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. e du/thir dc ir c uit_2000/75Filed April 11, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1540

IN RE: JOANN PATENAUDE, et al.

Petitioners

On Petition for Writ of Mandamus from Order Denying Motion to Remand of the Judicial Panel on Multidistrict Litigation (Related to D.C. No. MDL 875)

Argued January 28, 2000

BEFORE: GREENBERG, ROTH and STAPLETON, Circuit Judges

(Opinion filed April 11, 2000)

Steven R. Baughman (Argued)

Baron & Budd
3102 Oak Lawn Avenue The Centrum, Suite 1100 Dallas, TX 75219

and Jeffrey S. Mutnick Landye, Bennett, Blumstein 3500 Wells Fargo Center
1300 S.W. Fifth Avenue Portland, OR 97201 Attorneys for PetitionersR. Cornelius Danaher, Jr.

Danaher, Tedford, Lagnese & Neal
21 Oak Street Suite 700, Capitol Place Hartford, CT 06016

and James J. Restivo, Jr. Reed, Smith, Shaw & McClay
435 Sixth Avenue Pittsburgh, PA 15219-1886

and
Andrew J. Trevelise Reed, Smith, Shaw & McClay

1650 Market Street 2500 One Liberty Place Philadelphia, PA 19103-7301 Attorneys for Respondent Pittsburgh Corning Corporation

Elizabeth R. Geise (Argued)

John D. Aldock

Shea & Gardner 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036-1872 Attorneys for Respondents Armstrong World Ind., Asbestos Claims Mgt., Flexitallic Inc., Gaf Corp., Pfizer Inc., T&N PLC, US Gypsum Co.

Robert H. Riley (Argued) Schiff, Hardin & Waite

6600 Sears Tower Chicago, IL 60606 Attorney for Respondent Owens Illinois, Inc.

2OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioners are three groups of plaintiffs seeking damages for personal injury and wrongful death as a result of exposure to asbestos. Respondents are some of the defendants in some of the cases brought by the plai ntiffs. The plaintiffs' claims were initially filed in the Northern District of New York (the "New York plaintiffs"), t he Northern District of Georgia (the "Georgia plaintif fs") and the District of Oregon (the "Oregon plaintiffs"). P ursuant to
28 U.S.C.  1407(a), the plaintiffs' claims were transferred by the Judicial Panel on Multidistrict Litigation ( JPML) to Multidistrict Litigation No. 875 ("MDL No. 875"), w hich is pending in the United States District Court for the Eastern District of Pennsylvania (the "transferee court").

At various times during the past seven years, some of the Oregon plaintiffs have filed motions for suggestion of
remand with the transferee court. The last such mot ion was filed in May 1997. Receiving no response, in May 19 98 counsel for the Oregon plaintiffs appeared before t he JPML to seek remand. On May 20, 1998, the JPML denied th e Oregon plaintiffs' motion to remand.

Some, but not all, of the New York plaintiffs filed motions for a suggestion of remand with the transferee cour t in March 1998. By October 1998, the transferee court s till had not acted on the motions, and ten of the New Yo rk plaintiffs filed a motion for remand with the JPML. In December, the New York plaintiffs filed a motion to clarify explaining that the prior motion to remand sought r emand of all claims of all the New York plaintiffs, and n ot just the ten who had originally filed.

Some, but not all, of the Georgia plaintiffs filed motions for a suggestion of remand with the transferee cour t in April and May of 1998. In September 1998, the trans feree court still had not acted on the motions for sugges tion of remand, and all of the Georgia plaintiffs filed a m otion for remand with the JPML. On February 5, 1999, the JPML

3denied the New York and Georgia plaintiffs' motions for

remand.

On June 29, 1999, all of the plaintiffs filed a pet ition for writ of mandamus asking this Court to order the JPM L to remand their cases. We will deny the petition.

The parties have submitted affidavits that establis h the following undisputed facts. The New York and Georgi a plaintiffs' injuries range from the invariably fata l cancer mesothelioma, for which asbestos exposure is the on ly known cause, to pleural disease, a non-malignant sc arring of the lining of the lung. Many have died from asbe stosrelated injuries, a good number of them during the pendency of MDL 875. The Oregon plaintiffs' injurie s include malignancies and non-malignancies.

Following the creation of MDL 875, plaintiffs' and defendants' steering committees were organized that attempted to negotiate a global settlement of all a sbestos claims. See Amchem Prods., Inc. v. Windsor, 521 U.S . 591, 599-600 (1997). These negotiations, however, eventu ally "fell apart." Id. at 600. The Plaintiffs' Steering Committee (PSC) has not met since 1993, and has been complete ly inactive.1 Subsequently, twenty defendants and cert ain former members of the PSC proposed the settlement c lass
action that was at issue in Amchem. See id. at 600- 01. The Supreme Court, however, rejected the class certific ation "[g]iven the greater number of questions peculiar t o the several categories of class members, and to individ uals within each category, and the significance of those uncommon questions." Id. at 624.

The affidavits assert that during the seven year pe ndency of MDL 875, "no common or global discovery has been sought or conducted by either Plaintiffs or Defenda nts in

___________________________________________________ ______________

1. Although Defendant Owen-Illinois asserts that nu merous members of the PSC met with defendants' representatives in 199 9 and discussed the content of the master case management orders that v arious transferor courts should enter into were MDL 875 to disband, t hat meeting was never endorsed, organized or convened as a PSC gath ering, nor was correspondence regarding the meeting issued to the full membership of the PSC, nor was it understood in advance that MDL 875 was even on the agenda for the meeting.

4this action, and no common questions of law or fact have

been the subject of global resolution by [the trans feree] Court." (A. 16-17). Since 1991, all discovery, sett lement or other litigation activity in MDL 875 has related ei ther to the Amchem class action or to individual claims or grou ps of claims. In the past two years, the transferee court has overseen broad discovery regarding litigation scree ning companies, the physicians they employ, and the natu re of their contracts with plaintiffs' firms.

Since the creation of MDL 875, the New York and Geo rgia plaintiffs have supplemented their answers to disco very on several occasions including as recently as April 19 98, when they provided "updated information regarding their work history and exposures to Defendants' asbestos-conta ining products, and any new information regarding their m edical status."2 (A. 61). Their claims have also "been the subject of numerous settlement conferences conducted by the transferee court." (A. 61). Counsel for the New Yor k and Georgia plaintiffs have submitted sworn affidavits stating that "with the exception of settlements of some pla intiffs' cases with some defendants, the settlement discussi ons have not resolved the cases." (A. 61). They further state that "in many instances, Defendants have failed to gener ate any monetary offer to settle Plaintiffs' cases; and in remaining cases, the Defendants have failed to offer settleme nt amounts that approach historical settlement values for similar claims." (A. 61).

Summaries of the New York docket sheets, however, reflect that individual plaintiffs have settled wit h anywhere from one to eleven defendants for amounts ranging f rom $3,500 to $739,136. The plaintiffs respond with an affidavit explaining that these settlement figures are inaccu rate, in that they reflect gross amounts of settlement with the Johns Manville bankruptcy trust, even though plaint iffs will receive only ten per cent of that money, and in tha t they occasionally reflect double counting of settlements . The plaintiffs do not provide settlement information of their own, however, and, even accounting for these inaccu racies, the number and amount of settlements have in many c ases

___________________________________________________ ______________

2. Their original answers were filed prior to the i nception of MDL 875.

5been substantial. Moreover, other additional settle ments

may well have been signed, as the docket summaries show significant delays (in some cases, five years) betw een settlements being signed and their being entered on the docket. See also In re Asbestos Prods. Liab. Litig. , 1996 U.S. Dist. LEXIS 13850, at *3 (E.D. Pa. Sept. 16, 1996) (of the 22,000 open cases on the docket in 1996, thousands were resolved but not yet dismissed and statistically re moved).
The New York docket summaries show that in each of the New York plaintiffs' cases, anywhere from two to ei ghteen defendants remain, with the average number being approximately eleven.

Neither party has provided information regarding th e settlement status of the Georgia or Oregon plaintif fs' individual claims. The plaintiffs do indicate that the Georgia
docket sheets show between one and five defendants remaining on each individual claim. Also, counsel f or the Oregon plaintiffs indicates that prior to the estab lishment of MDL 875 the average length of time for resolutio n of an Oregon case was less than one year, whereas in MDL 875 the average exceeds five years. Although settlement conferences were held regarding the Oregon cases in 1995, 1996 and either 1998 or 1999, plaintiffs' efforts a t settlement have been "to little avail." (A. 115-16)

.

The transferee court has stated, although not in th e context of the plaintiffs' particular claims, that among its "overriding objectives" "[t]hroughout the course of the multidistrict litigation" is the court's "considere d judicial opinion that the sick and dying, their widows and s urvivors should have their claims addressed first." Carlough v. Amchem, No. 93-215, at 8 (E.D. Pa. Apr. 15, 1993) ( Mem. Op.). The court explained that it "steadfastly resi sted
motions to remand cases back to transferor courts u nless the claimant was seriously ill or dying and all ave nues of
settlement were exhausted."3Id. The court has also "advised counsel that motions to remand involving o ther

___________________________________________________ ______________

3. The court also has a practice when it does reman d cases of severing and retaining jurisdiction over punitive damages cl aims. (A. 59). However, this has not happened in any of the plaint iffs' cases, and thus is not an issue for consideration on this appeal.

6circumstances would only serve to deplete resources

otherwise available for settlements and thus would be routinely denied." Id.

The transferee court's Administrative Order No. 3, which relates to all asbestos actions, reflects this poli cy. This Order establishes that in attempting to resolve cas es through negotiation, cases of mesothelioma and lung cancer with asbestosis will be "address[ed] . . . o n a priority basis." (A. 47-48). However, the court cautioned th at "special efforts to resolve hardship cases are not a substitute for broad-based negotiations designed to reduce docket the [sic] backlog." (A. 47). The Order estab lishes the procedures for exchange of information and negotiat ion to be followed in MDL 875. If this process does not pr oduce a resolution, "the Court shall determine whether the matter is appropriate for immediate remand of the plaintiff ' s compensatory damages claims." (A. 50). The Order st ates that only when all priority cases have been address ed will the court consider applying similar procedures to a ddress cases of other malignant conditions and asbestosis and that "[a]s to cases that involve non-malignant cond itions other than asbestosis, the Court intends to establi sh an inactive docket." (A. 53).

This process has resulted in numerous cases being resolved. As of late 1996, some 62,000 cases had be en assigned to MDL 875 and approximately 40,000 had be en resolved. See In re Asbestos Prods. Liab. Litig. (N o. VI), 1996 U.S. Dist. LEXIS 13850, at *3 (E.D. Pa. Sept. 16, 1 996) (Mem. Op.). The remaining 22,000 cases included thousands of cases that had been resolved but not y et dismissed. See id. As of January 1999, nearly 60,00 0 cases
had been closed. See In re Asbestos Prods. Liab. Li tig. (No. VI), No. 875, at 2 (JPML Feb. 5, 1999) (unpublished order denying remand). Thus, in 1997 and 1998, the transf eree court closed nearly 10,000 cases a year.

This process has also resulted in approximately 1,0 00 actions or claims being remanded to the transferor courts.
See id.

Plaintiffs' claims are all diversity actions brough t in
federal district court under 28 U.S.C.  1332. These claims

7were transferred by the JPML to the United States D istrict

Court for the Eastern District of Pennsylvania purs uant to
28 U.S.C.  1407. The JPML had jurisdiction to consider plaintiffs' motions to remand their actions to the transferor
courts under 28 U.S.C.  1407(a). This Court has jurisdiction to review the JPML's denial of remand pursuant
to 28 U.S.C.  1407(e). Section 1407(e) provides that JPML orders may be reviewed only by extraordinary writ p ursuant
to 28 U.S.C.  1651.

I.

"Traditionally, the writ of mandamus has been used `to

confine an inferior court to a lawful exercise of i ts prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " E.g., In re Chambers Dev. Co., 148 F.3d 214, 223 (3d Cir. 1998) (quoting Will v. Calvert Fire Ins. Co., 437 U.S. 665, 661 (1978)). " The writ is a drastic remedy that `is seldom issued and its use is discouraged.' " Id. (quoting Lusardi v. Lechner, 85 5 F.2d 1062, 1069 (3d Cir. 1988)). The writ of mandamus sh ould only be granted "in response to an act amounting to a judicial usurption of power." Id. (quoting Hahneman n Univ. Hosp. v. Edgar, 74 F.3d 456, 462 (3d Cir. 1996)).

Two prerequisites for issuance of a writ are: "(1) that petitioner have no other adequate means to attain t he desired relief, and (2) that petitioner meets its b urden of showing that its right to the writ is clear and ind isputable." Id. (quoting Hahnemann Univ. Hosp., 74 F.3d at 462) . The petitioners have the burden of proving these two prerequisites. See Mallard v. U.S. Dist. Court , 49 0 U.S. 296, 309 (1989). As to the first prong, where there are practical avenues for seeking relief that are untried, this C ourt will ordinarily deny a petition for mandamus. See Hahnem ann Univ. Hosp., 74 F.3d at 461 ("[W]here interlocutory appeal seems a practical but untried avenue, we will ordin arily deny a petition for mandamus."). However, formal exhaustion of futile remedies is not required. See id. at 462 (granting mandamus despite petitioner's failure to make a formal application for certification of an interloc utory appeal where an informal application had been made and not granted). As to the second prong, where a court

8commits a clear error of law, a right to relief is clear and

indisputable. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir. 1994). Moreover, man damus can apply to discretionary acts where petitioners c an demonstrate a "clear abuse of discretion." Mallard, 490 U.S.

at 309.

"Even when these requirements are met, issuance of the writ is largely discretionary . . . ." In re Chambe rs Dev. Co., 148 F.3d at 223. "[I]t is within a court's discreti on to refrain from issuing the writ even when the requirements fo r mandamus are technically satisfied. The availabilit y of the writ `does not compel its exercise.' " Id. (quoting Lusardi, 855 F.2d at 1070).

In the instant case, ordinary appeal is not availab le; section 1407(e) provides that "[n]o proceedings for review of the panel may be permitted except by extraordinary writ."

28 U.S.C.  1407(e). Nonetheless, some of the plaintiffs have other practical means to obtain the relief sought. Those plaintiffs who did not seek a suggestion of remand from the transferee court before filing their motion to rema nd with the JPML have a practical but untried avenue for re lief available to them. While it is true that plaintiffs are not required to seek a suggestion of remand prior tofil ing a motion to remand with the JPML, see JPML Rule 7.6(c ), the JPML Rules state that "[t]he Panel is reluctant to order remand absent a suggestion of remand from the trans feree district court." JPML Rule 7.6(d). In view of this reluctance and the "great weight" that the Panel has consisten tly given to the transferee judge's determination that remand is appropriate, In re King Resources Co. Sec. Litig., 458 F. Supp. 220, 222 (JPML 1978), it is possible that wer e the plaintiffs to obtain a suggestion of remand from th e transferee court, the JPML would grant their motion s for

remand.

The plaintiffs argue that there was no point in see king a suggestion of remand from the transferee court, giv en that it had not issued such a suggestion for other plain tiffs grouped in their respective cause numbers who did s eek such suggestions. They argue that the grounds for s eeking remand were identical for all petitioners. However, a determination that coordinated or consolidated pret rial

9proceedings have concluded and that remand is there fore

appropriate is necessarily case-specific. Within ea ch group, plaintiffs have had differing rates of success in s ettling claims and plaintiffs have experienced different in juries and therefore are impacted differently by the priority policy reflected in Administrative Order No. 3. Merely bec ause some plaintiffs have had their requests for suggest ions of remand go unanswered does not mean that it is futil e for other plaintiffs to make such requests. Indeed, the transferee court has suggested remand in close to 1 000 cases. See In re Asbestos Prods. Liab. Litig. (No. VI), No. 875 (JPML Feb. 5, 1999) (unpublished order denying rema nd).

Thus, only those plaintiffs who actually sought suggestion of remand from the transferee court have satisfied the first prong of the mandamus inquiry.

II.

The remaining plaintiffs have not demonstrated a cl ear and indisputable right to remand. Section 1407(a) p rovides

that:

When civil actions involving one or more co mmon questions of fact are pending in different d istricts, such actions may be transferred to any district f or coordinated or consolidated pretrial proceed ings. Such transfers shall be made by the judicial pane l on multidistrict litigation . . . upon its dete rmination that transfers for such proceedings will be for t he convenience of parties and witnesses and wil l promote the just and efficient conduct of such actio ns. Each action so transferred shall be remanded by t he panel at or before the conclusion of such pretrial pr oceedings to
the district from which it was transferred u nless it shall have been previously terminated: Provi ded, however, that the panel may separate any cla im, cross- claim, counter-claim, or third-party claim a nd remand any of such claims before the remainder of t he action
is remanded.

28 U.S.C.  1407(a) (emphasis added). Thus, the statute imposes two limitations on the kinds of proceedings that the transferee court may conduct: they must be (1)

10coordinated or consolidated and (2) pretrial. See L execon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U .S. 26, 33-34 (1998). Moreover, the statute "obligates the Panel to remand any pending case to its originating court wh en, at the latest, those pretrial proceedings have run the ir course," which obligation is "impervious to judicia l discretion." Id. at 34-35. The plaintiffs acknowled ge that individual settlement negotiations and discovery co ntinue in MDL 875 and the docket sheets show a pattern of settlements continuing through 1999.4 They argue, however, that individual settlement negotiations an d discovery do not constitute "coordinated or consoli dated pretrial proceedings," that all "coordinated or con solidated pretrial proceedings" have concluded, and that they therefore have a clear and indisputable right to re lief.

The Supreme Court's decision in Lexecon indicates t hat the phrase "coordinated or consolidated" is to be interpreted broadly. See id. at 33-34. Lexecon was a suit for malicious prosecution, abuse of process, tortious interference, commercial disparagement and defamati on arising out of the defendant law firm's conduct as counsel in a prior class action brought against the plainti ff Lexecon
and others for violations of securities laws. See i d. at 28-29. The class action against Lexecon had been transferr ed for coordinated and consolidated pretrial proceedings u nder
 1407(a) along with other cases arising out of the failure of Lincoln Savings and Loan. See id. at 29. During the pretrial proceedings, the class action plaintiffs and Lexeco n reached a "resolution" under which the claims against Lexec on were

___________________________________________________ ______________

4. Although the petitioners downplay the success of these settlement negotiations and state that results would have been much quicker in their transferee districts, the standard for remand is that coordinated pretrial proceedings be concluded, not that they pr ovide the quickest resolution of particular cases.

The petitioners' second supplemental affidavit sugg ests that settlement negotiations in fact are not ongoing in that the re maining defendants have stated conclusively that they will not settle until the cases are set for trial. This affidavit, however, was not present ed to either the transferee court or the JPML. Therefore, insofar as the petitioner's
claims are based on this evidence, they have a practical a nd untried avenue for seeking relief and mandamus will not issue.

11dismissed. See id. Lexecon then filed its malicious

prosecution case, which was transferred by the JPML to the

transferee court under  1407(a), albeit to a different judge. See id. at 29-30. In transferring, the Panel noted that
Lexecon's claims

share questions of fact with an as yet unapp roved settlement involving Touche Ross, Lexecon, I nc. and the investor plaintiffs in the Lincoln Savin gs investor class actions in MDL-834 . . . [,] that . . . a massive document depository is located in the [trans feree district] and . . . the Ninth Circuit has be fore it an appeal of an order . . . in MDL-834 which ma y be
relevant to the Lexecon claims.

Id. at 30. Subsequently, however, the Ninth Circuit appeal was dismissed, the document depository was closed d own, and the remaining parties to the Lincoln Savings li tigation reached a final settlement on which final judgment was entered. See id. Lexecon then moved for suggestion of remand, which the law firm opposed because discover y was still incomplete. See id. The law firmfiled a count ermotion requesting that the transferee court "transfer" the case to
itself for trial under  1404(a). See id. The transferee court deferred ruling on these motions for three months, until after summary judgment and Rule 54(b) final judgmen t had
been entered on all but the defamation claim. See i d. at 30- 31. At that point, the transferee court granted the law firm's motion to assign the case to itself for tria l and denied Lexecon's motion for suggestion of remand. See id. at 31.

The Court framed the issue as "whether  1407(a) does permit a transferee court to entertain a  1404(a) transfer motion to keep the case for trial." Id. at 32. The Court stated that "[a]lthough [  1407(a)] limits a transferee court's authority to the conduct of `coordinated or consoli dated' proceedings and to those that are `pretrial,' these limitations
alone raise no obvious bar to a transferee's retent ion of a

case under  1404." Id. at 33-34 (emphasis added). The Court explained that "[i]f `consolidated' proceedin gs alone were authorized, there would be an argument that se lfassignment of one or some cases out of many was not contemplated, but because the proceedings need only be coordinated, no such narrow limitation is apparent. " Id. at

1234 (emphasis added). Thus, a proceeding that relate s only

to a single individual's case or claim can nonethel ess be coordinated. The Court elaborated, "While it is cer tainly
true that the instant case was not consolidated wit h any other for the purpose literally of litigating ident ical issues on common evidence, it is fair to say that proceedi ngs to resolve pretrial matters were `coordinated' with th e conduct of earlier cases sharing a common core . . . , if o nly by being brought before judges in a district where muc h of the evidence was to be found and overlapping issues had been considered." Id. (emphasis added). Even the fact th at the case was being heard by a different judge, although it limited the prospects for coordination, did not eli minate them. See id. Neither, apparently, did the fact tha t all of the proceedings with which the individual action was "coordinated" had already concluded raise a bar. Th is is evident not only from the facts of the case, where all of the other cases had been reduced to final judgment when the case-specific motion was being considered, but also from the Court's use of the past tense in stating that i t was enough that the case was "being brought before judg es in
a district where much of the evidence was to be fou nd [even though the evidence depository had been closed] and overlapping issues had been considered." Id. (empha sis added). Moreover, the case suggests that it is not necessary that any one issue be common to all cases, so long as issues "overlap." Id.

This passage cannot be reconciled with the plaintif fs' argument that "coordinated or consolidated pretrial proceedings" are concluded when the transferee cour t ceases to conduct proceedings that are common to al l. To be coordinated, it is not necessary that common iss ues are being contemporaneously addressed. In the instant c ase, it seems probable that "much of the evidence," at leas t regarding causation, is to be found in the transfer ee district. Id. Furthermore, overlapping issues "ha[v e] been
considered": the transferee court oversaw the initi al attempts at global settlement and set forth procedu res applicable to all regarding the mandatory exchange of information, the negotiation process, and the prior itizing of cases. Moreover, the transferee court continues to conduct discovery regarding the use of litigation screening s that

13overlaps many of the cases in MDL-875. Although the re is

no allegation that litigation screenings were condu cted in any of the plaintiffs' individual cases, this issue is common to many cases from many different transferor distri cts. Thus, applying the reasoning of Lexecon, it appears that the individual settlement negotiations and conferences that are occurring in plaintiffs' cases are in fact "coordin ated" proceedings.

Furthermore, such proceedings are "pretrial.""[P]re trial, as an adjective, means before trial-- . . . all jud icial proceedings before trial are pretrial proceedings." In re Plumbing Fixture Cases, 298 F. Supp. 484, 494 (JPML 1968); Wright el al., Federal Practice and Procedur e  3866 ("Interpreted literally, the transferee court appea rs to have control over all proceeding prior to trial[,]" incl uding discovery motions, motions to amend, to dismiss, fo r summary judgment, and to determine class certificat ion.). Rule 16 of the Federal Rules of Civil Procedure, re lating to pretrial conferences, states that the court may req uire conferences before trial for the purpose of "facili tating the settlement of the case." Fed. R. Civ. Proc. 16(a)(5 ). Therefore, there is no basis for concluding that se ttlement conferences are not pretrial proceedings.

The legislative history of  1407 also demonstrates that Congress intended transferee courts to have broad p retrial authority.

By the term "pretrial proceedings" the comm ittee has reference to the practice and procedure whic h precede trial of an action. These generally involve deposition and discovery, and, of course, are governed by the
Federal Rules of Civil Procedure. Under the Federal
rules the transferee district court would ha ve authority to render summary judgment, to control and l imit pretrial proceedings, and to impose sanction s for failure to make discovery or comply with pre trial

orders.

H.R. Rep. No. 1130 (1968), reprinted in 1968 U.S.C. C.A.N. 1898, 1900; see also Multidistrict Litigation: Hear ings Before the Subcommittee on Improvements in Judicial Machinery of the Committee of the Judiciary, 89th C ong.

1413 (1966) (testimony of Dean Neal) ("[T]he cases co ncerned

would be brought within the control of a single dis trict and so the very same powers provided by the Federal Rul es of Civil Procedure should permit all of the same kinds of steps to be carried out by the presiding district judge." ). Although the legislative history does not specifically menti on settlement, it does indicate that the Federal Rules provide the measure of a transferee court's pretrial author ity, and
the Federal Rules allow for conferences to facilita te
settlement.

The plaintiffs point to legislative history stating :

The objective of the legislation is to prov ide centralized management under court supervisi on of pretrial proceedings of multidistrict litiga tion to assure the "just and efficient conduct" of such act ions. The committee believes that the possibility for conflict and duplication in discovery and other pretrial procedures
in related cases can be avoided or minimized by such centralized management. To accomplish this o bjective the bill provides for the transfer of venue of an action for the limited purpose of conducting coordi nated pretrial proceedings.

H.R. Rep. 1130, 1968 U.S.C.C.A.N. at 1900. Centrali zed management of individual settlement negotiations is not inconsistent with the objective of providing "centr alized management . . . to assure the `just and efficient conduct' of . . . actions." Id. Such centralized management avoids "the possibility of conflict and duplication" of, i f nothing else, the judge's time and energy spent becoming fa miliar with the recurring issues of asbestos litigation, t he major players and how best to facilitate settlement with particular

defendants.

The plaintiffs also point to legislative history su ggesting that Congress contemplated that additional discover y might be conducted following remand as evidence that such individual discovery is not appropriate for the tra nsferee court. See Multidistrict Litigation: Hearings Befor e the Subcommittee on Improvements in Judicial Machinery of the Committee of the Judiciary, 89th Cong. 56 (1966 ); H.R. Rep. No. 1130, 1968 U.S.C.C.A.N. at 1901-02. The Ho use

15Report states that "the committee recognizes that i n most

cases there will be a need for local discovery proc eedings to supplement coordinated discovery proceedings, and t hat consequently remand . . . for this purpose is desir able." H.R. Rep. No. 1130, 1968 U.S.C.C.A.N. at 1901-02. Furthermore, during the hearings, the following exc hange

occurred:

SENATOR TYDINGS: The intent of the coordina ting committee, . . . apparently, is that the nec essary additional discovery with regard to issues o f fact not
national or not common to other cases could be

conducted once the case was remanded . . . .

Do you agree that the intent of the bill is to allow additional discovery after remand . . . , an d if so, is the language of the legislation sufficiently bro ad to permit

that?

JUDGE MURRAH: Yes

Multidistrict Litigation: Hearings Before the Subco mmittee on Improvements in Judicial Machinery of the Commit tee of the Judiciary, 89th Cong. 56 (1966).

All of these statements speak in discretionary term s: what "in most cases" is "desirable," what the statu te "allows," and what the transferee court "could" do. Section 1407 expressly allows for remand "at or before the conclusion of . . . pretrial proceedings." 28 U.S.C

.  1407(a) (emphasis added). Clearly, the Panel has the discre tion to remand a case when everything that remains to be do ne is case-specific. This does not mean that consolidated proceedings have concluded at the point that only c asespecific proceedings remain; rather, the court can at that point exercise its discretion to remand "before the conclusion of pretrial proceedings." 28 U.S.C.  1407(a).

For the same reason, the plaintiffs' citation to Pa nel decisions remanding cases prior to the conclusion o f all pretrial proceedings is unavailing. See In re Air C rash Disaster at Tenerife, 461 F. Supp. 671 (JPML 1978); In re Evergreen Valley Project Litig., 435 F. Supp. 923 ( JPML 1977). In each of these cases, the Panel exercised its discretion to remand, based on its finding that rem and "will

16serve the convenience of the parties and witnesses and will

promote the just and efficient conduct of [the liti gation]." In re Air Crash Disaster, 461 F. Supp. at 672. These r emands were discretionary. In the instant case, where the possibility exists that even individual settlement

negotiations will be more efficient if facilitated by a judge who is intimately familiar with the general issues and many of the parties, and where in fact the record reflec ts that settlements are successfully being negotiated, one cannot say that the Panel abused its discretion in refusin g to
remand.

Lexecon suggests another limitation on the transfer ee court's authority in addition to the requirement th at proceedings be both coordinated and pretrial. See L execon 523 U.S. at 34-39. After concluding that the requir ement of "coordinated or consolidated" proceedings did not p reclude the court from ruling on the transfer motion at iss ue, the court stated that, "at first blush," the requiremen t of pretrial proceedings suggests no reason why the cou rt
could not rule on such a motion. Id. at 34. Ultimat ely, however, the Court concluded that a  1404 transfer order was outside the scope of the transferee court's aut hority because a "necessary consequence of self-assignment by a transferee court [is that] it conclusively thwarts the Panel's capacity to obey the unconditional command of  1407(a)" to remand "at or before the conclusion of pretrial proceedings to the district from which it was trans ferred unless [the action] shall have been previously term inated." Id. at 36. In the instant case, however, conducting
individual settlement conferences does not "conclus ively thwart" the Panel's ability to remand. Unlike a  1404 transfer, which makes it impossible for the Panel t o remand even though the action has not been terminated, set tlement negotiations will either be successful, in which ca se the action will terminate, or they will eventually conc lude and the action can be remanded at that point.

In conclusion, because individual settlement negoti ations and conferences are ongoing in the plaintiffs' indi vidual cases, and because the transferee court is conducti ng discovery on overlapping issues that affect many as bestos cases, even if not the plaintiffs', coordinated pre trial

17proceedings have not concluded, and the plaintiffs have not

demonstrated a clear and indisputable right to the relief they seek. Therefore the writ of mandamus will not issue.

III.

At times the plaintiffs appear to be arguing that t he JPML abdicated its statutory duty when it relied on the fact that the transferee court had declined to issue a sugges tion of remand as one basis for its own decision to deny th e motion to remand. This policy is embodied in JPML R ule 7.6(d), which states that "[t]he Panel is reluctant to order remand absent a suggestion of remand from the trans feree district court." JPML Rule 7.6(c). Deference is not abdication, however, and the presence or absence of a remand recommendation from the transferee judge as a factor in the Panel's decision-making process seems to us entirely reasonable. Moreover, if plaintiffs had sh own an abdication of statutory duty on the part of the Pan el, it would not satisfy their burden of showing that they have a clear and indisputable right to the relief they see k, which is remand. To do that, they must clearly and indisputa bly show that coordinated pretrial proceedings have con cluded in their cases, and that they have not done.

IV.

For the foregoing reasons, the petition for writ of
mandamus will be denied.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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