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

Filing 4567

OPINION & ORDER re: (563 in 1:08-cv-00312-VSB, 4529 in 1:00-cv-01898-VSB) MOTION to Remand to U.S. District Court, District of New Jersey filed by New Jersey Department of Environmental Protection. For the foregoing reasons, Plaintiffs' motion is DENIED and I decline to suggest that the Panel remand this action at this time. The parties are directed to submit a joint letter updating the court on the status of Phase II discovery by November 1, 2019. The Clerk of Court is respectfully directed to terminate the pending motion at Document 563. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/30/2019) Filed In Associated Cases: 1:00-cv-01898-VSB, 1:08-cv-00312-VSB(rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In Re: Methyl Tertiary Butyl Ether (“MTBE”) :
Products Liability Litigation
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This document relates to:
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New Jersey Department of Environmental
Protection, et al. v. Atlantic Richfield Co., et :
al., 08-cv-312 (VSB)
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Appearances:

9/30/2019

Master File No. 1:00-1898
MDL 1358

OPINION & ORDER

Michael D. Axline
Miller & Axline, P.C.
Sacramento, CA
Special Counsel for New Jersey Plaintiffs
Gwen Farley
Gurbir S. Grewal
Attorney General of New Jersey
Trenton, NJ
Counsel for New Jersey Plaintiffs
James A. Pardo
Lisa A. Gerson
McDermott Will & Emery LLP
New York, NY
Counsel for Defendants Exxon Mobil Corporation, ExxonMobil Oil Corporation, Cumberland
Farms, Inc., Gulf Oil Limited Partnership, Getty Properties Corp., Getty Petroleum Marketing
Inc., Lukoil Americas Corp., Lukoil North America LLC, Lukoil Pan Americas, Total
Petrochemicals & Refining USA, Inc.
VERNON S. BRODERICK, United States District Judge:
Before me is Plaintiffs’ motion to 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 District of New Jersey (the “Transferor Court”). (Doc.
563.) Because Plaintiffs have failed to demonstrate good cause to warrant remand, their motion
is DENIED.

Factual Background and Procedural History 1
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 “New Jersey case”), New Jersey 2 alleges that Defendants’ 3
manufacture or use 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. 4
This action was transferred into the MDL on January 14, 2008. Judge Scheindlin, who
presided over this case until it was reassigned to me on May 16, 2016, managed consolidated
discovery through a series of conferences and Case Management Orders (“CMOs”). On March
11, 2010, she entered Case Management Order No. 60, directing the parties in the New Jersey
action to select a total of forty (40) sites for full discovery and, at the culmination of full

1

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.

2

Plaintiffs refer to themselves as the “New Jersey Plaintiffs” or as “New Jersey.” (See, e.g., Doc. 563.) According
to the electronic docket, the individual Plaintiffs are the New Jersey Department of Environmental Protection, the
Commissioner of the New Jersey Department of Environmental Protection, and the Administrator of the New Jersey
Spill Compensation Fund. I refer them hereinafter as “New Jersey” or “Plaintiffs.”

3

Many of these Defendants have settled over the course of the litigation. The remaining Defendants are the Exxon
Defendants (ExxonMobil Corporation and ExxonMobil Oil Corporation), the Gulf Defendants (Gulf Acquisition
LLC, Gulf Oil Limited Partnership, and Cumberland Farms Inc.), Getty Properties Corporation, and the Lukoil
Group (Lukoil Americas Corporation, Lukoil North America LLC, Lukoil Pan Americas, LLC, PJSC Lukoil, and
Getty Petroleum Marketing Inc.). (See ECF Docket; Pls.’ Mem. 4 n.1; Doc. 581.) “Pls.’ Mem.” refers to Plaintiff’s
Motion for Remand, filed on January 2, 2019. (Doc. 563.) All remaining Defendants join in opposing Plaintiff’s
motion, except for Gulf Acquisition LLC, which has not answered or appeared. In addition, on July 28, 2019,
Plaintiffs and the Lukoil Defendants informed me that they had reached a tentative settlement in principle, but as of
the date of this Opinion & Order they do not appear to have finalized that settlement. (Doc. 580.)

4

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 MTBE Products Liability Litigation, 379 F. Supp. 2d 348, 364–67 (S.D.N.Y.
2005).

discovery, to narrow this number to twenty (20) trial sites. (CMO 60.) 5 The parties eventually
settled on nineteen (19) trial sites, six (6) of which relate to at least one remaining Defendant.
(See CMO 107.) 6 In December 2014, New Jersey apparently filed a letter seeking full remand of
the action, which is not on ECF but is referenced in the letter Defendants filed in response on
December 24, 2014. (See Doc. 421.) In that letter, Defendants agreed that fact and expert
discovery had been completed as to the trial sites and consented to partial remand, but opposed
full remand as to the remaining 5,000-plus sites. (Id.) On February 24, 2015, Judge Scheindlin
issued a Suggestion to Remand all claims relating to the trial sites to the Judicial Panel on
Multidistrict Litigation (“JPML”), finding that “discovery on the Trial Sites has been
substantially completed and that the coordinated and consolidated pretrial proceedings have run
their course with respect to claims related to the Trial sites.” (2015 Sug. Remand 2.) 7 The Order
specifically stated that the Court would “retain jurisdiction over the remainder of the Action in
order to conduct coordinated and consolidated pretrial proceedings.” (Id.) On April 29, 2016,
Judge Scheindlin ordered that all claims remaining following the Phase I trials were to be
resolved in a single “Phase II” trial, “so long as such a trial protects the constitutional rights of
all the parties.” (CMO 124.) 8 She also issued an order directing the parties to exchange initial
“Phase II discovery,” to provide an updated master list of sites, and to meet and confer about a
proposed approach to the remainder of Phase II discovery and trial. (CMO 123.) 9 Although the
parties were to submit joint proposed Case Management Orders as soon as practicable after the

5

“CMO 60” refers to Case Management Order No. 60, filed on March 11, 2010. (Doc. 81.)

6

“CMO 107” refers to Case Management Order No. 107, filed on December 27, 2012. (Doc. 256.)

7

“2015 Sug. Remand” refers to the Suggestion to Remand issued by Judge Scheindlin on February 24, 2015. (Doc.
422.)

8

“CMO 124” refers to Case Management Order No. 124, filed on April 29, 2016. (Doc. 517.)

9

“CMO 123” refers to Case Management Order No. 123, filed on April 29, 2016. (Doc. 518.)

deadline for the master list of sites, which was October 14, 2016, (id.), to date the parties have
not done so.
On November 13, 2017, I issued a Suggestion of Remand as to the Phase I claims in the
Orange County Water District case within this MDL (the “OCWD Case”) (No. 04 Civ. 4968, at
Doc. 495), at the plaintiff’s request, along with a Memorandum and Opinion granting the
plaintiff’s motion, In re MTBE Prods. Liab. Litig., No. 04 CIV. 4968 (VSB), 2017 WL 5468758
(S.D.N.Y. Nov. 13, 2017) (“OCWD Remand Opinion”). I found that the consolidated pretrial
proceedings had run their course as to the focus plume sites relating to Arco/BP and Shell and
should be remanded, id. at *4–5, especially given that all the other focus plume sites, which
related to other defendants, had previously been remanded, id. at *1 n.5. In my Suggestion of
Remand, I specifically retained jurisdiction over the remainder of the action, i.e. the non-focus
plume sites. (04 Civ. 4968, at Doc. 495.) On January 7, 2019, I denied the motion to remand
filed by the plaintiff in the Pennsylvania case within this MDL (the “Pennsylvania Case”), in
which “common, non-site discovery is underway . . . and is not scheduled to be completed until
next year.” In re MTBE Prods. Liab. Litig., No. 14 Civ. 6228 (VSB), 2019 WL 117302, at *3–4
(S.D.N.Y. Jan. 7, 2019) (“Pennsylvania Remand Opinion” or “Penn. Remand Op.”).
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). Although 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.
& 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
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).
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.
Discussion
New Jersey, relying heavily on my suggestion of remand in the OCWD case, requests
that I issue a suggestion of remand, arguing that having the “trial judge manage the remaining
New Jersey-specific discovery as well as trial,” (Pls.’ Mem. 1), 10 will “best serve the expeditious
disposition of the litigation,” (id. 6 (quoting OCWD Remand Opinion, at *2)). Defendants,
relying on my denial of remand in the Pennsylvania case, oppose on the basis that this case is not
trial-ready and that the New Jersey case will benefit from further coordinated proceedings in the
MDL. (Defs.’ Mem. 1.) 11 In Defendants’ view, “the whole point of the focus site approach is to
work up a discrete set of sites for trial, conduct that trial, and then allow the parties and the MDL
Court to take the ‘lessons learned’ and apply them to the next phase(s) of the case.” (Id.) While
the Pennsylvania case is at a much earlier stage of the proceedings and so not entirely analogous
to this case, ultimately I agree with Defendants that the New Jersey case should remain in the
MDL at this time.
Judge Scheindlin remanded only the Phase I claims for trial and explicitly retained the
remainder of the New Jersey case for “coordinated and consolidated pretrial proceedings.”
(2015 Sug. Remand 2.) Those “coordinated and consolidated pretrial proceedings” are not yet
complete, and the remainder of the claims are still not trial-ready. Despite this, many of
Plaintiffs’ arguments amount to restatements of facts about this litigation that were true at the
time Judge Scheindlin issued her partial Suggestion of Remand in response to Plaintiffs’ request
for full remand. For example, Plaintiffs argue that principal common discovery was completed

10

“Pls.’ Mem.” refers to New Jersey Plaintiffs’ Motion to Remand, filed on January 2, 2019. (Doc. 563.)

11
“Defs.’ Mem.” refers to Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion to Remand, filed
on January 16, 2019. (Doc. 567.)

in 2010, an argument that is unpersuasive given that Judge Scheindlin continued to manage
consolidated coordinated discovery for many years after that. Plaintiffs also contend that the
trial-site selection and discovery phases were completed many years ago, (Pls.’ Reply 6.), 12
which is true, but which was also true in 2015 when Judge Scheindlin remanded the claims
related to the focus sites. Plaintiffs also point to the fact that this Court has issued an “order
regarding final trial structure that provides all the guidance necessary for the transferor court to
conduct the remainder of the proceedings.” (Pls.’ Reply 2.) This, again, does not demonstrate
any change in circumstance. Judge Scheindlin issued that Order well over a year after
remanding the focus site claims, in explicit contemplation of continued supervision over Phase II
discovery within the MDL. (See CMO 123; CMO 124.) Indeed, the posture of this case is
similar to the OCWD case when I issued a suggestion of partial remand: some claims were trialready, and so they were remanded; some claims were not trial-ready, and so they were retained.
See OCWD Remand Opinion, 2017 WL 5468758, at *3. Despite Plaintiff’s argument that
“Defendants provide no reason . . . why the residual case should not be remanded to the
originating court now,” (Pls.’ Reply 7), Plaintiffs bear the burden on this motion, not Defendants,
and they have not demonstrated any “good cause” for disturbing the purposeful structure of this
litigation at this time, see, e.g., In re Maxim Integrated Prods., Inc., Misc. No. 12-244, 2015 WL
1757779, at *3 (W.D. Pa. Apr. 17, 2015), or any basis to treat this case differently from the
OCWD case.
Plaintiffs proffer several additional arguments in support of remand, many of which I
addressed and rejected in my Memorandum & Opinion denying Pennsylvania’s motion for
remand, see generally Penn. Remand Op., 2019 WL 117302—briefed by the same Special

12

“Pls.’ Reply” refers to Plaintiffs’ Reply in Support of Motion to Remand, filed on January 28, 2019. (Doc. 573.)

Counsel who appears here—and all of which are unavailing.
First, Plaintiffs contend that remand is appropriate because the Panel has begun winding
down the MDL by declining to transfer new cases into it. (Pls.’ Mem. 1.) As in the
Pennsylvania case, I find this argument meritless. See Pennsylvania Remand Opinion, 2019 WL
117302, at *4. 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 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 v. Bear Stearns Cos., No. 11 Civ.
5643, 2013 WL 3479507, at *3 (S.D.N.Y. July 10, 2013) (quoting David F. Herr, Multidistrict
Litigation Manual § 10:7 (2012 ed.)).
Second, Plaintiffs argue that the New Jersey trial court, presided over by the Honorable
Freda Wolfson, is better equipped to handle the remaining discovery because it is New Jerseyspecific and relates only to the non-focus sites. (Pls.’ Mem. 1; Pls.’ Reply 1.) Plaintiffs also
argue that in supervising the Phase I proceedings, Judge Wolfson has accrued significant
experience and is in the best position to guide the remainder of the case, particularly since she
will be managing the trial and applying New Jersey law. (Pls.’ Reply 1–2, 4.) That trial,
Plaintiffs contend, will rely only on New Jersey law, and will share no common factual
discovery and no common legal issues with any of the other cases in the MDL. (Pls.’ Mem. 6.)

Plaintiffs have provided no factual or legal basis to support their contention that the New
Jersey court will be better able to apply New Jersey law. The opinions previously issued by this
Court have applied the laws of many different states, often in the same opinion, as is often
necessitated by the very the nature of an MDL. See In re MTBE Prods. Liab. Litig., 379 F. Supp.
2d 348 (S.D.N.Y. 2005); see also, e.g., In re Takata Airbag Prods. Liab. Litig., 193 F. Supp. 3d
1324 (S.D. Fla. 2016).
While Judge Wolfson undoubtedly has developed expertise in the facts of the New Jersey
case, this Court has also accrued significant familiarity with the relevant complex factual and
legal issues involved in the MDL. As I observed in the Pennsylvania Remand Opinion, the MDL
Court has issued more than 140 opinions on a wide range of topics, and “[i]n 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 the
various individual matters in this MDL.” 2019 WL 117302, at *3.
Although the pace of litigation in the MDL may have slowed since the early years,
preserving the consolidated structure of discovery will continue to provide gains in efficiency.
Because multiple cases have been remanded for Phase I trials, the results of those trials may
inform settlement and/or Phase II discovery, as Judge Scheindlin envisioned. Similarly,
Defendants refer to a different discovery approach being pursued in the Pennsylvania case,
which they believe might be fruitful in other multi-site cases. (Defs.’ Mem. 7.) Any such
lessons would be best applied in a consistent fashion across cases by the MDL court, rather than
on an ad hoc basis by the transferor courts. The Pennsylvania and New Jersey cases concern
neighboring states and share several Defendants; discovery in one may yield insights or data
relevant to the other. Uncoordinated discovery, by contrast, may result in inefficient duplication

of work, one of the key consequences the MDL structure aims to avoid. See In re A. H. Robins
Co. “Dalkon Shield” IUD Prods. Liab. Litig., 419 F. Supp. 710, 712 (J.P.M.L. 1976).
In addition, Defendants point out, there may remain a handful of common legal issues,
including whether the sovereign plaintiffs have parens patriae standing to recover damages to
alleged injury to privately owned drinking wells. (Defs.’ Mem. 7.) Plaintiffs argue that they
have not yet presented expert testimony on these issues, (Pls.’ Mem. 6), an argument that appears
to be irrelevant given that Defendants have characterized this as an issue that may be raised in
the future. Plaintiffs also argue that in any event, if they did pursue such a cause of action, its
viability would turn on New Jersey state law. (Id.) While the parties have not provided me with
sufficient briefing on the instant motion to determine what law would govern these claims, if in
fact Plaintiffs assert them, I note that parens patriae is a federal standing doctrine, see, e.g.,
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982), which would
apply equally to all the sovereign cases.
Accordingly, I find that 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 (citation omitted). Plaintiffs have not shown that this
case will no longer benefit from coordinated proceedings and have failed to meet their burden to
demonstrate good cause why this case should be remanded to the United States District Court for
the District of New Jersey.

Conclusion
For the foregoing reasons, Plaintiffs’ motion is DENIED and I decline to suggest that the
Panel remand this action at this time. The parties are directed to submit a joint letter updating
the court on the status of Phase II discovery by November 1, 2019.
The Clerk of Court is respectfully directed to terminate the pending motion at Document
563.
SO ORDERED.
Dated: September 30, 2019
New York, New York

______________________
Vernon S. Broderick
United States District Judge