UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: PROPULSID : MDL NO. 1355
PRODUCTS LIABILITY LITIGATION :
: SECTION: L
:
: JUDGE FALLON
: JUDGE AFRICK
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. :
BRIEF OF TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
AS AMICUS CURIAE IN OPPOSITION TO
THE DEFENDANTS’ MOTION FOR INJUNCTION
Arthur H. Bryant Rebecca E. Epstein Adam Samaha
Trial Lawyers for Trial Lawyers for Roberta Walburn
Public Justice, P.C. Public Justice, P.C. Robins, Kaplan, Miller & Ciresi, LLP
One Kaiser Plaza 1717 Massachusetts Ave., N.W. 2800 LaSalle Plaza
Suite 275 Suite 800 800 LaSalle Avenue
Oakland, CA 94612 Washington, D.C. 20036 Minneapolis, MN 55402-2015
(510) 622-8150 (202) 797-8600 (612) 349-8500
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
I. THIS COURT LACKS AUTHORITY TO ISSUE AN INJUNCTION THAT BINDS STATE COURT PLAINTIFFS OVER WHOM IT COULD NOT ASSERT AND/OR HAS NOT OBTAINED JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Federal Courts Ordinarily Cannot Enjoin Third Parties.. . . . . . . . . . . . . . . . . . . . .5
B. This Situation Does Not Meet Any Exception for Third Parties Who Have Frustrated a Binding Federal Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. IN ADDITION, THE ANTI-INJUNCTION ACT PROHIBITS THE RELIEF REQUESTED BY THE DEFENDANTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
A. The Anti-Injunction Act Generally Bars Interference by Federal Courts with Pending State Judicial Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. The Act implements a basic and deeply rooted policy of federal
judicial respect for state proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. Exceptions to the rule are narrowly confined, and must be satisfied
before a federal court has any authority to issue injunctive relief.. . . . . . .13
3.The general writ authority in § 1651(a) makes no difference.. . . . . . . . . .15
B. The Exception for Federal Injunctive Relief that Is “Necessary in Aid of” the Court’s “Jurisdiction” Is Narrowly Construed and Cannot Reach this Case.. . . . 16
1. The traditional interpretation includes only removal and in rem jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. Broader and more creative applications of this exception, whatever
their legitimacy, fall far short of this case.. . . . . . . . . . . . . . . . . . . . . . . . .21
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
TABLE OF AUTHORITIES
Cases:
Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir. 1930). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 8
Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511 (1955). . . . . . . . . . . . . . . .15, 17
Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281 (1970). . . . 12–18
In re Baldwin-United Corp., 770 F.2d 328 (2d Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22
Battle v. Liberty Nat’l Life Ins. Co., 877 F.2d 877 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . 20, 22
Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Brown v. Gilmore, __ U.S. __, __, 2001 WL 1056666, at *2 (U.S. Sept. 12, 2001)
(No. 01-384) (Rehnquist, C.J., in chambers). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Carlough v. Amchem Prods., Inc., 10 F.3d 189 (3d Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . .7, 21
Carter v. Ogden Corp. 524 F.2d 74 (5th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Castano v. American Tobacco Co., 879 F. Supp. 594 (E.D. La. 1995). . . . . . . . . . . . . . . . . . . . .25
Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431 (1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). . . . . . . . . . . . 13
In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 93 F. Supp. 2d 876
(M.D. Tenn. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
In re Corrugated Container Antitrust Action Litig., 659 F.2d 1332 (5th Cir. 1981)
cert. denied, 456 U.S. 936 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Doctor’s Assocs., Inc. v. Reinert & Duree, P.C., 191 F.3d 297 (2d Cir. 1999). . . . . . . . . . . . . . .10
Drummer v. Sulzer Orthopedics, Inc., No. 01-4039 (6th Cir. Oct. 29, 2001). . . . . . . . . . . . . . . . 22
FDIC v. Faulkner, 991 F.2d 262 (5th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.),
cert. denied, 459 U.S. 988 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Florida Med. Ass’n v. United States Dep’t of HEW, 601 F.2d 199 (5th Cir.1979). . . . . . . . . . . . .8
In re Ford Motor Co. Bronco II Prods. Litig., No. MDL-991, 1995 WL 489480
(E.D. La. Aug. 15, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20, 23, 25
In re Ford Motor Co. Bronco II Prods. Liab. Litig., No. Civ. A. MDL-991,
1994 WL 605970 (E.D. La. Nov. 3, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
In re General Motors Corp. Prods. Liab. Litig., 134 F.3d 133 (3d Cir. 1998). . . . . . . . 5–7, 18, 22
In re Glenn W. Turner Enterprises Litig., 521 F.2d 775 (3d Cir. 1975).. . . . . . . . . . . . . . . . . . . .20
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Harris County v. Carmax Auto Superstores Inc., 177 F.3d 306 (5th Cir. 1999). . . . . . . . . . . . . . .6
In re Inter-Op Hip Prosthesis Prod. Liab. Litig., MDL Docket No. 1401
(N.D. Ohio Sept. 17 & 26, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
International Shoe Co. v. Washington, 326 U.S. 310 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ITT Community Dev. Corp. v. Barton, 569 F.2d 1351 (5th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . 8
Jett v. Zink, 474 F.2d 149 (5th Cir.), cert. denied, 414 U.S. 854 (1973). . . . . . . . . . . . . . . . . . . .12
J.R. Clearwater Inc. v. Ashland Chem. Co., 93 F.3d 176, 178 (5th Cir. 1996). . . . . . . . . . . . . . .13
Kline v. Burke Constr. Co., 260 U.S. 226 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18–20
Leiter Minerals, Inc. v. United States, 352 U.S. 220 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). . . . . . . . . . . .11, 17
Mitchum v. Foster, 407 U.S. 225 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Murphy v. Uncle Ben’s, Inc., 168 F.3d 734 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Parker v. Ryan, 960 F.2d 543 (5th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Peters v. Brants Grocery, 990 F. Supp. 1337 (M.D. Ala. 1998). . . . . . . . . . . . . . . . . . . . . . . . . .23
Phillips v. Chas. Schreiner Bank, 894 F.2d 127 (5th Cir. 1990). . . . . . . . . . . . . . . . . . . .13, 17–19
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Piambino v. Bailey, 610 F.2d 1306 (5th Cir.), cert. denied, 449 U.S. 1011 (1980). . . . . . . . . . . 23
R.M.S. Titanic, Inc. v. Havor, 171 F.3d 943 (4th Cir.),
cert. denied, 528 U.S. 825 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286 (5th Cir. 1992),
cert. denied, 511 U.S. 1032 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17–18, 22–23
Scardelletti v. DeBarr, 265 F.3d 195 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Schell v. Food Machinery Corp., 87 F.2d 385 (5th Cir. 1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
T. Smith & Son, Inc. v. Williams, 275 F.2d 397 (5th Cir. 1960). . . . . . . . . . . . . . . . . . . . 13, 18, 21
In re Taxable Mun. Bonds Litig,, No. Civ. A MDL 863, 1992 WL 205083
(E.D. La. Aug. 12, 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Texas v. Real Parties in Interest, 259 F.3d 387 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 8, 10
Texas v. United States, 837 F.2d 184 (5th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Texas Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491 (5th Cir. 1988),
cert. denied, 490 U.S. 1035 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Total Plan Servs. v. Texas Retailers’ Ass’n, 925 F.2d 142 (5th Cir. 1991). . . . . . . . . . . . . . . . . .14
Toucey v. New York Life Ins. Co., 314 U.S. 118 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16
Travelhost, Inc. v. Blandford, 68 F.3d 958 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
United States v. Hall, 472 F.2d 261 (5th Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–10
United States v. Kirschenbaum, 156 F.3d 784 (7th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 5–6
United States v. New York Tel. Co., 434 U.S. 159 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . .18–19, 23
Waffenschmidt v. MacKay, 763 F.2d 711 (5th Cir. 1985),
cert. denied, 474 U.S. 1056 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Winkler v. Eli Lilly & Co., 101 F.3d 1196 (7th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . 7, 23–24
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969). . . . . . . . . . . . . . . . . . . . 5, 9
Statutes, Bills, Rules, and Constitutional Provisions:
15 U.S.C. § 77z. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
28 U.S.C. § 1332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28 U.S.C. § 1407. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 20
28 U.S.C. § 1651 (All Writs Act). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 15, 18–19, 23
28 U.S.C. § 2283 (Anti-Injunction Act). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11–23, 25
H.R. 1875, 106th Cong. (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. 353, 106th Cong. (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fed. R. Civ. P. 65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 5, 8, 10
U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Const. amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Secondary Sources:
Hon. William W. Schwarzer et al., Judicial Federalism: A Proposal to Amend the
Multidistrict Litigation Statute to Permit Discovery Coordination of Large-Scale Litigation Pending in State and Federal Courts, 73 Tex. L. Rev. 1529 (1995). . . . . . . . . . 3
Georgene Vairo, Judicial v. Congressional Federalism, 33 Loy. L.A. L. Rev. 1559
(2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
11A Charles A. Wright et al., Federal Practice and Procedure: Federal Rules of
Civil Procedure § 2956 (2d ed. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–6
17 Charles A. Wright et al., Federal Practice and Procedure: Jurisdiction and
Related Matters § 4225 (2d ed. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13–14, 17–18
STATEMENT OF INTEREST
Trial Lawyers for Public Justice (“TLPJ”) is a national public interest law firm that specializes in precedent-setting and socially significant civil litigation. TLPJ is dedicated to using trial lawyers’ skills and strategies to advance the public good. Litigating throughout the federal and state courts, TLPJ prosecutes cases designed to advance consumers’ and victims’ rights, environmental protection and safety, civil rights and civil liberties, occupational health and employees’ rights, the preservation and improvement of the civil justice system, and the protection of the poor and the powerless.
As part of its efforts to ensure the proper working of the civil justice system, TLPJ has consistently fought to preserve injury victims’ common law claims from unconstitutional encroachment, federal preemption, and class action abuse. The Defendants in this litigation have recently filed a motion seeking a preliminary injunction, however, that would effectively eliminate the right of mass tort injury victims to pursue their claims in state courts — even though their claims are based wholly on state law. We submit this brief to explain why, under our Constitution, laws, and federal system of government, this Court must reject the Defendants’ efforts to subject the hundreds of state court cases against them to the control of one federal district court judge.
STATEMENT OF THE CASE
Johnson & Johnson Co. and Janssen Pharmaceutica, Inc. pulled Propulsid from the market in March 2000. Although sold for the treatment of heartburn and reflux, the drug became associated with cardiac arrhythmia and other injuries. Approximately 1,200 individual plaintiffs have now filed suit in state courts against the Defendants for injuries caused or alleged to be caused by the product. These state suits are at various stages of litigation: some are beginning the discovery process, while ten plaintiffs recently won a verdict in a Mississippi state court. As these state suits move forward, about 1,500 other plaintiffs are pursuing their claims in the federal judicial system. Their suits have been consolidated for pretrial Multidistrict Litigation (“MDL”) proceedings in this Court. Both the state suits and their federal-court counterparts arise under state law. See Urquhart Aff. ¶¶ 2–4, 9, 15–17.
The MDL Plaintiffs’ Steering Committee Master Complaint was filed last month and it seeks to create a nationwide class of all users and purchasers of the Defendants’ drug. No federal class, however, has yet been certified; a hearing on the question is currently scheduled for March 22 of next year. Nor has a proposed class action settlement been submitted to or preliminarily approved by this Court; the Defendants do not even characterize the chances for global settlement as imminent. And, of course, class members have not yet had a chance to exercise their constitutionally-and-Rule-23-protected right to opt out.
Instead, document discovery is ongoing in these MDL proceedings and depositions have only begun. At this point in the litigation, these proceedings are virtually indistinguishable from all other MDL litigation in the nation, with one exception: the Defendants have just asked this federal court to enter a nationwide injunction barring discovery and class-certification proceedings in all state courts. See Defendants’ Proposed Order Granting Injunctive Relief at 1–4 (hereinafter “Proposed Order”); Urquhart Aff. ¶¶ 10–11, 13–14.
SUMMARY OF ARGUMENT
The scale of modern mass tort litigation in the federal courts has grown significantly during the last several decades. To help manage the increase, Congress permits similar federal suits to be consolidated for pretrial proceedings. See 28 U.S.C. § 1407. At the same time, the doors of the state courts remain open. And state plaintiffs obviously have substantial interests in a swift and fair resolution of their state claims by a state forum. In fact, such plaintiffs are often outside the jurisdiction of any federal court.
In these situations, federal law protects state judiciaries and their claimants from interference by a federal court — even when the two systems are set to address the same subject matter, and especially when the federal court has not obtained or cannot assert jurisdiction over the state plaintiffs. Two settled rules are relevant here. First, a federal court cannot enjoin non-parties over whom it lacks jurisdiction. Without jurisdiction over an individual, a federal court’s order lacks binding power. E.g., Fed. R. Civ. P. 65(d); U.S. Const. amends. V & XIV. Second, the rule for parallel state and federal litigation is that, absent a few narrowly defined exceptions not applicable here, a federal court is barred from interfering with the progress of a state lawsuit. 28 U.S.C. § 2283.
Of course some believe that, as a matter of legislative policy, the competing concerns for state courts, tort victims, efficiency, and fairness justifies a balanced response from Congress to coordinate parallel federal and state proceedings. See, e.g., Hon. William W. Schwarzer et al., Judicial Federalism: A Proposal to Amend the Multidistrict Litigation Statute to Permit Discovery Coordination of Large-Scale Litigation Pending in State and Federal Courts, 73 Tex. L. Rev. 1529, 1530–33 (1995). The Defendants, however, will not wait for statutory authorization. Equally important, the Defendants’ request is not an attempt at balance or inter-system cooperation. Their proposed order would outright prohibit both discovery and class-certification proceedings in every state court in the country. See Proposed Order at 4. The Defendants argue for “coordination,” Defs.’ Mem. at 2, but they ask for much more.
It is thankfully rare that a single pretrial motion jeopardizes principles of federalism, separation of powers, and individual rights — all at the same time. But in our view, the Defendants’ request manages to hit the proverbial trifecta. As to the impact on state courts’ ability to manage their own dockets and on plaintiffs not parties to this federal litigation, the effect would be devastating. Without the ability to move forward with discovery or even to consider class certification, state cases will be effectively and indefinitely halted if not dismissed. As to the necessity of protecting this Court’s authority over the cases now before it, the Defendants submit no evidence of any actual — much less extraordinary — conflict between this Court and the state courts’ systems.
Nothing special about this case warrants federal superintendence of multiple state judicial systems, usurpation of Congress’s limited conferral of injunctive authority, and unprecedented interference with the legitimate interests of state plaintiffs in a timely and fair resolution of their claims. Congress does permit federal courts to protect their own ability to adjudicate the cases that are properly before them. It has not created a roving Federal Tribunal for the control, resolution, or elimination of state-law claims being filed and pursued in state court.
ARGUMENT
I. THIS COURT LACKS AUTHORITY TO ISSUE AN INJUNCTION THAT BINDS STATE COURT PLAINTIFFS OVER WHOM IT COULD NOT ASSERT AND/OR HAS NOT OBTAINED JURISDICTION.
In their motion papers, the Defendants inadequately confront a deeply troubling flaw regarding the scope of the relief that they seek: federal law severely restricts this Court’s authority to bind non-parties by its orders and judgments. In advance of class certification, the Court cannot issue injunctive relief that binds non-party plaintiffs without violating the Federal Rules of Civil Procedure, Due Process, and established standards for equitable relief. Even after class certification, there are strict limitations on a court’s power to bind absent class members.
A. Federal Courts Ordinarily Cannot Enjoin Third Parties.
The federal courts are courts of limited jurisdiction. Murphy v. Uncle Ben’s, Inc., 168 F.3d 734, 741 (5th Cir. 1999). “[C]ourts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.” Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93 (1807) (Marshall, C.J.). A federal court is therefore usually prohibited from extending its orders to non-parties. Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832–33 (2d Cir. 1930) (L. Hand, J.) (explaining the traditional rule). In fact, “It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). Whatever limited power there is to enjoin state judicial proceedings, a federal court “may not interfere even temporarily” when it lacks jurisdiction. Schell v. Food Mach. Corp., 87 F.2d 385, 387 (5th Cir. 1937); see In re General Motors Corp. Prods. Liab. Litig., 134 F.3d 133, 140–41 & n.2 (3d Cir. 1998); R.M.S. Titanic, Inc. v. Havor, 171 F.3d 943, 957–58 (4th Cir.), cert. denied, 528 U.S. 825 (1999); United States v. Kirschenbaum, 156 F.3d 784, 794–95 (7th Cir. 1998) (“The district court’s attempt to enjoin . . . third-parties over whom the court had no personal jurisdiction is void and so binding on no one.”).
The general prohibition against binding non-parties is incorporated into the Federal Rules of Civil Procedure. Rule 65(d) provides: “Every order granting an injunction . . . is binding only [1] upon the parties to the action, [2] their officers, agents, servants, employees, and attorneys, and [3] upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” (Emphasis added). In short, an injunction can bind only parties to the action and those acting on their behalf or in concert with them. See 11A Charles A. Wright et al., Federal Practice and Procedure: Federal Rules of Civil Procedure § 2956 (2d ed. 1995); see also Harris County v. Carmax Auto Superstores Inc., 177 F.3d 306, 314 (5th Cir. 1999). Some such limitation on injunctive authority is necessary in order to satisfy the demands of Due Process. Kirschenbaum, 156 F.3d at 794–95. A judgment cannot reach individuals who lack minimum contacts with the forum, without their consent. See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); General Motors, 134 F.3d at 140–41.
An injunction that purports to bind absent state court plaintiffs cannot comply with Rule 65(d) or Due Process. Such plaintiffs are not parties to these MDL proceedings, and the Defendants have not alleged or demonstrated that any of them (much less all of them) are acting on behalf of or in concert with any party. Because no federal class has been certified, this Court’s jurisdiction has not been even nominally asserted over them. The state plaintiffs have every right to pursue, and an independent interest in, timely relief under state law in a state forum. Parker v. Ryan, 960 F.2d 543, 546 (5th Cir. 1992). Yet every one would fall within the Defendants’ proposed order. This sort of “injunction against the world” is forbidden to the federal courts, and no state court could be obligated to abide by it. See Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431, 436–37 (1934); 11A Wright, supra, § 2956, at 334–35, 341.
The Third Circuit followed these principles in the General Motors litigation. After a federal settlement-class certification was vacated on appeal, a similar settlement was reached in a Louisiana state court. An injunction against those state proceedings was requested, but the Third Circuit denied relief. Without a federal class, the court explained, “the Louisiana class members are not parties before us; they have not constructively or affirmatively consented to personal jurisdiction; and they do not, as far as has been demonstrated, have minimum contacts with Pennsylvania [where the MDL court was sitting]. Therefore, due process deprives us of personal jurisdiction and prevents us from issuing the injunction prayed for by appellants.” General Motors, 134 F.3d at 141.
In fact, even when a federal class has been certified, the Due Process Clause prohibits a federal court from automatically binding absent, non-party class members. In Phillips Petroleum Co. v. Shutts, the Supreme Court explained that an absent plaintiff class member may be bound by a court’s damages judgment if that plaintiff, at a minimum, (1) received reasonable notice, an opportunity to be heard and to meaningfully participate in the litigation, plus (2) a chance to opt out. See 472 U.S. 797, 811–12 (1985). Only then can a court conclude that an out-of-state plaintiff has consented to its jurisdiction. Similarly, the Third Circuit has determined that “it would offend the Fifth Amendment’s guarantee of due process for a federal court to enjoin an absentee class member whose minimum contacts with the forum have not been established or, in lieu of minimum contacts, who has not consented to the court’s jurisdiction, explicitly or inferentially.” Carlough v. Amchem Prods., Inc., 10 F.3d 189, 199–200 (3d Cir. 1993) (“[T]he district court’s pre-notice, pre-opt out period injunction was premature.”); see also Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1203 (7th Cir. 1996) (vacating an injunction that reached beyond parties to the MDL proceedings).
In contrast, the Defendants here would afford non-class members even less protection
than class members commonly receive. Under the Defendants’ proposal, non-parties would be
barred from exercising their state-court rights to seek redress under state law before a federal
class has even been formed, before a global settlement is in sight, and well before an opt-out
right could be exercised. This Court is obligated to deny the relief requested.
The injunctive authority in the All Writs Act, 28 U.S.C. § 1651(a), does not affect the analysis. That statute does not provide an independent grant of jurisdiction. See, e.g., Texas v. Real Parties in Interest, 259 F.3d 387, 392 (5th Cir. 2001). Rather, any such writ must be in aid of jurisdiction already obtained. The Fifth Circuit put it this way:
The All Writs Act . . . empowers a federal court to employ procedures necessary to promote the resolution of issues in a case properly before it. This power is limited, however, to the facilitation of the court’s effort to manage the case to judgment. . . . . “[T]he fact that a party may be better able to effectuate its rights or duties if a writ is issued never has been, and under the language of the statute cannot be, a sufficient basis for issuance of the writ.”
ITT Community Dev. Corp. v. Barton, 569 F.2d 1351, 1359–60 (5th Cir. 1978) (citation omitted). Moreover, § 1651(a) could not supersede the demands of the Rules of Civil Procedure. By its terms, Rule 65(d) applies to “[e]very order” granting an injunction. Thus, “the All Writs Act does not free a district court from the restraints of Rule 65. . . . . Rule 65 provides sufficient protection for the jurisdiction of the district court.” Florida Med. Ass’n v. United States Dep’t of HEW, 601 F.2d 199, 202 (5th Cir.1979); accord Scardelletti v. DeBarr, 265 F.3d 195, 212 (4th Cir. 2001). And of course no statute could trump the serious Due Process problem with an order that reaches absent third parties who are not members of a certified federal class.
B. This Situation Does Not Meet Any Exception for Third Parties Who Have Frustrated a Binding Federal Judgment.
In certain situations injunctions might be enforced to prevent non-parties from frustrating the implementation or effectiveness of a federal court’s prior judgment. For example, under the terms of Rule 65(d), a party already subject to an injunction cannot nullify it by the use of aiders and abettors. See Zenith Radio, 395 U.S. at 110, 112; Travelhost, Inc. v. Blandford, 68 F.3d 958, 961–62 (5th Cir. 1995) (non-party who participates in a scheme with the defendant to violate a court order may be held in contempt); FDIC v. Faulkner, 991 F.2d 262, 267 (5th Cir. 1993); Waffenschmidt v. MacKay, 763 F.2d 711, 717 (5th Cir. 1985), cert. denied, 474 U.S. 1056 (1986). And in exceptional cases, a federal court might even have authority to protect its ability to maintain a “binding judgment” by enforcing injunctions against strangers to that judgment. United States v. Hall, 472 F.2d 261, 264–68 (5th Cir. 1972); see United States v. New York Tel. Co., 434 U.S. 159, 174–78 (1977).
Yet the Defendants fail to explain exactly how a prior order of this Court — let alone a binding final judgment — would be compromised by state suits proceeding in a timely fashion. They only offer an unelaborated reference to “appropriate circumstances.” Defs.’ Mem. at 9–10. And the only cases cited are easily distinguished by their rationales. In New York Telephone, the Supreme Court held that an in-state telephone company could be ordered to assist the FBI so as to effectuate a prior court order permitting the use of pen registers. 434 U.S. at 174–78. The Court emphasized that there were no alternatives left to the FBI, that the company’s facilities were allegedly being used for criminal activity, and that the countervailing interests of the company (which would be reimbursed) were insubstantial. Id. The situation here is also quite different from Hall, in which the Fifth Circuit pushed the outer limits of federal injunctive authority to protect a district court’s ongoing supervision of a comprehensive school-desegregation decree. The court permitted enforcement of a geographically limited temporary restraining order against a third party who deliberately thwarted the decree. 472 F.2d at 264–68. The district court had already, “in effect, adjudicated the rights of the entire community with respect to the racial controversy surrounding the school system,” id. at 267, and “[t]he integrity of a court’s power to render a binding judgment in a case over which it has jurisdiction [was] at stake,” id. at 265; cf. Defs.’ Mem. at 12 (attempting to extend the “continuing superintendence” theory beyond such decrees).
Those cases have nothing to do with parallel state proceedings in advance of class certification, much less a settlement proposal, a final judgment, and ongoing supervisory jurisdiction in the federal court. See Doctor’s Assocs., Inc. v. Reinert & Duree, P.C., 191 F.3d 297, 303–04 n.4 (2d Cir. 1999) (distinguishing Hall from the anti-suit injunction context). To be sure, the Defendants here will have to litigate in state forums as the federal suits progress. But that fact cannot expand this Court’s jurisdiction. By prosecuting their cases, state court plaintiffs would not undermine this Court’s lawful jurisdiction. The claimed threat is “premature” at best. Real Parties, 259 F.3d at 395 (interpreting the All Writs Act).
Finally, the result should not be any different insofar as the proposed injunction would supposedly bind attorneys who represent both MDL plaintiffs and different plaintiffs in state suits against the Defendants. See Urquhart Aff. ¶ 15. Granted, Rule 65(d) and Due Process may permit an injunction against an attorney so as to protect or effectuate an order or judgment against a client over whom the Court enjoys jurisdiction. But “[i]f the court does not have jurisdiction over the principal [here, the state court plaintiff], it is not easy to see why the court should have the power to bind her through an order directed against her servant.” Doctor’s Assocs., 191 F.3d at 304. Sharing interests and attorneys does not make one plaintiff the equivalent of another. Id. at 304–05. Nor can a subset of state plaintiffs be hobbled just because their attorneys (or their attorneys’ law firms) also happened to accept representation of one or more individuals who ended up in federal court. That kind of line is irrational, and it certainly could not accomplish the (questionable) goals of the Defendants’ proposed injunction.
II. IN ADDITION, THE ANTI-INJUNCTION ACT PROHIBITS THE RELIEF REQUESTED BY THE DEFENDANTS.
The requested injunctive relief is beyond this Court’s authority for an additional reason.
Whether the affected individuals are parties to the MDL or not, the Court has no authority to
superintend state judiciaries or otherwise interfere with their proceedings. Both Congress and the
Constitution provide for a dual system of state and federal courts, with substantial obligations on
the part of the latter to steer clear of the former. To be sure, Congress has permitted similar
federal lawsuits to be consolidated during pretrial proceedings for the sake of efficiency. See 28
U.S.C. § 1407; Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).
But it has never permitted a federal court to thwart the progress of pending state suits in the
manner advocated by the Defendants.
Under these circumstances, injunctive relief would be an
unprecedented intrusion on the integrity of state courts and the rights of the parties before them.
A. The Anti-Injunction Act Generally Bars Interference by Federal Courts with Pending State Judicial Proceedings.
Congress has expressly forbidden the federal judiciary from interfering with ongoing state court proceedings almost since the creation of the lower federal courts. See Act of March 2, 1793, ch. 22, § 5, 1 Stat. 335. As currently written, the Anti-Injunction Act begins with a broad and general prohibition — “A court of the United States may not grant an injunction to stay proceedings in a State court” — followed by a carefully drawn and narrowly interpreted set of three exceptions — “except [1] as expressly authorized by Act of Congress, or [2] where necessary in aid of its jurisdiction, or [3] to protect or effectuate its judgments.” 28 U.S.C. § 2283. The statute has remained in this form since 1948, continuing a longstanding policy of judicial federalism. Only the second exception is at issue here, Defs.’ Mem. at 8, and nothing about the facts of this case gives cause to evade the general bar.
1. The Act implements a basic and deeply rooted policy of federal judicial respect for state proceedings.
In America’s federal system of government, national courts lack authority to superintend state judiciaries, trump state decisions on matters of state law, or obstruct state court progress toward adjudication of the cases pending before them. “[F]rom the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in [the United States Supreme] Court of the federal questions raised in either system.” Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286 (1970); accord Jett v. Zink, 474 F.2d 149, 156 (5th Cir.), cert. denied, 414 U.S. 854 (1973); In re Ford Motor Co. Bronco II Prods. Litig., No. MDL-991, 1995 WL 489480, at *2–*3 (E.D. La. Aug. 15, 1995).
As Congress well understood, the overlapping jurisdiction of state and federal judiciaries created the potential for conflict between courts attempting to control the same case. Atlantic Coast Line, 398 U.S. at 286. Rather than requiring state courts to close for business in deference to federal proceedings, however, the Anti-Injunction Act permits federal court stays of state court proceedings only under three “specifically defined exceptions.” Id.
The Act, which has existed in some form since 1793, is a necessary concomitant of the Framers’ decision to authorize, and Congress’ decision to implement, a dual system of federal and state courts. It represents Congress’ considered judgment as to how to balance the tensions inherent in such a system. Prevention of frequent federal court intervention is important to make the dual system work effectively. By generally barring such intervention, the Act forestalls “the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court.”
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988) (emphasis added) (citations omitted); accord Toucey v. New York Life Ins. Co., 314 U.S. 118, 132 (1941) (Frankfurter, J.) (explaining that the bar established a “duty of ‘hands off’ by the federal courts”); T. Smith & Son, Inc. v. Williams, 275 F.2d 397, 407 (5th Cir. 1960); see also Texas Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 497–98 (5th Cir. 1988) (en banc), cert. denied, 490 U.S. 1035 (1989).
In fact, over the last several decades, a principle solution to duplicative proceedings has not been augmented federal power to stop state court adjudication, but an expanded obligation on the part of federal courts to stay their own hands. See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987) (requiring abstention to prevent an unprecedented intrusion into a state judicial system); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (mandating dismissal of parallel federal litigation in the interests of wise judicial administration and federal policy). The flat and general rule, then, is to protect the interests of state judiciaries and their claimants. J.R. Clearwater Inc. v. Ashland Chem. Co., 93 F.3d 176, 178 (5th Cir. 1996); 17 Charles A. Wright et al., Federal Practice and Procedure: Jurisdiction and Related Matters § 4225, at 533–35 (2d ed. 1988).
2. Exceptions to the rule are narrowly confined, and must be satisfied before a federal court has any authority to issue injunctive relief.
In light of these principles of federalism and federal judicial restraint, the proper approach
to the Anti-Injunction Act is evident and settled: the bar must be read broadly, and its exceptions
narrowly construed. See, e.g., Chick Kam Choo, 486 U.S. at 146; Phillips v. Chas. Schreiner
Bank, 894 F.2d 127, 131–32 n.7 (5th Cir. 1990); T. Smith & Son, 275 F.2d at 407. As the
Defendants properly admit, the general bar applies to federal court orders directed at private
parties as well as to a state court. Defs.’ Mem. at 8; Atlantic Coast Line, 398 U.S. at 287. And
as the Supreme Court confirmed more than 30 years ago, neither the bar nor its exceptions turn
on a free-form balancing of interests:
The respondents here have intimated that the Act only establishes a “principle of comity,” not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. In 1955 when this Court interpreted this statute, it stated: “This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.” Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 515–516 (1955). Since that time Congress has not seen fit to amend the statute and we therefore adhere to that position and hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. Moreover since the statutory prohibition against such injunctions in part rests on the fundamental constitutional independence of the States and their courts, the exceptions should not be enlarged by loose statutory construction. Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court.
Atlantic Coast Line, 398 U.S. at 286–87 (emphasis added).
If none of the three enumerated exceptions apply, then the statute absolutely prohibits
federal equitable intervention in pending state court proceedings, “regardless of how
extraordinary the particular circumstances may be.” Mitchum v. Foster, 407 U.S. 225, 229
(1972); see 17 Wright et al., supra, § 4223. In other words, the current version of the Anti-Injunction Act “made clear beyond cavil that the prohibition is not to be whittled away by
judicial improvisation.” Amalgamated Clothing, 348 U.S. at 514; see, e.g., Chick Kam Choo,
486 U.S. at 146; Total Plan Servs. v. Texas Retailers’ Ass’n, 925 F.2d 142, 144 (5th Cir. 1991).
As such, any doubt about the propriety of a federal injunction against state court proceedings must be resolved in favor of permitting the state courts to move forward without delay. Atlantic Coast Line, 398 U.S. at 297. “The explicit wording of § 2283 itself implies as much, and the fundamental principle of a dual system of courts leads inevitably to that conclusion.” Id.
3.The general writ authority in § 1651(a) makes no difference.
The Defendants’ analysis concentrates on the All Writs Act, presently codified at 28 U.S.C. § 1651(a) (“[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”). In resolving the question of this Court’s authority to order the requested relief, however, that provision is essentially irrelevant.
First, as established above, an exception to the Anti-Injunction Act must apply before injunctive relief covered by the general bar can be granted. See, e.g., Chick Kam Choo, 486 U.S. at 146; Atlantic Coast Line, 398 U.S. at 286–87. Second, the writ authority in § 1651(a) is a general grant that antedates the original version of the more-targeted bar in the Anti-Injunction Act. “The general powers thus given to the federal courts were obviously limited by the subsequent enactment of the specific prohibitory provisions of the Act of 1793.” Toucey, 314 U.S. at 132 n.4 (interpreting the pre-1948 version of the Anti-Injunction Act). And no precedent permits a federal court to exceed the plain terms of the Anti-Injunction Act. That statute incorporates its own rules of construction and a policy favoring preservation of state court proceedings without federal judicial interference. In any event, it is difficult to see a limiting principle that would prevent the Defendants’ All Writs Exception from swallowing the Anti-Injunction Rule. The Defendants would have the Court invoke extraordinary remedies under entirely ordinary circumstances. See Brown v. Gilmore, __ U.S. __, __, 2001 WL 1056666, at *2 (U.S. Sept. 12, 2001) (No. 01-384) (Rehnquist, C.J., in chambers).
B. The Exception for Federal Injunctive Relief that Is “Necessary in Aid of” the Court’s “Jurisdiction” Is Narrowly Construed and Cannot Reach this Case.
The Defendants agree that the Anti-Injunction Act’s general bar applies, and they rely on just one exception to it: a federal court may (not must) issue an injunction that inhibits state judicial proceedings where that relief is “necessary in aid of its jurisdiction.” 28 U.S.C. § 2283 (emphasis added); Defs.’ Mem. at 8. On no fair reading can this language permit the relief requested. The exception was plainly written to help preserve a federal court’s own capacity to adjudicate cases presently and properly before it.
The Supreme Court helped establish this principle in Atlantic Coast Line. That case confirms that the mere threat of parallel litigation and conflicting state and federal judgments is insufficient — even if federal jurisdiction should be exclusive. There, the Court rejected a labor union’s request for federal protection from a state court’s injunction against its picketing, despite the federal district court’s earlier consideration and denial of injunctive relief for the railroad: “it is not enough that the requested injunction is related to that jurisdiction, but it must be ‘necessary in aid of’ that jurisdiction. While this language is admittedly broad, we conclude that it implies something similar to the concept of injunctions to ‘protect or effectuate’ judgments.” 398 U.S. at 294. That is, federal injunctive relief must be “necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.” Id. (emphasis added); see also Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1298–1300 (5th Cir. 1992), cert. denied, 511 U.S. 1032 (1994); Phillips, 894 F.2d at 132; Texas v. United States, 837 F.2d 184, 186–87 n.4 (5th Cir. 1988). Hence, “The general rule remains . . . that an injunction cannot issue to restrain a state action in personum involving the same subject matter from going on at the same time.” 17 Wright et al., supra, § 4225, at 533–35.
In the situation at bar, the state suits at stake are hardly within the exclusive jurisdiction of the federal courts. Far from it. There is no guarantee that any of the suits to be halted are within any federal court’s personal or subject matter jurisdiction at all. The state suits appear to rest on state substantive law, and the Defendants have not alleged that the cases meet the complete diversity or amount in controversy requirements of 28 U.S.C. § 1332, or that this Court could assert personal jurisdiction over non-resident plaintiffs. See generally Argument Part I, supra. “Such nonexistent jurisdiction therefore cannot be aided” by an injunction against state proceedings. Amalgamated Clothing, 348 U.S. at 519. This Court’s jurisdiction begins and ends with the pretrial management of the federal suits now consolidated before it. Any extension of MDL jurisdiction is an issue for Congress. Lexecon, 523 U.S. at 40.
The only conceivable basis for applying the necessary-in-aid-of-jurisdiction exception is the (untenable) suggestion that adjudication of these federal suits will become practically impossible, or at least seriously impaired, on account of parallel state suits. The Defendants have not only miscalculated the true impact on pending state suits, they have failed to show the degree of interference necessary to satisfy even the most liberal interpretation of the Anti-Injunction Act — an interpretation that the Fifth Circuit has not endorsed. Royal Ins., 960 F.2d at 1299. The presence of parallel state suits and the risk of liability is insufficient; this Court’s ability to adjudicate must be in jeopardy. Atlantic Coast Line, 398 U.S. at 294; Royal Ins., 960 F.2d at 1298–1300. The Defendants have confused their own convenience with the Court’s ability to resolve the federal cases before it.
1. The traditional interpretation includes only removal and in rem jurisdiction.
For decades, most courts have interpreted the necessary-in-aid-of-jurisdiction exception
narrowly to encompass just two situations. First, a federal court might act out of necessity for the
protection of its congressionally conferred jurisdiction when it ensures that state proceedings halt
after they have been removed to the federal court. See T. Smith & Son, 275 F.2d at 407.
In this
case, there is no evidence that a previously removed case has been re-filed in the state court from
which it came; and, in any event, the Defendants do not rely on this component of the exception.
Second, the exception is usually read as shorthand for the historically exclusive jurisdiction over property. See 17 Wright et al., supra, § 4225, at 528–29; Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641 (1977) (plurality opinion of Rehnquist, J.); Phillips, 894 F.2d at 132; General Motors, 134 F.3d at 145. The Defendants do refer to the traditional rule that the first court to assume in rem jurisdiction over a res is entitled to exercise that jurisdiction exclusively. Defs.’ Mem. at 10–13. Assuming that this rule survives the modern version of the Anti-Injunction Act, however, extending it to this case would not only distort the tradition, but also threaten Multidistrict Litigation in the federal courts.
While recognizing an in rem exception in pre-1948 dicta, the Supreme Court explicitly confined this concept to exclude “a controversy over a mere question of personal liability.” Kline v. Burke Constr. Co., 260 U.S. 226, 230 (1922). In Kline, the Court analyzed both the Anti-Injunction Act’s general bar and the All Writs Act, and then denied district courts the authority to enjoin a state suit on the same cause of action. Id. at 232. As the Court saw it, by definition
an action brought to enforce such a liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court.
Id. (emphasis added); accord Vendo, 433 U.S. at 641–42 (plurality opinion of Rehnquist, J.). Whether joint exercise of jurisdiction over the person is always less difficult than joint jurisdiction over property was beside the point; in rem jurisdiction was the line darkly marked by the Supreme Court in order to preserve state court adjudication. Accord Phillips, 894 F.2d at 132 (refusing to extend the in rem category to a claim for money damages). The Fifth Circuit reiterated this traditional line in Carter v. Ogden Corp.:
Although in an in rem action it may be necessary for the federal court to enjoin the later state proceedings to protect its jurisdiction, an in personam action may proceed simultaneously in state and federal court and the federal court cannot enjoin the state action even if the federal suit was filed first.
524 F.2d 74, 76 (5th Cir. 1975) (citation omitted) (reversing an anti-suit injunction).
The Fifth Circuit has never adopted the highly fictional conclusion that “complex” or
consolidated litigation is somehow “property.”
This very Court has confirmed that the proper
reading of the statute is far narrower. In In re Ford Motor Co. Bronco II Prods. Liab. Litig., No.
Civ. A. MDL-991, 1994 WL 605970 (E.D. La. Nov. 3, 1994), the Court rejected the idea that it
could properly issue an anti-suit injunction in an MDL class action, despite an argument based on
the purpose of § 1407. Id. at *1 n.2. And in that case, both state and federal class actions were
on the verge of settlement. Id. at *1; see also Ford Motor, 1995 WL 489480, at *2–*3.
Moreover, an in rem exception, whatever its vitality today, has always been a double-edged sword. “The converse of the rule is equally true, that where the jurisdiction of the state court has first attached, the federal court is precluded from exercising its jurisdiction over the same res to defeat or impair the state court’s jurisdiction.” Kline, 260 U.S. at 229. Thus, the broader any such exception to the Anti-Injunction Act becomes, the greater the inhibition on federal court jurisdiction. In fact, because this rule of exclusive in rem jurisdiction vests sole jurisdiction in the judicial system that assumed jurisdiction over the “property” first, the Defendants’ logic ironically could deprive this Court of jurisdiction. At least some of the parallel state suits now pending against the Defendants were filed well in advance of this Court’s assertion of jurisdiction, and the Defendants have not explained how a mass tort action can qualify as “property” for one judicial system but not the other. Any rule of exclusive in rem jurisdiction is a first-to-file concept; it is not a rule of federal judicial primacy.
2. Broader and more creative applications of this exception, whatever their legitimacy, fall far short of this case.
Whatever its precise meaning, the exception cannot stretch to reach the facts of this case, without both exceeding precedent and creating a per se rule of exclusive federal jurisdiction in “complex litigation.” That result is not open to this Court. The exception must be interpreted “narrowly, in the direction of federal non-interference with orderly state proceedings.” T. Smith & Son, 275 F.2d at 407. In fact, this Court lacks authority to stay either state court discovery or state court class certification. A close look at the cases cited by the Defendants demonstrates why. Courts willing to loosen the exceptions to the Anti-Injunction Act have used two quite narrow justifications for their departures.
a. Some courts have found an exception to protect actual or imminent settlement
agreements reached in a federal class action. The Third Circuit has adopted this position for
opt-out class actions, Carlough, 10 F.3d at 200–04 (a subsequently filed state court class action
could not be used to make an end-run around an opt-out settlement), but recently confirmed its
confined scope in a case analogous to the situation at bar. Carlough, the court explained,
“fashioned a third, and narrow, application of the ‘necessary in aid of its jurisdiction’ exception
in the context of a complex class action which was also an MDL case [1] where a settlement was
imminent; [2] where the federal court had already expended considerable time and resources; and
[3] where the pending state action threatened to derail the provisional settlement. There, we
upheld an injunction that prevented absentee members from seeking a declaratory judgment in
state court that would have declared that all putative West Virginia members had opted-out of the
federal class.” General Motors, 134 F.3d at 145. The General Motors court went on to deny
injunctive relief in advance of class certification or provisional settlement. Id.
The Defendants’ reliance on In re Corrugated Container Antitrust Action Litig., 659 F.2d 1332 (5th Cir. 1981), cert. denied, 456 U.S. 936 (1982), is equally misplaced. That case permitted an MDL court to protect class action settlements. First, the court primarily relied on the third exception to the Anti-Injunction Act (“to protect or effectuate its judgments”), not just the sole exception at issue here. Royal Ins., 960 F.2d at 1299 n.17 (confining the case). Second and accordingly, the court sought to preserve an actual class action settlement. Third, the district court had enjoined just three plaintiffs who were class members in the federal action, and who had then filed a competing class action in state court. In fact, the Fifth Circuit pointed out that the plaintiffs’ attorneys involved intended to disrupt the federal settlements. See Corrugated Container, 659 F.2d at 1335 (also emphasizing that the state court had enjoined certain federal defendants from settling state-law claims).
The Defendants have not alleged this sort of actual threat to settlement, nor intent to disrupt federal proceedings on the part of any state court plaintiff or attorney, much less all those affected by the proposed nationwide injunction. Both elements were necessary to the result in Corrugated Container. As this Court recently stated, “The state proceedings must present a direct and immediate threat to the federal court’s ability to manage and effectuate an imminent or final compromise of the claims before the court. . . . . There is simply no judgment, settlement, or imminent settlement that this court needs to protect . . . .” Ford Motor, 1995 WL 489480, at *3; see also Royal Ins., 960 F.2d at 1299 (the risk that a state court will reach the issue first does not satisfy the exception); Piambino v. Bailey, 610 F.2d 1306, 1333–34 (5th Cir.) (no exception for a mere reduction in funds to pay a federal class action judgment), cert. denied, 449 U.S. 1011 (1980); Vendo, 433 U.S. at 641–42 (plurality opinion of Rehnquist, J.) (“No case of this Court has ever held that an injunction to ‘preserve’ a case or controversy fits within the ‘necessary in aid of its jurisdiction’ exception.”); Peters v. Brants Grocery, 990 F. Supp. 1337, 1342 (M.D. Ala. 1998) (interpreting the All Writs Act) (the chance that another court could certify a mandatory class was insufficient to justify an injunction).
b. Some courts have also indicated a willingness to remedy actual discovery abuse or to resolve actual conflict between irreconcilable state and federal discovery efforts. When a federal court has jurisdiction over a party, it might avoid the Anti-Injunction Act’s bar if that party attempts to use parallel state discovery to nullify the federal court’s orders. But this concept is a thin one. It rests not only on a proper assertion of jurisdiction, but also a showing of discovery abuse and a narrowly tailored remedial response.
The key case relied on by the Defendants here actually vacated an injunction. In Winkler, certain plaintiffs who had been part of an MDL for Prozac sought to uncover the terms of a confidential agreement between the defendant and former lead counsel. The MDL court refused to order the agreement disclosed before counsel withdrew. Rather than seek certification of that order for appeal, certain plaintiffs sought disclosure orders from two state courts. At that point, the MDL judge issued an injunction to prohibit such efforts. See 101 F.3d at 1199–1201. The Seventh Circuit reversed. Id. at 1205–06. The court did conclude that the integrity of such pretrial rulings could be ensured by injunction, id. at 1201–03; see also In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 93 F. Supp. 2d 876 (M.D. Tenn. 2000) (addressing a targeted injunction to preserve the status quo), but the decisions rendered by the MDL court and sought in state courts were irreconcilable: the state plaintiffs demanded disclosure, the federal court had denied it.
Moreover, the Seventh Circuit concluded that the MDL court had abused its discretion by enjoining not just those shown to have engaged in forum-shopping for the purpose of evading a federal court order, but also every plaintiff and counsel ever involved in the Prozac MDL. See Winkler, 101 F.3d at 1203; see also id. at 1203–05. The relief requested in this case suffers from the same defect, and more. It would bind individuals who never were and never will be involved in the Propulsid MDL –– a restraint that the Seventh Circuit would reject. Id. at 1201–03 & n.6.
Winkler is therefore cold comfort for the Defendants’ attempt to halt all state court discovery. Even assuming that the Fifth Circuit would adopt the Seventh Circuit’s reasoning, this case does not involve that kind of plaintiff forum-shopping and federal-state confrontation present in Winkler. The most that the Defendants in this case can say is that (1) state court discovery is moving forward, and (2) in certain depositions that were cross-noticed for both state and MDL purposes, certain plaintiffs attorneys have sometimes reserved the right to re-depose at a later date. But neither circumstance affects this Court’s discovery orders in the least. That additional and compatible discovery might take place in state courts is irrelevant. And in the first instance, state courts should be trusted to avoid undermining the federal courts’ ability to conduct federal litigation. See Ford Motor, 1995 WL 489480, at *2–*3 (refusing to issue an injunction that would interfere with state court discovery); Castano v. American Tobacco Co., 879 F. Supp. 594, 597–98 & n.2 (E.D. La. 1995) (refusing to enjoin a state court deposition where the moving party failed to show improper motive or practical interference with federal proceedings); In re Taxable Mun. Bonds Litig,, No. Civ. A MDL 863, 1992 WL 205083 (E.D. La. Aug. 12, 1992) (issuing an order to coordinate state and federal discovery after a state judge refused to do so informally). In this regard, the Defendants confirm their erroneous belief that the logical progression of state civil justice can be impeded solely in the interests of efficiency.
Whatever the merits of these lower court decisions, they do not govern here. Extending them so much further would run this Court headlong into the Anti-Injunction Act’s unequivocal bar, fundamental principles of federalism, and basic Due Process protections. Under the Defendants’ version of the Anti-Injunction Act, it is unclear whether the general bar could ever apply in MDL litigation. They appear to contend that an MDL court’s ability to adjudicate is automatically compromised by parallel state litigation as soon as both systems begin discovery — even when many of the pending state suits were initiated first, when no federal class has been certified, when no federal settlement is on the table, when the claims arise under state law, and when federal jurisdiction has not been asserted over the state plaintiffs whose suits would be stalled. Both Congress and the Supreme Court have rejected that view. So must this Court.
CONCLUSION
The Defendants’ Motion for Injunction should be denied.
Dated: ________________ Respectfully submitted,
TRIAL LAWYERS FOR PUBLIC JUSTICE, by
Adam Samaha
Roberta Walburn
Robins, Kaplan, Miller & Ciresi, LLP
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
(612) 349-8500
Arthur H. Bryant
Trial Lawyers for Public Justice, P.C.
One Kaiser Plaza
Suite 275
Oakland, CA 94612
(510) 622-8150
Rebecca E. Epstein
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
Counsel for Amicus Curiae
Trial Lawyers for Public Justice, P.C.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing pleading has been served upon counsel of record for Johnson & Johnson Company and Janssen Pharmaceutica, Inc., and for the Plaintiffs’ Steering Committee by hand delivery on this _______ day of ___________, 2001.
_______________________________________