National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation - Single Sport/Single School (Football)
Filing
441
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 10/4/2023: The SEC's motion to dismiss for lack of jurisdiction and motion for final judgment under Rule 54(b) are granted. The clerk shall enter separate judgment orders dismissing the SEC from each of these cases without prejudice for lack of personal jurisdiction. [For further detail see attached order.] Notices mailed. (psm, )
Case: 1:16-cv-08727 Document #: 441 Filed: 10/04/23 Page 1 of 18 PageID #:3044
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MDL No. 2492
Case No. 16 CV 8727
IN RE: NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION STUDENTATHLETE CONCUSSION INJURY
LITIGATION-SINGLE SPORT/SINGLE
SCHOOL (FOOTBALL)
16 CV 7320 (Hermann)
16 CV 7323 (Miller)
16 CV 7324 (Owens)
16 CV 9971 (Davison)
16 CV 9974 (Ford)
16 CV 9992 (Bozeman)
17 CV 3960 (Williams)
17 CV 7554 (Calleja)
Judge Manish S. Shah
MEMORANDUM OPINION AND ORDER
Plaintiffs are former college football players who have sued the Southeastern
Conference based on theories of negligence, fraudulent concealment, breach of
contract, and unjust enrichment, all arising out of the conference’s alleged failure to
adopt and implement adequate concussion treatment, concussion management safety
protocols, and return-to-play guidelines.
Judge Lee previously dismissed all claims brought by sample-case plaintiff
Jamie Richardson against the SEC because the conference was not subject to personal
jurisdiction in Indiana. Richardson v. Se. Conference, 612 F.Supp.3d 753 (N.D. Ill.
2020). Without opposition from Richardson, Judge Lee entered final judgment
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pursuant to Federal Rule of Civil Procedure 54(b). Richardson, 16-cv-9980, [98]–
[100]. 1 Richardson did not appeal.
The SEC now moves to dismiss eight additional cases for lack of personal
jurisdiction under Rule 12(b)(2) and to enter final judgment dismissing the SEC from
each case under Rule 54(b). The SEC argues that four of the eight cases have fact
patterns identical to Richardson and the other four have minor factual differences
from Richardson that do not affect the jurisdictional analysis. [431] at 8–9. I agree
with the SEC and with Judge Lee’s analysis in Richardson. For the reasons set forth
below, the SEC’s motion is granted.
I.
Background
Plaintiffs all played football at SEC member institutions. 2 Bozeman, [1] ¶ 77
(University of Mississippi from 2001–2005); Davison, [1] ¶ 78 (Mississippi State from
1974–1978); Ford, [1] ¶ 77 (University of Kentucky from 2005–2009); Hermann, [1]
¶ 77 (University of Georgia from 1984–1986); Miller, [1] ¶ 76 (Auburn University
from 1996–1998); Owens, [1] ¶ 78 (University of Tennessee from 2000–2003); Calleja,
[1] ¶ 24 (Auburn University from 1971–1973); Williams, [1] ¶ 24 (University of
Alabama from 1999–2004).
Bracketed numbers without reference to a specific plaintiff refer to entries on the district
court master docket, No. 16-CV-8727. Bracketed numbers with reference to a specific plaintiff
refer to entries on the district court docket in that plaintiff’s case. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings.
1
The facts are taken from the eight plaintiffs’ complaints and the declaration of Mark
Womack, [431-1], attached to the SEC’s motion to dismiss, [431]. Where plaintiffs have made
identical allegations, I cite to one of the complaints as an example.
2
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During practices and games, plaintiffs all suffered repetitive concussive and
subconcussive hits. Bozeman, [1] ¶¶ 78, 80. Plaintiffs allege that during their time as
student-athletes, the SEC failed to put in place adequate concussion treatment,
concussion management safety protocols, and return-to-play guidelines. Bozeman, [1]
¶¶ 79–80. Plaintiffs were quickly put back into games and practices or were
dismissed to recuperate on their own without medical care despite their injuries.
Bozeman, [1] ¶ 81. Plaintiffs allege that the SEC knew at the time that such
treatment, protocols, and guidelines were necessary to monitor, manage, and
mitigate the risks associated with head injuries. Bozeman, [1] ¶ 82. At least one
plaintiff ultimately stopped playing football because of the repeated concussions he
sustained. Ford, [1] ¶ 83. As a result, plaintiffs now suffer from severe daily
headaches, memory loss, dizziness, and other debilitating symptoms. Bozeman, [1]
¶ 83.
The SEC consists of fourteen member institutions located in Alabama,
Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, South
Carolina, Tennessee, and Texas. 3 Bozeman, [1] ¶ 17. The SEC is one of the most
financially successful and most victorious conferences in history—in 2015 alone, the
SEC distributed $455 million to its member schools. Bozeman, [1] ¶ 17; cf. Calleja,
[1] ¶ 17 (alleging the SEC has collected over $2.6 billion in revenue since it was
The SEC’s fourteen member institutions are: Auburn University, Louisiana State
University, Mississippi State University, Texas A&M University, University of Alabama,
University of Arkansas, University of Florida, University of Georgia, University of Kentucky,
University of Mississippi, University of Missouri, University of South Carolina, University
of Tennessee, and Vanderbilt University. [431-1] ¶ 6.
3
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formed). Together with the National Collegiate Athletic Association, the SEC
regulates member schools’ football programs. Bozeman, [1] ¶ 19.
The SEC is required to abide by the NCAA Constitution, which states that
their primary principle is to ensure that “[i]ntercollegiate athletics programs shall be
conducted in a manner designed to protect and enhance the physical and educational
well-being of student athletes.” Bozeman, [1] ¶¶ 24–25. To accomplish this purpose,
the NCAA has promulgated and implemented certain regulations and requirements
for its sports, such as the NCAA Constitution, Operating Bylaws, and Administrative
Bylaws, which provide detailed instructions on game and practice rules pertaining to
player well-being and safety. Bozeman, [1] ¶ 25. The NCAA also publishes a Sports
Medicine Handbook, which it updates every year. Bozeman, [1] ¶ 26. The Handbook
includes official policies for the treatment and prevention of sport-related injuries, as
well as return-to-play guidelines. Bozeman, [1] ¶ 26.
Concussions result from an impact that causes the brain to move around in the
skull, damaging the brain. Bozeman, [1] ¶ 34. Concussions cause a variety of
symptoms that may prevent concussed people from recognizing that they have
suffered a concussion. Bozeman, [1] ¶¶ 38–39. After a concussion, the brain needs
time, potentially up to two weeks, to heal to prevent further injury. Bozeman, [1]
¶¶ 40–41. Individuals who continue to experience concussion symptoms beyond a few
weeks are diagnosed with post-concussion syndrome. Bozeman, [1] ¶ 42.
Scientific research shows that the effects of concussions can be long-lasting.
Bozeman, [1] ¶ 43. The NCAA began conducting its own concussion-related studies
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in 2003, one of which concluded that football players who had previous sustained a
concussion were more likely to have future concussion-related injuries. Bozeman, [1]
¶ 56. Another NCAA study found that collegiate football players may require several
days to recover from a concussion. Bozeman, [1] ¶ 56.
Plaintiffs claim that the SEC was in a better position than they were to know
of and mitigate the risks of concussions and other traumatic brain injuries, Bozeman,
[1] ¶ 32, and that the SEC has known of the harmful effects of concussions and
subconcussive impacts for decades, Bozeman, [1] ¶¶ 60–61. Despite this knowledge,
plaintiffs allege the SEC actively concealed these facts from student-athletes and the
public. Bozeman, [1] ¶ 60. The SEC failed to adopt meaningful concussion
management and return-to-play protocols until 2010. 4 Bozeman, [1] ¶¶ 62, 71.
Plaintiffs assert state common law claims of negligence, fraudulent
concealment, breach of implied contract, breach of express contract, and unjust
enrichment against the SEC.
II.
Personal Jurisdiction
The SEC moves to dismiss plaintiffs’ complaints for lack of personal
jurisdiction under Rule 12(b)(2) based on Judge Lee’s prior ruling in the sample case,
Richardson v. Southeastern Conference, 16-cv-9980. When a defendant makes a
motion to dismiss for lack of personal jurisdiction, the plaintiffs have the burden of
demonstrating the court has personal jurisdiction over the defendant. Purdue
Plaintiffs allege that the protocols adopted in 2010 were and still are deficient. Bozeman,
[1] ¶¶ 71, 75.
4
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Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)
(citations omitted).
Generally, “[a] federal district court sitting in diversity must apply the
personal jurisdiction rules of the state in which it sits.” Kipp v. Ski Enter. Corp. of
Wis., 783 F.3d 695, 697 (7th Cir. 2015) (citation omitted). But, when a case has been
transferred under 28 U.S.C. § 1407 (as these eight have), “the transferee judge has
all the jurisdiction and powers over pretrial proceedings in the actions transferred to
him that the transferor judge would have had in the absence of transfer.” In re
Testosterone Replacement Therapy Prod. Liab. Litig. Coord. Pretrial Proceedings, 136
F.Supp.3d 968, 973 (N.D. Ill. 2015) (quoting In re FMC Corp. Patent Litig., 422
F.Supp. 1163, 1165 (J.P.M.L. 1976)). The cases at issue here were transferred by the
Judicial Panel on Multidistrict Litigation to this court from the Southern District of
Indiana and the Eastern District of California. [3]; [38]; [184]; [255]. Under Indiana
and California law, personal jurisdiction extends to the limits allowed by the Due
Process Clause of the Fourteenth Amendment. See Ind. Trial P. Rule 4.4(A); E&A
Holdings, LLC v. Leviton Mfg. Co., No. 18-cv-02400, 2018 WL 6659729, at *3 (S.D.
Ind. Oct. 24, 2018); Cal. Code Civ. Pro. § 410.10; Farina v. SAVWCL III, LLC, 50
Cal.App.5th 286, 294 (2d Dist. 2020). Therefore, the jurisdictional analyses under
Indiana law, California law, and federal due process are the same.
Two types of personal jurisdiction exist: general and specific. Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 ns. 8–9 (1984). General
jurisdiction exists where the defendant has continuous and systematic general
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business contacts with the forum. See id. at 416. Plaintiffs do not argue that there is
general jurisdiction over the SEC in either Indiana or California. I agree with Judge
Lee that there is no general jurisdiction over the SEC in Indiana, Richardson, 612
F.Supp.3d at 764–65, and further find there is no general jurisdiction over the SEC
in California. See [431-1] ¶¶ 6, 7, 8, 12 (attesting to the absence of regular contacts
with California).
“Specific personal jurisdiction is appropriate where (1) the defendant has
purposefully directed his activities at the forum state or purposefully availed himself
of the privilege of conducting business in that state, and (2) the alleged injury arises
out of the defendant’s forum-related activities.” Tamburo v. Dworkin, 601 F.3d 693,
702 (7th Cir. 2010) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
“[T]he nature of the purposeful-direction/purposeful-availment inquiry depends in
large part on the type of claim at issue.” Felland v. Clifton, 682 F.3d 665, 674 (7th
Cir. 2012) (citation omitted).
To be subject to specific jurisdiction, a defendant need only have sufficient
“minimum contacts with it such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
“Jurisdiction is proper ... where the contacts proximately result from actions by the
defendant himself that create a substantial connection with the forum State.” Burger
King, 471 U.S. at 475 (quotation omitted). Courts look to the defendant’s “conduct
and connection with the forum State” to determine if he should “reasonably anticipate
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being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980) (citation omitted).
A.
Hermann
Plaintiff Hermann’s complaint alleges that the SEC “conduct[s] significant
business in [the Eastern District of California], including establishing consumer and
business contracts [t]here.” Hermann, [1] ¶ 13. However, plaintiffs do not argue that
the SEC is subject to specific jurisdiction in California and put forth no facts to
support the conference’s contacts there. With no evidence that the SEC has any
contacts with California, let alone any related to Hermann’s claims, the SEC cannot
be subject to specific personal jurisdiction in California.
B.
Davison, Miller, and Calleja
Davison, Miller, and Calleja allege that the Southern District of Indiana has
personal jurisdiction over the SEC because it conducts significant business in the
district and the events and/or omissions giving rise to their claims occurred there.
Miller, [1] ¶ 13; Davison, [1] ¶ 13; Calleja, [1] ¶ 21. Yet, Davison, Miller, and Calleja
all allege nearly identical facts to those alleged in Richardson. Like Richardson, all
three played college football for SEC member institutions before the NCAA moved to
Indiana and never played college football in Indiana. Miller, [1] ¶ 76; Davison, [1]
¶ 78; Calleja, [1] ¶ 24 [431-1] ¶ 13. With no factual differences between the cases
other than when and where they played college football (which was not in Indiana),
Judge Lee’s jurisdictional analysis applies directly to Davison, Miller, and Calleja,
and I concur with his analysis. There is no specific personal jurisdiction over the SEC
in these three cases.
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C.
Bozeman, Williams, Owens, and Ford
Plaintiffs argue that the SEC is subject to specific jurisdiction in Indiana in
Bozeman, Williams, Owens, and Ford for three reasons. First, the SEC’s misconduct
allegedly occurred in significant part in Indiana where the SEC participated in
shaping NCAA rules and regulations on health and safety in collegiate football after
the NCAA moved its headquarters to Indiana in 2000. [432] at 2, 8–10. Second, the
SEC purposefully availed itself of Indiana by aiming television broadcasting at the
state. [432] at 10–11. And third, Owens and Ford played at least one football game in
Indiana as student-athletes. [432] at 11.
Despite these plaintiffs’ attempts to argue that these additional contacts in
their cases establish specific jurisdiction, these minor factual differences do not
materially distinguish their cases from Richardson.
First, plaintiffs argue that after the NCAA moved to Indiana in 2000, SEC
representatives travelled to Indiana to help shape the NCAA rules and regulations
at the heart of these lawsuits. [432] at 8. Plaintiffs cite to exhibits Richardson
attached to his brief in opposition to the SEC’s motion to dismiss, arguing that they
“carry more weight for Plaintiffs Bozeman, Williams, Owens, and Ford, who played
football while the NCAA was headquartered in Indiana.” [432] at 9. These exhibits
point to certain individuals from SEC member institutions who, according to
plaintiffs, served on “the key committees and working groups that have been
responsible for acting on (or failing to act on) the medical information about
concussion and traumatic brain injury risks to student athletes.” [432] at 9.
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Only two of the NCAA meetings presented by Richardson addressed
concussions. Richardson, [49-11] at 82. During the April 2017 meeting of the NCAA
Division I Strategic Vision and Planning Committee, the Sport Science Institute staff
“[p]rovided an update on the current 2017 Division I Concussion Safety Protocol
Review process and shared the two changes that were made to the concussion safety
protocol checklist that institutions will be using.” Richardson, [49-11] at 80. The
meeting notes state that “Jay Jacobs, Auburn University; Southeastern Conference”
was in attendance, but do not make clear that Jacobs was in attendance on behalf of
the SEC instead of Auburn University. Richardson, [49-11] at 82.
At the April 2017 meeting of the NCAA Division I Council, the council received
an update regarding the engagement of the NCAA’s governance structures on issues
of student-athlete health and safety issues. It also identified next steps, which
included, “[e]xamin[ing] identified football-related issues, including … concussion
data.” Richardson, [49-11] at 12. Mitch Barnhart of the “University of Kentucky;
Southeastern Conference” attended meeting. Richardson, [49-11] at 13. The meeting
report does not make clear that Barnhart was in attendance on behalf of the SEC
instead of the University of Kentucky, though Barnhart was the SEC voting delegate
on the NCAA Division I Council. See Richardson, [49-11] at 54–59. While these two
meetings did address concussions, they occurred in 2017—years after the plaintiffs
played football and were injured. Plaintiffs fail to connect these two SEC contacts
with the NCAA in Indiana to their specific claims.
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Plaintiffs also do not connect any of the other contacts to their claims. I agree
with Judge Lee’s finding that the contacts Richardson presented are not sufficient to
establish specific jurisdiction over the SEC in Indiana. Richardson, 612 F.Supp.3d at
765–66.
Plaintiffs present additional evidence of SEC contacts with the NCAA in
Indiana: the SEC commissioner participated in the NCAA Division I Football Study
Oversight Committee in 2002, which produced an 80-page report that covered topics
including student-athlete welfare. [432] at 9 (citing [433], Ex. 1-A at 3 (filed under
seal), Ex. 1-F, NCAA Letter to FSOC (filed under seal)). Yet, as the SEC points out,
this report and meeting were not focused on concussions or head injuries and are
unrelated to plaintiffs’ claims. [440] at 8–9. The student-athlete welfare
subcommittee had no SEC representative and offered recommendations limited to
out-of-season practice time limits, academic performance and graduation rates, use
of nutritional supplements, and gambling. [433], Ex. 1-A at 15–18 (filed under seal).
While plaintiffs’ allegations do include injuries that occurred during practice, the
report’s recommendations on out-of-season practice are related to heat-related
injuries, not head injuries. [433], Ex. 1-A at 15 (filed under seal).
Plaintiffs also argue that the Football Study Oversight Committee study
served as basis for a NCAA proposal meant to “minimize the health and safety risks
to student athletes.” [432] at 9 (citing [432-8] at 5). But, again, this proposal does not
relate to plaintiffs’ claims of head injuries and concussions, but instead aims to reduce
incidents of heat-related illness. [432-8] at 5–6.
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As to their contract and quasi-contract claims, plaintiffs do not argue that the
SEC did anything in Indiana that gave rise to these claims. See RAR, Inc. v. Turner
Diesel, Ltd., 107 F.3d 1272, 1278 (7th Cir. 1997) (“[I]n a breach of contract case, it is
only the dealings between the parties in regard to the disputed contract that are
relevant to minimum contacts analysis.”) (quotation omitted). Nor do plaintiffs point
to anything that SEC representatives did that might be relevant to those claims.
As for plaintiffs’ fraudulent concealment claims, where a plaintiff alleges an
intentional tort, like fraudulent concealment, “the inquiry focuses on whether the
conduct underlying the claim[] was purposely directed at the forum state.” Felland,
682 F.3d at 674 (quoting Tamburo, 601 F.3d at 702). Here, plaintiffs allege that the
SEC fraudulently concealed the risks caused by concussive and subconcussive
injuries in order to induce them to play football for SEC member institutions.
Bozeman, [1] ¶ 109. Plaintiffs allege that had they known what the SEC knew, they
would not have continued to play after a head injury, would have taken additional
precautions after sustaining such an injury, or would have quit football altogether.
Bozeman, [1] ¶ 112. Plaintiffs also allege that, until 2010, the SEC knowingly
withheld crucial information regarding the life-long consequences that repetitive
brain injuries could have on them. Bozeman, [1] ¶¶ 60–62. Nowhere do plaintiffs
allege that the SEC took any actions in Indiana or directed any actions specifically at
Indiana—by an authorized representative or otherwise—giving rise to this claim. See
Richardson, 612 F.Supp.3d at 766.
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The same is true with respect to plaintiffs’ negligence claims against the SEC.
Plaintiffs do not identify any actions by the SEC in Indiana or directed at Indiana
that can form the basis of this claim. And plaintiffs do not identify any actions taken
by the alleged SEC representatives that could be relevant to their negligence claims.
Second, plaintiffs argue that the SEC purposefully availed itself of Indiana by
broadcasting sports programming there, generating enormous profits while
concealing the dangers of repetitive head trauma. [432] at 10–11. The SEC does not
and has never operated a broadcast network. [431-1] ¶ 9. Instead, the SEC licenses
broadcast rights to SEC championships, “home” games, and member institutions’
events. [431-1] ¶ 9. The SEC’s efforts to license rights to television programming that
broadcasts in all fifty states is insufficient to justify personal jurisdiction in Indiana.
Richardson, 612 F.Supp.3d at 764. The SEC was not specifically targeting Indiana—
it licenses games to networks that broadcast in Indiana and all other states. Personal
jurisdiction cannot be based on activities that are conducted by a third party, not the
defendant itself. Walden v. Fiore, 571 U.S. 277, 284 (2014); see Bristol-Myers Squibb
Co. v. Superior Ct. of Cal., San Francisco Cnty., 582 U.S. 255, 268 (2017) (“The bare
fact that [defendant] contracted with a California distributor is not enough to
establish personal jurisdiction in the State.”); Donatelli v. Nat’l Hockey League, 893
F.2d 459, 471 (1st Cir. 1990) (holding that the National Hockey League’s negotiation
of telecasting contracts in Rhode Island was not enough to establish personal
jurisdiction). The SEC’s broadcast licensing contacts do not support specific
jurisdiction in Indiana.
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Third, plaintiffs argue that Owens and Ford played at least one college football
game in Indiana. [432] at 11. But the SEC was not involved in the organization of
these away games. [431-1] ¶ 12, 14. The SEC also did not have any broadcasting
rights or licensing rights to these football games against non-conference opponents.
[431-1] ¶ 14. Owens and Ford also do not connect these two games to their claims.
With the SEC’s lack of involvement in these games, the two games cannot support
specific jurisdiction over the SEC in Indiana.
Considering that none of these contacts suffice to show the SEC had contacts
in Indiana related to plaintiffs’ claims, even taking them collectively is not enough to
support specific personal jurisdiction over the SEC in Indiana. Further, as plaintiffs
have failed to make a colorable showing of personal jurisdiction, plaintiffs’ request to
take jurisdictional discovery, [432] at 12–13, is denied. See Cent. States, Se. & Sw.
Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir. 2000).
III.
Plaintiffs’ Request for Transfer
Plaintiffs ask to transfer the cases to appropriate venues pursuant to 28 U.S.C.
§ 1631 or 28 U.S.C. § 1406, if I find that Indiana and California courts cannot assert
jurisdiction over the SEC. [432] at 13–16, 13 n. 6.
I deny this request. Under Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998), an MDL transferee court does not have the authority to
transfer a consolidated case. Lexecon held that a district court to which cases have
been transferred pursuant to 28 U.S.C. § 1407 for pretrial proceedings cannot, after
conclusion of the pretrial proceedings, transfer the case to itself for trial under 28
U.S.C. § 1404(a). 523 U.S. at 40.
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“Although Lexecon’s holding applies explicitly only to § 1404(a)—the only
statute under which the transferee district court in that case purported to transfer
venue—Lexecon’s reasoning applies equally to transfers pursuant to any venue
statute.” Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 90 (2d Cir. 1998); see also
Kalama v. Matson Navigation Co., Inc., 875 F.3d 297, 308 (6th Cir. 2017) (finding the
transferor court “correctly held that it had no authority to transfer plaintiffappellants’ claims to a district with proper jurisdiction” under Lexecon). The language
of 28 U.S.C. § 1407(a) unconditionally commands that any transfer actions be taken
solely by the JPML. Lexecon, 523 U.S. at 34–36. “[N]o exercise in rulemaking can
read … out of the statute” the JPML’s obligation to remand each action to its
respective transferee court at or before the conclusion of pretrial proceedings.
Lexecon, 523 U.S. at 37.
Even if I were able to transfer the cases, transfer under § 1631 or § 1406 is only
warranted if it is in the interest of justice. Plaintiffs argue that it is in the interest of
justice to transfer the cases because there is a risk that plaintiffs’ claims will be time
barred if dismissed and then re-filed in appropriate jurisdictions. [432] at 14–15.
While plaintiffs argue that “the lapse in time in challenging jurisdiction was not
the[ir] fault,” [432] at 14, the March 2020 decision in Richardson, as a sample case,
should have served as a warning that plaintiffs needed to cure the jurisdictional
deficiencies in their complaints. Plaintiffs were on notice that the rationale of the
sample case would apply to others. Recommending remand back to a federal court
that does not have jurisdiction over the SEC, so that it could transfer to a venue with
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jurisdiction might have been an appropriate step back when Judge Lee decided
Richardson. But plaintiffs did not suggest that procedure. After Richardson acceded
to judgment and did not appeal, the passage of time does not provide a reason to
deviate from the parties’ choice to rely on sample cases to set their expectations.
IV.
Rule 54(b) Dismissal
The SEC asks for entry of final judgment dismissing it under Rule 54(b). [431]
at 20. In a case involving multiple parties or more than one claim, “the court may
direct entry of a final judgment as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no just reason for delay.” Fed. R.
Civ. P. 54(b).
Entry of Rule 54(b) final judgment requires “two determinations: (1) that the
order in question was truly a ‘final judgment,’ and (2) that there is no just reason to
delay the appeal of the claim that was ‘finally’ decided.” Gen. Ins. Co. of Am. v. Clark
Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011) (citing Sears, Roebuck & Co. v. Mackey,
351 U.S. 427, 435–37 (1956)). “The goal of [the] analysis is to prevent ‘piece-meal
appeals’ involving the same facts.” Peerless Network, Inc. v. MCI Commc’ns Servs.,
Inc., 917 F.3d 538, 543 (7th Cir. 2019) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co.,
446 U.S. 1, 10 (1980)).
First, a judgment “must be ‘final’ in the sense that it is ‘an ultimate disposition
of an individual claim entered in the course of a multiple claims action.’” CurtissWright, 446 U.S. at 7 (quoting Sears, 351 U.S. at 436). Determining whether a
judgment is properly appealable under Rule 54(b) “involves comparing the issues at
stake in the appealed claims and those remaining in the district court.” Marseilles
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Hydro Power, LLC, v. Marseilles Land & Water Co., 518 F.3d 459, 464 (7th Cir. 2008)
(citation omitted). To prevent piece-meal litigation, the Court should “consider such
factors as whether the claims under review [are] separable from the others remaining
to be adjudicated and whether the nature of the claims already determined [is] such
that no appellate court would have to decide the same issues more than once even if
there [are] subsequent appeals.” Curtiss-Wright, 446 U.S. at 8; see ODC Commc’ns
Corp. v. Wenruth Invs., 826 F.2d 509, 512 (7th Cir. 1987).
The judgment that there is no personal jurisdiction over the SEC in these eight
cases is final. The SEC is no longer involved in these cases. Entry of partial final
judgment when one or more defendants is dismissed for lack of personal jurisdiction
is appropriate. Smith v. Jefferson Cnty. Bd. of Educ., 378 F.App’x 582, 586 (7th Cir.
2010); Illinois Bell Tel. Co. v. Glob. NAPs Illinois, Inc., 551 F.3d 587, 596 (7th Cir.
2008); Vioski v. Calaveras Asbestos, Ltd., 929 F.2d 352, 352 (7th Cir. 1991); see also
Lauderdale-El v. Indiana Parole Bd., 35 F.4th 572, 577 (7th Cir. 2022) (holding
dismissals for lack of personal jurisdiction are necessarily without prejudice (citing
Rogers v. City of Hobart, 996 F.3d 812, 817 (7th Cir. 2021))).
The issue decided here, whether there is personal jurisdiction over the SEC in
Indiana and California, is separable from plaintiffs’ other remaining claims and
would not require the appellate court to decide the same issues more than once even
if there are subsequent appeals. Therefore, the SEC’s request for Rule 54(b) final
judgment is appropriate and granted.
17
Case: 1:16-cv-08727 Document #: 441 Filed: 10/04/23 Page 18 of 18 PageID #:3061
V.
Conclusion
For the reasons set out above, the SEC’s motion to dismiss for lack of
jurisdiction and motion for final judgment under Rule 54(b) are granted. The clerk
shall enter separate judgment orders dismissing the SEC from each of these cases
without prejudice for lack of personal jurisdiction.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: October 4, 2023
18
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