In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation

          TRANSFER ORDER

         Before the Panel:^[*]

Plaintiffs in 67 actions listed on the attached Schedule A move under Panel Rule 7.1 to vacate the Panel’s orders conditionally transferring their respective actions to MDL No. 2672. Volkswagen defendants^[1] (collectively VW) oppose all motions.

         After considering the argument of counsel, we find these actions involve common questions of fact with the actions previously transferred to MDL No. 2672, and that transfer under 28 U.S.C. § 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Moreover, transfer is warranted for the reasons set out in our order directing centralization. In that order, we held that the Northern District of California was an appropriate Section 1407 forum for actions sharing factual questions regarding the role of VW and related entities in equipping certain 2.0 and 3.0 liter diesel engines with software allegedly designed to engage emissions controls only when the vehicles undergo official testing, while at other times the engines emit nitrous oxide well in excess of legal limits. See In re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation, 148 F.Supp.3d 1367 (J.P.M.L. 2015). These actions involve allegations related to affected VW, Audi and/or Porsche vehicles and clearly fall within the MDL’s ambit.

         Plaintiffs in 65 actions argue against transfer primarily based on the pendency of their motions to remand their respective actions to state court. Plaintiffs can present their motions for remand to the transferee judge.^[2] See, e.g., In re: Ivy, 901 F.2d 7, 9 (2nd Cir. 1990); In re: Prudential Ins. Co. of Am. Sales Practices Litig., 170 F.Supp.2d 1346, 1347-48 (J.P.M.L. 2001).

         Plaintiff in the Southern District of West Virginia action (Morris) alleges that VW incorrectly asserted that plaintiff’s previous action regarding his VW diesel, which was transferred via unopposed conditional transfer order in December 2016, involved an amount in controversy over $75, 000. Plaintiff brings claims of fraud, abuse of process and obstruction of justice against VW and its counsel, attorneys with McGuireWoods and the firm itself, for the alleged improper removal. Plaintiff’s proposed amended complaint adds a RICO claim for defendants’ alleged practice of fraudulently removing actions from state court in order to sweep such cases into an MDL. Arguing essentially that his action is unique and does not involve facts common to the MDL, plaintiff opposes transfer. Since the action is based upon the removal of an action pending in the MDL, we are of the opinion that placing Morris before the transferee judge is the best option in these circumstances.

         The State plaintiff in the Beshear action asserts that federal jurisdiction is lacking over its enforcement action, while also stressing the unique nature of its claims. The transferee judge can decide plaintiff’s motion to remand, as in other cases. At its core, the action is based upon the common factual questions of MDL No. 2672-VW’s conduct in installing defeat devices in over 500, 000 of its diesel vehicles. Allowing this case to proceed separately would require a duplicative, and potentially inconsistent, decision on the core issue of VW’s liability for the installation of the defeat devices. The Panel often has transferred claims brought by a State so long as the action involves facts common to the MDL proceeding^[3] and recently transferred an action brought by the Attorney General of New Mexico over similar objections. See In Re: Volkswagen, MDL No. 2672. doc. 1716 at 2 (J.P.M.L., June 2, 2016) (“Given the overlapping factual issues and the potential for inconsistent or duplicative rulings on common issues, transfer is appropriate.”).

         IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the Northern District of California and, with the consent of that court, assigned to the Honorable Charles R. Breyer for inclusion in the coordinated or consolidated pretrial proceedings.

         SCHEDULE A

         Middle District of Alabama

         THREADGILL v. VOLKSWAGEN GROUP OF AMERICA, INC., CA. No. 2:16-00223

         Northern District of Alabama

         POUNDS v. VOLKSWAGEN GROUP OF AMERICA, INC., CA. No. 2:16-561

         HESS, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., CA. No. 2:16-668

         HYCHE v. VOLKSWAGEN GROUP OF AMERICA, INC., CA. No. 6:16-560

         Central District of California

         WHALEN, ET AL. v. VENTURA VOLKSWAGEN, ET AL., CA. No. 2:16-03074

         WILKIE, ET AL. v. VOLKSWAGEN OF DOWNTOWN LOS ANGELES, ET AL., CA. No. 2:16-03087

         KESSLER, ET AL. v. VENTURA VOLKSWAGEN, ET AL., CA. No. 2:16-03161

         MORAN, ET AL. v. PARKWAY VOLKSWAGEN, ET AL., CA. No. 2:16-03162

         PEJMAN, ET AL. v. LIVINGSTON VOLKSWAGEN, ET AL., CA. No. 2:16-3163

         MILLER, ET AL. v. CARDINALEWAY VOLKSWAGEN, ET AL., CA. No. 5:16-933

         STEVENS, ET AL. v. MOSS BROS VOLKSWAGEN, ET AL., CA. No. 5:16-934

         Eastern District of California

         ALVARADO, ET AL. v. LASHER AUTO GROUP, ET AL., CA. No. 2:16 979

         Southern District of California

         HOWE, ET AL. v. MOSSY VOLKSWAGEN OF ESCONDIDO, ET AL., CA. No. 3:16-00988

         CREIGHTON, ET AL. v. AUDI OF SAN DIEGO, ET AL., CA. No. 3:16 01058

         URIE, ET AL. v. BOB BAKER VOLKSWAGEN SUBARU, ET AL., CA. No. 3:16-01089

         District ...