In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2438
F EDE X G ROUND P ACKAGE S YSTEM, INC.,
Petitioner,
v.
U NITED S TATES JUDICIAL P ANEL
ON M ULTIDISTRICT L ITIGATION,
Respondent.
Petition for a Writ of Mandamus to the
United States Judicial Panel on Multidistrict Litigation
MDL No. 1700
S UBMITTED JULY 27, 2011—D ECIDED N OVEMBER 17, 2011
Before M ANION, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. This petition for the extra-
ordinary writ of mandamus presents an important ques-
tion concerning the management of appeals in multi-
district litigation under 28 U.S.C. § 1407 when portions
of some cases must be returned to their original
transferor courts. In this case, the Judicial Panel on
Multidistrict Litigation (JPML) chose one of two alterna-
tive courses. The JPML chose to ensure that each case
2 No. 11-2438
produces one appeal of all issues in that case, rather
than using partial final judgments under Federal Rule
of Civil Procedure 54(b) to ensure that all related
appeals would go to the same circuit. As we explain
below, we agree with the JPML that there are strong
arguments for both sides of this procedural dispute, and
we defer to the JPML’s exercise of its discretion in this
matter. In terms of the standards for issuing writs of
mandamus, we find that the petitioner has failed to
show that it has a clear and indisputable right to
issuance of the writ, so its petition is denied.
I. The MDL Litigation
Delivery drivers for petitioner FedEx Ground Package
System, Inc. filed numerous class actions against FedEx
alleging that the company improperly classified them
as independent contractors rather than employees. Al-
though the cases in federal courts alleged violations of
many different state laws, they presented many com-
mon questions of fact. Under the authority of 28 U.S.C.
§ 1407, the JPML consolidated more than 70 of the
cases in MDL No. 1700 and transferred those cases to the
Northern District of Indiana in 2005 for consolidated
pretrial proceedings under the supervision of Judge
Robert L. Miller, Jr., a veteran district judge with long
experience both as a transferee judge managing MDL
cases and as a member of the JPML itself. Judge Miller
supervised the cases through several years of discovery
and motions practice.
In August 2010, Judge Miller granted a bellwether
summary judgment to FedEx on all of the state-law
No. 11-2438 3
claims in the Kansas case. He concluded that the class
members and named plaintiffs were independent con-
tractors as a matter of law. In re FedEx Ground Package
System, Inc., Employment Practices Litig., 734 F. Supp. 2d
557 (N.D. Ind. 2010). In December 2010, Judge Miller
granted summary judgment to FedEx on parallel claims
in most of the other pending cases, while granting sum-
mary judgment to plaintiffs on some claims in a few
cases. In re FedEx Ground Package System, Inc., Employment
Practices Litig., 758 F. Supp. 2d 638 (N.D. Ind. 2010). Those
decisions effectively concluded the coordinated pretrial
proceedings. It was time for appeal in the closed cases
and remand in the cases that still had open claims
that had not been resolved by the summary judgment
motions.
The present controversy arose from the fact that Judge
Miller’s summary judgment decisions resolved all the
claims in 22 of the still-pending MDL cases, but other
claims remained in the other 12 pending MDL cases.
Plaintiffs are appealing in the 22 cases where the
transferee court entered final judgments, and those
appeals are pending before this circuit. There is no final,
appealable judgment in the remaining 12 cases, and
there’s the rub.
There are two basic options for managing those cases
and the expected appeals from the transferee court’s
decisions in them. One option would be to have
Judge Miller issue partial final judgments under
Federal Rule of Civil Procedure 54(b), so that plaintiffs
would have to appeal immediately in those cases and
4 No. 11-2438
the appeals would come to this circuit. There are some
obvious advantages to this course by consolidating the
closely-related appeals before one circuit. The second
option is to follow the usual course at the end of consoli-
dated pretrial proceedings: transfer the cases with re-
maining claims back to the original transferor courts
for further proceedings, including possible appeal after
a final judgment. There are some obvious advantages
to this course, also, by ensuring that all issues in the
same case, involving the same parties and the same
facts, will be appealed at once, and to the same circuit.
Choosing either option means that the courts will lose
the advantages of the other option. The Rule 54(b)
option means that the remaining cases will be chopped
up for piecemeal appeals. The remand option means
that the appeals of similar issues (though under dif-
ferent states’ laws) in different cases will go to dif-
ferent circuits.
FedEx favored the Rule 54(b) option; plaintiffs favored
the remand option. Judge Miller chose the remand option
and recommended that the JPML, which has final
authority over the question, remand the remaining 12
cases to their original transferor courts. See R. Proc.
J.P.M.L. 10.1(b) (explaining that JPML can remand with
or without transferee court’s suggestion). The JPML
weighed that advice from Judge Miller and agreed to
remand those 12 cases to the originating courts without
a Rule 54(b) certification. That is the decision FedEx
seeks to reverse here by a writ of mandamus. The JPML
reviewed the parties’ positions and commented: “The
evident merit in both views highlights an interesting
No. 11-2438 5
intersection between Rule 54(b) and Section 1407.
No doubt, one can make strong arguments for either a
preference for consistent appeals from a transferee court
ruling or a preference that related claims in the same
case be taken in the same appeal.” The JPML explained
that it gave great weight to the transferee court’s
remand recommendation: “in most instances the trans-
feree judge has an acute sense about the procedural
steps necessary to advance the litigation in the fairest
and most efficient way.” Because the transferee court
(Judge Miller) had considered both sides’ views and the
relevant factors, the JPML accepted that recommenda-
tion and ordered accordingly.
II. Discussion
To qualify for mandamus relief, FedEx must first show
that it has no other adequate means to obtain relief.
Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S.
367, 380 (2004). FedEx satisfies this requirement: “No
proceedings for review of any order of the [JPML] may be
permitted except by extraordinary writ.” 28 U.S.C.
§ 1407(e). Second, FedEx must also show that its right to
the writ is clear and indisputable, and we must be
satisfied that the writ is appropriate under the circum-
stances. See Cheney, 542 U.S. at 381. Moreover, “only
exceptional circumstances amounting to a judicial usur-
pation of power or a clear abuse of discretion will
justify the invocation of this extraordinary remedy.” Id.
at 380 (internal quotation marks and citations omitted).
FedEx fails to satisfy this second requirement.
6 No. 11-2438
In its petition to this court, FedEx offers strong argu-
ments for the benefits of its preferred course. Its argu-
ments give short shrift, however, to the benefits of the
other course. At bottom, we agree with the JPML that the
choice between the two methods of managing appeals
offers “an interesting intersection between Rule 54(b)
and Section 1407” and that there are strong arguments
for each method.
The choice between these two methods of case manage-
ment is best left to the transferee court and JPML, without
trying to impose a rigid rule for all cases and circum-
stances. The transferee district court knows well the
issues and dynamics of the particular case. The JPML
brings to bear decades of experience with more than
a thousand MDL proceedings, which have included
some of the most complex and challenging cases in the
history of the federal courts. The choice between these
two methods of case management is an archetype for a
discretionary judgment, and the transferee court and
the JPML are in the best position to make that judg-
ment. In terms of the standards for issuing writs of man-
damus, it would be rare for one party to have a “clear
and indisputable right” to one method over the other.
FedEx relies heavily on the Fourth Circuit’s decision in
a similar MDL proceeding, In re Food Lion, Inc., Fair Labor
Standards Act “Effective Scheduling” Litig., 73 F.3d 528
(4th Cir. 1996), in which a divided panel of the Fourth
Circuit issued a writ of mandamus to the JPML to undo
its orders transferring cases back to their original trans-
feror courts to ensure that all related appeals would go
No. 11-2438 7
to the Fourth Circuit itself. Judge Butzner dissented,
arguing that the fact-specific nature of MDL litigation
called for leaving such case-management decisions to the
sound discretion of the transferee court and the JPML.
Id. at 533-35.
We do not understand the Food Lion majority to
have adopted a sweeping holding that all MDL cases
must be managed to ensure that all related appeals go
to only the circuit with jurisdiction over the transferee
court. Although the Food Lion litigation was similar to
this case, the claims there arose under federal law, so
that one uniform law applied to claims in all the
related cases and thus all the appeals. In the FedEx
cases, by contrast, plaintiffs assert rights under the laws
of many different states. What may have been the
better way to manage the Food Lion litigation, which
involved claims under federal law, is not necessarily
the better way to manage these cases, in which the
claims arise under similar but not identical state laws.
The JPML did not abuse its discretion and no excep-
tional circumstances warrant mandamus relief. FedEx
has not shown that it has a clear and indisputable right
to the writ, so its petition for a writ of mandamus
is DENIED.
11-17-11