the hands of the JPMDL, while still other courts may handle certain discovery issues." Second, the cases reflect some confu- sion concerning which federal courts have appellate jurisdiction over 1 The Judicial Panel on Multidistrict Litigation was created on April 29, 1969 by Pub. L. No. 90-296, § I (codified at 28 U.S.C. § 1407 (1982 & Supp. III 1985)). 2 In re Multi-Piece Rim Prods. Liab. Litig. 653 F.2d 671, 680 (D.C. Cir. 1981). In regard to multidistrict litigation generally, see D. HERR, MULTIDISTRICT LIGA- TION (1986). s Multi-Piece Rim, 653 F.2d at 680. 4 For example, under the Federal Rules of Civil Procedure, during a deposition upon oral examination, the court in which the action is pending or the court in the district where the deposition is being taken may order the deposition to cease, or may limit the scope of the deposition or the manner in which it is taken. FED. R. Civ. P. 30(d). Because a person subpoenaed for the taking of a deposition may be required to attend at any place within 100 miles from the place where that person resides, is em- ployed or transacts business in person, or is served, or at another convenient location as set by court order, see FED. R. Civ. P. 45(d)(2), it is quite easy for a court other than the one before which the case is pending to become involved in discovery issues. 1987] LAW OF THE CASE 597 the cases that move among district courts of different circuits. 5 In light of the substantial and growing number of cases drawn into the mul- tidistrict net,6 these unresolved issues will obstruct and delay the ad- ministration of justice. It is the goal of this Article to examine particularly the first of these muddled areas and to suggest how law of the case doctrine should be tailored to fit multidistrict litigation. The necessary starting point is the basic doctrine of law of the case. Part I outlines the contours of the doctrine and details the split among the federal circuits as to how it should be defined and applied. Part II then explains how the content of the doctrine must be adjusted to reflect administrative changes in the handling of cases such as changes of judge, transfer, consolidation, and possible combinations of these three mechanisms. Part II explores, in addition, the threshold question of choice of law that is raised when such administrative changes entail a change of court, and the courts involved define the content of the doctrine differently. All these factors complicate the use of law of the case doctrine in multidistrict litigation. Part III discusses the doctrine in the context of section 1407 litigation, presenting a new synthesis of law of the case to accommodate the pecu- liarities and fit the needs of multidistrict litigation. I. LAW OF THE CASE A. A Primer In general, law of the case is a concept that precludes the relitiga- 6 Compare In re Exterior Siding & Aluminum Coil Litig., 538 F. Supp. 45, 48 (D. Minn. 1982) ("In multidistrict litigation, appeals from the decision of the trans- feree court [sic] are to be made in the circuit in which the transferee court sits.") and Utah v. American Pipe & Constr. Co., 316 F. Supp. 837, 839-40 (C.D. Cal. 1970) (appeal from multidistrict litigation lies in transferee's, rather than transferor's, district) with In re Corrugated Container Antitrust Litig., 662 F.2d 875, 879 (D.D.C. 1981) (appeal from a multidistrict litigation transferee judge's order of contempt issued by telephone from the transferee's home district in Texas to a non-party deponent in Washington, D.C. should be heard by the D.C. Court of Appeals, not in the Fifth Circuit, which embraces the transferee district.) Although the confusion over appellate jurisdiction is not the primary focus of this Article, which court has appellate jurisdiction itself can influence the application of law of the case doctrine. 6 From the Panel's creation in 1968 through June 30, 1985, a total of 14,489 actions were centralized for pretrial proceedings. See 1985 ANN. REP. DIRECTOR AD. OFF. U.S. CTS. 168 [hereinafter 1985 U.S. CTS. ANN. REP.]. Of those, the Panel acted on 1215 during the twelve month period ended June 30, 1985. It had acted on 1120 in the preceding twelve months, see 1984 ANN. REP. DIRECTOR AD. OFF. U.S. CTs. 164, and handled 1060 in the year ending June 30, 1983, see 1983 ANN. REP. DIRECTOR AD. OFF. U.S. CTS. 158. Thus, in the three most recent years for which statistics are available, the Panel has acted on 23% of its lifetime caseload. 598 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 135:595 tion of issues within the context of a single case once they have been decided. 7 It is thus akin to the doctrines of collateral estoppel," res judi- 7 See Messinger v. Andersen, 225 U.S. 436, 444 (1912); Gindes v. United States, 740 F.2d 947, 949 (Fed. Cir. 1984) (quoting U.S. v. Turtle Mountain Band of Chip- pewa Indians, 612 F.2d 517, 520 (Cl. Ct. 1979)), cert. denied, 105 S. Ct. 569 (1984); Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1982); 1B J. MOORE, J. LucAs & T. CURRIER, MooRE's FEDERAL PRACTICE, 1 0.404 [1], at 117 (2d ed. 1984) [hereinafter MOORE's FEDERAL PRACTICE]; 18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE, § 4478, at 788 (1981) [hereinafter WRIGHT & MILLER]; A. Vestal, Law of the Case: Single-Suit Preclusion, 12 UTAH L. REV. 1, 1-4 (1967). 1 See 1B MOORE's FEDERAL PRACTICE, supra note 7, 0.404 [1], at 117-18. Collateral estoppel, generally speaking, precludes a person who was a party, or in priv- ity with a party, in previous litigation from relitigating issues actually litigated and decided in the prior action and necessary to the prior judgment. See, e.g., FRIEDENTHAL, KANE & MILLER, CIVIL PROCEDURE, §§ 14.2, 14.9-14.11, at 658-76 (1985) (defining and stating the requirements for application of collateral estoppel) [hereinafter FRIEDENTHAL]. It is similar to law of the case doctrine in applying only to issues already litigated and decided. In addition, both doctrines may apply without the case in which issues have been decided having reached final judgment. For example, interlocutory orders may be given collateral estoppel effect. Id. § 14.9, at 659. Law of the case doctrine applies, however, when issues once decided in a case recur or are raised for reconsideration in the later stages of the same case, whereas collateral estop- pel prevents litigation of the same issues in successive suits. This difference has made it inappropriate for law of the case doctrine to entail the "necessary to the judgment" requirement. In addition, because law of the case issues arise within a single litigation, the doctrine does not pose the risk of trapping unwary litigants who may not have foreseen the ramifications for other lawsuits of issue determinations made in a prior action.
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