Dustin ROLLINS, on behalf of himself and all other similarly situated persons, Plaintiff-Appellant,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MERSCORP, Inc., Defendants-Appellees.
Argued and Submitted Nov. 8, 2013.
John R. Ates (argued), Ates Law Firm, P.C., Alexandria, VA; David C. Ates, David Ates, P.C., Atlanta, GA, for Plaintiffs-Appellants.
Robert M. Brochin, Morgan, Lewis & Bockius LLP, Miami, FL, for Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona, James A. Teilborg, Senior District Judge, Presiding. D.C. No. 2:11-cv-00027-JAT.
Before: A. WALLACE TASHIMA, WILLIAM A. FLETCHER, and JACQUELINE H. NGUYEN, Circuit Judges.
This appeal comes to us in an unusual procedural posture and presents a nuanced issue of appellate jurisdiction. The United States Judicial Panel on Multidistrict Litigation (" JPML" ) issued an order that split the claims presented in this and numerous other cases— some claims were transferred to the MDL court, while others were remanded to the transferor courts. As a result of the JPML order, the MDL court, when confronted with a motion to dismiss, could only act on a portion of the motion. The MDL court, recognizing that its authority to act was limited to only some of the claims, granted the motion in part, thereby dismissing some, but not all, of the claims pending in this action.
Because the claims in this case that remain in the transferor court still are pending, and because the MDL court did not expressly find that its dismissal order was an appealable final judgment, we are unable to determine whether we have jurisdiction to hear this appeal from the MDL court's order. Therefore, we order a limited remand for the MDL court to specify whether it intended that its dismissal order be treated as an appealable final judgment pursuant to Federal Rule of Civil Procedure 54(b).
On December 7, 2009, the JPML established MDL No. 2119, In re: Mortgage Electronic Registration Systems (MERS) Litigation, before District Judge James A. Teilborg in the District of Arizona (the " transferee court" or " MDL court" ). At that time, the JPML centralized six actions in the MDL court.
According to the JPML,
This litigation concerns the MERS system, an electronic mortgage registration system and clearinghouse that tracks beneficial ownership interests in, and servicing rights to, mortgage loans. Plaintiffs allege, inter alia, that the members and/or shareholders of MERSCORP and its subsidiary MERS conspired to establish the MERS system— an electronic system for registering mortgages— as a means by which to intentionally hide from plaintiffs the true identity of the actual beneficial owners of negotiable promissory notes. All actions arise, in part, from allegations concerning the formation and operation of the MERS system. Centralization under Section 1407 will eliminate duplicative discovery, prevent inconsistent pretrial rulings (including with respect to class certification), and conserve the resources of the parties, their counsel and the judiciary.
Significantly, however, the JPML did not transfer the cases in their entirety to the MDL court, instead ordering that " claims unrelated to the formation and/or operation of the MERS system [would be] simultaneously ...