In re Carbon Dioxide Industry Antitrust Litigation, No. 96-2704

• Citation: 229 F.3d 1321
• Decision Date: 10 October 2000
• Docket Number: No. 96-2704
• Parties: (11th Cir. 2000) 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.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1321

229 F.3d 1321 (11th Cir. 2000)

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.

No. 96-2704.

United States Court of Appeals, Eleventh Circuit.

Oct. 10, 2000.

Oct. 20, 2000.

Appeal from the United States District Court for the Middle District of Florida. (No. 92-00940-MD-CIV-OR, Peter Beer, Judge.

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

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 Multidistrict 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 ("CO2"), 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 CO2. As the litigation progressed, a class of plaintiffs was certified.¹ 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),² 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 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 class 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 Plaintiffs settled, only the Mississippi 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.³

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 filed pursuant to 28 U.S.C. § 1407(a) and Rule 14(b) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation.⁴ 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 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.⁵ 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.

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.

II.

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.

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).⁶ 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,⁷ 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. 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 "[e]ach transferred...