In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 4533

OPINION & ORDER re: (4510 in 1:00-cv-01898-VSB, 401 in 1:14-cv-06228-VSB-DCF) MOTION to Remand to District Court for Eastern District of Pennsylvania. filed by The Commonwealth of Pennsylvania. For the foregoing reasons, Plaintiff's motion is DENIED and I decline to suggest that the Panel remand this action at this time. The Clerk of Court is respectfully directed to terminate the pending motion at Doc. 401. SO ORDERED. (Signed by Judge Vernon S. Broderick on 1/7/2019) Filed In Associated Cases: 1:00-cv-01898-VSB, 1:14-cv-06228-VSB-DCF(rro) Modified on 1/8/2019 (rro).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In Re: Methyl Tertiary Butyl Ether (“MTBE”) :
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Products Liability Litigation
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This document relates to:
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Commonwealth of Pennsylvania v. Exxon
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Mobil Corporation, et al., Case No. 14 Civ.
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6228 (VSB)
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Appearances:

Master File No. 1:00-1898
MDL 1358

Duane C. Miller
Michael D. Axline
Miller & Axline, P.C.
Sacramento, CA
Daniel Berger
Tyler E. Wren
Berger & Montague, P.C.
Philadelphia, PA
Stewart L. Cohen
Robert L. Pratter
Michael Coren
Cohen, Placitella & Roth, P.C.
Philadelphia, PA
James A. Donahue, III
Pennsylvania Office of Attorney General
Harrisburg, PA
M. Abbegael Giunta
Pennsylvania Governor’s Office of General Counsel
Harrisburg, PA
Counsel for Plaintiff Commonwealth of Pennsylvania
James A. Pardo
Lisa A. Gerson
McDermott Will & Emery LLP
New York, NY

OPINION & ORDER

1/7/2019

Anthony Bongiorno
McDermott Will & Emery LLP
Boston, MA
Counsel for Defendants Exxon Mobil Corporation
and ExxonMobil Oil Corporation
VERNON S. BRODERICK, United States District Judge:
Before me is Plaintiff’s motion requesting that I issue a suggestion of remand to the
Judicial Panel on Multidistrict Litigation (the “Panel”) recommending that this action be
remanded for all purposes to the United States District Court for the Eastern District of
Pennsylvania (the “Transferor Court”). (Doc. 401.) Because Plaintiff has failed to demonstrate
good cause to warrant remand, Plaintiff’s motion is DENIED.
Factual Background and Procedural History1
This consolidated multidistrict litigation (“MDL”) relates to the alleged contamination of
groundwater from various defendants’ use of the gasoline additive methyl tertiary butyl ether
(“MTBE”) and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water.
See In re MTBE Prods. Liab. Litig., MDL No. 1358 (SAS), 2015 WL 7758530, at *1 (S.D.N.Y.
Dec. 1, 2015). In this case, the Commonwealth of Pennsylvania alleges that Defendants’ use and
handling of MTBE has contaminated, or threatens to contaminate, groundwater within its
jurisdiction. Familiarity with the underlying facts is presumed for the purposes of this Opinion
& Order.2
On April 29, 2016, Judge Scheindlin3 entered Case Management Order No. 121 (“CMO

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The following factual summary is presented for background purposes only; I make no findings of fact and reach no
conclusions of law in Part I of my decision.

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A thorough recitation of the background facts related to this MDL is provided in United States District Court Judge
Shira A. Scheindlin’s decision In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 379 F. Supp.
2d 348, 364–67 (S.D.N.Y. 2005).
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Judge Scheindlin presided over this case before it was reassigned to me on May 16, 2016.

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121”) directing the parties to “engage in full non-site-specific discovery” and “to develop a
process to select focus sites.” (Doc. 291.) On June 19, 2018, Magistrate Judge Freeman, to
whom this case has been referred for general pretrial matters including discovery, entered Case
Management Order No. 125 (“CMO 125”) which “memorializes the parties’ joint agreements on
several issues.” (Doc. 397.) CMO 125 sets forth a schedule for the completion of certain
discovery. In particular, CMO 125 provides that certain previously-noticed Federal Rule of Civil
Procedure 30(b)(6) depositions shall be completed by November 28, 2018, Plaintiff’s production
of certain electronically stored information shall be completed by November 1, 2018, Defendants
shall serve any additional Rule 30(b)(6) deposition notices by April 30, 2019, Plaintiff shall
complete its production of ESI responsive to the additional Rule 30(b)(6) deposition notices by
June 14, 2019, and all non-site-specific discovery shall be completed by November 30, 2019.
(See id.)
Legal Standard
The ultimate authority for remanding an action transferred for multidistrict litigation lies
with the Panel itself. See 28 U.S.C. § 1407(a). The remand process is typically initiated when a
transferee court recommends remand of an action to the transferor court by filing a suggestion of
remand with the Panel. R.P.J.P.M.L. 10.1(b). While the Panel is generally “reluctant to order a
remand absent the suggestion of the transferee judge,” id. at 10.3(a), the Panel may also remand
an action upon its own initiative or motion of any party, id. at 10.1(b). “In considering the
question of remand, the Panel has consistently given great weight to the transferee judge’s
determination that remand of a particular action at a particular time is appropriate because the
transferee judge, after all, supervises the day-to-day pretrial proceedings.” In re Baseball Bat
Antitrust Litig., 112 F. Supp. 2d 1175, 1177 (J.P.M.L. 2000) (quoting In re Holiday Magic Sec.

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& Antitrust Litig., 433 F. Supp. 1125, 1126 (J.P.M.L. 1977)); see also In re Brand-Name
Prescription Drugs Antitrust Litig., 264 F. Supp. 2d 1372, 1376 (J.P.M.L. 2003) (“A transferee
judge’s suggestion of remand to the Panel is an obvious indication that he has concluded that the
game no longer is worth the candle (and, therefore, that he perceives his role under section 1407
to have ended).”). “In determining whether to issue a suggestion of remand to the Panel, the
Court is guided by the standards for remand employed by the Panel.” In re State St. Bank & Tr.
Co. Fixed Income Funds Inv. Litig., No. 08 Civ. 5440(RJH), 2011 WL 1046162, at *3–4
(S.D.N.Y. Mar. 22, 2011) (internal quotation marks omitted).
If “pretrial proceedings have run their course,” the Panel is obligated to remand any
pending cases to their originating courts, an obligation that is “impervious to judicial discretion.”
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34–35 (1997); see also 28
U.S.C. § 1407(a) (any action “transferred [to a multidistrict litigation] shall be remanded by the
panel at or before the conclusion of such pretrial proceedings to the district from which it was
transferred”). When “everything that remains to be done is case-specific,” it does not necessarily
mean that “consolidated proceedings have concluded”; nevertheless, “the Panel has the
discretion to remand a case” at that point. In re Patenaude, 210 F.3d 135, 145 (3d Cir. 2000);
see also In re FedEx Ground Package Sys., Inc. Emp’t Practices Litig., No. 3:05-MD-527 RM,
2010 WL 415285, at *2 (N.D. Ind. Jan. 22, 2010) (“The plain language of section 1407 accords
the Panel discretion to remand cases before the conclusion of pretrial proceedings, and courts
routinely have read the statute in that flexible fashion.” (quoting In re Brand-Name Prescription
Drugs Antitrust Litig., 264 F. Supp. 2d at 1375)). This is because “[i]t is not contemplated that a
Section 1407 transferee judge will necessarily complete all pretrial proceedings in all actions
transferred and assigned to him by the Panel, but rather that the transferee judge . . . will conduct

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the common pretrial proceedings . . . and any additional pretrial proceedings as he deems
otherwise appropriate.” In re Evergreen Valley Project Litig., 435 F. Supp. 923, 924 (J.P.M.L.
1977).
“The Court’s discretion to suggest remand generally turns on the question of whether the
case will benefit from further coordinated proceedings as part of the MDL.” In re Merrill Lynch
Auction Rate Sec. Litig., No. 09 MD 2030(LAP), 2010 WL 2541227, at *2 (S.D.N.Y. June 11,
2010) (internal quotation marks omitted). “The transferee court should consider when remand
will best serve the expeditious disposition of the litigation.” Manual for Complex Litigation
(Fourth) § 20.133 (2017). “Because the purpose of multidistrict litigation is for the convenience
of the parties and witnesses and to promote the just and efficient conduct of the cases, the
decision of whether to suggest remand should be guided in large part by whether one option is
more likely to insure the maximum efficiency for all parties and the judiciary.” In re State St.
Bank & Tr. Co. Fixed Income Funds Inv. Litig., 2011 WL 1046162, at *3–4 (internal quotation
marks omitted).
Discussion
Plaintiff requests that I issue a suggestion of remand because “everything that remains to
be done is case-specific, and remand will best serve the expeditious disposition of this litigation.”
(Pl.’s Mem. 1.)4 Defendants contend that this Court should continue managing the case through
common and site-specific discovery for selected focus sites and then remand the claims for those
sites once they are ready for trial. (Defs.’ Opp. 3.)5

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“Pl.’s Mem.” refers to Plaintiff Commonwealth of Pennsylvania’s Motion to Remand, filed on July 23, 2018.
(Doc. 402.)
5

“Defs.’ Opp.” refers to Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion to Remand, filed on
August 6, 2018. (Doc. 404.)

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Once a matter is transferred and consolidated or coordinated by order of the Panel, an
action can be remanded to its court of origin prior to the completion of pretrial proceedings “only
upon a showing of good cause.” In re Integrated Res., Inc. Real Estate Ltd. P’ship Sec. Litig.,
851 F. Supp. 556, 562 (S.D.N.Y. 1994) (quoting In re S. Cent. States Bakery Prods. Antitrust
Litig., 462 F. Supp. 388, 390 (J.P.M.L. 1978)). The party seeking remand bears the burden of
establishing that remand is warranted. Id. Because this case is not trial-ready, I can only suggest
remand if Plaintiff has carried its burden to demonstrate good cause. See, e.g., In re Maxim
Integrated Prods., Inc., Misc. No. 12-244, 2015 WL 1757779, at *3 (W.D. Pa. Apr. 17, 2015).
Plaintiff proffers numerous arguments in support of remand, all of which are unavailing.
First, Plaintiff argues that remand is appropriate because “principal common discovery was
completed in 2010” and the common-issues phase of this MDL is mostly complete. (Pl.’s Mem.
7.) However, the Panel transferred this case on July 30, 2014, (id. at 2), approximately four
years after the conclusion of principal common discovery. Because principal common discovery
was already completed when this matter was transferred to this Court, Plaintiff’s argument that
remand is necessary because principal common discovery has concluded is unpersuasive.
Furthermore, as Plaintiff notes, even if common discovery has concluded, “it may prove
necessary at some point to update and supplement Pennsylvania-specific aspects of the commonissues discovery.” (Id. at 7.)
Moreover, common, non-site discovery is underway in this case and is not scheduled to
be completed until next year. (See CMO 125.) The parties have agreed to, and the Court has set,
a schedule for discovery—including reciprocal non-site specific fact discovery, ESI productions,
and depositions—that extends well into 2019 and contemplates the selection of focus sites for the
purpose of conducting limited site-specific discovery prior to remand. (See generally CMO 121;

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CMO 125.) Indeed, this is the procedure that has been implemented in the other remaining
consolidated matters—the New Jersey, Puerto Rico, and Orange County Water District actions
have all been partially remanded for focus-site trials but otherwise remain before this Court for
consolidated pretrial proceedings. (See Defs.’ Mem. 3–4.)6
Second, Plaintiff contends that remand would lead to efficiencies and the “expeditious
disposition of the litigation.” (Pl.’s Mem. 6.) However, Plaintiff offers no factual or legal
support for this argument. To the contrary, “a key principle of the multi-district scheme involves
the accrual of judicial expertise. It is a fundamental assumption of the multidistrict system that
having only one court sort out the facts of complex and multi-faceted transactions and
occurrences which have given rise to many competing legal claims well serves the goal of
judicial economy.” In re Integrated Res., Inc., MDL No. 897, 1995 WL 234975, at *4 (S.D.N.Y.
Apr. 21, 1995). “If an action were remanded to the transferor court prior to the completion of
pretrial proceedings, the recipient court would be required to make its own way up the same
learning curve, resulting in just that duplication of efforts that the multidistrict system is
designed to avoid.” Wang v. Bear Stearns Cos., Inc., No. 11 Civ. 5643, 2013 WL 3479507, at *3
(S.D.N.Y. July 10, 2013) (internal quotation marks omitted). This Court has accrued significant
familiarity with the relevant complex factual and legal issues involved in the MDL. In the
course of approving numerous settlements and ruling on multiple dispositive motions, I—and
Judge Scheindlin before she retired—have analyzed the different claims and issues involved in
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While Plaintiff relies heavily on my remand decision in the Orange County Water District matter, it does so
selectively and ignores that only a part of that case was remanded. For example, Plaintiff cites that opinion for the
proposition that remand is appropriate where “everything that remains to be done is case specific.” (Pl.’s Mem. 6)
(quoting In re MTBE Prods. Liab. Litig., MDL No. 1358, 2017 WL 5468758, at *2 (S.D.N.Y. Nov. 13, 2017)). But
the opinion goes on to state that even “[w]hen everything that remains to be done is case specific, it does not
necessarily mean that consolidated proceedings have concluded.” In re MTBE Prods. Liab. Litig., 2017 WL
5468758, at *2 (internal quotation marks omitted). Indeed, in that decision I concluded that the non-remanded
portion of the action would remain in the MDL “in order to conduct coordinated and consolidated pretrial
proceedings.” See Suggestion of Remand, No. 1:00-cv-01898-VSB, ECF No. 4471, at 2 (S.D.N.Y. Nov. 13, 2017).

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the various individual matters in this MDL. Likewise, Magistrate Judge Freeman has overseen
extensive discovery throughout the duration of this individual matter and during the course of the
MDL. As Plaintiff notes, the “MDL Court already has issued more than 140 opinions on topics
ranging from the jurisdiction of federal courts to hear MTBE cases which were filed in state
court, to the preemptive authority of state and federal regulatory agencies, to the definition of
MTBE-caused ‘harm’ for which plaintiffs can seek compensation.” (Pl.’s Mem. 7.) Numerous
jurists in this Court have devoted significant time gaining familiarity with the cases and claims
involved in this MDL and remand would likely result in a duplication of those efforts by
requiring a new judge—Judge Harvey Bartle in the Eastern District of Pennsylvania—to
familiarize himself with and manage a case that is not yet trial ready. Accordingly, retention of
the instant action by this Court will serve the interests of “conserv[ing] the resources of the
parties, their counsel and the judiciary” by preventing duplicative discovery and judicial effort,
and avoiding inconsistent rulings. In re Merrill Lynch, 2010 WL 2541227, at *2 (internal
quotation marks omitted).
Third, Plaintiff contends that remand is appropriate because the Panel has “begun
winding down the MDL.” (Pl.’s Mem. 3.) In support of this assertion, Plaintiff notes that the
Panel has stopped adding new cases to the MDL and the number of cases remaining in the MDL
has diminished. I find this argument meritless. Even where “virtually all the actions with which
[a] case was consolidated have . . . been settled,” remand is not required. In re Integrated Res.
Inc., 1995 WL 234975, at *4; cf. In re Wilson, 451 F.3d 161, 170 (3d Cir. 2006) (“[T]he test is
not whether proceedings on issues common to all cases have concluded; it is whether the issues
overlap, either with MDL cases that have already concluded or those currently pending.”). “The
mere fact that pretrial proceedings have been concluded in some or most of the transferred cases

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does not justify remand of other cases initially transferred by the Panel. Even if the transferee
court had disposed of all but one transferred case, the Panel may refuse to remand that single
case to the transferor district because discovery still remained to be completed in that case.”
Wang, 2013 WL 3479507, at *3 (quoting David F. Herr, Multidistrict Litigation Manual § 10:7
(2012 ed.)); see also In re CBS Color Tube Patent Litig., 342 F. Supp. 1403, 1405 (J.P.M.L.
1972) (finding that it was not necessary to remand an action “in which discovery is not yet
completed . . . simply because all other consolidated cases in the transferee court have been
dismissed or terminated in some way”). Thus, the fact that the number of cases remaining in the
MDL is dwindling, and that the Panel has decided not to add additional consolidated cases, are
not alone sufficient to justify remand of this action.
Lastly, Plaintiff asserts that remand is proper because of the potential that the trial judge
will have to duplicate some of this Court’s “immer[sion] in the same Pennsylvania-specific facts
and law.” (Pl.’s Mem. 5.) However, such potential overlap “is inherent in any MDL
proceeding,” In re Maxim, 2015 WL 1757779, at *5; cf. Hildes v. Arthur Andersen LLP, No. 08CV-0008 BEN (RBB), 2014 WL 1571330, at *4 (S.D. Cal. Apr. 16, 2014) (“[T]hat multidistrict
litigation will be transferred back to the transferor court for trial after pretrial proceedings have
taken place in the transferee court is foreseen by § 1407 [and] does not constitute good cause for
remanding an action to the transferor court before the pretrial proceedings have concluded.”),
and may exist and/or occur regardless of when the case is remanded. This situation alone,
therefore, cannot provide the required good cause to warrant remand of a case prior to the
completion of pretrial proceedings. See In re Maxim, 2015 WL 1757779, at *5.
Accordingly, I find that Plaintiff has not shown that this case will no longer benefit from
coordinated proceedings and has failed to meet its burden to demonstrate good cause why this

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case should be remanded to the United States District Court for the Eastern District of
Pennsylvania.
Conclusion
For the foregoing reasons, Plaintiff’s motion is DENIED and I decline to suggest that the
Panel remand this action at this time.
The Clerk of Court is respectfully directed to terminate the pending motion at Doc. 401.
SO ORDERED.
Dated: January 7, 2019
New York, New York

______________________
Vernon S. Broderick
United States District Judge

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