Petition for Writ of Certiorari — B. C. Rogers Processors, Inc. v. BOC Group, Inc.
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Supreme Court of the Hnited States
B.C. ROGERS PROCESSORS, INC., B.C. ROGERS POULTRY, INC.,
CHOCTAW MAID FARMS, INC., FOREST PACKING COMPANY,
INC., MARSHALL DURBIN, INC., MARSHALL DURBIN FOOD
CORPORATION, MARSHALL DURBIN’ POULTRY, _INC.,
MARSHALL DURBIN OF TUPELO, INC. AND MOHAWK PACKING
COMPANY,
Petitioners,
v.
THE BOC GROUP, INC., LIQUID AIR CORPORATION and LIQUID
CARBONIC INDUSTRIES CORPORATION,
Respondents.
On PETITION FOR A WRIT OF CERTIORARI TO THE
Untrep STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
MELVYN L. SEGAL ALEX A. ALSTON, JR.
JEFFREY M. FORSTER Counsel of Record
FORSTER & SEGAL RICHARD L. JONES
160 West Santa Clara Street ALSTON & JONES
San Jose, California 95113 121 North State Street
(408) 977-3139 Post Office Drawer 1532
Jackson, Mississippi 39215-1532
(601) 948-6882
STEPHEN M. MALONEY
Post Office Box 1415
Madison, Mississippi 39130-1415
(601) 898-0078
Attorneys for Petitioners
i
QUESTIONS PRESENTED FOR REVIEW
When a case has been transferred for consolidated
pretrial proceedings pursuant to 28 U.S.C. § 1407, whether
the transferee court’s jurisdiction to try the case may be
estavlished by waiver, consent or stipulation of the parties,
and, if so, whether such waiver, consent or stipulation is
established by a party’s signing of a pretrial order which
states that the transferee court has subject matter jurisdiction.
ii
PARTIES TO THE PROCEEDING
In addition to the parties named in the caption, the
following were parties to the action below: Foster Poultry
Farms Company, McCarty Farms, Inc., and McCarty Foods,
Inc.
Foster Poultry Farms Company, a California
corporation, has not joined in this Petition, because Foster
Poultry filed its individual action in the United States District
Court for the Middle District of Florida after the Judicial
Panel on Multidistrict Litigation consolidated all of the cases
in that district for pretrial proceedings. Foster Poultry would
have tried its case in the Middle District of Florida, unless
the district court transferred it pursuant to 28 U.S.C. §
1404(a). McCarty Farms and McCarty Foods are not parties
to this proceeding, having been purchased by Tyson Foods,
Inc.
Parent companies of the parties are as follows: Liquid
Air Corporation is a wholly owned subsidiary of Air Liquide
America Corporation, which is in turn a wholly owned
subsidiary of Air Liquide, S.A. (France); Liquid Carbonic
Industries Corporation is a wholly owned subsidiary of
Praxair, Inc.; BOC Group, Inc. is a wholly owned subsidiary
of BOC Group PLC (UK). McCarty Foods, Inc. and
McCarty Farms Inc. are wholly owned subsidiaries of Tyson
Foods, Inc. None of the other parties to this action have
either parent companies or non-wholly owned subsidiaries
which are not themselves parties to the action.
JURISDICTION. .......:.s-0eessssvsvesenesessnrersnencnsnensnssnnenonsenensneneeeeneeeens
RELEVANT STATUTORY PROVISIONS INVOLVED ....00.0-eseeseesseeeees 2
STATEMENT OF THE CASE. ....+--sessssssssvsensensenssesssnsnnnennnnnsssesenee 4
A. Introducttion.............-ccvsssssssnseenseenneennsennnssnnssnnnscnnsssesere 4
B. Prior Proceedings In This Case........---v-ssv-sssrssrsseersrere 4
e Factual Backgrounnd ..........-.--sssssssssssesensnnensnses 4
rs The Decision of the District Court.......-.----+-++ 5
3. The Decision of the Eleventh Circuit
on Direct Appeal ........-sssvssssssssssresnsensensnnseners 7
4. This Court’s Grant of Certiorari .........---+---+--« 7
$. The Eleventh Circuit’s Opinion on Remand...8
REASONS FOR GRANTING THE WRIT ....-.++-sesesvssvssenssensenssenseeees 9
APPENDIX
United States Court of Appeals For The Eleventh Circuit
Opinion Filled .........o--ssssseeeessnseeeeernnseessennserernnsesseenee la
Order the Circuit Court dated January 29, 1998.......-ece000 14a
Order of the Judicial Panel on Multidistrict Litigation
Denying Motion as Moot Filed April 15, 1996 .........-+-++- 16a
iv
Order of the United States District Court Filed April 30,
Order Denying Petition for Writ of Mandamus of the
United States Court of Appeals for the Eleventh Circuit
Pihad Petru 25, SOG osccicesssccinceminstpeiiisascesniinsanieasl 20a
Order of the United States Supreme Court for the Middle
District of Florida, Orlando Division, on Motion for
Suggestion of Remand Dated February 6, 1996.............. 22a
Excerpts of Hearing Before the United States District Court
for the Middle District of Florida, Dated February 6, 1996
Motion for Judgment of the United States District Court for
the Middle District of Florida, Orlando Division, Filed
Letter From Kenneth A. Rutherford to Office of the Clerk
Re: B.C. Rogers Processors, et al. v. Boc Group, et al.
Appeal Docket No. 96-2704 ..........ccssccscsssecsessssesseseessness 50a
aE I a sicsntdasnsnictisinntdsrcdlihccsonsiindmnbicebinechbdasacgssdiel 52a
v
TABLE OF AUTHORITES
Federal Cases
Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d
os ag ce DELS NNO L ET Es 9, 10, 11
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26,118 S.Ct. 956, 140 L.Ed.2d 62 (1998). passim
Federal Statutes
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OF Sls BME sth iictirselbiiiacctiniiaaccec. co 4
IF ARE WUE titicririnpinccwaicce 2
]
PETITION FOR WRIT OF CERTIORARI
Petitioners B. C. Rogers Processors, Inc., B. C.
Rogers Poultry, Inc., Choctaw Maid Farms, Inc., Forest
Packing Company, Inc., Marshall Durbin, Inc., Marshall
Durbin Food Corporation, Marshall Durbin Poultry, Inc.,
Marshall Durbin of Tupelo, Inc., and Mohawk Packing
Company respectfully petition this Court to issue a writ of
certiorari to review the October 10, 2000 judgment of the
United States Court of Appeals for the Eleventh Circuit in
favor of Respondents, The BOC Group, Inc., Liquid Air
Corporation, and Liquid Carbonic Industries Corporation, in
State of Florida, et al. v. Liquid Air Corporation, et al.
OPINIONS BELOW
By Order dated June 26, 1998, this Court granted
Petitioners’ prior Petition for Writ of Certiorari, vacated the
judgment which had been entered against Petitioners, and
remanded the case to the United States Court of Appeals for
reconsideration in light of this Court’s ruling in Lexecon, Inc.
v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118
S.Ct. 956, 140 L.Ed.2d 62 (1998). Following remand by this
Court, the Court of Appeals re-entered judgment against
Petitioners, holding that Petitioners had waived any right to
complain of the district court’s decision to force the case to
trial in the Middle District of Florida, by inviting the district
court to erroneously assume jurisdiction to try the cases. The
Court of Appeals opinion, [App. 1a-13a], was published at
229 F.3d 1321, sub nom State of Florida v. Liquid Air
Corperation.
Prior to the original Petition for Writ of Certiorari, the
Court of Appeals had affirmed, without opinion, the decision
of the United States District Court for the Middle District of
Florida. [App. 14a-15Sa]. This per curiam affirmance, also
styled State of Florida v. Liquid Air, is reported at 136 F.3d
2
139. The unpublished orders of the United States District
Court for the Middle District of Florida (Peter Hill Beer, J.,
sitting by designation) and of the Judicial Panel on
Multidistrict Litigation, [App. 16a-17a], are included in the
appendix to this petition, along with the order of the Eleventh
Circuit denying the Petition for Writ of Mandamus. [App.
20a-21a]. The trial judge entered no written opinions in
connection with any of the issues raised in this Petition.
Excerpts from the transcript of the February 6, 1996 hearing
on Plaintiff's motion for suggestion of remand are included
in the appendix in lieu of a written opinion. [App. 24a-33a].
STATEMENT OF JURISDICTION
The judgment of the United States Court of Appeals
for the Eleventh Circuit, following remand from this Court,
was entered on October 10, 2000. [App. la-13a]. This
petition for writ of certiorari is filed within ninety days from
that date. 28 U.S.C. Section 2101 (c).
The jurisdiction of this court is invoked pursuant to
28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
INVOLVED IN THE REVIEW
The statutory provision directly involved in this
petition is 28 U.S.C. § 1407(a) which provides in pertinent
part:
(a) When civil actions involving one or more
common questions of fact are pending in
different districts, such actions may be
transferred to any district for coordinated or
consolidated pretrial proceedings. Such
transfers shall be made by the judicial panel
on multidistrict litigation authorized by this
section upon its determination that transfers
3
for such proceedings will be for the
convenience of parties and witnesses and will
promote the just and efficient conduct of such
actions. Each action so transferred shall be
remanded by the panel at or before the
conclusion of such pretrial proceedings to the
district from which it was transferred unless it
shall have been previously terminated:
Provided, however, that the panel may
separate any claim, cross_claim,
counter claim, or third party claim and
remand any of such claims before the
remainder of the action is remanded.
A statutory provision which is indirectly involved is
28 U.S.C. 1404(a), which provides:
For the convenience of parties and
witnesses, in the interest of justice, a district
court may transfer any civil action to any other
district or division where it might have been
_ brought.
4
STATEMENT OF THE CASE
A. Introduction
This is an antitrust action, brought pursuant to Section
1 of the Sherman Act, 15 U.S.C. § 1, by users of bulk liquid
carbon dioxide (CO2). Respondents, BOC (which also does
business under the name "Airco"), Liquid Air (which at times
did business under the name "Cardox") and Liquid Carbonic
Corporation, who were defendants below, are the major
producers of that product. Petitioners (plaintiffs below), all
of whom are end users of CO», alleged that these producers
conspired to allocate customers among themselves and fix
prices.
B. Prior Proceedings In This Case
1. Factual Background
Numerous cases in which customer allocation and
price fixing claims were asserted against Respondents were
filed in district courts around the country beginning in
approximately April, 1992. These included an action which
the State of Florida filed in the United States District Court
for the Middle District of Florida. The various cases were
transferred to the Middle District of Florida by the Judicial
Panel on Multidistrict Litigation for consolidated pretrial
proceedings, pursuant to authority granted by 28 U.S.C. §
1407.
The Florida district court subsequently certified a
nationwide class of users of CO2. A group of the Petitioners,
who are Mississippi-based poultry processors, opted out of
the class and filed an individual action in the United States
District Court for the Southern District of Mississippi in
September, 1994. Petitioner Mohawk Packing Company,
filed its individual suit in the Northern District of California
on July 21, 1993.
5
The Mississippi and California actions were
transferred to the Middle District of Florida as tag-along
actions by order of the Judicial Panel. Transfer was ordered
for consolidated or coordinated pretrial proceedings only.
2. The Decision of the District Court
Petitioners seek review by this Court of the § 1407
transferee district court’s decision to keep these cases in the
Middle District of Florida for trial, and the court of appeals’
subsequent affirmance of that decision. Although no order
transferring the actions to the Middle District of Florida for
all purposes was ever entered, the court set the cases for
> consolidated trial in that district commencing on February 5,
1996. At the time the trial setting was made, there were five
distinct groups of plaintiffs, which were: the State of Florida,
the certified class of CO, users, and three groups of opt-out
plaintiffs -- the Mississippi Plaintiffs, the California
Plaintiffs, and a large group of plaintiffs headed by
Anheuser-Busch!.
On the appointed day for trial, Respondents
announced that they had settled with the class, the Anheuser-
Busch group, and the State of Florida. Upon learning that the
Mississippi and California Plaintiffs had not yet settled, the
district judge announced his intention to remand those cases
to Mississippi and California for trial. [App. 26a-28a].
_ Following that announcement, counsel for BOC met
with the judge outside the presence of any attorneys
representing either the Mississippi or California Plaintiffs. In
that meeting, the district judge has admitted that counsel for
BOC convinced him
‘In the transcript of the February 6, 1996 hearing which is included in the
Appendix to this Petition, the Anheuser Busch group of opt-out plaintiffs
is referred to as the Freeman plaintiffs, because they were represented by
the Chicago firm of Freeman, Freeman & Salzman. .
6
That a great amount of money was being paid
in the settlement, a huge amount of money had
been expended in connection with the
litigation process, and the one thing that the
defendant required in terms of the
management of the matter at that point in time
was that it be — that it all be resolved.
There wasn’t any — there wasn’t even a
discussion about venue or anything else, it was
simply that it all be resolved, i.e., that this be
the forum, that this be the place of resolution
of the balance of the case. That was the
entirety of their contentions to me.
And I thought that that was okay under
the circumstances. My feeling was well, if I
can bring that to the process, okay, I will do it.
[App. 29a-30a].
The district judge then announced his intention to
keep the remaining cases in the Middle District of Florida for
trial. Petitioners filed a motion for suggestion of remand,
arguing that the district judge was required by § 1407 to
notify the Judicial Panel on Multidistrict Litigation that
pretrial proceedings were completed and that the cases were
ready to be remanded. The district judge denied this motion,
stating on the record that his denial was based on the
commitment he had made to defense counsel to resolve all of
the cases in Florida.. [App. 32a].
Petitioners sought review of the order denying their
motion for suggestion of remand by Petition for Writ of
Mandamus to the United States Court of Appeals for the
Eleventh Circuit and by petitioning the Judicial Panel on
Multidistrict Litigation to remand the cases. The Eleventh
Circuit denied the petition, stating that the issues raised could
“ 7
be reviewed on appeal, if necessary. [App. 20a-2la]. The
Judicial Panel on Multidistrict Litigation issued no response
to the petition for remand until after the jury had returned a
verdict against Petitioners, and then denied the petition as
moot. [App. 16a].
The case went to trial on March 5, 1996. After two
weeks of trial, the jury returned a verdict for Respondents.
Petitioners timely filed a Motion for New Trial, again raising
the issue of the trial court’s authority to keep these cases in
Florida for trial. [App. 34a-35a]. The trial court denied the
motion, without written opinion, by order dated April 30,
1996. [App. 18a]
3. The Decision of the Eleventh Circuit on Direct
Appeal
Petitioners filed a timely notice of appeal to the
United States Court of Appeals for the Eleventh Circuit,
contending, inter alia, that the district judge had erred in
keeping the cases for trial. By letter dated December 29,
1997, while the appeal was pending, Petitioners informed the
Eleventh Circuit that this Court had granted certiorari in
Lexecon and requested that the Court of Appeals withhold its
ruling on their_appeal until after this Court rendered its
decision in Lexecon. [App. 50a-Sla]. The case was set for
oral argument on January 15, 1998. During the course of that
argument, the-panel focused entirely on the issue of the trial
court’s refusal to remand and whether that was not simply a
venue issue. On January 29, 1998, the Court entered its one
word affirmance, without any explanation of why Petitioner’s
appeal was without merit or of why the Court would not
await this Court’s opinion in Lexecon. [App. 14a-1 5a).
4. This Court’s Grant of Certiorari
Petitioners timely filed a petition for writ of certiorari
with this Court, seeking review of the decision of the district
8
court to keep the cases for trial and of the Eleventh Circuit’s
order affirming that decision. This Court granted the writ,
vacated the judgments below and remanded the case to the
Eleventh Circuit for reconsideration in light of this Court’s
opinion in Lexecon.
5. The Eleventh Circuit’s Opinion on Remand
Approximately six months after this Court entered its
order remanding the case to the Eleventh Circuit for
reconsideration, that court directed the parties to
simultaneously file letter briefs explaining why Lexecon
applied to the facts of this case. Although Petitioners’ brief
focused on (1) whether the § 1407 transferee judge acted
without jurisdiction when he retained the cases for trial; and
(2) whether Lexecon should be applied retroactively, [App.
52a-63a], the Eleventh Circuit held that Petitioners had
invited the trial court to try the cases in Florida and could not
be heard on appeal to complain of error which Petitioners had
invited the trial court to make. [App. la-13a]. In so doing,
the court of appeals ignored the central issue before it —
whether the absence of authority in a § 1407 transferee court
to transfer cases to itself for trial, which was clearly
recognized by this Court in Lexecon, amounted to a lack of
jurisdiction, and, if so, whether the parties could confer such
jurisdiction by waiver or agreement.
9
REASONS FOR GRANTING THE WRIT
CERTIORARI SHOULD BE GRANTED
PURSUANT TO RULE 10 BECAUSE THE
DECISION OF THE COURT OF APPEALS
ADDRESSES AN IMPORTANT FEDERAL
QUESTION IN A MANNER INCONSISTENT
WITH RELEVANT DECISIONS OF THIS COURT.
In the instant action, the United States Court of
Appeals for the Eleventh Circuit has ruled in a manner that is
inconsistent with this Court's opinions in Lexecon, Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118
S.Ct. 956, 140 L.Ed.2d 62 (1998) and in Hoffman v. Blaski,
363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).
Specifically, on remand for reconsideration in light of
the Lexecon decision, the Court of Appeals (1) assumed,
without explanation, an answer to a question left open in
Lexecon, and (2) that assumed answer is directly contrary to
this Court’s holding in Hoffman.
In their brief before the court of appeals following
remand, Petitioners contended that this Court’s holding in
Lexecon established the proposition that § 1407 deprived a
transferee court of jurisdiction to try cases transferred to it
under authority of that statute. Petitioners further argued that
such jurisdiction could not be conferred by consent,
stipulation or waiver, citing, inter alia, Hoffman v. Blaski.
[App. 54a-58a]. The Court of Appeals entirely ignored that
argument, and without even addressing whether it was
dealing with a question of jurisdiction or venue, held that
because Petitioners had argued against BOC’s motion for
multiple trials and had signed a pretrial order which stated
that the transferee court had jurisdiction over the subject
matter, they were estopped by the doctrine of “invited error”
from asserting that the trial court had erred in ordering the
cases to trial in the Middle District of Florida.
10
In Lexecon, this Court reserved the question whether
a party could waive an objection to a § 1407 transferee
court’s assertion of jurisdiction to transfer the case to itself
for trial. Lexecon, 523 U.S. at 36, n.1, 118 S.Ct. at 962, n.1,
140 L.Ed.2d at 73, n.1.2 However, this Court had already
answered an essentially identical question in the negative in
Hoffman v. Blaski. In Hoffman, the issue, as identified by
this Court, was “whether a District Court, in which a civil
action has been properly brought, is empowered by § 1404(a)
to transfer the action, on the motion of the defendant, to a
district in which the plaintiff did not have a right to bring it.”
Hoffman, 363 U.S. at 336, 80 S.Ct. at 1085, 4 L.Ed.2d at
1257.
Section 1404(a) is clearly a venue statute, as is §
1407, in that both deal with the issue where certain litigation
proceedings will take place. However, both of those code
sections place limitations on the power of the district courts
to act, i.e. jurisdictional limitations. Section 1404(a)
authorizes district courts, under stated circumstances, to
transfer a case only to “any other district or division where it
might have been brought.” 28 U.S.C. 1404(a). Hoffman
involved two separate cases which were considered together
by this Court. In each of the cases the defendants had
successfully moved for a § 1404(a) transfer to a district court
in which the action could not have been brought. The United
States Court of Appeals for the Fifth Circuit upheld one such
order, while the Seventh Circuit reversed the other. This
2 In footnote 1 to the Lexecon opinion, this Court at least suggested that
28 U.S.C. § 1406(6) might contain an answer to whether a § 1407
transferee court’s exercise of jurisdiction to try cases so transferred could
be waived. That subsection was meant only to codify the existing
common law principle that objections to venue are waivable, but waiver
of a venue objection will not deprive the court of jurisdiction that has
otherwise been conferred by Congress in keeping with Article III of the
Constitution. (See Revision Notes and Legislative Reports comment on
the 1948 Act following 28 U.S.C.A. § 1406). The flip side of that same
coin is that the parties cannot, by waiver or otherwise, confer on the court
jurisdiction which Congress has withheld.
11
Court held that § 1404(a)’s limitation of transfers to districts
or divisions where the action could have been brought limited
both the jurisdiction of the district courts to transfer and the
jurisdiction of the transferee courts to entertain a
action. Specifically, this Court said |
It is not to be doubted that the
transferee courts, like every District Court,
had jurisdiction to entertain actions of the
character involved, but it is obvious that they
did not acquire jurisdiction over these
particular actions when they were brought in
the transferor courts. The transferee courts
could have acquired jurisdiction over these
actions only if properly brought in those
courts, or if validly transferred thereto under §
1404(a). Of course, venue, like jurisdiction
over the person, may be waived. A defendant,
properly served with process by a court having
subject matter jurisdiction, waives venue by
failing seasonably to assert it, or even simply
by making default. (Citations omitted). But
the power of a District Court under § 1404(a)
to transfer an action to another district is made
to depend not upon the wish or waiver of the
defendant, but rather, upon whether the
transferee district was one in which the action
“might have been brought’ by the plaintiff.
Hoffman, 363 U.S. at 343, 80 S.Ct. at 1089, 4 L.Ed.2d at
1261.
The unambiguous holding of this Court in Hoffman
was that although § 1404(a) is a venue statute, it also limits
the power of the district courts to transfer actions. This
limitation affects the jurisdiction of the district courts.
Because the issue is one of jurisdiction, parties to an action
cannot grant the district court the power to transfer an action
12
in violation of that limitation, by motion to transfer, by
stipulation to venue and personal jurisdiction in the proposed
transferee court, or by any other action which amounts to a
waiver of objection to the transfer itself or the jurisdiction of
the transferee court.
As this Court held in Lexecon, § 1407 also limits a
transferee court’s power to try cases transferred pursuant to
that statute, by mandating that the cases be remanded to the
districts in which they were filed following the conclusion of
pretrial proceedings. Lexecon, 523 U.S. at 40, 118 S.Ct. at
964, 140 L.Ed.2d at 76. Application of this Court’s holding
in Hoffman leads inescapably to the conclusion that a § 1407
transferee court’s power to try cases, clearly and
unequivocally withheld by Congress, cannot be conferred on
the transferee court by waiver, consent or stipulation of the
parties; nor can parties be estopped to complain of the district
court’s erroneous assertion of jurisdiction which it did not
possess, because they signed a pretrial order which stated that
the transferee court had subject matter jurisdiction.?
Petitioners made precisely this argument to the
Eleventh Circuit following remand. Without mentioning
Hoffman, that Court re-entered judgment against Petitioners,
holding that they had waived any right to object to the district
court’s ordering the cases to trial in the Middle District of
Florida.
Petitioners have raised this issue, in one form or
another, seven separate times before four different judicial
Because this was an antitrust action, in a general sense all United States
District Courts would have jurisdiction over its subject matter.
Petitioners stated.no more than that in signing the Pretrial Order. Even if
a party could, by stipulation or consent, confer on the court jurisdiction
that was withheld by Congress, the simple act of acknowledging that the
transferee court had jurisdiction over cases of this type certainly could not
amount to Petitioners’ inviting the district court to commit error. This is
particularly true in light of Petitioners’ later assertion by motion that the
district court lacked jurisdiction to do anything other than notify the
Judicial Panel on Multidistrict Litigation that the case was ready to be
remanded.
13
bodies. Other than this Court’s grant of certiorari, none of
those tribunals has yet addressed the argument in any fashion.
The holding of this Court in Lexecon directly supports the
argument that Petitioners have made repeatedly in the courts
below and this Court’s holding in Hoffman mandates a result
other than that reached by the United States Court of Appeals
for the Eleventh Circuit.
The issue presented by this petition has implications
far beyond the limited § 1407 context. The Eleventh
Circuit’s ruling has application in any case where there is a
statutory limitation on the power of the district courts to take
action. Should the Eleventh Circuit’s decision be allowed to
stand, much of the law concerning the jurisdiction of the
federal courts and the power of litigants to alter that
jurisdiction by waiver, consent, or stipulation is brought into
question.
Issuance of a writ of certiorari is appropriate to
correct the erroneous ruling of the Court of Appeals, which is
in direct conflict with this Court’s holdings in Lexecon, Inc.
v. Milberg Weiss Bershad Hynes & Lerach and Hoffman v.
Blaski. This Court should grant certiorari in this case and
summarily reverse the judgment entered against Petitioners
by the United States District Court for the Middle District of
Florida and affirmed by the United States Court of Appeals
for the Eleventh Circuit.
Respectfully submitted,
Alex A. Alston, Jr.
Richard L. Jones
ALSTON, & JONES
121 North State Street
Post Office Drawer 1532
Jackson, Mississippi 39215-
1532
Telephone: (601) 948-6882
Melvyn L. Segal
14
Forster & Segal
160 West Santa Clara St.,
Suite 1100
San Jose, CA 95113
Telephone: (408) 977-3139
la
(any footnotes trail end of each document)
No. 96-2704.
UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
In Re: CARBON DIOXIDE INDUSTRY ANTITRUST
LITIGATION, State of Florida, ex rel., et al., Plaintiffs,
Foster Poultry Farms and Mohawk Packing Company, B.C.
Rogers Processors, Inc., et al., Plaintiffs-Appellants, v.
Liquid Air Corp., et al., Defendants-Appellees.
October 10, 2000, Decided
October 10, 2000, Filed
COUNSEL:
For B.C. Rogers Processors, Inc., et al, Appellant: Melvyn L.
Segal, Forster & Segal, San Jose, CA. Kenneth A.
Rutherford, The Allred Law Firm, Oxford, MS. Richard L.
Jones, Alston, Rutherford & Van Slyke, Jackson, MS.
For Liquid Air Corp., Appellee: William G. Schopf, Jr.
Arthur J. Howe, Patrick J. Heneghan, John A. Cashman,
Schopf & Weiss, Chicago, IL. Michael J. Abernathy, Bell,
Boyd & Lloyd, Chicago, IL. John E. Burke, Attorney at Law,
Chicago, IL. Phillip A. Wittmann, Stone, Pigman, Walther,
Wittmann, et al, New Orleans, LA.
JUDGES:
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
OPINIONBY:
TJOFLAT
OPINION:
TJOFLAT, Circuit Judge:
Over a period of months during the early 1990s, these
consolidated cases were transferred to the United States
District Court for the Middle District of Florida by the
Judicial Panel on Miultidistrict Litigation for pretrial
proceedings pursuant to 28 U.S.C. § 1407. At the conclusion
of those proceedings, the parties agreed that the cases would
remain in the Middle District of Florida for trial. Some of the
cases settled on the eve of trial; the remainder were tried to a
verdict for the defendants. The plaintiffs appeal. The question
now arises whether the Supreme Court's decision in Lexecon,
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
118 S. Ct. 956, 140 L. Ed. 2d 62 (1998), requires that the
judgment of the district court be vacated and appellants’
lawsuits be returned to their original districts. Because
appellants explicitly requested that the district court try their
cases, we affirm.
I.
In 1992, numerous actions were brought in district courts
around the country by users of bulk liquid carbon dioxide
("CO[2}"), claiming antitrust violations by defendants The
BOC Group, Inc. ("BOC"), Liquid Air Corporation ("Liquid
Air"), and Liquid Carbonic Corporation ("Liquid Carbonic"),
all of whom are major producers of bulk liquid CO[2]. As the
litigation progressed, a class of plaintiffs was certified.’
Thereafter, a significant number of plaintiffs (the "Anheuser-
Busch Plaintiffs") opted out of the class and filed a separate
suit. Pursuant to its authority under 28 U.S.C. § 1407(a)
(1994),? the Judicial Panel on Multidistrict Litigation
("JPML") transferred all of the cases from the various
districts in which they were filed to the Middle District of
3a
Florida (the “transferee court") for coordinated pretrial
proceedings.
During the course of these proceedings, appellants
opted out of the plaintiff class and filed separate actions
against BOC, Liquid Air, and Liquid Carbonic. Specifically,
B.C. Rogers Processors, Inc., B.C. Rogers Poultry, Inc.,
Choctaw Maid Farms, Inc., Forest Packing Company, Inc.,
and Marshall Durbin of Tupelo, Inc. ("the Mississippi
Plaintiffs") filed suit in the United States District Court for
the Southern District of Mississippi, and Mohawk Packing
Company ("the California Plaintiff”) filed suit in the United
States District Court for the Northern District of California.
Separate orders by the JPML transferred the Mississippi and
California cases as "tag along" actions to the Middle District
of Florida for coordinated pretrial proceedings.
The transferee court held a final pretrial conference on
December 11, 1995, at which appellants were in attendance.
The parties stipulated, and the Final Pretrial Order stated, that
jurisdiction and venue were proper in the Middle District of
Florida, and that the cases would be tried by the transferee
court in Orlando on Monday, February 5, 1996.
On Friday, February 2, the court held an omnibus
hearing at which it entertained scores of evidentiary motions
in limine and otherwise readied the case for jury selection
and trial. On Monday, February 5, after the parties had
-assembled in the courtroom for jury selection, the court was
informed that during the preceding weekend the following
settlements had been reached: the class plaintiffs had settled
with Liquid Air and Liquid Carbonic (the cla8s plaintiffs had
settled with BOC approximately a year earlier); the
Anheuser-Busch Plaintiffs had settled with Liquid: Air and
Liquid Carbonic; and the Anheuser-Busch Plaintiffs and
BOC were still negotiating. If BOC and the Anheuser-Busch
4a
Plaintiffs settled, only the Méississippi and California
Plaintiffs would remain as plaintiffs in-the case.
At this point on February 5, the court informed counsel |
that it was considering whether, in light of these settlements,
to-return the remaining cases to the districts in which they
were filed. In response, BOC's counsel announced that it
would not settle with the Anheuser-Busch Plaintiffs unless
appellants’ cases were tried in Orlando. Believing that BOC's
position was reasonable and that the litigation could be most
efficiently managed in Orlando, the court adhered to the
Pretrial Order and stated that it would try the cases there.’
Upon hearing the court's announcement that the trial
would be held in Orlando, the Mississippi Plaintiffs moved
the court to issue a suggestion of remand to the JPML, or in
the alternative, to transfer the case to the Southern District of
Mississippi. They contended that the court had to choose one
of these alternatives because it lacked subject matter
jurisdiction to litigate the case to a conclusion, and because
proper venue laid in the Southern District of Mississippi. The
California Plaintiff joined in these motions, contending that
the appropriate venue for its case was the Northern District of
California. All motions were denied.
Appellants thereafter filed an emergency motion with the
JPML to remand their cases to the districts in which they
were f .ed pursuant to 28 U.S.C. § 1407(a) and Rule 14(b) of
the Rules of Procedure of the Judicial Panel on Multidistrict
Litigation.* While that motion was pending, appellants
petitioned this court for a writ of mandamus requiring the
district court to file a suggestion of remand with the JPML.
We stayed the trial pending resolution of the petition, which
we denied. After we denied the writ, the district court
rescheduled the trial for March 4, 1996. The JPML did not
reach appellants’ motion for remand until April 15, 1996, at
which time it denied the motion as moot because the trial of
Sa
the case had already been held and judgment had been
entered for the defendants on March 21.
The Mississippi and California Plaintiffs appealed,
arguing in part that the district court denied them due process
of law by refusing to return the cases to their original
districts.’ We affirmed without opinion, and the United States
Supreme Court granted certiorari. The Court vacated our
prior judgment and remanded the case for reconsideration in
light of its recent decision in Lexecon, 523 U.S. 26, 118 S.
Ct. 956, 140 L. Ed. 2d 62.
The precise issue to be addressed is whether Lexecon
requires this court to vacate the district court's judgment and
refer the cases to the JPML for remand to their original
districts. We hold that Lexecon does not require such relief:
we therefore adhere to our earlier disposition which affirmed
the district court.
Il. -
A.
In Lexecon, the Ninth Circuit encountered a section 1407
issue similar to the one presented here. Lexecon was initially
one of the defendants in a class action brought against
Charles Keating and the American Continental Corporation
in connection with the failure of Lincoln Savings and Loan.
Lexecon, 523 U.S. at 29, 118 S. Ct. at 959. It and other
actions arising out of that failure were transferred for pretrial
proceedings to the District of Arizona under section 1407(a),
which authorizes the JPML to transfer civil actions with
common issues of fact "to any district for coordinated or
consolidated pretrial proceedings," but provides that the
JPML shall remand any such action to the original district "at
or before the conclusion of such pretrial proceedings." Id.
(quoting 28 U.S.C. § 1407(a)). Lexecon settled with the
plaintiffs before the end of pretrial proceedings, and the
claims against it were thereafter dismissed.
6a
Lexecon subsequently brought a diversity action in the
Northern District of Illinois against two law firms--Milberg
and Cotchett--which served as counsel for the class action
plaintiffs. Milberg and Cotchett moved for, and the JPML
ordered, a section 1407(a) transfer to the District of Arizona
where the remainder of the Lincoln Savings litigation was
still ongoing. Once all plaintiffs other than Lexecon had
settled, Lexecon moved the district court to refer the case
back to the JPML for remand to the Northern District of
Illinois. Milberg and Cotchett opposed the motion because
discovery was still incomplete, and filed a countermotion
requesting the court to "transfer" the case to itself for trial
pursuant to 28 U.S.C. § 1404(a).° While deferring its ruling
on the parties' respective motions, the court granted summary
judgment in favor of the law firms on all claims except one
brought in defamation against Milberg, and dismissed the law
firms' counterclaims. The court then granted the
countermotion (thereby assigning the case to itself for trial)
and denied Lexecon's request that the case be referred back to
the JPML for remand. See id. at 29-31, 118 S. Ct. at 959-60.
The surviving defamation claim went to trial in the
District of Arizona, resulting in a judgment for Milberg.
Lexecon appealed the transfer order to the Ninth Circuit,’
which affirmed on the ground that "permitting the transferee
court to assign a case to itself upon completion of its pretrial
work was not only consistent with the statutory language but
conducive to efficiency." Id. at 32, 118 S. Ct. at 960.
The Supreme Court granted certiorari and reversed,
holding that a district court conducting pretrial proceedings
pursuant to section 1407(a) has no authority to invoke section
1404(a) to assign a transferred case to itself for trial. See id.
523 U.S. at 40-41, 118 S. Ct. at 964. The decision invalidated
the then-existing version of Rule 14(b) of the Rules of
Procedure of the Judicial Panel on Multidistrict Litigation,
which provided that "each transferred action that has not been
terminated in the transferee district court shall-be remanded
Ta
by the Panel to the transferor district for trial, unless ordered
transferred by the transferee judge to the transferee or other
district under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406."
Notwithstanding Rule 14(b), the Court found that the remand
requirement in section 1407 (mandating that all transferred
actions "shall" be remanded by the JPML) created "an
obligation impervious to judicial discretion," id. at 35, 118 S.
Ct. at 962, and therefore could not be read to accommodate a
district court's self-assignment of the case under section
1404(a).
B.
Despite their pretrial stipulation that venue was proper in
the Middle District of Florida, appellants request relief from
judgment on the ground that the cases should have
nevertheless been remanded to their original districts
pursuant to section 1407. They rely on Lexecon to support
their argument that section 1407 is self-executing, and thus
rendered the transferee court powerless to retain control of
the cases beyond the conclusion of pretrial proceedings-
regardless of appellants’ acquiescence. The circumstances of
this case, however, are clearly distinguishable from Lexecon.
Far from requesting that their cases be remanded to the
districts in which they were filed, appellants’ position
throughout the proceedings in the transferee court was that
the cases should be tried in Orlando. For example, in their
response to a motion BOC filed in July 1995, in which BOC
requested a severance so that the cases against it could be
tried separately, appellants claimed that:
if granted, BOC's motion would result in an
egregious waste of judicial resources and in
unnecessary expense to all parties, other
than BOC.... If the court ordered separate
trials of the class and individual claims, the
trial will be twice as long and either the
8a
class or the other defendants would be
prejudiced as a result.... Plaintiffs as a group
intend to put on documentary and anecdotal
evidence of the defendants [sic] involvement
in a scheme to fix prices.... Multiple trials
certainly will not be more convenient than a
single trial would be.... Nor would the goals
of expeditiousness or economy be served by
separate trials. BOC's motion [for separate
trials} should be denied.
Appellants were fighting to keep their cases in the Middle
District of Florida, not to get them out.
Moreover, appellants stipulated at the final pretrial
conference, and the court stated in the Final Pretrial Order,
that the Middle District of Florida had subject matter
jurisdiction over all claims, and that "venue [was] proper
under 28 U.S.C. § 1391." To be sure, parties may not
stipulate subject matter jurisdiction. See West Peninsular
Title Co. v. Palm Beach Cty., 41 F.3d 1490, 1492 n. 4 (11th
Cir.1995). Venue, however, is another matter. "The locality
of the law suit--the place where judicial authority may be
exercised--though defined by legislation relates to the
convenience of litigants and as such is subject to their
disposition." Neirbo Co. v. Bethlehem Shipbuilding Corp.,
308 U.S. 165, 168, 60 S. Ct. 153, 154, 84 L. Ed. 167 (1939);
see also Olberding v. Illinois Cent. R.R. Co., 346 U.S. 338,
340, 74 S. Ct. 83, 85, 98 L. Ed. 39 (1953) (noting that venue
restriction "is not a qualification upon the power of the court
to adjudicate, but a limitation designed for the convenience of
litigants, and, as such, may be waived by them"). It is clear
from the Court's opinion in Lexecon that section 1407 is not a
jurisdictional limitation, but rather "a venue statute that ...
categorically limits the authority of courts (and special
panels) to override a plaintiff's choice [of forum]." Lexecon,
523 U.S. at 42, 118 S. Ct. at 965. _
9a
In their representations to the district court, appellants'
choice of forum was the Middle District of Florida.
Appellants freely admit that "so long as the various cases
were scheduled for consolidated trial, they expressed no
objection to a single trial in Orlando, Florida."® Furthermore,
appellants contended that "the Middle District of Florida was
a district in which these cases could have been brought."®
Indeed, appellants' every action belies their assertion to the
district court on the day of trial that "we, of course, have been
contending from the get go ... that we want to be in
Mississippi.""°
If the Mississippi and California Plaintiffs believed that
they had a right to have their cases remanded to their original
districts, they should not have asked the court to try the case
in Orlando. "Having induced the court to rely on a particular
¢rronéous proposition of law or fact, a party in the normal
case may not at a later stage of the case use the error to set
aside the immediate consequences of the error." Charter Co.
v. U.S., 971 F.2d 1576, 1582 (11th Cir.1992) (internal
Citation omitted).
In sum, appellants' actions throughout pretrial
Proceedings make this case clearly distinguishable from
Lexecon. Lexecon requested remand early in the case,
insisted that proper venue lay in the Northern District of
Illinois (where the case had been filed), and "continuously
objected to an uncorrected categorical violation of the
[section 1407] mandate," Lexecon, 523 U.S. at 43, 118 S. Ct.
at 966, when the district court refused to issue a suggestion of
remand. Conversely, appellants in the instant case not only
failed to raise the issue of remand until the day of jury
selection, but actually stipulated that venue was proper in the
Middle District of Florida and consistently urged the district
court to try the case in Orlando. "It is a cardinal rule of
appellate review that a party may not challenge as error a
ruling or other trial proceeding invited by that party. "U.S.
v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quoting Crockett
10a
v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.1985)
(internal quotes omitted)). To the extent the district court may
have erred in refusing to issue a suggestion of remand to the
JPML, appellants invited any such error and may not be
heard to complain of it on appeal.
Il.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
' On April 19, 1993, the plaintiff class was certified as:
all individuals or entities (excluding all
governmental entities and defendants and
other carbon dioxide producers and their
respective subsidiaries and affiliates) in the
continental United States that purchased
carbon dioxide directly from any defendant
(including their respective subsidiaries or
affiliates) at any time during the period of
January I, 1968 until October 22, 1992.
? 28 U.S.C. § 1407(a) (1994) provides in pertinent part:
When civil actions involving one or more
common questions of fact are pending in
different districts, such actions may be
transferred to any district for coordinated or
consolidated pretrial proceedings.... Each
action so transferred shall be remanded by
the panel at or before the conclusion of such
lla
pretrial proceedings to the district from
which it was transferred...
* The trial was rescheduled to begin on February 20,
1996.
* At the time this litigation was ongoing in the district
court, Rule 14(b) of the Multidistrict Rules stated:
Each transferred action that has not been
terminated in the transferee district court
shall be remanded by the Panel to the
transferor district for trial, unless ordered
transferred by the transferee judge to the
transferee or other district under 28 U.S.C. §
1404(a) or 28 U.S.C. § 1406. In the event
that the transferee judge so transfers an
action under 28 U.S.C. § 1404(a) or 1406,
no further action of the Panel shall be
necessary to authorize further proceedings
including trial. Actions that were originally
filed in the transferee district require no
action by the Panel to be reassigned to
another judge in the transferee district at the
conclusion of the coordinated or
consolidated pretrial proceedings affecting
those actions.
This rule was subsequently modified by the Supreme Court's
decision in Lexecon, Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26, 118 S. Ct. 956, 140 L. Ed. 2d 62 (1998),
the effect of which is at issue in the instant appeal.
* Appellants contended alternatively that various trial
court errors required the vacation of the district court's
judgment and a new trial. We found no merit in appellants’
contentions and affirmed the district court's rulings under
12a
11th Cir. R. 36-1.n6 28 U.S.C. § 1404(a) (1994) states: "For
the convenience of the parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any
other district or division where it might have been brought."
® 28 U.S.C. § 1404(a) (1994) states: "For the convenience
of the parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other
district or division where it might have been brought."
” Lexecon previously filed a petition for mandamus
after the district court's ruling on its motion to refer the case
to the JPML, which was denied by the Ninth Circuit because
"the [section 1404(a) ] transfer order [could] be appealed
immediately along with other issues in the event the
petitioners [lost] on the merits [at trial]." Lexecon, Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 1995 U.S. App.
LEXIS 19193, No. 95-70380 (9th Cir. July 21, 1995).n8
Appellants’ brief reveals why the Mississippi and California
Plaintiffs waited until the day of trial to request a suggestion
of remand to their original districts:
® Appellants’ brief reveals why the Mississippi and
California Plaintiffs waited until the day of trial to request a
suggestion of remand to their original districts:
At the time this case was set to go to trial,
the attorneys for each of the several Plaintiff
groups had agreed upon a division of labor
for the trial. As is not unusual in cases of
this type the bulk of the trial work, including
direct examination of Plaintiffs’ major
witnesses and cross-examination of
Defendants' major witnesses, was to be done
by counsel for the class and the largest
group of opt-out plaintiffs. So long as the
various cases were scheduled for
consolidated trial, the Plaintiffs/Appellants
13a
expressed no objection to a single trial in
Orlando, Florida.
As noted, supra, the plaintiff class and the largest group of
opt-out plaintiffs (the Anheuser-Busch Plaintiffs) had settled
or were in the process of settling with all defendants on the
day that appellants first moved the district court to refer the
cases back to the JPML for remand.
” When trial in Orlando became less convenient, however,
appellants tried to switch horses mid-stream, requesting
remand and arguing to the district court that "this is ... a
forum in which this case could not have been originally
brought ...." (emphasis added).
’ In the hearing the district court held on January 12,
1994, to set a trial date, counsel for defendant Liquid Air
stated:
I have heard, I believe both on and off the
record, suggestion by one or more of the
attorneys for Plaintiffs inthis case, that they
may wish to file a motion to remand these
cases for trial back to the district in which
the actions were originally filed after this
court has ruled on the summary judgment
motions. The question as to remand ... will
be one which will require briefing and
decision by this court. I am unclear at this
time ... whether the decision to seek remand
has been made by any individual plaintiffs.
We cannot find, nor has counsel called to our attention,
any objection made on the record by Mississippi or
California Plaintiffs to the trial of the cases in Orlando before
the trial was to commence on February 5, 1995.
l4a
ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
FILED JANUARY 29, 1998
IN THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 96-2704
D.C. Docket No. 92-MD940-CIV-ORL-3L23
IN RE:
CARBON DIOXIDE INDUSTRY ANTITRUST
LITIGATION, STATE OF FLORIDA, ex rel., et al.,
Plaintiffs.
FOSTER POULTRY FARMS and MOHAWK PACKING
COMPANY, B.C. ROGERS PROCESSORS, INC., et al.,
Plaintiffs-Appellants,
versus
LIQUID AIR CORP., et al.
Defendants-Appellees.
Appeals from the United States District Court
for the Middle District of Florida
(January 29, 1998)
Before TJOFLAT and HULL, Circuit Judges, and —
KRAVITCH, Senior Circuit Judge.
PER CURIAM:
15a
AFFIRMED. See 1 Ith Cir. R. 36-1.1.[fn1]
“Costs taxed against plaintiffs-appellants.
Entered: January 29 1998
For the Court: Thomas K. Kahn, Clerk
By: s/ Man Davidson Deputy Clerk
ISSUED AS MANDATE: 2/27/98
fhnl. 11th Cir. R. 36-1 provides:
When the court determines any of the following
circumstances exist:
(a) judgment of the district court is based on findings
of fact that are not clearly erroneous;
(b) he evidence in support of a jury verdict is
sufficient;
(c) the order of an administrative agency is supported
by substantial evidence on the record as a whole;
(d) summary judgment, directed verdict, or judgment
on the pleadings is supported by the record;
(¢) judgment has been entered without a reversible
error of law; and an opinion would have no
precedential value, the judgment or order may be
affirmed or enforced without opinion.
16a
ORDER OF THE JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION DENYING
MOTION AS MOOT FILED APRIL 15, 1996
DOCKET NO. 940 :
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT
LITIGATION IN RE CARBON DIOXIDE INDUSTRY
ANTITRUST LITIGATION
B.C. Rogers Processing, Inc., et al. v. BOG Group, Inc., et
al., M.D. Florida, C.A. No. 6:93-965 (S.D. Mississippi, CA.
No. 3:93-598)
BEFORE JOHN F. NANGLE, CHAIRMAN, ROBERT R.
MERHIGE, JR., WILLIAM B ENRIGHT, CLARENCE A.
BRIMMER, JOHN F. GRADY, BAREFOOT SANDERS
AND LOUIS C. BECHTLE, JUDGES OF THE PANEL
ORDER DENYING MOTION AS MOOT
On February 15, 1995, plaintiffs in the above-
captioned action (Rogers) moved the Panel, pursuant to 28
U.S.C. § 1407, for an order i) remanding Rogers from the
Middle District of Florida to the Southern District of
Mississippi, and ii) staying Rogers until thirty days after the
Panel resolved the remand motion. Trial of Rogers
commenced in the Middle District of Florida on March 5,
1996. On March 21, 1996, jury verdicts were returned in
favor of the defendants and judgment was entered.
ACCORDINGLY, IT IS ORDERED that the motion
for remand, pursuant to 28 U.S.C. §1407, be, and the same
hereby is, DENIED as MOOT.
17a
FOR THE PANEL:
s/ John F. Nangle
John F. Nangle Chairman
18a
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, ORLANDO DIVISION, FILED APRIL 30, 1996
M.D.L.
NO. 940
JUDGE PETER BEER
IN RE CARBON DIOXIDE
ANTITRUST LITIGATION
ORDER
Before the Court are the following motions filed by_
the Mississippi and California Plaintiffs:
1 ) Motion for Judgment as a Matter of Law, or in the
Alternative for a New Trial,
2) Supplemental Motion for Judgment as a Matter of
Law, or in the Alternative for a New Trial,
3) Motion to Alter or Amend Judgment, and
4) Motion for Review of Clerk’s Taxation of Costs.
The Court, after considering the briefs of record
makes the following rulings:
IT IS ORDERED that the Plaintiffs’ Motion for
Judgment as a Matter of Law or, in the Alternative for a New
Trial is hereby DENIED.
19a
The Plaintiffs’ Supplemental Motion for Judgment as
a Matter of Law or, in the Alternative for a New Trial is also
DENIED.
The Motion to Alter or Amend Judgment is DENIED
insofar as it seeks to amend the judgment by deleting that
portion of the judgment which awards defendants their costs.
The Court reserves ruling on the Motion for Review of
Clerk’s Taxation of Costs at this time.
New Orleans, Louisiana this 30th day of April, 1996.
s/ Peter Beer |
Peter Beer ;
United States District Judge
20a
ORDER DENYING PETITION FOR
WRIT OF MANDAMUS OF THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT FILED FEBRUARY 23, 1996
IN THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 96-2179
IN RE:
B.C. ROGERS PROCESSORS, INC., B.C. ROGERS
POULTRY, INC., McCARTY FARMS, INC., McCARTY
FOODS, INC., MARSHALL DURBIN, INC., ET AL.,
Petitioners.
On Petition for Writ of Mandamus to the United States
District Court for the Middle District of Florida
BEFORE: BLACK, CARNES and BARKETT, Circuit
Judges.
BY THE COURT:
In this petition for writ of mandamus, petitioners ask
us to direct the district court to remand this case to the
Southern District of Mississippi and the Northern District of
California pursuant to 28 U.S.C. § 1407 (a). We deny the
petition for writ of mandamus. “Mandamus . . . is an
extraordinary remedy reserved for extraordinary situations . .
. L]“ U.S. v. Coy, 19 F.3d 629 (11th Cir. 1994), and
mandamus is not the appropriate remedy here. The district
court’s denial of petitioners’ request for a remand can be
appealed immediately after the trial along with any other
appealable issues in the event petitioners do not prevail on
2la
the merits. The stay previously entered shall remain in effect
until 10 days after the date of this order.
Accordingly, the petition for writ of mandamus is
DENIED.
22a
ORDER OF THE UNITED STATES
SUPREME COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, ORLANDO DIVISION, ON MOTION FOR
SUGGESTION OF REMAND DATED FEBRUARY 6,
1996
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
92-MD-940-CIV-ORL-3L23
HONORABLE PETER HILL BEER
IN RE CARBON DIOXIDE
' ANTITRUST LITIGATION
THIS DOCUMENT RELATES
TO ALL ACTIONS
ORDER ON MOTION FOR SUGGESTION OF REMAND,
OR, IN THE ALTERNATIVE, FOR TRANSFER
This matter came on for hearing on February 6, 1996,
on the Mississippi Individual Plaintiffs’ Motion for
Suggestion of Remand, or, In the Alternative, Transfer to the
Southern District of Mississippi, which was joined in and
adopted by the California plaintiffs to the extent they seek
transfer to the Northern District of California, and the Court,
having heard argument of counsel and being fully advised in
the premises, finds that said Motion should be DENIED. It is,
therefore,
ORDERED AND ADJUDGED that said Motion is
DENIED.
23a
DONE AND ORDERED this 6th day of February,
1996.
s/ Peter Beer
DISTRICT JUDGE PETER HILL BEER
24a
EXCERPTS OF HEARING BEFORE THE
UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF FLORIDA, DATED FEBRUARY 6, 1996
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MULTI DISTRICT LITIGATION #940
IN RE: CARBON DIOXIDE INDUSTRY ANTITRUST T
LITIGATION
- ORLANDO, FLORIDA
FEBRUARY 6, 1996
- EXCERPTS OF HEARING
BEFORE THE HONORABLE PETER J. BEER
UNITED STATES DISTRICT COURT JUDGE
***
[9] ***
THE COURT; Wait a minute. I had said if [10] you
decided to file a writ it should be done by the end of business
today.
MR. ALLRED: Yes, your honor.
THE COURT: I certainly have not ordered anybody
the file anything.
MR. ALLRED: To use better language, your honor,
you gave use permission to file a writ and said if we were to
it, do it by the end of today, and so
25a
THE COURT: Yes.
MR. ALLRED: It was our judgment we needed a
definitive ruling from your honor on these several motions
and we would like to have a transcript of this proceeding to
send forward as soon as practicable.
We do have a draft of the writ, but it is based upon the
facts and rulings of the court here, which is essentially the
effect of what was done yesterday, but not on the record.
THE COURT: Well, I don’t object to that at all. I
think that that may be a more orderly way to address it and
that’s okay with me.
So, why don’t you all, as the moving parties with
respect to your motions, just go ahead and make your
motions, substantiate them in what [11] ever way you feel is
consistent
[{12]* **
I would like to say to the court that we have several
matters before the court for the record,
We have a motion for suggestion of remand, or in the
alternative, transfer to the Southern District of Mississippi
and a very short memorandum on that.
We have an objection to jurisdiction and venue in this
case.
e+
We have a motion to reconsider the court’s so-called
commitment and ruling on the writ transfer of the Mississippi
26a
plaintiffs to the cases to the Southern District of Mississippi.
[13] ***
Secondly, or lastly, your honor, we would move the
court if this is not cumulative to our other motions for
transfer of this case pursuant to Twenty Eight U.S.C.
Fourteen Zero Four A, to the Southern District of
Mississippi.
[20]* * *
Now if the court please, the other sector of this matter
is what transpired yesterday.
We, of course, have been contending from the get go,
and we continued to contend yesterday, and we continue to
contend today, that we want to be in Mississippi.
I recall, your honor, the first thing that happened as I
was standing here, and your honor was [21] speaking to Mr.
Wittmann and others, and I believe your honor had inquired
of someone, whether the settlement that was in prospect with
Mr. Freeman, and the remaining defendant would dispose of
the whole case, and Mr. Wittmann said something about well,
it would except for the Allred Group and California. Your
honor said that won’t be a problem, I will send them back to
Mississippi. —
Later that morning the deputy came into the
courtroom and informed us that your honor would definitely
do that rather than making it preliminary indication.
**#*
Later the deputy came out and said that is now
definite, the court sent me out here to tell you all that rulings
27a
about going to Mississippi are going to be held firms
Now, from what we learned after going into [22] chambers
when we asked your honor later the defendants came in and
apparently confected a settlement between Mr. Freeman and
his plaintiffs, and one of the defendants, or all of them, I
don’t know who was cooperating in it at this moment, and
they asked your honor to approve a settlement between
Freeman that was acceptable to Freeman, and therefore
advantage to Freeman, and therefore in his clients best
interest, based upon a commitment that you would reverse
your ruling that you had announced in this court upon which
we relied.
THE COURT: I think you have given a little bit more
of a formal stamp then is really the case, but there’s isn’t any
doubt the correctness of your statement that I had indeed said
essentially what you have quoted, which is that I would
manage that aspect of the matter in the basically the way that
you have just described, so the only thing that I think the
court ought to know and the record ought to know is that this
never was formalized in anyway.
On the other hand, I did feel an obligation to ask the
courtroom deputy to pass that word back to you pretty much
the way you have just described it.
[23] Now, I am not a devious persons, that was not
with any malice of forethought or calculation or waiver, it
was an effort to keep everybody current with where I was
thinking in terms of the overall management of what I guess
is the most complicated set of settlements that I have run into
in the time I have been around, so your definition of what
transpired is ected accurate.
The only thing that isn’t perhaps totally accurate, as
far as I am concemed, is the formal significance that you give
28a
it when there wasn’t any formal significance. It was simply
an effort on my part, through A, the most helpful person that
I have had working with me in this matter, that the clerk of
court, to keep you all posted about what was going on in
terms of my management of it, didn’t even occur to me that it
had any affect in terms of other factors, but simply that you
all should know what I was thinking.
When the matter was brought to my attention in terms
of the conditional acceptance of the settlement, my feeling
was well, okay, you haven’t been able to bring much to the
actual negotiations because they are really over your head, I
am saying to myself, but this is something that [24] perhaps
you can do to move the matter to a conclusion as far as this
situation is concerned.
To tell you the truth, I wasn’t even thinking in terms
of what was later, the impact that you all feel was visited
upon you, and I can understand that.
As I told you yesterday, given the whole scenario, I
would do the same thing again, but I understand your
frustration a good deal better then I did when I first was
trying to move us along towards a resolution of the whole
case.
So, there’s no fault finding with respect to you
accuracy in reporting the event.
The only thing I think is perhaps necessary to clarify
is that I didn’t perceive it then nor now to be some sort of
formal ruling. It was a signal to you all where I though I was
going to be heading with this.
[25]}* **
29a
The facts, though, are that while your honor was in
the frame of mind and as innocent of ill motive, as you have
said, I don’t believe that same can be said of the defendants
If the court please, they knew all there was to know
about the case and about the posture of this settlement, while
your honor has indicated that you did not.
In that posture, if the court please, they came into that
room and traded Mr. Freeman a lay down on this, on our
going back to Mississippi, which they have been actually told
was of tremendous benefit to us and we valued it.
***
[26]* **
...Also, if the court please, that it was a deal in this
posture, there were two parties before your honor asking for a
settlement, the Freeman opt-out plaintiffs and one of the
defendants.
The defendants said we will pay the money, which
Freeman contends is in his favor, beneficial to him, if you,
your honor, will take something away that you have
preliminarily indicated under the circumstances that you have
described to the [27] Mississippi plaintiffs.
THE COURT: No, that was not the context. And it’s
important for you to know the context.
The defense counsel never even went into taking
something away.
The whole discussion was predicated on an
30a
observation which I found to be perfectly acceptable, that a
great amount of money was being paid in the settlement, a
huge amount of money had been expended in connection
with the litigation process, and the one thing that the
defendant required in terms of the management of the matter
at that point in time was that it be that it all be resolved.
There wasn’t any there wasn’t even a discussion
about venue or anything else, it was simply that it all be
resolved, i.e., that this be the forum, that this be the place of
resolution of the balance of the cases That was the entirety of
their contentions to me.
And I thought that that was okay under the
circumstances. My feeling was well, if I can bring that to the
process, okay, I will do it.
It did occur to me that even at that moment in time,
and I discussed it even then with [28] the clerk of court, it
would probably require some delay.
**
THE COURT: I never even at the sort of high water
mark of my improprieties, if indeed they were that, had the
notion that you would be thrust into trial at one thirty
yesterday afternoons
It was then and still is my feeling, as clerk, and I
discussed this morning, the obvious [29] necessity for some
time to be available to you.
MR. ALLRED: Thank you. The point being in
making that requirement of the settlement the defendants did
ask you honor for somewhat of a commitment, I believe that
was words your honor used, we would be put to trial here
which was contrary to the preliminary indication you asked
3la
the clerk to announce to us earlier.
THE COURT: Actually it was not I didn’t think the
emphasis was as much quote here unquote, as it was resolved
in these proceedings; that they simply could not willingly
participate in a whole new set of lawsuits.
***
[37]* **
THE COURT: Well, you know, I have to confess my
ignorance about the process in terms of what I need to sign
off on.
Is there anything that you need from me before it
goes?
MR. ALLRED: I need orders on all these motions,
and I need your honor’s indulgence, at least to let me see if I
could talk the reporter into giving a daily transcript of this
hearing.
THE COURT: Well, again that’s something I have to
leave up to you and him. But okay, well, I will just kind of
consistent with your request, I [38] will just say you got to
get it all done before the close of business tomorrow.
***
[39]* * *
MR. SEIGEL: Judge, for the record, Mel [40] Segal
on behalf of the California Plaintiffs.
And basically I adopt Mr. Allred’s presentation in this
matter.
32a
Of course, as your honor can see, we have already
joined all their motions with the exception of the one motion
regarding Mr. Freeman’s settlement.
* * *
[58]* * *
Now, as far as the writ, the application to multi
district panel, etc., that’s really something that I don’t think I
have much control over or say about.
= Certainly this record now contains every bit of
information that either the Circuit Court of Appeal or the
panel on miulti-district litigation would want from me,
because the exchange that in Mr. Allured and I have had
essentially describes that, and I don’t think it needs to be
further enlarged upon.
I will say one other thing about the let me see if that
takes care of the actual existent motions.
MR. ALLRED: For the record, may I ask the court
for a specific ruling on these motions, since they will go up.
THE COURT: Yes. I will grant the motion for a
continuance and reset the case for trial in this court at nine
a.m. on Tuesday, February 20.
I will, at this time, deny the plaintiff's objection to
jurisdiction and venue, for the reasons already stated.
Ss
I will deny the motion to set aside the [59]
preliminary settlement agreement.
I will deny the motion for remand, or in the
——
33a
alternative, transfer to the Southern District of Mississippi.
And the same with respect to the - what is the Middle
District of Northern District of California. _
MR. SEIGEL: Northern District of California.
THE COURT: I think that covers it. Anything else?
MR. ALLRED: There was one more. It was the
motion to reconsider court’s commitment and ruling on the
retransfer.
THE COURT: To the extent that it is necessary, the
court will deny that motion simply to complete the record, for
the reasons that have already been stated.
** *
34a
MOTION FOR JUDGEMENT OF THE
UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF FLORIDA, ORLANDO DIVISION
FILED APRIL 4, 1996
IN THE UNITED STATES DiSTRICT COURT
FORTHE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
92-MDL-940
HONORABLE PETER HILL BEER
IN RE CARBON DIOXIDE ANTITRUST LITIGATION
THIS DOCUMENT RELATES TO ALL ACTIONS
MOTION FOR JUDGMENT AS A MATTER OF LAW,
OR IN THE ALTERNATIVE FOR A NEW TRIAL
The Mississippi and California Plaintiffs move the
Court, pursuant to Rules 50 and 59 of the Federal Rules of
Civil Procedure, for judgment as a matter of law, or in the
alternative, for a new trial. As grounds for this motion,
Plaintiffs would show:
1. . The Court was without authority to hear this case,
in that:
a. No order was ever entered transferring this case to
the Middle District of Florida for any purpose other
than pre-trial proceedings.
b. No motion to transfer the action to the Middle
District of Florida for all purposes was ever filed, nor
was any consideration given to the propriety of such a
35a
transfer.
c. For the reasons stated in Plaintiffs’ various
motions objecting to jurisdiction and venue.
2. The Court erred in denying Plaintiffs’ Motion for
Suggestion of Remand or for Transfer, in the following
respects:
a. The Court has acknowledged facts which establish
that there was an improper ex parte communication between
counsel for BOC and the Court, which resulted in the Court’s
making a “commitment” to resolve the transfer or remand
issue in favor of Defendants and keep the cases in Florida;
b. The Court summarily denied Plaintiffs’ motion to
remand or transfer, without giving any consideration to the
appropriate factors; and
c. For the reasons stated in Plaintiffs’ Motion.
3. The Court erred in denying Plaintiffs’ Motion for
Recusal by failing to give any consideration to the
appearance of partiality which followed from the Court’s
meeting with counsel for BOC ex parte and committing to
keep the cases in Florida for trial. The Court’s comments in
ruling on the Motion for Recusal make it clear that the Court
focused on whether he actually felt any bias or partiality, to
the exclusion of any consideration of whether the appearance
of partiality was present. Plaintiffs incorporate the grounds
stated in Plaintiffs’ Motion.
4. The Court erred in denying Plaintiffs’ Motion for a
Continuance, in that:
a. The Court pushed Plaintiffs to trial without
allowing the Judicial Panel On Multidistrict Litigation
36a
to rule in Plaintiffs’ pending motion for remand; -
b. Plaintiffs were denied adequate time to obtain and
schedule the presence of witnesses;
c. Plaintiffs were denied adequate time to make the
adjustment from being prepared to present the
testimony of only three witnesses to being prepared to
put on proof of a nationwide conspiracy that spanned
25 years; and
d. For the reasons stated in Plaintiffs’ Motion.
5. The Court erred in its instructions to the jury, in
the following respects:
a. The Court refused to give requested pretrial
instructions, leaving the jury with no guidance from
the Court on what to look for in the evidence;
b. The Court’s instructions to the jury at the close of
the case were erroneous, misleading and unfairly
stacked in favor of the Defendants, in that the
instructions:
(i) Did not instruct the jury on the meaning of
the terms “agreement,” “price-fixing” or
“customer allocation, all of which have special
meaning under the antitrust laws, leaving the
jury to resolve the case based upon a layman’s
understanding of the meaning of those terms;
(ii) The Court’s failure to define the terms
“agreement” and “price-fixing” was
exacerbated by the Court’s statements to the
venire during voir dire, to wit: that the
plaintiffs contended that “the Defendants in
37a
the came have gotten together to set prices of
liquid carbon dioxide;” and that the plaintiffs
had the burden of proving that the defendants
entered into an "arrangement to fix the price,
and keep it fixed among themselves with
respect to this product;" and that these
statements told the jury that Plaintiffs had to
prove that the prices were fixed in the sense
that they were set at a certain level by
agreement and kept there by agreement, which
is neither an accurate statement of the law nor
an accurate statement of the contentions of
Plaintiffs; and
(iii) The erroneous impression created by the
Court’s comments preceding voir dire could
have been eliminated by the Court’s giving
Instructions P-1 and P-2;
c. Told the jury that certain actions proven to have
_ been taken by the defendants were not illegal, without
also instructing the jury that while those actions were
not in themselves illegal, they could be taken by the
jury as circumstantial evidence that Defendants had
entered into an illegal agreement;
d. Improperly instructed the jury as to the burden of -
proof in that the jurors were told that each
Plaintiff had to prove every element of its case
against each Defendant, and the possibility of
confusion from this instruction was greatly
enhanced by the Court’s Special Interrogatories,
which asked the jury to determine whether
McCarty had proven that Airco engaged in a
conspiracy to fix prices and/or. allocate
customers, while the jurors could very well have
believed that they could find for the plaintiffs only
38a
if they felt that the evidence adduced by a single
plaintiff was sufficient to prove a particular
defendant’s participation in a conspiracy.
6. The Court erred in submitting the case to the jury
on the special interrogatories proposed by Defendants, and in
refusing to submit the case on the special interrogatories
prepared by Plaintiffs, in that:
a. The interrogatory used by the Court was unduly
complicated and misleading, in that it required the
jury to find that each individual Plaintiff had proven
each element of its case against each individual
Defendant; and
b. The interrogatory proposed by Plaintiffs would
have asked the jury simply whether the existence of a
conspiracy had been proven; whether each Defendant
had been shown to have participated in that
conspiracy; and whether each Plaintiff had shown
injury caused by the operation of the conspiracy.
7. The Court denied Plaintiffs their rights under the
Due Process Clause, to fully contest the issues and abused its
discretion by:
a. Arbitrarily limiting Plaintiffs to five days to put on
their case, which resulted in Plaintiffs’ being required
to cut some witnesses entirely, resulting in the lose of
their testimony and a limitation of Plaintiffs’ ability to
get documents into evidence, while absent such a time
limitation, Plaintiffs could have called all of the
witnesses for whom witness statements were filed by
Plaintiffs, which statements are of record, and who
were also listed in the Pretrial Order, which is of
record;
39a
b. Refusing to modify the time limitation ruling when
it became apparent that Plaintiffs had not been able to
put on a complete case, despite Plaintiffs’ exercise of
all due diligence to meet the Courts’ arbitrarily
imposed deadline;
c. Refusing to allow Plaintiffs to present testimony in
keeping with the various proffers made, as shown in
Exhibit A;
d. Ruling that Plaintiffs’ witnesses could not testify
to anything other than what the Court considered to
be facts;
e. Applying the rules of evidence strictly against
Plaintiffs, but very leniently as to Defendants:
(i) Prior to trial, in response to Defendants
Motion in Limine regarding the testimony of
Dr. Charles Dennis, the Court ruled that Dr.
Dennis would not be allowed to testify based
on what he had read in documents produced
by Defendants unless every document he
purported to rely upon was already in
evidence;
(ii) During trial, the Court allowed
Defendants to put on the testimony of Kent
Masters regarding accounts lost to or gained
from the other defendants, even though his
testimony was based on a review of
documents which were not in evidence, and
which were not designated as exhibits in the
pretrial order; while in fact, many of the
documents on which he relied were the
business records of companies other than his
employer, including such companies as Coca-
40a
Cola Enterprises and Anheuser Busch;
(iii) During trial, the Court also allowed Carol
Gorski to testify for Defendant Liquid Air
Corporation that Liquid Air had lost certain
accounts to other Defendants and taken other
accounts from other Defendants, when it was
clear that her testimony was based on a review
of documents not in evidence, rather than on
her own personal knowledge;
(iv) The Court repeatedly, and often without
any objection from Defendants, cut off any
answer from Plaintiffs’ witnesses which
involved any sort or mental impression,
interpretation or explanation, and refused to
allow Plaintiffs to cross-examine Defendants’
witnesses as to the meaning of evidence or
events;
(v) The Court applied a strict and very narrow
interpretation of Plaintiffs’ witness statements
-and a very broad and liberal interpretation of
Defendants’ witness statements in determining
whether testimony offered at trial should be
excluded on the ground that it was not covered
in the witness statements;
(vi) The Court cut off the testimony of
Plaintiffs’ witnesses and directed them that
they could not give information about policies,
procedures, etc. followed by the Defendants,
unless they could give specific instances, with
dates, and all of the particular; but allowed
Defendants witnesses to testify to pure
hearsay, so long as they first testified that they
had personal knowledge of what they were
4la
about to say, even though their testimony
clearly showed that they did not know the
legal meaning of the term personal knowledge
and the information they were conveying was
clearly hearsay;
(vii) The Court applied an overly broad view
of what constituted leading questions to
Plaintiffs’ direct examinations, but allowed
Defendants almost free rein to lead their
witnesses; :
(viii) The Court went beyond what in required
by the Rules of Evidence in restricting
Plaintiffs’ redirect examination; and
(ix) Examples of the types of rulings listed
above are contained in Exhibit B.
- 8. The Court erred in regard to rulings on the
admissibility of documentary evidence, as follows:
a. The Court refused to admit business records
produced by Defendants unless there was a witness on
the stand who admitted familiarity with the document,
even though there was no objection to the authenticity
of the document and the documents contained
admissions of a party opponent and were, therefore,
not hearsay;
b. The Court ruled that Plaintiffs could not introduce
any documents through Defendants’ witnesses on
cross-examination, when the Court was of the opinion
that the evidence was something that should have
been introduced in Plaintiffs’ case in chief, even
though the Court was well aware that Plaintiffs had
been subject to an arbitrary time limitation in
42a
presenting their case in chief;
c. The Court allowed Defendants’ witnesses to
repeatedly deny any knowledge of any conspiracy to
fix prices or allocate customers, and to repeatedly
deny that any allocation of customers was discussed
at the Compressed Gas Association meetings, but
would not allow Plaintiffs to question those witnesses
about, or otherwise introduce any evidence
concerning, the fact that Canadian subsidiaries of
these same companies had pleaded guilty to
conspiring to fix prices and allocate customers, and
had admitted that the conspiracy was set up during
CGA meetings in the United States;
d. The Court allowed Defendants to make repeated
references to competition that occurred in 1992, but
refused to allow Plaintiffs to introduce evidence
regarding the Canadian guilty pleas and the filing of
the class action complaint which the jury could well
have believed explained all of the competitive acts
which occurred in 1992;
e. The Court allowed Defendants to cross-examine
Plaintiffs’ witnesses conceming their not having
brought the allegations of conspiracy to anyone’s
attention earlier, and to argue that point to the jury in
closing, without allowing testimony concerning the
witnesses having been granted immunity from
prosecution;
f. The Court erred in admitting over Plaintiffs’
objections the following exhibits: D-7; D-241; D-242;
D243; D-244; D-245; D-651; D-905; D-906; D-908 &
D-909 and 30a
g. The Court erred in refusing to admit the following
43a
Plaintiffs’ exhibits; P-6; P-7; P-8; P-9; P-12; P-13;
P15; P-17; P-18; P-22; P-24; P-27; P-29; P-30; P-31;
P-32; P-33; P-34; P-35; P-39; P-45 through P-54; P-
66; P-74; P-75; P-111; P-149; P-15] through P-163 P-
166; P-175; P176; P-189; P-192; P-194; P-198
through P-201; P-210 through P-231; P-265 through
P-274; P-301 through P-308; P-381; P-383; P-384; P-
391; P-394; P-395; P-397
9. The Court’s constant comments on the testimony
a. Although the Court was aware that Plaintiffs had
alleged and were attempting to prove the existence of
a nation-wide conspiracy entered into by the only
three companies engaged in marketing C02 on a
nation-wide basis, and the Court wan, therefore,
required to allow evidence of actions taken by the
Defendants which tended to prove the existence of a
conspiracy, regardless of where those actions
occurred, the Court repeatedly interrupted Plaintiffs’
presentation of evidence to state in the presence of the
jury that evidence of what went on in areas outside
the jury did not want to hear any of the details of
b. The Court went far beyond what was required to
tule on an objection and control the flow of evidence
and made repeated comments that appeared to be
intended to denigrate Plaintiffs’ counsel and
Plaintiffs’ case before the jury;
d4a
c. The Court repeatedly and gratuitously offered its
opinion that Plaintiffs had not proven anything with
regard to the existence of a conspiracy;
d. The Court repeatedly, in the presence of the jury,
criticized the order in which Plaintiffs’ counsel
presented evidence, even though the Court was well
aware that he had forced Plaintiffs to trial without
adequate time to line up witnesses, and even though
the Court had denied a motion for continuance which
was based upon the precise ground that the witnesses
who knew the most about the conspiracy would not
be available to testify until near the end of Plaintiffs’
case if no continuance were granted;
e. The Court’s comments in making rulings
unnecessarily wasted much of the precious little time
the Court had arbitrarily allotted Plaintiffs to put on
their case; and
f. There were many other instances of abuse of the
judicial prerogative to comment and guide the course
of trial which are not specifically catalogued in the
foregoing list.
10. The Court’s obvious bias against Plaintiffs and
Plaintiffs’ counsel during the course of the trial affected the
Court’s evidentiary rulings and must have had an impact on
the jury’s view of Plaintiffs, Plaintiffs counsel and their case.
11. The Court erred in granting Defendants’ motions
in limine as to expert testimony regarding competition in the
C02 marketplace in Mississippi; any reference to the
Canadian guilty pleas, consent decree, assertion of the Fifth
Amendment privilege against self-incrimination by defense
witnesses during discovery, and the immunity from
prosecution granted to Plaintiffs’ witnesses.
45a
12. Court abused its discretion in refusing + al ow
Plaintiffs to use summary charts in closing argumer .
comments about the evidence, instructions to the jury, and
jury interrogatory, all as discussed above, combined to deny
Plaintiffs the right to a fair trial.
14. The Court erred in limiting the direct examination
of Plaintiffs’ witnesses on the alleged basis of the leading
nature of questions and/or questions without a predicate to
show competence and relevance.
15. The Court erred in allowing the Defendants, in a
directly contradictory and discriminatory way, to elicit direct
testimony by leading questions, without any predicate. In
effect, the rules were applied in a strict and illiberal way to
the Plaintiffs to preclude Plaintiffs’ evidence improperly and
were not applied to the Defendants at all or were applied in a
liberal and permissive way. This tainted the evidence-and the
Jury.
16. The Court erred in making hostile, angry,
unjustified and unfounded comments upon the evidence, the
witnesses, the testimony of the witnesses, counsel, the
conduct of counsel and related matters SO as to severely
prejudice Plaintiffs, Plaintiffs’ witnesses and Plaintiffs’
counsel before the jury.
17. The Court erred in excluding the testimony of
Plaintiffs’ witnesses McNamee, Welsh, and other Plaintiffs’
witnesses about the habits, customs, practices, “ground
rules”, “gentlemen’s agreements”, and other prior customs,
46a
acts and practices of the Defendants, all of which were
admissible.
18. The Court erred in refusing to admit into
evidence Defendants business records which were stipulated
to be authentic and which contained relevant evidence, much
of which was relevant as admissions against interest.
19. The Court erred in refusing to allow Plaintiffs to
adduce relevant evidence on Defendants’ case in chief and/or
during cross-examination.
20. The Court erred in refusing to allow Plaintiffs to
offer evidentiary documents on Defendants’ case in chief
and/or during cross-examination.
21. The Court erred in refusing all of Plaintiffs’
requested jury instructions or requests to charge the jury.
22. The Court erred in its charge to the jury in that
the Court gave jury instructions which were abstract and
failed to furnish any guide to the jury.
23. The verdict of the jury and the judgment or the
Court predicated thereon are against the overwhelming
weight of the evidence.
24. There is no evidence, or insufficient evidence to
_ amount to substantial evidence, to support the verdict of the
jury and the judgment predicated thereon.
25. The findings of the jury in response to the special
interrogatories to the jury are against the overwhelming
weight of the evidence.
26. According to the uncontradicted evidence by
which the Defendants are bound, the Plaintiffs are entitled to
47a
a verdict and judgment as a matter of law.
27. Plaintiffs assign the error of the Court in failure
to grant the Plaintiffs’ requests for a directed verdict or
peremptory instruction. Plaintiffs hereby renew such
requested peremptory Instruction.
28. Plaintiffs assign as error the findings and verdict
of the jury in that there is no evidence, or insufficient
evidence, to support a verdict for Defendants.
29. The verdict of the jury, and the Judgment of the
Court predicated thereupon, are not supported by evidence or
substantial evidence.
30. The verdict of the jury, and the judgment
predicated thereon, are against the overwhelming weight of
the credible evidence.
31. Plaintiffs assign as error that the jury erred as a
matter of law in failing to find that the Defendants acted in
concert or conspiracy and that such conspiracy proximately
contributed to the cause of Plaintiffs’ damages. The jury’s
finding and verdict, and the jadgment predicated thereon, are
not supported by the evidence or the substantial evidence.
The Plaintiffs assign as error that the jury erred as a matter of
law in its answer to special interrogatories that Defendants
id not form a concert or conspiracy as against the Plaintiffs.
32. The uncontradicted evidence establishes that
Defendants committed a conspiracy to fix prices and/or
allocate customers as against the Plaintiffs.
33. Plaintiffs renew all of the several objections of
the Plaintiffs made during the Def. ” case in chief and
during the Plaintiffs’ case in chief to evidence adduced by the
Defendants and assign the error of the Court in overruling
eae ee Se
a
48a
and denying all of said objections.
34. Plaintiffs assign as error the several objections of
the Defendants sustained by the Court and the error of the
Court in excluding evidence offered by the Plaintiffs on the
Plaintiffs’ case-in-chief and on the Defendants’ case-in-chief
upon objection of the Defendants.
35. Whether enumerated herein or not Plaintiffs
assign the error of the Court in overruling and denying the
several objections and motions of the Plaintiffs filed in
advance of trial after the collusive settlement between BOC
Group and the Freeman “opt-out” Plaintiffs was announced.
Respectfully submitted this 4th day April, 1996.
By: s/ Michael S. Allred
Michael S. Allred, Their
Attorneys
Stephen M. Maloney
ALLRED & DONALDSON
Post Office Box 3828
101 W. Capitol Street
101 Capitol Centre, Suite 300
Jackson, Mississippi 39207-
3828
Telephone; 601/ 948-2086
Facsimile: 601/ 948-2175
Kenneth A. Rutherford
Richard L. Jones
ALSTON, RUTHERFORD
& VAN SLYKE
121 North State Street
Post Office Drawer 1532
Phone: (601) 948-6882
Fax: (601) 948-6902
49a
ATTORNEYS FOR
PLAINTIFFS IN THE
B.C. ROGERS CASE
50a
LETTER FROM KENNETH A. RUTHERFORD TO
OFFICE OF THE CLERK RE: B.C. RO GERS
PROCESSORS, ET AL. V BOC GRO UP, ET AL..,
~ APPEAL DOCKET NO. 96-2704
ALSTON * RUTHERFORD
& VAN SLYKE
A Professional Limited Liability Company —
ATFORNEYS AT LAW
121 NORTH STATE STREET
POST OFFICE DRAWER 1532
JACKSON, MISSISSIPPI 392154532
KENNETH A. RUTHERFORD
TELEPHONE (601) 948-6882
DIRECT NUMBER (601) 973-7434
FACSIMILE (601) 948-6902 a
December 31, 1997
Office of the Clerk .
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303
Re: B. C. Rogers Processors. et al. v. BOC Group, et. al.,
Appeal Docket No. 96-2704
_ Dear Sir or Madam:
This case has been set for oral argument on January
15, 1998. In November 1997 the United States Supreme
Court heard oral argument in a case styled Jn re American
Continental Corporation/Lincoln Savings & Loan Securities
Litigation; Lexecon, Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 102 F.3d 1524 (9th Cir. 1996), cert. granted, U.S. 1
Sla
17 S.Ct. 1818, 137 L.ed. 2d 1026 (1997).
One of the issues addressed by this case is whether or
not a transferee judge for pretrial purposes in multidistrict
litigation has jurisdiction to transfer the case to himself for
trial. A decision that the transferee court lacked jurisdiction
to try the case would be controlling in this case.
Another issue in the case is whether the appellant in
that case waived its right to request a remand for trial because
it did not file a motion for remand with the Multidistrict
Panel. The Appellants in this case did file a Motion for
Remand with the Multidistrict Panel. (Dkt. #1000). This
Motion was not ruled upon by the Panel until after the trial
was concluded, when it was denied as moot by the Panel.
Sincerely yours,
S/ Kenneth A. Rutherford
Kenneth A. Rutherford
Office of the Clerk
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303
December 31, 1997
KAR/slj
ce: William G. Schopf, Jr., Esq.
John E. Burke, Esq.
Michael J. Abernathy, Esq.
Melvyn L. Segal, Esq.
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January 28, 1999
Thomas K. Kahn
Clerk of Court
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303
Re: 96-2704 - In Re Carbon Dioxide Industry
Antitrust Litigation DC Dkt. No. 92-00940
MD-CIV-ORL
Dear Sirs:
The Court has directed that the parties submit letter
memoranda, explaining how the decision of the United States
Supreme Court in Lexecon v. Milberg Weiss Bershad Hynes
& Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998)
impacts the decision which was rendered by this Court.
This response to that directive is submitted on behalf
of all Plaintiffs on this appeal.
Plaintiffs submit that the Lexecon decision mandates
reversal in these cases, followed by a remand to the Middle
District of Florida, with instruction that the district court
recommend to the Judicial Panel on Multidistrict Litigation
that the cases are ready for remand to the districts from which
they were transferred.
Procedural Background
There are two distinct cases before the Court at this
juncture-one filed by B. C. Rogers Processors, Inc., B. C.
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Rogers Poultry, Inc., Choctaw Maid Farms, Inc., Forest
Packing Company, Inc., Marshall Durbin, Inc., Marshall
Durbin Food Corporation, Marshall Durbin Poultry, Inc.,
“Marshall Durbin of Tupelo, Inc. (“the Mississippi Plaintiffs”)
in the United States District Court for the Southern District of
Mississippi, and one filed by Mohawk Packing Company
(“the California Plaintiff’) in the United States District Court
for the Northern District of California.' By separate orders,
these cases were transferred from the districts in which they
were filed to the Middle District of Florida by the Judicial
Panel on Multidistrict Litigation (“JPML”) for coerdinated
pretrial proceedings.
Although no order transferring the cases to the Middle
District of Florida for all purposes was ever entered, the
trarisferee judge ordered the cases to trial in the Middle
District of Florida. After the defendants settled with several
other plaintiffs, and before the cases were called for trial, the
Mississippi and California Plaintiffs moved the court to
forward to the JPML a suggestion of remand, as
contemplated by Rule 14(d) of the Rules of Procedure of the
Judicial Panel on Multidistrict Litigation. The trial court
denied this motion without either written or oral opinion.
Plaintiffs then filed a Petition for Writ of Mandamus
in this Court, and a motion to remand before the JPML. This
Court denied the Petition for Writ of Mandamus, stating that
the issue could be raised on direct appeal, if necessary.
Following trial, and after judgment had been entered against
the plaintiffs, the JPML denied the motion to remand, stating
' McCarty Farms, McCarty Foods, and Foster Poultry
were also parties to the original appeal. They were not
parties to the cert petition because the McCarty companies
reached a settlement with Defendants and Foster filed its
action in the Middle District of Florida.
&, OWA ft os
if 54a
that the issue was moot.
In a motion for new trial Plaintiffs again raised the
issue whether the district court had authority to try these
cases. The district court again denied the motion, without
opinion. Plaintiffs then raised the issue on dicect appeal
before this Court. The decision of the district court was
affirmed, without opinion. Plaintiffs then filed a Petition for
Writ of Certiorari. The Supreme Court granted the petition,
vacated the decisions of the lower courts, and remanded to
this Court for reconsideration in light of the Lexecon
decision.
Lexecon Requires Reversal
Section 1407(a) of Title 28 of the United States Code
authorizes the JPML to transfer certain actions to a single
district court “for coordinated or consolidated pretrial
proceedings.” That section further provides that “Each action
so transferred shall be remanded by the panel at or before the
conclusion of such pretrial proceedings ... .” (Emphasis
added). The central issue before this Court is whether the
district court had jurisdiction to try these cases. The plain
answer is that it did not. The Supreme Court clearly so held
in Lexecon.
At each stage of this litigation when the Plaintiffs’
have asserted that the district court had no authority to do
anything other than suggest remand, the only argument raised
by the Defendants has been that Plaintiffs’ waived the right
to contest venue in the Middle District of Florida. This
argument clearly misconstrues the issue. The issue is not
now, and never has been, about whether venue was proper in
the Florida court. There is no question but that the United
States District Court for the Middle District of Florida was a
proper venue, in the sense that it was a district in which these
actions could have been brought pursuant to 28 U.S.C. §
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1391 and 15 U.S.C. § 22. However, Plaintiffs did not bring
their actions in that district. These actions were filed in the
United States District Courts for the Northern District of
California and the Southern District of Mississippi and were
transferred to the Middle District of Florida pursuant to 28
U.S.C. § 1407(a) for pretrial proceedings. The issue is
whether the transferee court had the power, in light of §
1407's placing venue for trial purposes in the districts in
which the cases were filed, to change the venue.
In Lexecon, the Court repeatedly stated that what it
was addressing was the power or authority of the transferee
court to transfer the case to itself for trial. Lexecon, 118 S.Ct.
959 (on issue whether a transferee court may invoke § 1404
to assign a case to itself for trial, Court held “it has no such
authority”); at 964 (“legislative history tends to confirm that
self-assignment is beyond the scope of the transferee court’s
authority”); also at 964 (straightforward command to remand
“bars recognizing any self-assignment power in a transferee
court”). It should be noted that the Supreme Court was not
called upon to determine whether the issue before it was one
of jurisdiction or venue. The Court pointed out that “Lexecon
took no exception to the Arizona court’s jurisdiction (as
distinct from venue). /d. at 960. The Court also expressly
recognized that it was leaving unanswered the question
whether “a party may waive the § 1407 remand requirement.”
Id. at 963, n.1.
The typical venue statute is “not a qualification upon
the power of the court to adjudicate, but a limitation designed
for the convenience of litigants, and, as such, may be waived
by them.” Olberding v. Illinois Central Railroad Co., 346
U.S. 338, 340, 74 S.Ct. 83, 98 L.Ed. 39, 42 (1953). The
statute at issue in this case, 28 U.S.C. § 1407(a), does
establish venue for trial purposes in the district in which the
cases were filed, but at the same time, it clearly imposes a
“qualification upon the power of the court to adjudicate,” by
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tiles the f 1. juriediction ..* ial
ings” and ing that the cases be for
trial in the courts in which they were filed.
The lower federal courts are courts of limited
jurisdiction. They can adjudicate only those cases authorized
by the Constitution and by Act of Congress.
All federal courts, other than the Supreme
Court, derive their jurisdiction wholly from
the exercise of the authority to “ordain and
establish” inferior courts, conferred on
Congress by Article Ill, § 1, of the
Constitution. Article III left Congress free to
establish inferior federal courts or not as it
thought appropriate .... The Congressional
power to ordain and establish inferior courts
includes the power “of investing them with
jurisdiction either limited, concurrent, or
exclusive, and of withholding jurisdiction
from them in the exact degrees and character
which to Congress may seem proper for the
public good.”
Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022,
87 L.Ed. 1339 (1943). “[T]he federal courts are authorized
to hear only those cases that Congress by statute authorizes
them to hear.” Nolan v. Boeing Co., 919 F.2d 1058, 1064 (5"
Cir. 1990). Here, Congress. did pot authorize the transferee
court to hear the case, but expressly precluded it from doing
so. “Courts cannot retain jurisdiction where Congress has
taken it away.” Paige v. Cisneros, 91 F.3d 40, 43 (7 Cir.
1996).
Section 1406(b) of Title 28 does not command a
different result in this case. That subsection was meant only |
to codify the existi law principle that objecti
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to venue are waivable, but waiver of a venue objection will
not deprive the court of jurisdiction that has otherwise been
conferred by Congress in keeping with Article III of the
Constitution. (See Revision Notes and Legislative Reports
comment on the 1948 Act following 28 U.S.C.A. § 1406).
The flip side of that same coin is that the parties cannot, by
waiver or otherwise, confer on the court jurisdiction which
Congress has withheld. Where Congress has deprived a court
of the power to act, the parties cannot, by consent, stipulation
or waiver, restore that power to the court. Bates v. Johnson,
901 F.2d 1424, 1428-1429 (7™ Cir. 1990); Morongo Band of
Indians v. Cal: State Board of Equalization, 858 F.2d
1376, 1380 ( ir. 1988). In enacting § 1407, Congress
inited dou: ecmuslsr UF Gin aeaiees name te pot
proceedings. The Supreme Court, in Lexecon, unequivocally
held that the mandatory remand language of § 1407 left the
transferee court powerless to transfer the case to itself for
trial. Surely, if the court lacks jurisdiction to effect a self-
transfer, the same mandatory remand language deprives the
court of jurisdiction to try the cases.
Situations analogous to the one before the Court have
been resolved by other courts. For instance, in Silver v.
Goodman, 234 F.Supp. 415 (D.Conn. 1964), the parties
entered into a written stipulation that the case before the court
should be transferred to a federal court in New York.
However, New York was not a venue in which the action
could have been brought against the Connecticut defendant.
The Connecticut district court held that 28 U.S.C. § 1404
only granted him the power to transfer a case to a district
“where it might have been brought.” The court then held that
the issue was a jurisdictional one - whether the court had the
power to transfer the case. Jd. at 416-17. The court then
reasoned that although the parties could by stipulation agree
to a particular venue, they could not by stipulation confer on
the court the power to transfer the case. In reaching this
decision, the district court relied on the Supreme Court’s
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opinion in Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4
L.Ed.2d 1254 1960).
In Blaski, defendants argued that by moving for
transfer to a district in which venue over them was improper,
they had waived objection to venue in the proposed
transferee court, and made that court one in which the action
“might have been brought.” The Supreme Court rejected this
argument, holding that “the power of a District Court under §
1404(a) to transfer an action to another district is made to
depend not upon the wish or waiver of the defendant, but,
rather, upon whether the transferee district was one in which
the action ‘might have been brought’ by the plaintiff.” Blaski,
363 U.S. at 343-44, 4 L.Ed.2d at 1262.
Likewise, in this case, the parties cannot confer on the
court, by waiver or stipulation, jurisdiction to transfer these
cases or jurisdiction to try them.
There Was No Waiver
Even if this Court should determine that the authority
of the § 1407 transferee court to try these cases could be
established by waiver, there was no waiver in this case. The
Mississippi and California Plaintiffs filed their motion for
suggestion of remand on February 6, 1996._ The cases did not
go to trial until twenty-eight days later on March 5, 1996.
Plaintiffs raised their objection to the action of the
transferee court prior to trial, after the transferee court had
reversed its twice-announced intention to send the cases back
to California and Mississippi for trial, and at a time when, in
the transferee court’s own estimation trial was at least two
weeks away. Plaintiffs also raised their objection in a
motion to the JPML, and again on Petition for Writ of
Mandamus to this Court. All of these actions were taken
prior to the start of trial.
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This case is factually indistinguishable from Lexecon.
Lexecon filed its motion seeking remand for the first time
five months after all the other parties had reached settlement.
Lexecon, 118 S.Ct. at 960. It took all the other procedural
steps to preserve the objection that Plaintiffs took in this case,
with the exception that Lexecon did not petition the JPML for
relief, whereas Plaintiffs herein took that step. Lexecon, 118
S.Ct. at 963.
Section 1407 is written to be self-executing. No
motion by any party should be required to obtain remand.
The Supreme Court resoundingly rejected the Ninth Circuit's
reasoning that the JPML’s rules prevented it from remanding
Lexecon’s case, because there had been no suggestion of
remand from the trial court or motion filed directly with the
panel. In doing so, the Supreme Court said that this line of
reasoning “ignores the fact that the statute places an
obligation on the Panel to remand no later than the
conclusion of pretrial proceedings in the transferee court, and
no exercise in rule making can read that obligation out of the
statute.” Lexecon, 118 S.Ct. at 962-63. In other words, the
statute absolutely requires that the JPML remand the cases
transferred under it, and the panel cannot avoid that
obligation by making rules requiring either the transferee
court or the parties to take some action to trigger that
requirement.
There Is No Retroactivity Problem
The Defendants may argue that Lexecon should not be
given retroactive application, in reliance on Shah v. Pan
American World Services, Inc.., 148 F.3d 84 (2™ Cir. 1998).
The Court should reject that argument.
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In Harper v. Virginia Dept. of Taxation , 509 U.S. 86,
113 $.Ct. 2510, 125 L.Ed.2d 74 (1993), the Supreme Court
made clear that the law regarding retroactive application of
its decisions had changed dramatically since the days of
Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30
L.Ed.2d 296 (1971). In Harper the Court held that “this
Court’s application of a rule of law to the parties before the
Court requires every court to give retroactive effect to that
decision.” Harper, 509 U.S. at 90, 125 L.Ed.2d at 81. In the
course of the opinion, the Court quoted from its decision in
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111
S.Ct. 2439,115 L.Ed.2d 481 (1991), to the effect that the
decisions of the Supreme Court on federal law were to be
given retroactive effect unless the Supreme Court had, in the
opinion announcing the new rule of law, “explicitly
‘reserve[d] the question whether its holding should be applied
to the parties before it.” Shah, 148 F.3d at 91 (quoting Beam
Distilling, 501 U.S. at 539). The Second Circuit stated that in
Lexecon, the Supreme Court had explicitly reserved the
question. As evidence of this explicit reservation, the court
cited to footnote 5 in the Lexecon opinion. In that footnote,
the Supreme Court said nothing more than that it would not
address that issue, because the defendants had not raised it
either in the Ninth Circuit, or in their opposition to the
petition for writ of certiorari. Rather than explicitly reserving
the issue, the Court said that the defendants had waived it.
The Second Circuit went on to state that the Supreme
Court had not applied the “new” rule announced in Lexecon
to the parties before it in that case. This is clearly incorrect.
After announcing its decision that a § 1407 transferee court
was entirely without power to transfer a case to itself for all
_ purposes, the Supreme Court expressly held that Lexecon
was entitled to a remedy. Lexecon, 118 S.Ct. at 965-966.
The Court then-remanded the case to the Ninth Circuit for
further proceedings consistent with its opinion. Lexecon,
plaintiff below, had been forced to trial in the § 1407
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transferee court and lost. If the Supreme Court was not
applying its decision to the parties before it, there would have
been no reason for it to hold that Lexecon was entitled to a
remedy or to remand the case. The Supreme Court’s
directive that on remand the lower courts were to conduct
further proceedings “consistent with this opinion” was a clear
directive that those courts were to apply the decision
announced in Lexecon to the parties. The Ninth Circuit did
so. Lexecon was decided on March 3, 1998. On April 6,
1998, the Ninth Circuit panel entered an order remanding the
case to the Arizona district court with instruction that it was
to refer the case to the JPML for remand. (A copy of the
Ninth Circuit Order is attached.) =
Because the Supreme Court clearly did not “explicitly
reserve the question whether its holding should be applied to
the parties before it,” but, in fact, applied that decision to
those parties, Harper mandates that the Lexecon decision be
given retroactive application.
Other courts have recognized that Lexecon is to be
applied to cases before them. See In the Matter of Rhene-
Poulenc Rorcr Pharmaceuticals, Inc., 138 F.3d 695, 696 (7"
Cir. 1998); In re Ford Motor Co. Bronco II Product Liability
Litigation, 1998 WL 308013 (E.D.La. June 8, 1998).
Even if this were a case in which engaging in a
Chevron Oil v. Huson analysis was appropriate, the Court
should still rule in favor of retroactive application. Concerns
with retroactive application of a decision come into play only
when the Court announces a new rule of law, and application
of that new rule to the parties would result in injury to one of
those parties due to that party's having acted in reliance on
the old rule. Section 1407 has been the law since its
enactment and has always contained the unequivocal
command that transferred cases be remanded for trial. The
Supreme Court has announced no new rule of law in
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Lexecon. More importantly, there is no rational way in which
the Defendants can be said to have taken action in reliance on
the “old” rule of law.
Finally, the Defendants did not raise a retroactivity
objection when this issue was raised before the district court,
before the JPML, before this Court on petition for writ of
mandamus, before this Court on direct appeal, or before the
Supreme Court in opposing the petition for writ of certiorari.
They cannot raise it now. Lexecon, 118 S.Ct. at 966, n. 5.
Conclusion
Lexecon clearly establishes the proposition that a
district court to which cases are transferred pursuant to 28
U.S.C. § 1407 is without jurisdiction to transfer the cases to
itself for trial. By mandating that the cases be remanded at
the conclusion of the pretrial process, the statute clearly
deprives the transferee court of jurisdiction to try the cases.
The power to adjudicate cannot be conferred by the parties or
by the court itself. Because the United States District Court
for the Middle District of Florida was without jurisdiction to
try these cases, the judgment entered against Plaintiffs must
be reversed and (1) this Court should remand these cases to
the district court with instruction that the district court notify
the JPML that they are ready to be remanded to the courts in
which they were filed; or (2) this Court should itself inform
the JPML that the cases are ready to be remanded for trial.
Respectfully submitted, this 28" day of January,
1999,
Richard L. Jones
Alston & Jones
a 121 North State Street
Post Office Drawer 1532
Jackson, MS 39215-1532
ATTORNEY FOR
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MISSISSIPPI PLAINTIFFS
Be Melvyn L. Segal
Forster & Segal
160 W. Santa Clara St.,
Suite 1100
San Jose, CA 95113
ATTORNEY FOR MOHAWK
PACKING
CERTIFICATE OF SERVICE
I hereby certify ‘that I have served a copy of the
“— foregoing letter memorandum on the attorneys listed below
by Federal Express overnight delivery:
William G. Schopf, Esq.
Schopf & Weiss .
312 W. Randolph Street, Suite 300
Chicago, Illinois 60606-1721
John E. Burke, Esq.
Burke, Weaver & Prell
55 W. Monroe St., Suite 800
Chicago, Illinois 60603
Michael J. Abernathy, Esq.
Bell, Boyd & Lloyd
Three First National Plaza
Suite 3200
Chicago, Illinois 60602 e
This the day of January, 1999.
Richard L. Jones
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.