The opinion of the court was delivered by: John A. Houston United States District Judge
Member cases: 10cv2658 JAH(BGS)
11cv1008 JAH(BGS) 11cv3006 JAH(BGS) 11cv3007 JAH(BGS)
11cv3057 JAH(BGS) 12cv0574 JAH(BGS)
ORDER DENYING PLAINTIFFS ) BARTLETT AND HARVEY'S CONSOLIDATED REQUEST FOR SUGGESTION OF REMAND OR, IN THE ALTERNATIVE FOR DESIGNATION AS A SUB-CLASS [DOC. # 9]
Currently pending before this Court is the consolidated request for a suggestion of remand, or in the alternative for designation as a sub-class filed by plaintiffs Kimberly Bartlett and Karen Harvey. The request has been fully briefed. After a careful consideration of the pleadings and relevant exhibits submitted, and for the reasons set forth below, this Court DENIES the consolidated request for a suggestion of remand and DENIES the alternative request for designation as a sub-class as premature.
The instant case was transferred to this Court on December 21, 2011 from the Judicial Panel on Multidistrict Litigation ("the MDL Panel"). The case consists of five consolidated putative class actions*fn1 each seeking relief from defendant Portfolio Recovery Associates, LLC ("defendant" or "Portfolio") based on allegations that defendant violated the Telephone Consumer Protection Act ("TCPA") by calling cellular telephone numbers with an automatic telephone dialing system ("ATDS") without prior express consent.
On February 25, 2012, plaintiffs Kimberly Bartlett and Karen Harvey ("moving plaintiffs") filed their consolidated request for a suggestion of remand of their individual putative class action complaints originally filed in the Northern District of Georgia and the Middle District of Florida respectively (collectively "the carve-out cases"). Defendant filed an opposition to the request on March 12, 2012. Plaintiffs Frydman, Marin, Jury, Meyer and Allen ("the nationwide plaintiffs") also filed a response to the request on March 12, 2012. The moving plaintiffs filed their consolidated reply brief on March 16, 2012.
The power to remand a case to the transferor court lies solely with the MDL Panel.
28 U.S.C. § 1407(a); In re Bridgestone/Firestone, Inc., 128 F.Supp.2d 1196, 1197 (S.D. Ind. 2001); see also In re Roberts, 178 F.3d 181, 183 (3d Cir.1999). In determining whether to issue a suggestion for remand to the MDL Panel, this Court is guided by the standards for remand employed by the MDL Panel. Bridgestone/Firestone, 128 F.Supp.2d at 1997. Where, as here, pretrial proceedings have not been concluded, the question of whether remand is appropriate is left to the court's discretion and generally turns on the question of whether the case will benefit from further coordinated proceedings as part of the MDL. In re Patenaude, 210 F.3d 135, 145 (3d Cir.2000); In re Air Crash Disaster, 461 F.Supp. 671, 672--73 (Jud.Pan.Mult.Lit.1978). The MDL Panel has discretion to remand, for example, when everything that remains to be done is case-specific. Patenaude, 210 F.3d at 145.
The moving plaintiffs contend their individual cases do not benefit from being included in these coordinated proceedings and claim the only things remaining to be done in their respective cases are case-specific. The moving plaintiffs explain that the procedural postures in both cases are substantially different from the procedural posture in the consolidated cases, i.e., discovery has been either completely or substantially completed, motions have been filed and mediation was pending in both cases prior to transfer. The moving plaintiffs further explain that the class definitions are substantially different in their cases as compared to the nationwide class definition.*fn2
Defendant, in opposition, claims the moving plaintiffs' arguments in support of their request for a suggestion of remand have already been presented and rejected by the MDL Panel when it entered its transfer order. Defendant notes the MDL Panel heard and rejected the moving plaintiffs' arguments concerning the differing class definitions and the procedural posture of the cases, finding centralization of these cases would promote the just and efficient conduct of this litigation based upon the fact that ...