Opinion
Case No. 1:06-CV-17288.
July 28, 2011
MEMORANDUM ORDER
For the reasons stated below, plaintiff's motion for transfer of venue is GRANTED in part. Specifically, by separate document, the Court will suggest to the MDL Panel that remand of this case to the transferor court, the United States District Court for the District of Minnesota, is appropriate.
I. Procedural Background.
Plaintiff David Mann, who is a resident of South Dakota, filed this case in the United States District Court for the District of Minnesota. Pursuant to 28 U.S.C. § 1407, Mann's case was then transferred to the Northern District of Ohio, as related to the multidistrict litigation known as In re: Welding Fumes Prods. Liab. Litig., MDL No. 1535, case no. 03-CV-17000. After this transfer, the parties and the MDL Court chose Mann's lawsuit as one of the MDL bellwether cases. The parties agreed orally that Mann would waive any objection to improper venue and his case would be tried in the Northern District of Ohio.
See Solis v. Lincoln Elec. Co., 2006 WL 266530 at *5 (N.D. Ohio Feb. 1, 2006) ("as to those plaintiffs designated for treatment as a bellwether case [in In re: Welding Fumes], they agreed to waive any venue-based objection to this Court's trial of those cases").
The undersigned, who presides over the MDL, subsequently inquired whether other Judges sitting in the Northern District of Ohio could provide assistance by presiding over one of the several bellwether trials that were scheduled for 2010. The Honorable David D. Dowd graciously agreed to preside over the trial of Mann's case. Before trial, Judge Dowd required that the oral agreement by Mann to waive any objection to improper venue be committed to writing. Trial began on May 7, 2010 and ended on May 27, 2010 with a defense verdict. Mann filed a motion for new trial, arguing "the Court's instruction to the jury on the sophisticated user defense was erroneous." Mann v. Lincoln Elec. Co., 2010 WL 4117417 at *3 (N.D. Ohio Oct. 15, 2010). Judge Dowd found this argument well-taken and granted Mann's motion for new trial. In the first paragraph of his opinion, Judge Dowd also wrote: "this Court suggests to Judge O'Malley that, since all pretrial matters in this case are concluded, it may be appropriate to remand the case to the original transferor court, pursuant to 28 U.S.C. § 1407." Id. at 1.
See docket no. 43 (Mann's declaration stating he "consent[s] to trial of my welding fume products liability case in United States District Court, the Northern District of Ohio, Eastern Division").
After Judge Dowd granted the motion for new trial, defendant Lincoln Electric Company filed a motion asking the Court to "certify to the Supreme Court of South Dakota the question whether South Dakota law does in fact recognize the [sophisticated user] defense and whether it would apply to the facts of this case. Alternatively, Lincoln respectfully requests that the Court certify its order granting a new trial for interlocutory appeal under 28 U.S.C. § 1292(b)." Motion at 1 (docket no. 197). Judge Dowd denied both aspects of this motion. See docket no. 201. Further, he "repeat[ed] an observation [that he] first made in the New Trial Order for the benefit of Judge O'Malley, who is presiding over the MDL: since all pretrial matters in this case are concluded, it may be appropriate to remand the case to the original transferor court, pursuant to 28 U.S.C. § 1407." Id. at 4.
During a later MDL status conference, the undersigned addressed the issue raised by Judge Dowd — that is, where retrial of the Mann case should occur. The parties could not agree, so the Court directed submission of briefs on the matter. See master docket no. 2549 at 2. In response, Mann moved for transfer of his case back to the federal court where he originally filed his complaint, in the District of Minnesota. Lincoln responded that the case should be tried again here in the Northern District of Ohio, or else transferred to the District of South Dakota, where Mann resides. For the reasons below, the Court concludes Mann's position is strongest.
II. Analysis.
The parties' briefs raise three possibilities for venue of a re-trial: Ohio, Minnesota, or South Dakota. The Supreme Court, however, has made clear that transfer by this Court to South Dakota is not a viable option.
As explained below, the transferor court may, after remand, transfer the case to South Dakota; see footnote 6.
The Mann case was originally transferred to this MDL court pursuant to 28 U.S.C. § 1407(a). This statute provides that, "[w]hen civil actions involving one or more common questions of fact are pending in different districts," the Judicial Panel on Multidistrict Litigation may transfer all such actions "to any district for coordinated or consolidated pretrial proceedings." The statute goes on to direct that "[e]ach action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated." As this Court observed in another Welding Fume case: "Put simply, the statute charges MDL courts with getting cases trial-ready, and then remanding them to the originating, transferor courts for trial." Solis v. Lincoln Elec. Co., 2006 WL 266530 at *3 (N.D. Ohio Feb. 1, 2006). Accordingly, the MDL Panel is normally required to remand Mann's case to the District of Minnesota for trial, once pretrial proceedings are concluded.
Courts have held, however, that § 1407(a) is not a jurisdictional limitation, but simply "a venue statute that . . . limits the authority of courts (and special panels) to override a plaintiff's choice." Lexecon, Inc. v. Milberg Weiss Bershad Hynes Lerach, 523 U.S. 26, 42 (1998). This qualifier is critical because "venue is personal and waivable." Catz v. Chalker, 142 F.3d 279, 284-85 (6th Cir. 1998), amended, 243 F.3d 234 (6th Cir. 2001). Thus, a plaintiff may decide not to raise an otherwise-valid objection to venue and "consent to remain in the transferee district for trial." Manual for Complex Litig. Fourth § 21.132 at 224. This is what Mann did; he was entitled to insist upon remand to the transferor court pursuant to § 1407(a), but instead he waived this right and agreed to trial in the MDL transferee court, in the Northern District of Ohio.
As Lincoln recognizes, the mechanism this Court would have to use to transfer this case to the District of South Dakota is 28 U.S.C. § 1404(a). This statute states that, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Lincoln asserts that, having obtained jurisdiction over Mann's case pursuant to § 1407 transfer, and in light of Mann's waiver of his § 1407(a) right to remand of his case back to Minnesota, this Court has full jurisdiction over Mann's case and may transfer it pursuant to § 1404.
The Court concludes, however, that when the district court is an MDL transferee court, a § 1404 transfer is completely unavailable due to the interplay of § 1404 and § 1407, and Mann's agreement to try his case in the Northern District of Ohio does not change this result. The Supreme court examined this interplay in Lexecon, after the MDL transferee court used § 1404 to transfer the case to itself — thereby avoiding the requirement that each case transferred to an MDL court pursuant to § 1407 be "remanded . . . to the district from which it was transferred." The Lexecon court concluded that "the straightforward language [in § 1407] imposing the [MDL] Panel's responsibility to remand . . . bars recognizing any self-assignment power in a transferee court [pursuant to § 1404]." Lexecon, 523 U.S. at 40. The Supreme Court held that the directive contained in § 1407 to remand the case back to the transferor court is an "unconditional command" that "normally creates an obligation impervious to judicial discretion." Id. at 35-36.
Lincoln contends that Lexecon is not applicable here, for two reasons. First, this Court would not be using § 1404(a) to transfer Mann's case to itself, as occurred in Lexecon; rather, it would be transferring the case to the District of South Dakota. And second, when Mann earlier consented to trial in the Northern District of Ohio, he effectively consented to self-assignment by the Court pursuant to § 1404(a), and this consent now allows the Court to use § 1404(a) again to transfer Mann's case anywhere else the statute permits.
The Court finds neither of these arguments persuasive. The Lexecon court found that "the statutory language of § 1407 precludes a transferee court from granting any § 1404(a) motion." Lexecon, 523 U.S. at 41 n. 4 (emphasis added). This plain statement includes a § 1404(a) motion seeking not only self-transfer from an MDL court to itself, but also to any other court. Further, Mann's consent to trial in the Northern District of Ohio was not a consent to "self-assignment" under § 1404, it was a waiver of his right to remand for trial under § 1407. Mann's choice under § 1407 was to return to Minnesota for trial, or remain where he was in Ohio, and he chose the latter; § 1404, and its analysis of "convenience of parties and witnesses," was never implicated. Mann's § 1407 waiver did not free the Court to invoke § 1404 the next day, or at any later time.
In sum, Lexecon holds that, even if this Court wanted to, it cannot use § 1404(a) to transfer Mann's case to South Dakota — or to itself, or anywhere else. Accordingly, the Court must deny Lincoln's request.
This leaves retrial venue options of Minnesota, which Mann wants, or Ohio, which Lincoln wants in the alternative. Mann relies on both § 1407 and § 1404 to support his argument that his case should be transferred to Minnesota. For the reasons already stated, § 1404 provides no such authority. This leaves the question of whether remand to Minnesota is appropriate pursuant to § 1407.
In an argument similar to the one made by Lincoln, Mann asserts that, by virtue of his earlier waiver of his right to a § 1407 remand, "this Court is no longer acting in its capacity solely as an MDL court, but as the trial court as well;" accordingly, the Court can rely on § 1404(a) and should conclude Minnesota would be the trial venue most convenient for the parties and witnesses, and in the best interests of justice. As noted, the Lexecon court dismissed a similar argument. See Lexecon, 536 U.S. at 37 (rejecting the argument that "the [§ 1407] imperative to remand is . . . inapplicable to cases self-assigned under § 1404, because the self-assignment `terminates' the case insofar as its venue depends on § 1407"). That this Court became the trial court by virtue of Mann's waiver of objection to improper venue did not eviscerate its separate "impervious obligations" as MDL Court under Lexecon.
Further, both Mann and Lincoln rely on this Court's earlier ruling in Solis, 2006 WL 266530, to support the argument that this Court may rely on § 1404. But in Solis, this Court simply said that a plaintiff may waive his right to remand under § 1407; the Court discussed Lexecon at length and made no suggestion that, once Solis waived his right to remand and elected to try his case before the MDL Court, the MDL Court then acquired the power to invoke § 1404. Neither Solis nor Mann waived objections to venue other than the right to a § 1407 remand from the MDL Court to the transferor court, and Lexecon trumps any argument that this Court may rely on § 1404 (with the possible exception of unanimous stipulation by all parties to another particular venue).
The parties' positions on this question are straightforward. Mann asserts that, if this Court "finds it does not have authority to transfer [this] case to the District of Minnesota pursuant to 28 U.S.C. § 1404(a)," then the Court is obligated to "enter a suggestion of remand pursuant to 28 U.S.C. § 1407." Motion (docket no. 203) at 12. Lincoln responds that Mann waived his right to a § 1407 remand when he proceeded to trial in front of Judge Dowd, and this waiver makes Mann's current motion for § 1407 remand for retrial "unnecessary and inappropriate." Response brief (docket no. 205) at 16. Essentially, Lincoln argues Mann's earlier waiver of a right to § 1407 remand should remain binding.
The primary focus of both parties' briefs was on § 1404(a) and the factors a Court must weigh when assessing the propriety of transfer to another Court for the convenience of the parties and witnesses. The parties spent much less time arguing § 1407, and cited no case law related to the question of the continuing viability of a waiver of objection to improper venue. Ultimately, the Court is left to weigh the following factors: Lexecon. Welding Fume Welding Fume
The Court's own research uncovered no useful case-law on this point.
It is clear that the originating, transferor court may grant a motion to transfer venue, pursuant to § 1404(a), after the transferee court has remanded the case to the originating court, pursuant to § 1407(a); but the transferee court may not skip a step and grant a § 1404(a) transfer itself. See Solis, 2006 WL 266530 at *3 n. 13; Lexecon, 523 U.S. at 39 ("[O]n any view of § 1407(a), if an order may be made under § 1404(a), it may be made after remand of the case to the originating district court. The relevant question for our purposes is whether a transferee court, and not a transferor court, may grant such a motion.") (footnote omitted).
It is worth noting that courts in the District of Minnesota have entered orders sua sponte to show cause why cases filed by foreign plaintiffs should remain in Minnesota — essentially demanding the parties undertake a § 1404(a) analysis, even without any motion by a defendant.
There surely will be other Welding Fume bellwether cases tried in the Northern District of Ohio (including the Street case, scheduled for trial in November of this year). There is no overwhelming reason why Mann must be one of them, and there are good reasons why retrial of the Mann case should occur in another jurisdiction. Accordingly, the Court will file with the MDL Panel a suggestion of remand to the transferor court, pursuant to § 1407. Whether retrial finally occurs in Minnesota, or instead some other jurisdiction following a subsequent § 1404(a) transfer, is a question for the transferor court.