§ 1407. — Multidistrict litigation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1407]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 87--DISTRICT COURTS; VENUE
Sec. 1407. Multidistrict litigation
(a) When civil actions involving one or more common questions of
fact are pending in different districts, such actions may be transferred
to any district for coordinated or consolidated pretrial proceedings.
Such transfers shall be made by the judicial panel on multidistrict
litigation authorized by this section upon its determination that
transfers for such proceedings will be for the convenience of parties
and witnesses and will promote the just and efficient conduct of such
actions. Each action so transferred shall be remanded by the panel at or
before the conclusion of such pretrial proceedings to the district from
which it was transferred unless it shall have been previously
terminated: Provided, however, That the panel may separate any claim,
cross-claim, counter-claim, or third-party claim and remand any of such
claims before the remainder of the action is remanded.
(b) Such coordinated or consolidated pretrial proceedings shall be
conducted by a judge or judges to whom such actions are assigned by the
judicial panel on multidistrict litigation. For this purpose, upon
request of the panel, a circuit judge or a district judge may be
designated and assigned temporarily for service in the transferee
district by the Chief Justice of the United States or the chief judge of
the circuit, as may be required, in accordance with the provisions of
chapter 13 of this title. With the consent of the transferee district
court, such actions may be assigned by the panel to a judge or judges of
such district. The judge or judges to whom such actions are assigned,
the members of the judicial panel on multidistrict litigation, and other
circuit and district judges designated when needed by the panel may
exercise the powers of a district judge in any district for the purpose
of conducting pretrial depositions in such coordinated or consolidated
pretrial proceedings.
(c) Proceedings for the transfer of an action under this section may
be initiated by--
(i) the judicial panel on multidistrict litigation upon its own
initiative, or
(ii) motion filed with the panel by a party in any action in
which transfer for coordinated or consolidated pretrial proceedings
under this section may be appropriate. A copy of such motion shall
be filed in the district court in which the moving party's action is
pending.
The panel shall give notice to the parties in all actions in which
transfers for coordinated or consolidated pretrial proceedings are
contemplated, and such notice shall specify the time and place of any
hearing to determine whether such transfer shall be made. Orders of the
panel to set a hearing and other orders of the panel issued prior to the
order either directing or denying transfer shall be filed in the office
of the clerk of the district court in which a transfer hearing is to be
or has been held. The panel's order of transfer shall be based upon a
record of such hearing at which material evidence may be offered by any
party to an action pending in any district that would be affected by the
proceedings under this section, and shall be supported by findings of
fact and conclusions of law based upon such record. Orders of transfer
and such other orders as the panel may make thereafter shall be filed in
the office of the clerk of the district court of the transferee district
and shall be effective when thus filed. The clerk of the transferee
district court shall forthwith transmit a certified copy of the panel's
order to transfer to the clerk of the district court from which the
action is being transferred. An order denying transfer shall be filed in
each district wherein there is a case pending in which the motion for
transfer has been made.
(d) The judicial panel on multidistrict litigation shall consist of
seven circuit and district judges designated from time to time by the
Chief Justice of the United States, no two of whom shall be from the
same circuit. The concurrence of four members shall be necessary to any
action by the panel.
(e) No proceedings for review of any order of the panel may be
permitted except by extraordinary writ pursuant to the provisions of
title 28, section 1651, United States Code. Petitions for an
extraordinary writ to review an order of the panel to set a transfer
hearing and other orders of the panel issued prior to the order either
directing or denying transfer shall be filed only in the court of
appeals having jurisdiction over the district in which a hearing is to
be or has been held. Petitions for an extraordinary writ to review an
order to transfer or orders subsequent to transfer shall be filed only
in the court of appeals having jurisdiction over the transferee
district. There shall be no appeal or review of an order of the panel
denying a motion to transfer for consolidated or coordinated
proceedings.
(f) The panel may prescribe rules for the conduct of its business
not inconsistent with Acts of Congress and the Federal Rules of Civil
Procedure.
(g) Nothing in this section shall apply to any action in which the
United States is a complainant arising under the antitrust laws.
``Antitrust laws'' as used herein include those acts referred to in the
Act of October 15, 1914, as amended (38 Stat. 730; 15 U.S.C. 12), and
also include the Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a,
and 13b) and the Act of September 26, 1914, as added March 21, 1938 (52
Stat. 116, 117; 15 U.S.C. 56); but shall not include section 4A of the
Act of October 15, 1914, as added July 7, 1955 (69 Stat. 282; 15 U.S.C.
15a).
(h) Notwithstanding the provisions of section 1404 or subsection (f)
of this section, the judicial panel on multidistrict litigation may
consolidate and transfer with or without the consent of the parties, for
both pretrial purposes and for trial, any action brought under section
4C of the Clayton Act.
(Added Pub. L. 90-296, Sec. 1, Apr. 29, 1968, 82 Stat. 109; amended Pub.
L. 94-435, title III, Sec. 303, Sept. 30, 1976, 90 Stat. 1396.)
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (f),
are set out in the Appendix to this title.
Section 4C of the Clayton Act, referred to in subsec. (h), is
section 4C of act Oct. 15, 1914, ch. 323, as added by Pub. L. 94-435,
title III, Sec. 301, Sept. 30, 1976, 90 Stat. 1394, which is classified
to section 15c of Title 15, Commerce and Trade.
Amendments
1976--Pub. L. 94-435 added subsec. (h).
Section Referred to in Other Sections
This section is referred to in section 2112 of this title; title 15
section 78u; title 45 section 719.
RULES OF PROCEDURE OF THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
(Adopted February 26, 1981, effective June 1, 1981, as amended
to April 2, 2001)
I. GENERAL RULES/RULES FOR MULTIDISTRICT LITIGATION UNDER 28
U.S.C. Sec. 1407
Rule
1.1: Definitions.
1.2: Practice.
1.3: Failure to Comply with Rules.
1.4: Admission to Practice Before the Panel and Representation
in Transferred Actions.
1.5: Effect of the Pendency of an Action Before the Panel.
1.6: Transfer of Files.
5.1: Keeping Records and Files.
5.11: Place of Filing of Papers.
5.12: Manner of Filing of Papers.
5.13: Filing of Papers: Computer Generated Disk Required.
5.2: Service of Papers Filed.
5.3: Corporate Disclosure Statement.
6.2: Applications for Extensions of Time.
7.1: Form of Papers Filed.
7.2: Motion Practice.
7.3: Show Cause Orders.
7.4: Conditional Transfer Orders for ``Tag-Along Actions''.
7.5: Miscellaneous Provisions Concerning ``Tag-Along Actions''.
7.6: Termination and Remand.
16.1: Hearing Sessions and Oral Argument.
II. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW UNDER 28 U.S.C.
Sec. 2112(a)(3)
17.1: Random Selection.
25.1: Filing of Notices.
25.2: Accompaniments to Notices.
25.3: Service of Notices.
25.4: Form of Notices.
25.5: Service of Panel Consolidation Order.
I. GENERAL RULES/RULES FOR MULTIDISTRICT LITIGATION UNDER 28 U.S.C.
Sec. 1407
Rule 1.1: Definitions
As used in these Rules ``Panel'' means the members of the Judicial
Panel on Multidistrict Litigation appointed by the Chief Justice of the
United States pursuant to Section 1407, Title 28, United States Code.
``Clerk of the Panel'' means the official appointed by the Panel to
act as Clerk of the Panel and shall include those deputized by the Clerk
of the Panel to perform or assist in the performance of the duties of
the Clerk of the Panel.
``Chairman'' means the Chairman of the Judicial Panel on
Multidistrict Litigation appointed by the Chief Justice of the United
States pursuant to Section 1407, or the member of the Panel designated
by the Panel to act as Chairman in the absence or inability of the
appointed Chairman.
A ``tag-along action'' refers to a civil action pending in a
district court and involving common questions of fact with actions
previously transferred under Section 1407.
(As amended June 14, 1988, eff. July 6, 1988; Sept. 1, 1998, eff. Nov.
2, 1998.)
Rule 1.2: Practice
Where not fixed by statute or rule, the practice shall be that
heretofore customarily followed by the Panel.
(As amended June 14, 1988, eff. July 6, 1988; Sept. 1, 1998, eff. Nov.
2, 1998.)
Rule 1.3: Failure to Comply with Rules
The Clerk of the Panel may, when a paper submitted for filing is not
in compliance with the provisions of these Rules, advise counsel of the
deficiencies and a date for full compliance. If full compliance is not
accomplished within the established time, the non-complying paper shall
nonetheless be filed by the Clerk of the Panel but it may be stricken by
order of the Chairman of the Panel.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 1.4: Admission to Practice Before the Panel and Representation in
Transferred Actions
Every member in good standing of the Bar of any district court of
the United States is entitled without condition to practice before the
Judicial Panel on Multidistrict Litigation. Any attorney of record in
any action transferred under Section 1407 may continue to represent his
or her client in any district court of the United States to which such
action is transferred. Parties to any action transferred under Section
1407 are not required to obtain local counsel in the district to which
such action is transferred.
(As amended June 14, 1988, eff. July 6, 1988; Sept. 1, 1998, eff. Nov.
2, 1998.)
Rule 1.5: Effect of the Pendency of an Action Before the Panel
The pendency of a motion, order to show cause, conditional transfer
order or conditional remand order before the Panel concerning transfer
or remand of an action pursuant to 28 U.S.C. Sec. 1407 does not affect
or suspend orders and pretrial proceedings in the district court in
which the action is pending and does not in any way limit the pretrial
jurisdiction of that court. A transfer or remand pursuant to 28 U.S.C.
Sec. 1407 shall be effective when the transfer or remand order is filed
in the office of the clerk of the district court of the transferee
district.
(As amended June 14, 1988, eff. July 6, 1988; Sept. 1, 1998, eff. Nov.
2, 1998.)
Rule 1.6: Transfer of Files
(a) Upon receipt of a certified copy of a transfer order from the
clerk of the transferee district court, the clerk of the transferor
district court shall forward to the clerk of the transferee district
court the complete original file and a certified copy of the docket
sheet for each transferred action.
(b) If an appeal is pending, or a notice of appeal has been filed,
or leave to appeal has been sought under 28 U.S.C. Sec. 1292(b) or a
petition for an extraordinary writ is pending, in any action included in
an order of transfer under 28 U.S.C. Sec. 1407, and the original file or
parts thereof have been forwarded to the court of appeals, the clerk of
the transferor district court shall notify the clerk of the court of
appeals of the order of transfer and secure the original file long
enough to prepare and transmit to the clerk of the transferee district
court a certified copy of all papers contained in the original file and
a certified copy of the docket sheet.
(c) If the transfer order provides for the separation and
simultaneous remand of any claim, cross-claim, counterclaim, or third-
party claim, the clerk of the transferor district court shall retain the
original file and shall prepare and transmit to the clerk of the
transferee district court a certified copy of the docket sheet and
copies of all papers except those relating exclusively to separated and
remanded claims.
(d) Upon receipt of an order to remand from the Clerk of the Panel,
the transferee district court shall prepare and send to the clerk of the
transferor district court the following:
(i) a certified copy of the individual docket sheet for each
action being remanded;
(ii) a certified copy of the master docket sheet, if applicable;
(iii) the entire file for each action being remanded, as
originally received from the transferor district court and augmented
as set out in this rule;
(iv) a certified copy of the final pretrial order, if
applicable; and
(v) a ``record on remand'' to be composed of those parts of the
files and records produced during coordinated or consolidated
pretrial proceedings which have been stipulated to or designated by
counsel as being necessary for any or all proceedings to be
conducted following remand. It shall be the responsibility of
counsel originally preparing or filing any document to be included
in the ``record on remand'' to furnish on request sufficient copies
to the clerk of the transferee district court.
(e) The Clerk of the Panel shall be notified when any files have
been transmitted pursuant to this Rule.
(Added June 14, 1988, eff. July 6, 1988; amended Sept. 1, 1998, eff.
Nov. 2, 1998.)
Rule 5.1: Keeping Records and Files
(a) The records and files of the Panel shall be kept by the Clerk of
the Panel at the offices of the Panel. Records and files may be
temporarily or permanently removed to such places at such times as the
Panel or the Chairman of the Panel shall direct. The Clerk of the Panel
may charge fees, as prescribed by the Judicial Conference of the United
States, for duplicating records and files. Records and files may be
transferred whenever appropriate to the Federal Records Center.
(b) In order to assist the Panel in carrying out its functions, the
Clerk of the Panel shall obtain the complaints and docket sheets in all
actions under consideration for transfer under 28 U.S.C. Sec. 1407 from
the clerk of each district court wherein such actions are pending. The
Clerk of the Panel shall similarly obtain any other pleadings and orders
that could affect the Panel's decision under 28 U.S.C. Sec. 1407.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 5.11: Place of Filing of Papers
All papers for consideration by the Panel shall be submitted for
filing to the Clerk of the Panel by mailing or delivering to:
Clerk of the Panel
Judicial Panel on Multidistrict Litigation
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Room G-255, North Lobby
Washington, D.C. 20002-8004
No papers shall be left with or mailed to a Judge of the Panel.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 5.12: Manner of Filing of Papers
(a) An original of the following papers shall be submitted for
filing to the Clerk of the Panel: a proof of service pursuant to Rule
5.2(a) and (b) of these Rules, a notice of appearance pursuant to Rule
5.2(c) and (d) of these Rules, a corporate disclosure statement pursuant
to Rule 5.3 of these Rules, a status notice pursuant to Rules 7.2(f),
7.3(e) and 7.4(b) of these Rules, a notice of opposition pursuant to
Rules 7.4(c) and 7.6(f)(ii) of these Rules, a notice of related action
pursuant to Rules 7.2(i), 7.3(a) and 7.5(e) of these Rules, an
application for extension of time pursuant to Rule 6.2 of these Rules,
or a notice of presentation or waiver of oral argument pursuant to Rule
16.1(d) of these Rules. An original and eleven copies of all other
papers shall be submitted for filing to the Clerk of the Panel. The
Clerk of the Panel may require that additional copies also be submitted
for filing.
(b) When papers are submitted for filing, the Clerk of the Panel
shall endorse thereon the date for filing.
(c) Copies of motions for transfer of an action or actions pursuant
to 28 U.S.C. Sec. 1407 shall be filed in each district court in which an
action is pending that will be affected by the motion. Copies of a
motion for remand pursuant to 28 U.S.C. Sec. 1407 shall be filed in the
Section 1407 transferee district court in which any action affected by
the motion is pending.
(d) Papers requiring only an original may be faxed to the Panel
office with prior approval of the Clerk of the Panel. No papers
requiring multiple copies shall be accepted via fax.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998; Apr. 2, 2001, eff. Apr. 2,
2001.)
Rule 5.13: Filing of Papers: Computer Generated Disk Required
(a) Whenever an original paper and eleven copies is required to be
submitted for filing to the Clerk of the Panel pursuant to Rule 5.12(a)
of these Rules, and where a party is represented by counsel, one copy of
that paper must also be submitted on a computer readable disk and shall
be filed at the time the party's paper is filed. The disk shall contain
the entire paper exclusive of computer non-generated exhibits. The label
of the disk shall include i) ``MDL <greek-i>__,'' ii) an abbreviated
version of the MDL descriptive title, or other appropriate descriptive
title, if not yet designated by the Panel, iii) the identity of the type
of paper being filed (i.e. motion, response, reply, etc.), iv) the name
of the counsel who signed the paper, and v) the first named represented
party on the paper.
(b) The paper must be on a 3\1/2\ inch disk in WordPerfect for
Windows format.
(c) One copy of the disk may be served on each party separately
represented by counsel. If a party chooses to serve a copy of the disk,
the proof of service, as required by Rule 5.2 of these Rules, must
indicate service of the paper in both paper and electronic format.
(d) A party may be relieved from the requirements of this Rule by
submitting a written application for a waiver, in a timely manner in
advance of submission of the paper, certifying that compliance with the
Rule would impose undue hardship, that the text of the paper is not
available on disk, or that other unusual circumstances preclude
compliance with this Rule. The requirements of this Rule shall not apply
to parties appearing pro se. Papers embraced by this Rule and submitted
by counsel after June 1, 2000 without a computer disk copy or Panel-
approved waiver of the requirements of this Rule shall be governed by
Rule 1.3 of these Rules.
(Added May 22, 2000, eff. June 1, 2000.)
Rule 5.2: Service of Papers Filed
(a) All papers filed with the Clerk of the Panel shall be
accompanied by proof of previous or simultaneous service on all other
parties in all actions involved in the litigation. Service and proof of
service shall be made as provided in Rules 5 and 6 of the Federal Rules
of Civil Procedure. The proof of service shall indicate the name and
complete address of each person served and shall indicate the party
represented by each. If a party is not represented by counsel, the proof
of service shall indicate the name of the party and the party's last
known address. The proof of service shall indicate why any person named
as a party in a constituent complaint was not served with the Section
1407 pleading. The original proof of service shall be filed with the
Clerk of the Panel and copies thereof shall be sent to each person
included within the proof of service. After the ``Panel Service List''
described in subsection (d) of this Rule has been received from the
Clerk of the Panel, the ``Panel Service List'' shall be utilized for
service of responses to motions and all other filings. In such
instances, the ``Panel Service List'' shall be attached to the proof of
service and shall be supplemented in the proof of service in the event
of the presence of additional parties or subsequent corrections relating
to any party, counsel or address already on the ``Panel Service List.''
(b) The proof of service pertaining to motions for transfer of
actions pursuant to 28 U.S.C. Sec. 1407 shall certify that copies of the
motions have been mailed or otherwise delivered for filing to the clerk
of each district court in which an action is pending that will be
affected by the motion. The proof of service pertaining to a motion for
remand pursuant to 28 U.S.C. Sec. 1407 shall certify that a copy of the
motion has been mailed or otherwise delivered for filing to the clerk of
the Section 1407 transferee district court in which any action affected
by the motion is pending.
(c) Within eleven days of filing of a motion to transfer, an order
to show cause or a conditional transfer order, each party or designated
attorney shall notify the Clerk of the Panel, in writing, of the name
and address of the attorney designated to receive service of all
pleadings, notices, orders and other papers relating to practice before
the Judicial Panel on Multidistrict Litigation. Only one attorney shall
be designated for each party. Any party not represented by counsel shall
be served by mailing such pleadings to the party's last known address.
Requests for an extension of time to file the designation of attorney
shall not be granted except in extraordinary circumstances.
(d) In order to facilitate compliance with subsection (a) of this
Rule, the Clerk of the Panel shall prepare and serve on all counsel and
parties not represented by counsel, a ``Panel Service List'' containing
the names and addresses of the designated attorneys and the party or
parties they represent in the actions under consideration by the Panel
and the names and addresses of the parties not represented by counsel in
the actions under consideration by the Panel. After the ``Panel Service
List'' has been received from the Clerk of the Panel, notice of
subsequent corrections relating to any party, counsel or address on the
``Panel Service List'' shall be served on all other parties in all
actions involved in the litigation.
(e) If following transfer of any group of multidistrict litigation,
the transferee district court appoints liaison counsel, this Rule shall
be satisfied by serving each party in each affected action and all
liaison counsel. Liaison counsel designated by the transferee district
court shall receive copies of all Panel orders concerning their
particular litigation and shall be responsible for distribution to the
parties for whom he or she serves as liaison counsel.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 5.3: Corporate Disclosure Statement
(a) Any nongovernmental corporate party to a matter before the Panel
shall file a statement identifying all its parent corporations and
listing any publicly held company that owns 10% or more of the party's
stock.
(b) A party shall file the corporate disclosure statement within
eleven days of the filing of a motion to transfer or remand, an order to
show cause, or a motion to vacate a conditional transfer order or a
conditional remand order.
(c) Once a corporate disclosure statement by a party has been filed
in an MDL docket pursuant to subsection (b) of this Rule, such a party
is required to update the statement to reflect any change in the
information therein i) until the matter before the Panel is decided, and
ii) within eleven days of the filing of any subsequent motion to
transfer or remand, order to show cause, or motion to vacate a
conditional transfer order or a conditional remand order in that docket.
(Added Apr. 2, 2001, eff. Apr. 2, 2001.)
Rule 6.2: Applications for Extensions of Time
Any application for an extension of time to file a pleading or
perform an act required by these Rules must be in writing, must request
a specific number of additional days and may be acted upon by the Clerk
of the Panel. Such an application will be evaluated in relation to the
impact on the Panel's calendar as well as on the basis of the reasons
set forth in support of the application. Any party aggrieved by the
Clerk of the Panel's action on such application may submit its
objections to the Panel for consideration. Absent exceptional
circumstances, no extensions of time shall be granted to file a notice
of opposition to either a conditional transfer order or a conditional
remand order. All applications for extensions of time shall be filed and
served in conformity with Rules 5.12, 5.2 and 7.1 of these Rules.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 7.1: Form of Papers Filed
(a) Averments in any motion seeking action by the Panel shall be
made in numbered paragraphs, each of which shall be limited, as far as
practicable, to a statement of a single factual averment.
(b) Responses to averments in motions shall be made in numbered
paragraphs, each of which shall correspond to the number of the
paragraph of the motion to which the responsive paragraph is directed.
Each responsive paragraph shall admit or deny wholly or in part the
averment of the motion, and shall contain the respondent's version of
the subject matter when the averment or the motion is not wholly
admitted.
(c) Each pleading filed shall be:
(i) flat and unfolded;
(ii) plainly written, typed in double space, printed or prepared
by means of a duplicating process, without erasures or
interlineations which materially deface it;
(iii) on opaque, unglazed, white paper (not onionskin);
(iv) approximately 8\1/2\ x 11 inches in size; and
(v) fastened at the top-left corner without side binding or
front or back covers.
(d) The heading on the first page of each pleading shall commence
not less than three inches from the top of the page. Each pleading shall
bear the heading ``Before the Judicial Panel on Multidistrict
Litigation,'' the identification ``MDL Docket No. __'' and the
descriptive title designated by the Panel for the litigation involved.
If the Panel has not yet designated a title, an appropriate descriptive
title shall be used.
(e) The final page of each pleading shall contain the name, address
and telephone number of the attorney or party in active charge of the
case. Each attorney shall also include the name of each party
represented.
(f) Except with the approval of the Panel, each brief submitted for
filing with the Panel shall be limited to twenty pages, exclusive of
exhibits. Absent exceptional circumstances, motions to exceed page
limits shall not be granted.
(g) Exhibits exceeding a cumulative total of 50 pages shall be
fastened separately from the accompanying pleading.
(h) Proposed Panel orders shall not be submitted with papers for
filing.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998; Apr. 2, 2001, eff. Apr. 2,
2001.)
Rule 7.2: Motion Practice
(a) All requests for action by the Panel under 28 U.S.C. Sec. 1407
shall be made by written motion. Every motion shall be accompanied by:
(i) a brief in support thereof in which the background of the
litigation and factual and legal contentions of the movant shall be
concisely stated in separate portions of the brief with citation of
applicable authorities; and
(ii) a schedule giving
(A) the complete name of each action involved, listing the
full name of each party included as such on the district court's
docket sheet, not shortened by the use of references such as
``et al.'' or ``etc.'';
(B) the district court and division in which each action is
pending;
(C) the civil action number of each action; and
(D) the name of the judge assigned each action, if known.
(b) The Clerk of the Panel shall notify recipients of a motion of
the filing date, caption, MDL docket number, briefing schedule and
pertinent Panel policies.
(c) Within twenty days after filing of a motion, all other parties
shall file a response thereto. Failure of a party to respond to a motion
shall be treated as that party's acquiescence to the action requested in
the motion.
(d) The movant may, within five days after the lapse of the time
period for filing responsive briefs, file a single brief in reply to any
opposition.
(e) Motions, their accompaniments, responses, and replies shall also
be governed by Rules 5.12, 5.2 and 7.1 of these Rules.
(f) With respect to any action that is the subject of Panel
consideration, counsel shall promptly notify the Clerk of the Panel of
any development that would partially or completely moot the matter
before the Panel.
(g) A joinder in a motion shall not add any action to the previous
motion.
(h) Once a motion is filed, any other pleading that purports to be a
``motion'' in the docket shall be filed by the Clerk of the Panel as a
response unless the ``motion'' adds an action. The Clerk of the Panel,
upon designating such a pleading as a motion, shall acknowledge that
designation by the distribution of a briefing schedule to all parties in
the docket. Response time resulting from an additional motion shall
ordinarily be extended only to those parties directly affected by the
additional motion. An accelerated briefing schedule for the additional
motion may be set by the Clerk of the Panel to conform with the hearing
session schedule established by the Chairman.
(i) Any party or counsel in a new group of actions under
consideration by the Panel for transfer under Section 1407 shall
promptly notify the Clerk of the Panel of any potential tag-along action
in which that party is also named or in which that counsel appears.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998; Apr. 2, 2001, eff. Apr. 2,
2001.)
Rule 7.3: Show Cause Orders
(a) When transfer of multidistrict litigation is being considered on
the initiative of the Panel pursuant to 28 U.S.C. Sec. 1407(c)(i), an
order shall be filed by the Clerk of the Panel directing the parties to
show cause why the action or actions should not be transferred for
coordinated or consolidated pretrial proceedings. Any party or counsel
in such actions shall promptly notify the Clerk of the Panel of any
other federal district court actions related to the litigation
encompassed by the show cause order. Such notification shall be made for
additional actions pending at the time of the issuance of the show cause
order and whenever new actions are filed.
(b) Any party may file a response to the show cause order within
twenty days of the filing of said order unless otherwise provided for in
the order. Failure of a party to respond to a show cause order shall be
treated as that party's acquiescence to the Panel action contemplated in
the order.
(c) Within five days after the lapse of the time period for filing a
response, any party may file a reply limited to new matters.
(d) Responses and replies shall be filed and served in conformity
with Rules 5.12, 5.2 and 7.1 of these Rules.
(e) With respect to any action that is the subject of Panel
consideration, counsel shall promptly notify the Clerk of the Panel of
any development that would partially or completely moot the matter
before the Panel.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 7.4: Conditional Transfer Orders for ``Tag-Along Actions''
(a) Upon learning of the pendency of a potential ``tag-along
action,'' as defined in Rule 1.1 of these Rules, an order may be entered
by the Clerk of the Panel transferring that action to the previously
designated transferee district court on the basis of the prior hearing
session(s) and for the reasons expressed in previous opinions and orders
of the Panel in the litigation. The Clerk of the Panel shall serve this
order on each party to the litigation but, in order to afford all
parties the opportunity to oppose transfer, shall not send the order to
the clerk of the transferee district court for fifteen days from the
entry thereof.
(b) Parties to an action subject to a conditional transfer order
shall notify the Clerk of the Panel within the fifteen-day period if
that action is no longer pending in its transferor district court.
(c) Any party opposing the transfer shall file a notice of
opposition with the Clerk of the Panel within the fifteen-day period. If
a notice of opposition is received by the Clerk of the Panel within this
fifteen-day period, the Clerk of the Panel shall not transmit said order
to the clerk of the transferee district court until further order of the
Panel. The Clerk of the Panel shall notify the parties of the briefing
schedule.
(d) Within fifteen days of the filing of its notice of opposition,
the party opposing transfer shall file a motion to vacate the
conditional transfer order and brief in support thereof. The Chairman of
the Panel shall set the motion for the next appropriate hearing session
of the Panel. Failure to file and serve a motion and brief shall be
treated as withdrawal of the opposition and the Clerk of the Panel shall
forthwith transmit the order to the clerk of the transferee district
court.
(e) Conditional transfer orders do not become effective unless and
until they are filed with the clerk of the transferee district court.
(f) Notices of opposition and motions to vacate such orders of the
Panel and responses thereto shall be governed by Rules 5.12, 5.2, 7.1
and 7.2 of these Rules.
(As amended June 14, 1988, eff. July 6, 1988; Sept. 1, 1998, eff. Nov.
2, 1998; Apr. 2, 2001, eff. Apr. 2, 2001.)
Rule 7.5: Miscellaneous Provisions Concerning ``Tag-Along Actions''
(a) Potential ``tag-along actions'' filed in the transferee district
require no action on the part of the Panel and requests for assignment
of such actions to the Section 1407 transferee judge should be made in
accordance with local rules for the assignment of related actions.
(b) Upon learning of the pendency of a potential ``tag-along
action'' and having reasonable anticipation of opposition to transfer of
that action, the Panel may direct the Clerk of the Panel to file a show
cause order, in accordance with Rule 7.3 of these Rules, instead of a
conditional transfer order.
(c) Failure to serve one or more of the defendants in a potential
``tag-along action'' with the complaint and summons as required by Rule
4 of the Federal Rules of Civil Procedure does not preclude transfer of
such action under Section 1407. Such failure, however, may be submitted
by such a defendant as a basis for opposing the proposed transfer if
prejudice can be shown. The inability of the Clerk of the Panel to serve
a conditional transfer order on all plaintiffs or defendants or their
counsel shall not render the transfer of the action void but can be
submitted by such a party as a basis for moving to remand as to such
party if prejudice can be shown.
(d) A civil action apparently involving common questions of fact
with actions under consideration by the Panel for transfer under Section
1407, which was either not included in a motion under Rule 7.2 of these
Rules, or was included in such a motion that was filed too late to be
included in the initial hearing session, will ordinarily be treated by
the Panel as a potential ``tag-along action.''
(e) Any party or counsel in actions previously transferred under
Section 1407 or under consideration by the Panel for transfer under
Section 1407 shall promptly notify the Clerk of the Panel of any
potential ``tag-along actions'' in which that party is also named or in
which that counsel appears.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998; Apr. 2, 2001, eff. Apr. 2,
2001.)
Rule 7.6: Termination and Remand
In the absence of unusual circumstances--
(a) Actions terminated in the transferee district court by valid
judgment, including but not limited to summary judgment, judgment of
dismissal and judgment upon stipulation, shall not be remanded by the
Panel and shall be dismissed by the transferee district court. The clerk
of the transferee district court shall send a copy of the order
terminating the action to the Clerk of the Panel but shall retain the
original files and records unless otherwise directed by the transferee
judge or by the Panel.
(b) Each action transferred only for coordinated or consolidated
pretrial proceedings that has not been terminated in the transferee
district court shall be remanded by the Panel to the transferor district
for trial. Actions that were originally filed in the transferee district
require no action by the Panel to be reassigned to another judge in the
transferee district at the conclusion of the coordinated or consolidated
pretrial proceedings affecting those actions.
(c) The Panel shall consider remand of each transferred action or
any separable claim, cross-claim, counterclaim or third-party claim at
or before the conclusion of coordinated or consolidated pretrial
proceedings on
(i) motion of any party,
(ii) suggestion of the transferee district court, or
(iii) the Panel's own initiative, by entry of an order to show
cause, a conditional remand order or other appropriate order.
(d) The Panel is reluctant to order remand absent a suggestion of
remand from the transferee district court. If remand is sought by motion
of a party, the motion shall be accompanied by:
(i) an affidavit reciting
(A) whether the movant has requested a suggestion of remand
from the transferee district court, how the court responded to
any request, and, if no such request was made, why;
(B) whether all common discovery and other pretrial
proceedings have been completed in the action sought to be
remanded, and if not, what remains to be done; and
(C) whether all orders of the transferee district court have
been satisfactorily complied with, and if not, what remains to
be done; and
(ii) a copy of the transferee district court's final pretrial
order, where such order has been entered.
Motions to remand and responses thereto shall be governed by Rules
5.12, 5.2, 7.1 and 7.2 of these Rules.
(e) When an order to show cause why an action or actions should not
be remanded is entered pursuant to subsection (c), paragraph (iii) of
this Rule, any party may file a response within twenty days of the
filing of said order unless otherwise provided for in the order. Within
five days of filing of a party's response, any party may file a reply
brief limited to new matters. Failure of a party to respond to a show
cause order regarding remand shall be treated as that party's
acquiescence to the remand. Responses and replies shall be filed and
served in conformity with Rules 5.12, 5.2 and 7.1 of these Rules.
(f) Conditional Remand Orders
(i) When the Panel has been advised by the transferee district
judge, or otherwise has reason to believe, that pretrial proceedings
in the litigation assigned to the transferee district judge are
concluded or that remand of an action or actions is otherwise
appropriate, an order may be entered by the Clerk of the Panel
remanding the action or actions to the transferor district court.
The Clerk of the Panel shall serve this order on each party to the
litigation but, in order to afford all parties the opportunity to
oppose remand, shall not send the order to the clerk of the
transferee district court for fifteen days from the entry thereof.
(ii) Any party opposing the remand shall file a notice of
opposition with the Clerk of the Panel within the fifteen-day
period. If a notice of opposition is received by the Clerk of the
Panel within this fifteen-day period, the Clerk of the Panel shall
not transmit said order to the clerk of the transferee district
court until further order of the Panel. The Clerk of the Panel shall
notify the parties of the briefing schedule.
(iii) Within fifteen days of the filing of its notice of
opposition, the party opposing remand shall file a motion to vacate
the conditional remand order and brief in support thereof. The
Chairman of the Panel shall set the motion for the next appropriate
hearing session of the Panel. Failure to file and serve a motion and
brief shall be treated as a withdrawal of the opposition and the
Clerk of the Panel shall forthwith transmit the order to the clerk
of the transferee district court.
(iv) Conditional remand orders do not become effective unless
and until they are filed with the clerk of the transferee district
court.
(v) Notices of opposition and motions to vacate such orders of
the Panel and responses thereto shall be governed by Rules 5.12,
5.2, 7.1 and 7.2 of these Rules.
(g) Upon receipt of an order to remand from the Clerk of the Panel,
the parties shall furnish forthwith to the transferee district clerk a
stipulation or designation of the contents of the record or part thereof
to be remanded and furnish the transferee district clerk all necessary
copies of any pleading or other matter filed so as to enable the
transferee district clerk to comply with the order of remand.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998; Apr. 2, 2001, eff. Apr. 2,
2001.)
Rule 16.1: Hearing Sessions and Oral Argument
(a) Hearing sessions of the Panel for the presentation of oral
argument and consideration of matters taken under submission without
oral argument shall be held as ordered by the Panel. The Panel shall
convene whenever and wherever desirable or necessary in the judgment of
the Chairman. The Chairman shall determine which matters shall be
considered at each hearing session and the Clerk of the Panel shall give
notice to counsel for all parties involved in the litigation to be so
considered of the time, place and subject matter of such hearing
session.
(b) Each party filing a motion or a response to a motion or order of
the Panel under Rules 7.2, 7.3, 7.4 or 7.6 of these Rules may file
simultaneously therewith a separate statement limited to one page
setting forth reasons why oral argument should, or need not, be heard.
Such statements shall be captioned ``Reasons Why Oral Argument Should
[Need Not] Be Heard,'' and shall be filed and served in conformity with
Rules 5.12 and 5.2 of these Rules.
(c) No transfer or remand determination regarding any action pending
in the district court shall be made by the Panel when any party timely
opposes such transfer or remand unless a hearing session has been held
for the presentation of oral argument except that the Panel may dispense
with oral argument if it determines that:
(i) the dispositive issue(s) have been authoritatively decided;
or
(ii) the facts and legal arguments are adequately presented in
the briefs and record, and the decisional process would not be
significantly aided by oral argument.
Unless otherwise ordered by the Panel, all other matters before the
Panel, such as a motion for reconsideration, shall be considered and
determined upon the basis of the papers filed.
(d) In those matters in which oral argument is not scheduled by the
Panel, counsel shall be promptly advised. If oral argument is scheduled
in a matter the Clerk of the Panel may require counsel for all parties
who wish to make or to waive oral argument to file and serve notice to
that effect within a stated time in conformity with Rules 5.12 and 5.2
of these Rules. Failure to do so shall be deemed a waiver of oral
argument by that party. If oral argument is scheduled but not attended
by a party, the matter shall not be rescheduled and that party's
position shall be treated as submitted for decision by the Panel on the
basis of the papers filed.
(e) Except for leave of the Panel on a showing of good cause, only
those parties to actions scheduled for oral argument who have filed a
motion or written response to a motion or order shall be permitted to
appear before the Panel and present oral argument.
(f) Counsel for those supporting transfer or remand under Section
1407 and counsel for those opposing such transfer or remand are to
confer separately prior to the oral argument for the purpose of
organizing their arguments and selecting representatives to present all
views without duplication.
(g) Unless otherwise ordered by the Panel, a maximum of twenty
minutes shall be allotted for oral argument in each matter. The time
shall be divided equally among those with varying viewpoints. Counsel
for the moving party or parties shall generally be heard first.
(h) So far as practicable and consistent with the purposes of
Section 1407, the offering of oral testimony before the Panel shall be
avoided. Accordingly, oral testimony shall not be received except upon
notice, motion and order of the Panel expressly providing for it.
(i) After an action or group of actions has been set for a hearing
session, consideration of such action(s) may be continued only by order
of the Panel on good cause shown.
(As amended June 14, 1988, eff. July 6, 1988; May 3, 1993, eff. July 1,
1993; Sept. 1, 1998, eff. Nov. 2, 1998; Apr. 2, 2001, eff. Apr. 2,
2001.)
II. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW UNDER 28 U.S.C.
Sec. 2112(a)(3)
Rule 17.1: Random Selection
(a) Upon filing a notice of multicircuit petitions for review, the
Clerk of the Panel or designated deputy shall randomly select a circuit
court of appeals from a drum containing an entry for each circuit
wherein a constituent petition for review is pending. Multiple petitions
for review pending in a single circuit shall be allotted only a single
entry in the drum. This random selection shall be witnessed by the Clerk
of the Panel or a designated deputy other than the random selector.
Thereafter, an order on behalf of the Panel shall be issued, signed by
the random selector and the witness,
(i) consolidating the petitions for review in the court of
appeals for the circuit that was randomly selected; and
(ii) designating that circuit as the one in which the record is
to be filed pursuant to Rules 16 and 17 of the Federal Rules of
Appellate Procedure.
(b) A consolidation of petitions for review shall be effective when
the Panel's consolidation order is filed at the offices of the Panel by
the Clerk of the Panel.
(Added June 14, 1988, eff. July 6, 1988; amended Sept. 1, 1998, eff.
Nov. 2, 1998.)
Rule 25.1: Filing of Notices
(a) An original of a notice of multicircuit petitions for review
pursuant to 28 U.S.C. Sec. 2112(a)(3) shall be submitted for filing to
the Clerk of the Panel by the affected agency, board, commission or
officer. The term ``agency'' as used in Section II of these Rules shall
include agency, board, commission or officer.
(b) All notices of multicircuit petitions for review submitted by
the affected agency for filing with the Clerk of the Panel shall embrace
exclusively petitions for review filed in the courts of appeals within
ten days after issuance of an agency order and received by the affected
agency from the petitioners within that ten-day period.
(c) When a notice of multicircuit petitions for review is submitted
for filing to the Clerk of the Panel, the Clerk of the Panel shall file
the notice and endorse thereon the date of filing.
(d) Copies of notices of multicircuit petitions for review shall be
filed by the affected agency with the clerk of each circuit court of
appeals in which a petition for review is pending that is included in
the notice.
(Added June 14, 1988, eff. July 6, 1988; amended May 3, 1993, eff. July
1, 1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 25.2: Accompaniments to Notices
(a) All notices of multicircuit petitions for review shall be
accompanied by:
(i) a copy of each involved petition for review as the petition
for review is defined in 28 U.S.C. Sec. 2112(a)(2); and
(ii) a schedule giving
(A) the date of the relevant agency order;
(B) the case name of each petition for review involved;
(C) the circuit court of appeals in which each petition for
review is pending;
(D) the appellate docket number of each petition for review;
(E) the date of filing by the court of appeals of each
petition for review; and
(F) the date of receipt by the agency of each petition for
review.
(b) The schedule in Subsection (a)(ii) of this Rule shall also be
governed by Rules 25.1, 25.3 and 25.4(a) of these Rules.
(Added June 14, 1988, eff. July 6, 1988; amended Sept. 1, 1998, eff.
Nov. 2, 1998.)
Rule 25.3: Service of Notices
(a) All notices of multicircuit petitions for review shall be
accompanied by proof of service by the affected agency on all other
parties in all petitions for review included in the notice. Service and
proof of service shall be made as provided in Rule 25 of the Federal
Rules of Appellate Procedure. The proof of service shall state the name
and address of each person served and shall indicate the party
represented by each. If a party is not represented by counsel, the proof
of service shall indicate the name of the party and his or her last
known address. The original proof of service shall be submitted by the
affected agency for filing with the Clerk of the Panel and copies
thereof shall be sent by the affected agency to each person included
within the proof of service.
(b) The proof of service pertaining to notices of multicircuit
petitions for review shall certify that copies of the notices have been
mailed or otherwise delivered by the affected agency for filing to the
clerk of each circuit court of appeals in which a petition for review is
pending that is included in the notice.
(Added June 14, 1988, eff. July 6, 1988; amended Sept. 1, 1998, eff.
Nov. 2, 1998.)
Rule 25.4: Form of Notices
(a) Each notice of multicircuit petitions for review shall be
(i) flat and unfolded;
(ii) plainly written, typed in double space, printed or prepared
by means of a duplicating process, without erasures or
interlineations which materially deface it;
(iii) on opaque, unglazed white paper (not onionskin);
(iv) approximately 8\1/2\ x 11 inches in size; and
(v) fastened at the top-left corner without side binding or
front or back covers.
(b) The heading on the first page of each notice of multicircuit
petitions for review shall commence not less that three inches from the
top of the page. Each notice shall bear the heading [``]Notice to the
Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for
Review,'' followed by a brief caption identifying the involved agency,
the relevant agency order, and the date of the order.
(c) The final page of each notice of multicircuit petitions for
review shall contain the name, address and telephone number of the
individual or individuals who submitted the notice on behalf of the
agency.
(Added June 14, 1988, eff. July 6, 1988; amended May 3, 1993, eff. July
1, 1993; Sept. 1, 1998, eff. Nov. 2, 1998.)
Rule 25.5: Service of Panel Consolidation Order
(a) The Clerk of the Panel shall serve the Panel's consolidation
order on the affected agency through the individual or individuals, as
identified in Rule 25.4(c) of these Rules, who submitted the notice of
multicircuit petitions for review on behalf of the agency.
(b) That individual or individuals, or anyone else designated by the
agency, shall promptly serve the Panel's consolidation order on all
other parties in all petitions for review included in the Panel's
consolidation order, and shall promptly submit a proof of that service
to the Clerk of the Panel. Service and proof of that service shall also
be governed by Rule 25.3 of these Rules.
(c) The Clerk of the Panel shall serve the Panel's consolidation
order on the clerks of all circuit courts of appeals that were among the
candidates for the Panel's random selection.
(Added June 14, 1988, eff. July 6, 1988; amended Sept. 1, 1998, eff.
Nov. 2, 1998.)
Section Referred to in Other Sections
This section is referred to in section 1441 of this title.
