Casey et al v. Denton et al

Filing 110

ORDER: For the reasons set forth in the attached Order, this case is REMANDED to the Circuit Court of St. Clair County, Illinois, for all further proceedings. Signed by Judge Nancy J. Rosenstengel on 2/28/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEBBIE FOSTER,
Plaintiff,
vs.
GREGORY MCEWEN,
and MCEWEN LAW FIRM, LTD.,
Defendants.

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Case No. 3:17-CV-521-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court for case management purposes, having been
transferred to the undersigned District Judge on December 18, 2018, following Judge
David R. Herndon’s retirement (Doc. 103). For the reasons set forth below, the Court
remands this matter to state court.
BACKGROUND
This legal malpractice lawsuit stems from work performed (or not performed) by
certain plaintiffs’ attorneys in the Yaz multi-district litigation (“MDL”). See In re Yasmin
and YAZ (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, MDL
2100, No. 3:09-md-02100-DRH-CJP. Both the Yaz MDL and this subsequent malpractice
action initially were assigned to Judge Herndon. While the Yaz MDL concluded prior to
Judge Herndon’s retirement, this ongoing matter was transferred to the undersigned for
further proceedings.
In the underlying MDL, plaintiffs claimed Yaz manufacturer Bayer Healthcare
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Pharmaceuticals, Inc., knew or should have known that Yaz birth control had serious
health risks associated with its use, yet failed to warn individuals and their health care
providers of those risks (Doc. 74, p. 13). Plaintiff Debbie Foster, who used Yaz and
subsequently suffered a suffered a pulmonary embolism in January 2011, retained
Defendants Gregory McEwen and the McEwen Law Firm, Ltd., to represent her in the
Yaz litigation (Id., ¶ 46).
To help manage the litigation, Judge Herndon appointed a Plaintiffs’ Steering
Committee (PSC) and granted certain responsibilities to a select number of attorneys
chosen to represent the common interests of all plaintiffs in the MDL (Doc. 74-2). Fourteen
lawyers were appointed to the PSC, which Judge Herndon separated into two subgroups: Co-Lead Counsel and Liaison Counsel (Id.). Defendants in this case were not
members of the PSC.
After a number of Yaz MDL cases were settled, Judge Herndon entered Case
Management Order No. 79 (“CMO No. 79”), which placed the remaining unresolved
cases (including Foster’s case) on separate litigation tracks. CMO No. 79 also ordered
plaintiffs to comply with various deadlines and provide specified documents to Bayer,
including a Plaintiff Fact Sheet, certain medical and pharmacy records, and an expert
report addressing whether Yaz caused the plaintiff's injury (Doc. 74-3). The Defendants
in this case were given notice of CMO No. 79 via the Case Management/Electronic Case
Filing (“CM/ECF”) system, which notifies attorneys of record of filings (Doc. 74, p. 19).
CMO No. 79 provided that plaintiffs who failed to comply with certain obligations would
be subject to a motion to dismiss with prejudice (Doc. 74, p. 20). CMO No. 79 did not
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place any responsibilities on Lead or Liaison counsel.
On December 17, 2015, Bayer moved to dismiss 44 individual plaintiffs, including
Foster, for failure to comply with CMO No. 79. Bayer’s motions seeking dismissal were
filed in each delinquent plaintiffs’ personal case file, not in the Yaz MDL master docket.
See Case No. 3:14-cv-10003-DRH-PMF, Doc. 6. Defendants did not respond to Bayer’s
motion to dismiss on behalf of their client, and the Court dismissed Foster’s claims with
prejudice on January 11, 2016. See id. at Docs. 7, 8. Defendants also did not file any motions
to reconsider, to alter judgment, or to appeal after the case was dismissed. See id.
On May 8, 2017, Foster—along with now-dismissed Plaintiffs Melody Edwards
and Jessica Casey—filed a putative class action complaint alleging legal malpractice in
the Circuit Court of St. Clair County, Illinois (Doc. 1-2). Among the defendants were Lead
and Liaison counsel and their respective law firms, as well as the Plaintiffs’ individually
retained attorneys and their law firms (Id.). Plaintiffs alleged that Defendants failed to
respond to Bayer’s discovery and subsequent motion to dismiss, as mandated by CMO
No. 79 (Doc. 74, p. 3). They further asserted that Defendants knew or should have known
that their individual claims would be dismissed with prejudice due to their failure to
comply with CMO No. 79 or respond to Bayer’s motion to dismiss (Doc. 74, p. 21).
Because of the dismissal with prejudice, Plaintiffs claimed they lost any right or remedies
they would have had against Bayer.
On May 16, 2017, certain Defendants removed the malpractice action to federal
court asserting the Court has original jurisdiction over the matter because it “call[s] on
the Court to reach determinations regarding the nature of, and the extent of, the duties of
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lead and liaison counsel in federal multidistrict litigation, appointed by a federal court,
pursuant to federal statute” as well as the “interpretation of how those duties were
exercised pursuant to orders” of the Court (Doc. 1). Plaintiffs subsequently moved to
remand claiming that the Class Action Fairness Act (“CAFA”) governed and that removal
was improper because the action failed to meet the jurisdictional requirement of more
than 100 plaintiffs (Doc. 18).
Judge Herndon denied Plaintiffs’ motion to remand, finding that CAFA did not
apply and holding that “whether Lead/Liaison counsel owed plaintiffs a duty turns on
a federal question essential to the resolution of plaintiffs’ claims.” (Doc. 53, p. 8). Judge
Herndon found that the determination of the MDL leadership counsel’s duties would
require the Court to resolve an issue of federal law and “necessarily implicates the federal
system as a whole.” (Id.). He further found that federal jurisdiction over the cause of
action would not disrupt the federal-state court balance because Illinois courts do not
have any interest in how federal courts organize and manage MDLs (Id., p. 11). Finding
that the Court had original jurisdiction over the claims against Lead and Liaison counsel,
Judge Herndon then exercised supplemental jurisdiction over the state law malpractice
claims against Plaintiffs’ individually retained counsel (Id., p. 12).
On September 4, 2018, Judge Herndon granted a Motion for Judgment on the
Pleadings filed by Lead and Liaison counsel, finding they owed no fiduciary duties to
Plaintiffs (Doc. 93). That order dismissed the class action allegations, leaving only the
Plaintiffs’ individual claims against their retained counsel, i.e., the claims over which the
Court exercised supplemental jurisdiction (Id.).
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On November 29, 2018, Edwards voluntarily dismissed her claims against her
retained counsel (Doc. 101). Likewise, on February 27, 2019, Casey filed a stipulation of
dismissal as to her claims against her retained counsel (Doc. 108). Accordingly, only
Foster’s state law legal malpractice claims against Defendants Gregory McEwen and
McEwen Law Firm, Ltd., remain in this case (Id.).
DISCUSSION
As noted above, this case was transferred to the undersigned District Judge on
December 19, 2018. After thoroughly reviewing the matter, the Court declines to exercise
supplemental jurisdiction over Foster’s state law legal malpractice claim.
Under 28 U.S.C. § 1367(c)(3), a district court “may decline to exercise supplemental
jurisdiction” over state-law claims if the court “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). “A district court’s decision whether to
exercise that jurisdiction after dismissing every claim over which it had original
jurisdiction is purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009). Although the decision is discretionary, “[w]hen all federal claims in a suit in
federal court are dismissed before trial, the presumption is that the court will relinquish
federal jurisdiction over any supplemental state-law claims.” RWJ Mgmt. Co. v. BP Prod.
N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (quoting Al’s Serv. Ctr. v. BP Prods. N. Am.,
Inc., 599 F.3d 720, 727 (7th Cir. 2010)). While the presumption is rebuttable, “it should not
be lightly abandoned, as it is based on a legitimate and substantial concern with
minimizing federal intrusion into areas of purely state law.” Id. (quoting Khan v. State Oil
Co., 93 F.3d 1358, 1366 (7th Cir. 1996)).
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Here, the claims over which there was original jurisdiction have been dismissed,
and all that is left is a single legal malpractice claim—an issue purely of Illinois state law.
Thus, the presumption is that this case would return to state court. And the facts of this
matter support a remand to St. Clair County. Few resources have been expended by the
Court in overseeing this claim or by the parties involved, as discovery was stayed while
Judge Herndon determined the liability of Lead and Liaison counsel. Furthermore, a
motion to dismiss and a motion for summary judgment, both based on Illinois law, are
still pending, which gives an Illinois court an opportunity to interpret Illinois law. The
Court also notes that while Judge Herndon may have had a special interest in deciding
the supplemental claims in this case, given his years of experience overseeing the MDL,
the undersigned lacks any connection to the Yaz litigation or the parties in this matter.
In sum, there simply is no longer any reason for this federal court to wade into
areas of Illinois state law. For these reasons, the Court concludes that state court is the
more appropriate forum for this case. Accordingly, the Court REMANDS this matter the
Circuit Court of St. Clair County, Illinois, for all further proceedings.
IT IS SO ORDERED.
DATED: February 28, 2019
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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