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

United States District Court, S.D. New York

November 13, 2017

In Re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
v.
Unocal, et al, Case No. 04 Civ. 4968 (VSB) This document relates to: Orange County Water District No. M21-88

          Michael D. Axline Tracey O'Reilly Miller, Axline & Sawyer Sacramento, California Counsel for Plaintiff Orange County Water District

          Matthew T. Heartney Arnold & Porter Kaye Scholer LLP Los Angeles, California

          Stephanie B. Weirick Arnold & Porter Kaye Scholer LLP Washington, D.C.

          Counsel for Defendants Atlantic Richfield Company, BP Products North America Inc., and BP West Coast Products LLC

          Peter C. Condron Crowell & Moring LLP Washington, D.C. Counsel for Defendants Shell Oil Company, Equilon Enterprises LLC, and Texaco Refining and Marketing Inc., n/k/a TMR Company

          MEMORANDUM & OPINION

          VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE

         Before me is Plaintiffs motion requesting that I issue a suggestion of remand to the Judicial Panel on Multidistrict Litigation (the "Panel") so that the remaining proceedings in this case can be remanded to the United States District Court for the Central District of California (the "Transferor Court"). (Doc, 4460.) Because I find that all consolidated pretrial proceedings are complete, Plaintiffs motion is GRANTED.

         I. 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 ("TBA"), a product formed by the breakdown of MTBE in water. In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., MDL 1358 (SAS), 20.15 WL 775 8530, 'at* 1 (S.D.N.Y. Dec. 1, 2015). In this case within the MDL, Plaintiff Orange " County Water District ("Plaintiff or "OCWD"), which is charged with maintaining-groundwater quality in Orange County, California, alleges that the use and handling of MTBE by various of the defendants, including Atlantic Richfield Company, BP Products North America Inc., and BP West Coast Products LLC ("BP"), Shell Oil Company, Equilon Enterprises LLC, and Texaco Refining and Marketing Inc. ("Shell") (collectively, "Defendants"), contaminated, or threatens to contaminate, groundwater within its jurisdiction. Id. Familiarity with the underlying facts is presumed for the purposes of this Memorandum & Opinion.[2]

         Earlier in this litigation, Judge Shira Scheindlin[3] entered an Order directing- the parties to identify certain bellwether, or "focus" sites that could be remanded to the Transferor Court for trial. See Id. at *2. The parties, including BP and Shell, negotiated a case management order . (the "CMO") that identified focus sites, claims, and defendants to be tried at a 'Phase I "focus plume trial." (CMO 2.)[4] The CMO indicated that "[t]he parties have completed all discovery related to the stations previously identified by the parties as focus plume stations." (Id. at 1.) The CMO identified the final list of "stations and [d]efendants at each station against whom . OC WD will assert causes of action at the focus, plume trial and the causes of action that will be asserted." (Id. at 2.) Focus sites associated with BP and Shell were included in the CMO. (CMO Ex. A.)

         Following the adoption of the CMO, all defendants were permitted to submit dispositive .motions. On September 16, - 2014, Judge Scheindlin granted summary judgment in favor of Defendants and dismissed all claims, against .them based on res judicata, finding that consent judgments entered into in 2002 and 2005 between BP and Shell, respectively, and the Orange County District Attorney ("OCDA") barred OCWD's claims in this action.[5] See In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig, MDL No. 1358 (SAS), 46: F.Supp.3d 440 (S.D.N.Y.2014). On December 1, 2015, Judge Scheindlin granted partial final judgment to Defendants pursuant to Federal Rule of Civil Procedure 54(b), see MTBE Products Liability Litigation, 2015 WL 7758530, at * 1, and OCWD appealed that judgment and the summary judgment decision to. the Second Circuit Court: of Appeals on December 3, 2015. On June12, -2017, the Second Circuit vacated the res judicata decision and the Rule 54(b) partial judgment and remanded OCWD's action against BP and Shell to the Southern District of New York "for further proceedings consistent with .[its] opinion." See In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., 859 F.3d 178, 188 (2d Cir. 2017) (the "Second Circuit Decision").

         II. 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). Typically, the process is initiated when a transferee court recommends remand of an action to the transferor court by filing a suggestion of remand with the PaneJ. R.P..T.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. , 112F.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. * 3-1. (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 this 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 i. 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); see also 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 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) ...


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