Ten Steps to Better Case Management

A Guide for Multidistrict Litigation

Transferee Judges

Second Edition

United States Judicial Panel on Multidistrict Litigation

&

Federal Judicial Center

2014

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop educational materials for the judicial branch. While the 

Center regards the content as responsible and valuable, it does not reflect policy or 

recommendations of the Board of the Federal Judicial Center.
first printing
iii

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

Contents

Preface, v

I. Coordinate with Your Clerk’s Office, 1

II. Promptly Schedule a Conference with Counsel, 1

III. Take Great Care in Appointing Counsel, 2

IV. Enter a Case Management Order, 3

V. Rule Promptly on Motions, 4

a. Rule on Remand Motions, 5

b. Resolve Discovery Disputes, 5

c. Avoid Delay from Interlocutory Appeals, 6

VI. Hold Regular Telephone Conferences, 6

VII. Coordinate with Parallel State Court Cases, 6

VIII. Encourage an Early Mediation Process, 7

IX. Anticipate Lexecon Issues, 8

X. Exercise Your Primary Responsibilities, 8

a. Decide Pretrial Issues, 8

b. Settle or Try All Claims When Possible, 9

c. Remand Cases to the Transferor Courts, 9

d. Tell the Transferor Court What You Did, 10

v

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

Preface

This guide is intended to help transferee judges with their MDL 

cases. Congress created the United States Judicial Panel on 

Multidistrict Litigation under 28 U.S.C. § 1407 and gave it the 

responsibility to transfer “civil actions involving one or more 

common questions of fact” from multiple districts to any single 

district for coordinated or consolidated pretrial proceedings. 

The Panel centralizes cases in order to promote the convenient, 

just and efficient conduct of the actions. After the Panel transfers cases, it exercises virtually no further control over them.

Section 1407 empowers a transferee judge to exercise all the 

powers of the transferor court, with the exception of actually 

conducting the trial of the case (except in special circumstances). The purpose of this guide is to introduce briefly some of 

the “best practices” that transferee judges have developed over 

the years. Of course, these “ten steps” oversimplify your complex task. Some MDLs will require special arrangements and extraordinary treatment. However, there is some virtue in focusing 

upon core responsibilities. That is our purpose here.

Multidistrict litigation presents a federal judge with difficult 

management, intellectual, and personal challenges. It is these 

challenges, in fact, that attract so many of our best judges to 

serve as transferee judges. In the final analysis, intangible leadership qualities rather than mechanical rules define the best 

MDL judges. 

A highly useful resource for every transferee judge is the 

Manual for Complex Litigation, Fourth Edition, which contains 

a wealth of detailed suggestions. You will find references to the 

Manual throughout this guide. Other sources of helpful information can be found by clicking the MDL Judge Resources tab 

on the homepage of the Panel’s website. The site contains relevant articles and speeches, as well as sample orders submitted 

by other transferee judges. 

The Panel and the Federal Judicial Center hope that this guide 

helps you manage your MDL successfully. Our thanks particularly to former Panel member Judge J. Frederick Motz (D. Md.), 
vi

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

for the inspiration and recommendations necessary to complete 

this guide.

John G. Heyburn II

Chairman, United States Judicial Panel on Multidistrict Litigation 

U.S. District Court Judge 

Western District of Kentucky

Jeremy D. Fogel

Director, Federal Judicial Center

U.S. District Court Judge

Northern District of California
1

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

I. Coordinate with Your Clerk’s Office

Upon receiving an MDL assignment, you, your courtroom deputy or the case administrator, and others in the clerk’s office 

responsible for handling it should settle upon some practical 

administrative matters. An MDL will require special attention 

from your clerk’s office. You should consult Ten Steps to Better 

Case Management: A Guide for Multidistrict Litigation Transferee Court Clerks. This publication, which is available on the 

Panel’s website by clicking on the MDL Judge Resources tab1 and 

on the Center’s intranet website, FJC Online, under Class Action 

& Complex Litigation,

2

 sets forth the initial actions necessary to 

administer a multidistrict litigation case properly. 

If this is your district’s first MDL, you also should encourage 

your clerk to contact the Panel’s clerk’s office and other district 

court clerks’ offices that have handled MDL cases in the past.

II. Promptly Schedule a Conference with Counsel

Remember, your new cases already may have experienced some 

delay while the Panel considered and resolved the issue of centralization. It is important to get them moving again. Try to 

schedule a prompt organizational conference. See Manual 

§11.2. To do so sends a message that you are serious about organizing and moving the MDL. This conference may occur either by telephone or in person, but most judges believe that an 

in-person meeting is best. 

Prior to the conference, require counsel to meet and confer 

with one another and submit a proposed initial case management order. See Manual §11.11. Invite counsel to submit proposed agenda items for discussion at the initial meeting. At the 

conference, take charge and set the tone—consistent with your 

1. To access the website, go to the J-Net (http://jnet.ao.dcn) and click on the Court & 

Related Sites quick-link button. The U.S. Judicial Panel is listed under “Courts & Agencies.” The MDL Judge Resources link is the second tab on the left.

2. To access FJC Online from the J-Net, click on the FJC Online link at the very top of 

the page. To go directly to FJC Online within your browser, enter http://fjconline.fjc.dcn. 
2

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

own style and personality. As with all other litigation, you must 

establish credibility with the lawyers.

Set a clear target date for concluding important phases of 

your MDL, i.e., for all pretrial issues to be resolved and for the 

cases to be ready for trial. While making it clear that you expect 

the litigation to be conducted expeditiously, you also should respect the difficulties that counsel may confront in dealing with 

complex litigation involving numerous parties. 

Determine the key issues that you can decide early or on an 

expedited basis. This will speed settlement or other resolution 

of the litigation as a whole. See Manual § 11.33.

The most serious complaint that we ever hear—though infrequently—is that the judges may not take their MDL responsibilities seriously. Counsel will respond best if they know that 

you are serious about maintaining the schedule you establish. 

Brisk progress in the litigation is likely to minimize or eliminate 

petty and time-consuming incidental disputes among counsel 

and help bring the MDL proceedings to a fair and prompt conclusion.

III. Take Great Care in Appointing Counsel

It often is necessary to select lead, liaison, and/or administrative counsel in your MDL. This is one of your first and most 

important decisions. 

There is no magic formula for doing this. Consult the Manual for a listing of various selection criteria to consider. See Manual §§10.224, 14.211, 22.62. Many judges request that lawyers 

submit their résumés, descriptions of their prior experience in 

other complex litigation, and their proposed fee arrangements. 

Judges often hold a hearing to observe and assess counsels’ 

competence and professionalism. Your judicial colleagues are a 

valuable source of information. Feel free to contact other MDL 

judges for evaluations of particular lawyers. Use the Panel’s 

website to help.

The method or amount of fees that a lawyer will charge is 

always an important factor in the choice of lead counsel. It is 

also important to establish, explain, and enforce record-keep-
3

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

ing requirements. See Manual §§ 14.213, 40.23 (sample order). 

However, while a counsel’s proposed fee arrangements are important, this factor should not be dispositive. 

Identify and appoint counsel who are vigorous advocates 

and constructive problem-solvers, and who, at the same time, 

are civil with their adversaries. Particularly in cases where 

there is related state court litigation, lead counsel must have 

the self-confidence to include other attorneys in the committee 

structure and delegate significant responsibilities to them. See 

Manual § 40.22 (sample order setting forth responsibilities of 

lead and liaison counsel). The political and economic dynamics 

among lawyers, unless monitored, can disrupt the MDL and 

related state court proceedings. You cannot manage an MDL 

entirely yourself. To a large extent, you must rely upon lead 

counsel to assist you.

IV. Enter a Case Management Order

Managing an MDL fundamentally is no different from managing any other case, except that an MDL usually has the added 

complexity of more moving parts—lawyers, parties, jurisdictions, choice-of-law issues, varieties of discovery, and differentiated claims, just to mention a few. Any one of these factors can 

present you with serious challenges. 

Your case management order should include the usual interim breakpoints, e.g., filing of a consolidated amended complaint 

(where appropriate), filing and briefing on motions to dismiss, 

a fact-discovery deadline, a deadline for resolution of any classcertification motions, expert disclosures and discovery deadlines, 

and a summary judgment motions deadline. See Manual § 40.21 

(sample order). Many MDLs involve overlapping statewide and 

national class actions. Sequencing the discovery and briefing 

necessary to resolve class certification and summary judgment 

motions is one of your most vital initial tasks. 

Try to avoid unnecessary sequencing with respect to the 

treatment of pending motions and other matters. For example, 

where a defendant moves to dismiss some but not all of the 

plaintiffs’ claims, allow other discovery to proceed while you 
4

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

decide the motion. This technique may be particularly useful 

where the partial motion to dismiss raises difficult issues. On 

the other hand, limited discovery or “reverse sequencing” may 

be appropriate if settlement is likely. In such a situation, the 

parties can avoid unnecessary cost and delay by engaging in discovery and preparing expert reports on damages issues before 

addressing the merits of the underlying claims.

Your case management order should address the role of 

magistrate judges in the discovery process. See Manual §10.14. 

Many judges have found magistrate judges to be indispensable 

for the efficient handling of discovery matters. You also may 

want to consider the potential roles for a special master or an 

expert advisor to the court. See Manual §§11.51, 11.52. 

Another circumstance to bear in mind is the potential that 

new (“tag-along”) cases could be added to your MDL docket, 

as such cases are filed in other jurisdictions and the Panel transfers them to you. Ask the parties whether additional actions 

are likely, and, if so, include appropriate provisions in the case 

management order for integrating such actions into the ongoing proceedings. See Manual §§ 20.132, 22.631.

V. Rule Promptly on Motions

As you receive the new MDL cases, you may find many pending 

motions. Some of these motions may require more attention 

than others. Rulings should be prompt and disciplined; scholarly perfection is not required on all issues. We all remember 

from our days practicing law that a judge’s decision in our favor 

was delightful and that one against us, while unwanted, enabled 

us to advise our client about his or her risks and expectations. 

The only decision that we could not live with was the one that 

was never made. Consider issuing short rulings, which assume 

that the reader has knowledge of the underlying facts and legal 

issues and which simply state your holdings and the reasons for 

them. 
5

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

a. Rule on Remand Motions

The Panel routinely centralizes cases recently removed to federal court. In some of these cases, plaintiffs already may have filed 

motions for remand to a state court under 28 U.S.C. § 1447. 

The Panel’s decision to transfer a case in no way suggests an 

opinion about any such motion. The Panel’s belief is that the 

transferee judge is in the best position to determine jurisdictional issues. The Panel does not review your decisions on these 

or any other motions. 

Take these motions seriously and rule upon them as soon as 

reasonably possible. Where several motions appear to present 

an identical or substantially similar issue (for example, the alleged fraudulent joinder of the same defendant), many judges 

will decide one of them, and then order the remaining movants 

and/or respondents to show cause why that ruling should not 

apply to them as well. This is an easy way to test any pertinent 

differences in state or circuit law.

b. Resolve Discovery Disputes

Resolving discovery disputes expeditiously is important to avoid 

undue delay in any case, but particularly in an MDL. Different 

judges have different practices in handling discovery matters. 

Some judges assign a magistrate judge to monitor all discovery issues. Others have found it beneficial to handle discovery 

disputes themselves. These judges have found that the more 

contact they can have with the lawyers, the more they can control the pace of the litigation and influence its progress. Some 

judges use telephonic conference calls to resolve discovery disputes, dispensing with briefing when unnecessary. Regardless, 

the mere fact that a judge or magistrate judge is immediately 

available to handle a discovery dispute itself may enable counsel to resolve the dispute among themselves. 
6

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

c. Avoid Delay from Interlocutory Appeals

Many judges use the interlocutory appeal procedure afforded 

by 28 U.S.C. §1292(b) to allow appellate review of critical rulings while other aspects of the case move forward. Some circuits are more amenable to permitting such appeals than others. Whatever the case, the pendency of an interlocutory appeal 

generally should not be allowed to delay or halt other aspects of 

the MDL. Such delay usually is counterproductive. 

VI. Hold Regular Telephone Conferences

Many transferee judges schedule regular (often monthly) telephone conference calls with counsel. See Manual §11.22. When 

no pressing matters exist during a particular month, you can 

cancel the conference. However, unless the conference is regularly scheduled, minor issues can fester and become major 

problems. Frequent contact allows you to take the pulse of the 

litigation, to fine-tune scheduling adjustments, to set briefing and hearing dates for any anticipated motions, and to rule 

upon discovery and small scheduling disputes.

Most judges have a court reporter present during the telephone conference, at least to make a record of any scheduling 

changes or substantive matters discussed and ruled upon. See

Manual § 11.22. As to other administrative issues, you may confer with counsel to determine whether transcription is necessary.

VII. Coordinate with Parallel State Court Cases

Sometimes pending state court cases relate to your MDL. Coordination with state judges can be very important. See Manual 

§ 20.313.

Take it upon yourself to reach out to your state court colleagues from the outset. See Manual § 20.31. Try to forge constructive working relationships with them. One way of doing 

this is to establish an MDL-specific website so that your orders 
7

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

and rulings are readily available. See Manual §40.3 (sample 

order directing creation of a website). You can also begin by 

assessing what issues presented in the related state and federal 

court cases might be suited for coordinated efforts. 

A useful resource when dealing with federal and state coordination issues is a website created as a joint project by the National Center for State Courts, the Federal Judicial Center, and 

the Panel, which provides helpful tips and model orders on this 

subject. See http://multijurisdictionlitigation.wordpress.com.

Discovery is one area that is quite amenable to effective coordination. The use of common experts, along with consolidated expert disclosures and expert discovery, is also sometimes 

worthwhile. See Manual § 22.4. In sophisticated litigation, only 

a limited number of persons may be available to provide certain 

kinds of opinions. Moreover, high expert fees can provide an 

incentive for parties to join together in selecting their experts 

on common issues and to establish reasonable parameters on 

expert discovery.

VIII. Encourage an Early Mediation Process

As soon as you are satisfied that plaintiffs’ claims have at least 

some arguable merit, it may be a good idea to suggest that counsel establish a mediation structure, select a mediator, and begin 

settlement negotiations simultaneous with discovery and the 

briefing of preliminary motions. See Manual § 13.1. Although 

early negotiations may not bear immediate fruit, they do require all parties to keep the endgame in mind even in the initial 

phases of the litigation.

Sometimes the accumulation of costs and fees can be an obstacle to settlement. It is important at the outset to advise all 

parties about the importance of controlling costs. Particularly 

in cases arising under fee-shifting statutes, it may be helpful to 

set some ground rules, such as no first-class travel and a limitation on the number of lawyers at depositions. See Manual 

§14.21.
8

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

IX. Anticipate Lexecon Issues

In Lexecon Inc. v. Milberg Weiss, 523 U.S. 26 (1998), the Supreme Court ruled that a transferee judge cannot “self-transfer” 

an MDL action to his or her district under 28 U.S.C. § 1404 for 

the purpose of conducting a trial. You should anticipate Lexecon issues and resolve them, if you can, on the front end. 

Over the years, transferee judges have devised appropriate 

methods of working within the confines of Lexecon. See Manual 

§ 20.132. 

Many MDLs contain a number of actions that were properly 

filed in the first instance in the transferee district (that is, your 

district). Conducting one or more bellwether trials in those cases can help promote a global settlement or at least expedite settlement of other individual cases. See Manual §§ 20.132, 22.315, 

22.93. 

In some instances, transferee judges have obtained an intraor intercircuit assignment to preside over one or more trials 

after pretrial matters have been resolved and the actions remanded to their transferor districts. See Manual § 20.132.

X. Exercise Your Primary Responsibilities

Good case management techniques are a means, not an end. 

Never lose sight of your statutory responsibility, which is to 

manage pretrial proceedings efficiently and fairly.

a. Decide Pretrial Issues

Your ultimate responsibility is to resolve pretrial issues in a 

timely and expeditious manner. This responsibility certainly includes resolution of jurisdictional issues, important evidentiary 

disputes, class certification issues and, perhaps most important, 

motions to dismiss and for summary judgment. As noted earlier, the Panel exercises no review over any procedural or substantive ruling of a transferee judge. 

While the powers of the transferee judge are extremely broad, 

they are not without limitation. The transferee judge generally 

must apply the substantive law of the transferor forum, includ-
9

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

ing the appropriate state law and that forum’s choice-of-law 

rules. 

b. Settle or Try All Claims When Possible

Experience shows that MDL proceedings, like most civil cases, 

usually do end in settlement. Indeed, an MDL provides an extremely favorable structure for resolution. Where settlements 

are reasonable and just, they stand as a testament to the effectiveness of the MDL process. As you resolve pretrial issues 

and explore settlement options, the opportunity may arise to 

schedule a trial in one or more of the transferred cases. Such an 

opportunity is important to pursue creatively, as suggested in 

Section IX above.

c. Remand Cases to the Transferor Courts

The transferee judge has authority at any time during centralized proceedings to recommend that the Panel remand a particular case—or even individual claims within a case—to the 

transferor court. See Manual § 20.133. Such a remand is thus an 

option even where other centralized proceedings will continue. 

In certain circumstances, a transferee judge, after careful 

consideration, may conclude that he or she cannot effectively or 

efficiently coordinate a particular case or group of cases within 

the MDL (for example, where a tag-along action involves overwhelmingly individualized issues, or where a late-filed tagalong’s inclusion in the MDL presents insurmountable logistical hurdles given the advanced stage of centralized proceedings). 

In those instances, the transferee judge should recommend that 

the Panel remand the case (or claim) to the transferor court. 

See Manual § 20.133.

When you have completed all common discovery, ruled on 

all pretrial motions, and exhausted reasonable settlement attempts, it may be time to recommend that the Panel remand 

those unresolved cases to their transferor districts. See Manual 

§ 20.133. Do not hesitate to take this action (or to suggest that 
10

Ten Steps to Better Case Management: A Guide for MDL Transferee Judges

you might take it) when coordinated or consolidated pretrial 

proceedings no longer serve a valid purpose.

As a technical matter, the transferee judge issues a suggestion 

of remand to the Panel. See Manual § 20.133. Upon receipt of 

that suggestion, the Panel issues a conditional order of remand 

and also a stay of that order for seven days. See Panel Rule 10.2. 

If no party objects, the order becomes final, and the case or cases are remanded to the transferor court. Occasionally, a party 

will object, and the Panel schedules a briefing and then renders 

a decision. However, as a practical matter, the Panel gives great 

deference to the view of the transferee judge with respect to 

remand. See Manual § 20.133.

d. Tell the Transferor Court What You Did

A final recommendation: When suggesting the Panel remand to 

the transferor court, it is of great benefit to the transferor court 

to include in the record a brief description of pertinent events 

that have taken place in the litigation, including key evidentiary 

and legal rulings, as well as a recommendation regarding any 

additional proceedings that you believe are necessary to make 

the case ready for trial. See Manual § 20.133. You can find examples of such a memorandum on the Panel’s website.

g g g

Again, thank you for undertaking the challenge and public service of handling your MDL assignment.