In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2280

JUAN ARMSTRONG, JAMES E. DUCKETT,

RODERICK GILLESPIE, et al.,

Plaintiffs-Appellees,

v.

LASALLE BANK NATIONAL ASSOCIATION,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 2963—James B. Moran, Judge.

ARGUED JANUARY 17, 2008—DECIDED JANUARY 13, 2009

Before RIPPLE, ROVNER, and TINDER, Circuit Judges.

ROVNER, Circuit Judge. This appeal originated as a

number of lawsuits against Amsted Industries, Inc., its

Employee Stock Ownership Plan (ESOP), and Amsted

officers, by participants in Amsted’s ESOP, charging

violations of ERISA, breaches of fiduciary duty, breach

of contract and conversion. Those cases were initiated in

district courts in Alabama, Illinois, and Florida, but on
2 No. 07-2280

August 22, 2001, the Judicial Panel on Multidistrict Litigation (the Panel) granted the defendants’ motion to transfer the cases under 28 U.S.C. § 1407 to the Northern

District of Illinois for consolidated pretrial proceedings.

The Panel is authorized to transfer to one district civil

actions involving common questions of fact that were

pending in multiple districts. The Panel must first determine that the transfer will further “the convenience of the

parties and witnesses and will promote the just and

efficient conduct of such actions.” 28 U.S.C. § 1407. With

one exception not applicable here, the transfer and consolidation is only for pretrial proceedings, and the cases

are remanded to the original courts at the conclusion of

those proceedings. 28 U.S.C. § 1407, 1407(h).

Upon the transfer, the district court ordered the

parties to file two consolidated cases—one consisting of

Amsted retirees and one of non-retirees. The non-retirees’

consolidated complaint added LaSalle Bank, as Trustee

for Amsted’s ESOP, as a defendant. Through settlement or

dispositive motions, all retiree claims, and all non-retiree

claims against Amsted and its affiliated defendants, were

dismissed, and only the non-retiree claims against

LaSalle remain alleging that LaSalle made an imprudent

valuation of the company’s stock, causing heavy losses.

In the consolidated complaint, the non-retiree plaintiffs

(hereinafter simply the “plaintiffs”) included a statement

that “venue is proper in this court.” In addition, they

repeatedly acquiesced in the district court’s setting of a

timeline for discovery and trial, including the setting of

trial dates. At the close of pretrial proceedings and ap-
No. 07-2280 3

proximately two weeks before the pretrial order was due,

however, the plaintiffs moved for a remand of their

claims pursuant to 28 U.S.C. § 1407. LaSalle objected,

arguing that the plaintiffs by their conduct had waived the

right to a remand and had consented to venue in the

Northern District of Illinois.

The district court rather reluctantly granted the

remand request, holding that the plaintiffs had not consciously waived their right to object to venue. In so holding, the district court stated that a waiver entails the

deliberate relinquishment of a known right, and that

waivers generally must be clear and unambiguous. Although the dilatory behavior of the plaintiffs in failing to

make clear at an earlier time their intent to seek remand

caused the court consternation, the court believed that

the conduct was not enough to constitute waiver of

that remand right. The court further noted that it would

be a “nightmare scenario” for it to retain jurisdiction

and try the case only to have that initial decision overturned on appeal. Although the court granted the

remand request, it ultimately certified two questions to

this court under 28 U.S.C. § 1292(b): (1) “[w]hether the

filing of an amended complaint agreeing to venue and

jurisdiction in the transferee court, and which adds a

defendant that may only fairly be sued in the transferee

court, constitutes consent to trial in the transferee court

sufficient to overcome the right to seek remand under

28 U.S.C. § 1407(a) and the Supreme Court’s decision in

Lexecon, Inc. v. Milberg Weiss Berchad Hynes & Lerach,

523 U.S. 26 (1998)”; and (2) “[w]hether a waiver of the

right to remand under Section 1407(a) requires evidence
4 No. 07-2280

of a ‘deliberate relinquishment of a known right’ or may

be shown implicitly by conduct inconsistent with an

intent to seek remand.”

The defendant argues on appeal that the district court

erred in determining that the plaintiffs had not waived

their right to a remand under § 1407(a). In evaluating this

claim, we are guided in the first instance by the words of

the statute itself. Section 1407(a) provides for the transfer

and consolidation of civil actions involving common

questions of fact pending in different districts. The transfers are made by the Panel upon its determination that

the transfers would further the convenience of parties

and witnesses and promote the just and efficient conduct

of such actions. Id. Section 1407(a), however, also provides that “[e]ach 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 be previously terminated.” (emphasis added)

Id. The Supreme Court in Lexecon, Inc. v. Milberg Weiss

Bershad Hynes & Lerach et al., 523 U.S. 26 (1998), was

emphatic that the remand language should be given its

plain meaning, stating that “[t]he Panel’s instruction

comes in terms of the mandatory ‘shall,’ which normally

creates an obligation impervious to judicial discretion.” Id.

at 35. In Lexecon, the Court struck down a long-standing

practice whereby a district court would transfer a case

to itself where retaining the case would promote efficient

resolution of the claims. The Panel itself had sanctioned

such assignments in a rule issued in reliance on its

rulemaking authority under 28 U.S.C. § 1407(f). Id. at 32.

The Court held that regardless of whether permitting
No. 07-2280 5

transferee courts to make self-assignments would be

more desirable than preserving a plaintiff’s choice of

venue, § 1407(a) categorically limits the authority of

courts to override the plaintiff’s choice and establishes

a right to remand once the pretrial stage has been completed. Id. at 41-42.

We begin, then, with the proposition that the case

shall be remanded by the district court at the conclusion

of the pretrial proceedings, unless it is otherwise terminated as by the granting of a dispositive motion. Although

the defendant at times suggests otherwise, there is no

need for plaintiffs to assert their intention to seek such

remand in order for the right to exist. Instead, the presumption is that the case will be remanded at the close

of pretrial proceedings. Because § 1407(a) is a venue

statute, however, plaintiffs may waive their right to the

remand and consent to venue in the transferee court,

here the Northern District of Illinois. The district court

held that such a waiver may be found only if the plaintiffs deliberately relinquished a known right and that

the waiver must be clear and unambiguous. The court

held that the plaintiffs had failed to cross that threshold.

The proper standard to apply in demonstrating waiver

is the subject of much debate by the parties in this case.

The defendant asserts that the requirement that a

waiver be clear and unambiguous is applicable only for

the waiver of constitutional rights, and that any conduct

inconsistent with an intent to seek remand will suffice

to demonstrate waiver of the § 1407(a) remand right.

Neither party has been able to point us to any cases

discussing this issue in the context of § 1407—a reflection,
6 No. 07-2280

undoubtedly, of the relatively minimal caselaw on the

subject. We have addressed waiver in an analogous

context, however, involving the waiver of the right to

arbitration, and find that approach persuasive here.

As we noted in Automobile Mechanics Local 701 Welfare

and Pension Funds v. Vanguard Car Rental USA, Inc., 502

F.3d 740 (7th Cir. 2007), an arbitration clause is a

species of forum selection clause, reflecting an ex ante determination by the parties of the most convenient forum to

resolve disputes. Id. at 746, citing Vimar Seguros y

Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533-34

(1995). Such determinations are subject to waiver or

forfeiture, and as a general rule a district court should

not dismiss sua sponte either for improper venue or for

failure to follow a forum selection clause. In determining

whether a party has waived the right to enforce that

arbitration clause, we held that “[c]ourts must ‘determine

whether based on all the circumstances, the party

against whom the waiver is to be enforced has acted

inconsistently with the right to arbitrate.’ ” Halim v. Great

Gatsby’s Auction Gallery, Inc., 516 F.3d 557, 562 (7th Cir.

2008). That analysis of whether a party implicitly waived

the right to arbitrate should encompass a variety of

factors, providing significant weight to the diligence or

lack thereof. Id. We made clear in Halim that it was not

enough—as the defendant asserts in this case—to merely

demonstrate any conduct inconsistent with an intent to

seek arbitration. Accordingly, we held that “[a] party

does not waive its right to arbitrate a dispute by filing

a motion to dismiss or a motion to transfer venue,” although those actions in isolation are consistent with an
No. 07-2280 7

intent to litigate in the courts rather than to arbitrate.

Id. Instead, the focus is properly on the actions taken as

a whole, and whether they are inconsistent with an

intent to arbitrate.

The standard for waiver under § 1407(a) must be at

least as strong as that employed in those arbitration cases.

In both circumstances, we are presented with a vehicle

for forum selection. With § 1407(a), however, we have

a statutory rather than contractual determination,

that if anything cautions for a stronger showing of

waiver. Unlike arbitration clauses, § 1407(a) requires the

district court to transfer the case—in language that the

Supreme Court recognized as “impervious to judicial

discretion.” Lexecon, 523 U.S. at 35. Although in the arbitration context, we held that district courts should

not sua sponte dismiss a case for failure to follow the

arbitration clause, the district court is required to

transfer a case to the Panel at the close of pretrial proceedings. The mandatory nature of the § 1407(a) transfer,

and its statutory rather than contractual origin, counsel

for a more rather than less restrictive waiver standard

than that used in the arbitration context. Nevertheless,

we need not address whether that is in fact necessary,

because even under the standard articulated in the arbitration cases, the defendant has failed to demonstrate waiver here.

We consider, then, whether the plaintiffs, expressly or

through conduct, evidenced an intent contrary to that

statutory mandate, relinquishing the right to remand the

case and consenting to retention of the case by the trans-
8 No. 07-2280

feree court. There is little evidence of such consent in this

case. The defendant relies primarily on two actions by

plaintiffs—first, the filing of a consolidated complaint in

which the plaintiffs state that venue is proper in the

transferee court, the Northern District of Illinois, and

second, the participation in repeated pretrial proceedings

in which trial dates were set by the transferee court. In

the context of this case, those actions are insufficient to

demonstrate an intent to relinquish the right to remand

the case to the transferor court.

First, the filing of the consolidated complaint was

done at the behest of the district court. As is common

in such circumstances, the district court ordered the

plaintiffs in the cases transferred by the Panel to file

consolidated complaints—one consisting of Amsted

retirees and one consisting of non-retiree participants in

the ESOP. The complaint by the retirees included a statement recognizing that venue is proper in the transferee

court, but that is not inconsistent with a desire to seek

remand under § 1407(a) at the close of the pretrial proceedings. Venue may be proper in more than one court,

and therefore the positions are not mutually exclusive.

See, e.g., Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th

Cir. 2003).

The defendant, in arguing that the venue statement is

itself sufficient to establish consent, relies almost solely on

our decision in In re African-American Slave Descendants

Litigation, 471 F.3d 754 (7th Cir. 2006). In that case, multiple

lawsuits had been filed around the country seeking

monetary relief for harms stemming from slavery in the
No. 07-2280 9

United States. The Panel consolidated all the suits in the

district court in Chicago. On appeal, we noted that

the plaintiffs—with the exception of plaintiff Hurdle—“filed a consolidated complaint, and since venue

in Chicago was proper and in any event not objected to

by the parties (other than the Hurdle group, whose objection we consider later in the opinion), the district

court was unquestionably authorized, notwithstanding

Lexecon . . . to determine the merits of the suit.” (citation

omitted) Id. at 756. The defendant argues that AfricanAmerican Slave Descendants therefore holds that the filing

of a consolidated complaint without objecting to venue

constitutes a waiver of the right to seek a remand under

§1407(a). There are multiple problems with that argument. First, the question before the court in African-American Slave Descendants was whether the district court

could decide a motion to dismiss. We proceeded to hold

that the transferee court may decide such motions regardless of plaintiff consent. Such motions are part of the

pretrial proceedings properly before the transferee court,

and therefore are resolved before the remand issue even

arises. The venue determination, therefore, was irrelevant

to the ultimate holding. Moreover, the opinion gives no

indication of the language used in the consolidated complaint, and it is clear that the plaintiffs can in fact waive

the right to § 1407(a) remand. Whether they did so there

was simply not a question presented to the African-American Slave Descendants court, and not one decided by it. In

fact, at one point the court refers to the consolidated

complaint as a “new” complaint. Id. at 757. It is clear that

plaintiffs may file a new complaint, thus removing them-
10 No. 07-2280

selves from the Panel’s reach. For our purposes, it is

sufficient to note that the court was not presented with

the question as to whether a venue statement in a consolidated complaint automatically waives the right to a

§ 1407(a) remand, and did not decide that question.

Accordingly, that case does not support the defendant’s

proposition that the venue statement in this case constitutes such a waiver.

Moreover, the intention of the plaintiffs in this case

was made clear shortly after the consolidated complaint

was filed, when both the retiree and non-retiree plaintiffs filed a motion for entry of a case management order.

Their proposed order included the following language:

6. Trial. Subject to further order of the court , the

parties are directed to have their cases ready for

trial on all issues by September of 2003. The

court acknowledges the parties may request the

remand of one or more of the above described

cases to the transferor court pursuant to Lexecon,

Inc. v. Millberg Weiss Bershad, Hynes & Lerach, 523

U.S. 26, 118 S. Ct. 956 (1998). The remand of any

cases will occur once the case is substantially

ready for trial.

The court granted the plaintiffs’ motion, although it

apparently entered an abbreviated order that did not

contain that language. Nevertheless, any ambiguity as to

plaintiffs’ intentions in recognizing that venue was

proper in the transferee court was nullified by the proposed language. Even absent that statement, however, the

mere recognition that venue is proper in the transferee
No. 07-2280 11

court would not establish an intent to forego the mandatory remand set forth in § 1407(a), because it is not necessarily inconsistent with the assertion of that remand right.

The defendant additionally points to the plaintiffs’

participation in pretrial proceedings in the ensuing years,

including the repeated establishment of specific trial dates.

In cases consolidated by the Panel, it is anticipated that

the transferee court will engage in all pretrial proceedings,

and that remand will occur upon the conclusion of

such proceedings. Therefore, the plaintiffs’ participation

in those proceedings is not inconsistent with the intent to

seek remand upon completion of those proceedings.

Certainly, much aggravation—for the parties, the district

court, and this court—could have been avoided if the

plaintiffs had simply made clear throughout those proceedings that they retained the option of seeking a

§ 1407(a) remand. Nevertheless, the question for this

court is whether the conduct was inconsistent with an

intent to seek remand under § 1407(a). The agreement as

to trial dates is not in itself dispositive of that issue. As the

plaintiffs note, the establishment of trial dates is critical

to pretrial proceedings in many respects, as in the promotion of the timely completion of discovery and the

facilitation of settlement negotiations. A plaintiff’s acquiescence in the establishment of such dates, therefore, may

be an effort to facilitate the conclusion of the pretrial

stage, rather than an agreement to forego the remand

mandated by § 1407(a).

That is not to say that such an agreement is not relevant. In In re Carbon Dioxide Industry Antitrust Litiga-
12 No. 07-2280

tion, 229 F.3d 1321 (11th Cir. 2000), the Eleventh Circuit

held that plaintiffs could not seek a § 1407 remand because they had repeatedly agreed to trial in the transferee

court thus consenting to venue there. The facts of that

case are illustrative of the type of action by plaintiffs

that can operate as a waiver of the remand right and a

consent to venue in the transferee court. In Carbon

Dioxide, at the final pretrial conference on December 11,

1995, the parties stipulated that venue and jurisdiction

were proper in the Middle District of Florida and that

the case would be tried by the transferee court in Orlando

on February 5, 1996. Id. at 1322. On February 5, after the

parties had assembled for jury selection, the court was

informed that some of the class plaintiffs had reached

settlements. Id. at 1323. As it happened, those settlors

included the plaintiff class and the largest group of optout plaintiffs, whose attorneys had been expected to

provide the bulk of the trial work, including direct examination of plaintiffs’ major witnesses and cross-examination of defendants’ key witnesses. Id. at 1326 n. 8. It was

at that point, on the day that jury selection was to

begin, that the plaintiffs expressed their desire for a

§ 1407(a) remand. The Supreme Court instructed the

Eleventh Circuit to consider the matter in light of Lexecon,

and the Eleventh Circuit concluded that Lexecon did not

require remand in such a case where the plaintiffs consented to trial in the transferee court, and in fact “were

fighting to keep their cases in the Middle District of

Florida, not to get them out.” Id. at 1325, 1326-27.

That case is materially different from the one

presented here. The plaintiffs in Carbon Dioxide con-
No. 07-2280 13

tinued to pursue the case in the transferee court

following the termination of the pretrial proceedings,

and only abandoned that intention on the day of jury

selection when the trial in that venue became less

desirable with the settlements by other plaintiffs who

were expected to do the bulk of the trial work. There is

no comparable conduct here. In this case, the pretrial

proceedings concluded on Friday, February 2, 2007, and

on Monday, February 5, 2007, the plaintiffs requested

remand pursuant to § 1407(a). They engaged in no

actions subsequent to the termination of the pretrial

proceedings that would indicate consent to trial in the

transferee court. The setting of trial dates as part of

pretrial proceedings is not in itself incompatible with

an intent to seek a § 1407(a)remand, particularly where the

parties expressly point out that possibility early in the

proceedings as was done here. There was no ongoing

effort to pursue a trial in the transferee court beyond the

pretrial proceedings. Accordingly, although Carbon Dioxide

provides a useful example of the type of actions that can

constitute consent to venue in the transferee court, we do

not have those types of actions here. The district court

properly granted the plaintiffs request for a suggestion of

remand to the Panel. Accordingly, the decision of the

district court is AFFIRMED.

1-13-09