Beyond Transfer: Coordination of Complex Litigation in State and Federal Courts in the Twenty-First Century

Article excerpt

I. INTRODUCTION 997

II. PREVIOUS GUIDANCE ON STATE-FEDERAL COORDINATION IN MULTI-JURISDICTIONAL LITIGATION 1000

A. Commentary: Schwarzer (1992) 1000

B. FJC Publications 1003

C. Renewed Interest in the Topic 1007

III. SURVEY FINDINGS 1010

A. Awareness of Parallel Proceedings 1010

B. Communication 1014

1. Findings 1014

2. Ex Parte Communication 1016

C. Coordination 1020

D. Problems and Issues 1023

IV. CONCLUSION 1029

V. APPENDIX 1030

I. INTRODUCTION

In June 201 1, the U.S. Supreme Court decided Smith v. Bayer Corp.1 the facts of which are particularly relevant for our purposes - even if the actual holding of the case is not. Smith involved two parallel court proceedings - one in a federal multidistrict litigation (MDL) transferee court and one in a West Virginia state court.2 The federal transferee judge, having denied class certification in the federal proceeding, enjoined the state court from considering a pending motion for class certification.3 The Eighth Circuit affirmed.4 The Supreme Court reversed, unanimously holding that the federal transferee judge had exceeded his authority and violated the Anti-Injunction Act.5

The federal courts themselves, through the instrumentality of the Judicial Panel on Multidistrict Litigation (JPML) and under the federal multidistrict litigation transfer statute, 28 U.S.C. § 1407, have the means to transfer similar federal cases to a single transferee court for consolidated pretrial proceedings.6 In Smith, for example, all federal cases against Bayer alleging harms through use of the drug Baycol were transferred to a single judge for pretrial proceedings. But many such cases - those in the state courts - remain beyond transfer, the JPML cannot transfer cases that are in state courts (and not removed) to make them part of the federal MDL proceeding.8

The problems that § 1407 transfers are designed to address - duplicative discovery and motions activity, inconsistent rulings, and the like - arise in most, if not all, multi-jurisdictional litigation. But given the inherent limits of § 1407, as well as the limited jurisdiction of the federal courts,9 state and federal courts must look beyond transfer to address these problems. Communication and, when appropriate, coordination between the state and federal courts are the only plausible solutions. As Smith made absolutely clear, federal judges' power to enjoin parallel state proceedings is very limited.10

Part II of this Article provides some background information on the history of state-federal coordination in multi-jurisdictional litigation. This is hardly a new topic. Indeed, in an article published in 2000, Professor McGovern cites former Chief Justice Burger and former Chief Justice Rehnquist, among others, as advocates of statefederal cooperation and coordination." Moreover, the Federal Judicial Center (FJC) has been providing federal judges with guidance on this topic since at least the 1980s. Part II ends with a brief account of the renewed interest in this topic from both the state and federal judiciaries. Perhaps it makes sense, in this period of budget cuts, especially in the state courts,12 to refocus attention on the potential efficiencies of greater coordination in multijurisdictional litigation.

Part III details the findings of a survey, conducted by the FJC, of the experiences of federal transferee judges in coordinating with their state counterparts.13 Of the federal judges responding to the survey, 44% reported that they were aware of parallel state proceedings at some point in their experience as a transferee judge.14 Of those judges who were aware of the parallel state proceedings, the survey found that 60% communicated either directly or indirectly with state counterparts.15 After discussing a possible explanation for that (seemingly low) figure, the Article turns to types of coordination. Not surprisingly, scheduling of discovery and motions activity was the most commonly reported type of coordination. …