Salemy v. Biomet, Inc. et al

Filing 35

OPINION AND ORDER: DENYING the plaintiffs motion to file a late motionto vacate transfer 15 and motion to vacate and remand 16 ; DENYING the defendants motion for sanctions 23 . This case is DISMISSED under Federal Rule of Civil Procedure 41(a)(1) pursuant to the plaintiffsnotice of voluntary dismissal 17 . ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 3/18/15. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHERYL SALEMY,
Plaintiff
vs.
BIOMET, INC. and
SEACOAST BIOMET, INC.,
Defendants

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CAUSE NO. 3:15-CV-21 RLM

OPINION and ORDER
Cheryl Salemy’s first complaint was filed in this court in March 2014 as
Cause No. 3:14-CV-654, naming Biomet, Inc. as the only defendant. The case was
stayed on pending revision surgery, and on September 19, I dismissed the case
without prejudice pursuant to a joint stipulation signed by Thomas Anapol and
Mark Lanier as counsel for Ms. Salemy; plaintiff’s local counsel Howard Ross
didn’t sign that stipulation.
Ms. Salemy filed a second complaint in Massachusetts state court in
November 2014, naming Biomet, Inc. and Seacoast Biomet, Inc. (a Massachusetts
distributor) as defendants. Ms. Salemy’s claims include breach of the MDL
settlement agreement by Biomet and breach of implied warranties by Biomet and
Seacoast Biomet.
The Biomet defendants filed a notice of removal of the state court action on
December 17, 2014; Ms. Salemy objected to the conditional transfer order on

December 23; and on December 24, the MDL Panel directed Ms. Salemy to file a
motion to vacate and supporting brief by January 7, 2015. When she filed no
motion or brief by that date, the case was transferred to this court on January 12.
On January 16, Ms. Salemy filed (1) a motion to reconsider and permit her
to file a late brief, and (2) a motion to vacate the removal. The motions were filed
in this court, but contained the captions, “Before the United States Judicial Panel
on Multidistrict Litigation.” Before any rulings were entered in this court1, Ms.
Salemy filed a Notice of Voluntary Dismissal without prejudice “to her right to refile this action in the Norfolk Superior Court in Massachusetts where it was
originally commenced and from which court this action was wrongfully removed.”
Notice (docket # 17, dated Jan. 19, 2015). Neither Biomet nor Seacoast Biomet
had filed an answer when Ms. Salemy filed her dismissal notice.
The Biomet defendants then filed a combined response to Ms. Salemy’s
motions to reconsider and to vacate and her notice of dismissal, and a motion for
sanctions, in which they ask the court to require plaintiff’s local counsel to pay
the defendants’ attorneys’ fees, costs, and expenses “reasonably incurred because
of his improper conduct.” Sanctions Memo., at 2 (citing 28 U.S.C. § 1927).
I held a hearing on March 16 to address the plaintiff’s motions to reconsider
and vacate, the defendants’ motion for sanctions, and the effect of Ms. Salemy’s
notice of dismissal. Howard Ross appeared telephonically and represented Ms.

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The court has no information about the status of the motions with the MDL Panel.

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Salemy; Erin Hanig, John LaDue, and John Winter were present in person and
represented the defendants. At the end of the hearing, I took the motions under
advisement. This Opinion and Order addresses the parties’ written and oral
arguments on each of the motions.

Discussion
Following the transfer of Ms. Salemy’s complaint to this court as part of
3:12-md-2391, she moved to vacate the Panel’s transfer order and to vacate the
CTO and remand the case to the District of Massachusetts. Those motions lie
outside my authority. Only the Panel has the authority to reconsider its own
transfer order; a transferee court has no such authority. But Ms. Salemy’s
motions would have been denied even if she had timely filed them with the Panel.
Ms. Salemy argues that this case shouldn’t even have been in front of the Panel
because federal jurisdiction under 28 U.S.C. § 1332 is lacking: one of the
defendants is, like Ms. Salemy, a citizen of Massachusetts.
The Panel doesn’t vacate CTOs because removal was improper or because
federal jurisdiction is missing. See In re Darvocet, Darvon and Propoxyphene
Prods. Liab. Litig., 939 F. Supp. 2d 1376, 1377 (Jud.Pan.Mult.Lit. 2013) (“We have
often held . . . that jurisdictional issues, such as a claimed lack of diversity or
absence of a federal question, do not present an impediment to transfer, as
plaintiffs can present such arguments to the transferee judge.”); In re: Helicopter
Crash Near Wendle Creek, British Columbia, on August 8, 2002, 542 F. Supp. 2d
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1362, 1363 (Jud.Pan.Mult.Lit. 2008) (“In considering transfer under Section 1407,
the Panel is not encumbered by considerations of in personam jurisdiction and
venue.”). Such issues would draw the Panel into decisions on the merits of the
cases it is considering centralizing, and the Panel carefully avoids such issues. See
In re New England Mut. Life Ins. Co. Sales Practices Litigation, 324 F. Supp. 2d
288, 292 (D.Mass. 2004) (“The statutory provision that governs multidistrict
litigation (28 U.S.C. § 1407) does not empower the MDL Panel to decide questions
going to the jurisdiction or the merits of a case.”); John T. McDermott, “The
Judicial Panel on Multidistrict Litigation,” 57 F.R.D. 215, 220 (1973) (“The sole
criteria for the transfer of related cases for coordinator or consolidated pretrial
proceedings is based on an almost subjective determination by the Panel as to
whether transfer will serve the convenience of parties and witnesses and will
promote the just and efficient conduct of the cases.”). If transfer is otherwise
appropriate under 28 U.S.C. § 1407, the Panel relies on the transferee judge to
sort out jurisdictional and removal issues. So even if I had the power to turn back
the clock and send this case to the Panel to rule on the motion to vacate the CTO,
the Panel would send it right back here.
For the same reasons, it seems likely that if Biomet removes the case now
pending in the Massachusetts state court, that case will follow the same path as
did this one: the Panel will issue a CTO and overrule any objection based on
improper removal or want of diversity, and that case will be in this MDL docket
in a matter of months.
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Biomet also seems to have the stronger argument on the meaning of the
Master Settlement Agreement. The MSA provides that a plaintiff who had revision
surgery to address an M2a device falls into one category, see MSA, ¶ 2(a) & (b),
and a plaintiff who had revision surgery to address a ReCap device falls into
another. See MSA, ¶ 2(b)(5) – (7). The latter provision is necessary to distinguish
between plaintiffs who had a complete M2a device and plaintiffs who had other
devices that incorporated a part of the M2a device, so Ms. Salemy’s case appears
to fall into that latter provision. But, in any event, a dispute over the amount a
plaintiff is to receive must go to mediation before it comes before me, see MSA, ¶
3, and this case hasn’t been to mediation.
I don’t have the authority to decide that issue because Ms. Salemy filed a
notice of dismissal of this case before either defendant filed an answer. A plaintiff
has a right to take that step under Federal Rule of Civil Procedure 41(a), and
regardless of how judicial economy might best be served, a district judge has no
authority to refuse a dismissal notice filed in accordance with Rule 41(a). See
Jenkins v. Village of Maywood, 506 F.3d 622, 624 (7th Cir. 2007) (“[U]nder Rule
41(a), the dismissal was effective immediately upon the filing of the Stipulation.”);
United States v. One 1997 E35 Ford Van, VIN: 1FBJS31VHB70844, No. 98 C
3548, 2010 WL 1172481, at *2 (N.D. Ill. Mar. 22, 2010) (“A voluntary dismissal
that satisfies the requirements of Rule 41(a)(1)(A) is effective upon filing and
divests the court of authority to impose conditions or exercise discretion.”). Thus,
this case should have been dismissed on or soon after January 19, when Ms.
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Salemy filed her notice of dismissal, and nothing that has happened since then
resurrects the case.
That leaves the motion for sanctions under 28 U.S.C. § 1927, which allows
a court to assess an award of fees and costs against a plaintiff who multiplies the
proceedings unreasonably and vexatiously. Dismissal of a case doesn’t defeat a
court’s authority to enter a sanctions order under § 1927, see Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 395 (1990) (“In our view, nothing in the language
of Rule 41(a)(1)(I), Rule 11, or other statute or Federal Rule terminates a district
court’s authority to impose sanctions after such a dismissal.”), but since the case
should have been dismissed on or shortly after January 19, it seems appropriate
for the court to resolve the sanctions motion from the perspective of January: in
other words, by asking whether Mrs. Salemy had unreasonably and vexatiously
multiplied the proceedings by January 19, 2015.
I don’t find that she did. If Ms. Salemy wanted the benefit of the MSA, it
would have been more logical for her to refile her case before me and to sue only
Biomet rather than including a non-diverse defendant who isn’t a party to the
MSA. But I can’t find that her choice of the less logical path unreasonably and
vexatiously multiplied the proceedings in the case; it only caused Biomet to file a
removal petition with a slightly greater degree of difficulty than usual and ready
itself to oppose a motion to vacate the conditional transfer order.
It might well be that proceeding with the third case now pending in the state
courts of Massachusetts could violate 28 U.S.C. § 1927, but that case isn’t before
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me.

Conclusion
For the foregoing reasons, I DENY the plaintiff’s motion to file a late motion
to vacate transfer [docket # 15] and motion to vacate and remand [docket # 16],
DENY the defendants’ motion for sanctions [docket # 23], and ORDER this case
dismissed under Federal Rule of Civil Procedure 41(a)(1) pursuant to the plaintiff’s
notice of voluntary dismissal [docket # 17].
SO ORDERED.
ENTERED:

March 18, 2014
/s/ Robert L. Miller, Jr.
Judge, United States District Court

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