In re Diet Drugs Products Liability Litigation

• Decision Date: 11 August 2005
• Docket Number: No. 04-2464.,No. 04-2463.,No. 05-2488.,No. 04-2888.,No. 04-2886.,No. 04-2887.,No. 04-2413.,No. 04-2575.,No. 04-2889.,04-2413.,04-2463.,04-2464.,04-2575.,04-2886.,04-2887.,04-2888.,04-2889.,05-2488.
• Citation: 418 F.3d 372
• Parties: In re: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION Mike Cockrell, et al., Sandra S. Sorrell, et al., Robert Shoemaker, et al., Lisa Phelps-Dorris, et al., Claudia Edwards, et al., Jennifer Legg, et al., Angela Martin, et al., Mary Killebrew, et al., Teresa Russum, et al., Eileen Turner, et al., Janice McCrory, et al., Mitzi M. Wilson, et al., Barbara A. Geisert, et al., Pamela G. Ellison, et al., Ashley Irwin, et al., Elvia Aguirre, et al., Carmela Araujo, et al., Delores Baker, et al., Lydia N. Bell, et al., Maria L. Alexander, et al., Holly J. Anderson, et al., Ilene R. Allen, et al., Jerry Chavez, et al., Carolyn A. Hunter, et al., Leslie Bales, et al., Ursula Asher, et al., Larry M. Russell, et al., Alysmay Antonucci, et al., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

418 F.3d 372

In re: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION Mike Cockrell, et al., Sandra S. Sorrell, et al., Robert Shoemaker, et al., Lisa Phelps-Dorris, et al., Claudia Edwards, et al., Jennifer Legg, et al., Angela Martin, et al., Mary Killebrew, et al., Teresa Russum, et al., Eileen Turner, et al., Janice McCrory, et al., Mitzi M. Wilson, et al., Barbara A. Geisert, et al., Pamela G. Ellison, et al., Ashley Irwin, et al., Elvia Aguirre, et al., Carmela Araujo, et al., Delores Baker, et al., Lydia N. Bell, et al., Maria L. Alexander, et al., Holly J. Anderson, et al., Ilene R. Allen, et al., Jerry Chavez, et al., Carolyn A. Hunter, et al., Leslie Bales, et al., Ursula Asher, et al., Larry M. Russell, et al., Alysmay Antonucci, et al., Appellants.

No. 04-2413.

No. 04-2463.

No. 04-2464.

No. 04-2575.

No. 04-2886.

No. 04-2887.

No. 04-2888.

No. 04-2889.

No. 05-2488.

United States Court of Appeals, Third Circuit.

Argued June 7, 2005.

Filed August 11, 2005.

COPYRIGHT MATERIAL OMITTED

George M. Fleming, Sylvia Davidow, Anita Kawaja, Fleming & Associates, L.L.P., Houston, TX, Jonathan Massey, (Argued), Bethesda, MD, Mario D'Angelo, Hariton & D'Angelo, Great River, NY, Paul J. Napoli, Denise A. Rubin, Napoli, Kaiser, Bern & Associates, Great River, NY, for Appellants.

Peter L. Zimroth, Arnold & Porter LLP, New York, NY, Michael T. Scott, Paul B. Kerrigan, Reed Smith LLP, Philadelphia, PA, Robert D. Rosenbaum, (Argued), Sarah M. Brackney, Arnold & Porter LLP, Washington, D.C., for Appellee, Wyeth Corporation.

Fred S. Longer, Arnold Levin, Michael D. Fishbein, Levin Fishbein Sedran & Berman, Philadelphia, PA, for Appellees, Plaintiffs' Management Committee and Plaintiffs' Class.

William G. Frey, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, Barry M. Klayman, Wolf, Block, Schorr & Solis-Cohen, Wilmington, DE, for Appellee, AHP Settlement Trust.

Peter D. Keisler, Assistant Attorney General, Patrick L. Meehan, United States Attorney, Scott R. McIntosh, Christine N. Kohl, (Argued), United States Department of Justice, Civil Division, Washington, D.C., for Amicus-Appellee, Clerk of the U.S. District Court for the Eastern District of Pennsylvania.

Before AMBRO, STAPLETON and

ALARCÓN,^* Circuit Judges.

AMBRO, Circuit Judge.

Twenty-eight consolidated appeals have been filed by various plaintiffs in the diet drugs product liability multidistrict litigation challenging the District Court's interpretation of the filing fee statute, 28 U.S.C. § 1914, and seeking in the alternative a writ of mandamus. We dismiss the appeals for lack of appellate jurisdiction. We also deny relief by way of mandamus.

I. Factual Background and Procedural History

Various facets of the diet drugs multidistrict litigation have been summarized elsewhere. See, e.g., In re Diet Drugs, 385 F.3d 386, 389-93 (3d Cir.2004); In re Diet Drugs, 282 F.3d 220, 225-29 (3d Cir.2002). The nationwide settlement agreement reached allows plaintiffs to opt out of the class at "various places along the continuum of the settlement period." In re Diet Drugs, 369 F.3d 293, 299 (3d Cir.2004). Here, Mike Cockrell, et al., whose ranks swell into the thousands, are plaintiff class members who exercised their intermediate opt-out rights under that agreement. Under its terms, intermediate opt-outs are entitled to pursue tort claims subject to limitations on the damages that may be sought (including, inter alia, a bar against seeking punitive damages).

Plaintiffs filed complaints in Georgia and Mississippi state courts, naming dozens (some even hundreds) of individuals as co-plaintiffs. Notwithstanding the number of plaintiffs named in the pleadings, a single filing fee was paid for each complaint. The actions were removed to federal district courts in Georgia and Mississippi, with a single fee paid for each complaint removed, and the Judicial Panel on Multidistrict Litigation transferred the cases pending in both the Georgia and Mississippi federal courts to the United States District Court for the Eastern District of Pennsylvania. In March 2004, the District Court issued Pretrial Order No. 3370 ("PTO 3370") to establish procedures to address the joinder (or misjoinder) of parties. Specifically, the District Court directed the severance of the multi-plaintiff actions, pursuant to Federal Rule of Civil Procedure 21, in order to "facilitate the efficient administration of actions docketed" in the diet drugs multidistrict litigation. Under PTO 3370, plaintiffs subject to severance then had sixty days to file a "severed and amended" complaint or suffer dismissal with prejudice.

Many plaintiffs moved for reconsideration of the severance order insofar as it required payment of multiple filing fees. The Court considered the language of the filing fee statute, which provides that the "clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $150...." 28 U.S.C. § 1914(a).¹ Concluding that the "payment of a $150 filing fee for every severed and amended complaint [was] not only just but ... mandated by § 1914(a)," the District Court denied the motions for reconsideration. Plaintiffs timely appealed.²

II. Appellate Jurisdiction

This case falls within the District Court's subject matter jurisdiction under 28 U.S.C. § 1332(a), as there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000. Whether we have appellate jurisdiction—an issue that has been raised in Wyeth's motion to dismiss and which we would otherwise raise sua sponte—requires a more detailed examination.³

We may acquire jurisdiction over appeals through final judgments under 28 U.S.C. § 1291⁴ and collateral orders under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir.2005).⁵ Generally, a decision of the district court is "final" under § 1291 if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir.1997) (explaining that "there is no final order if claims remain unresolved and their resolution is to occur in the district court"). Here, the litigation arising from the various "severed and amended" complaints is ongoing. Thus the orders are far from being "final decisions" that are ordinarily the subject of appeal under § 1291.

However, as the Supreme Court has interpreted the phrase "final decision" in § 1291, there exists "a narrow class of collateral orders which do not meet [the] definition of finality, but which are nevertheless immediately appealable under § 1291." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Recognizing this, our Court has explained that the collateral order doctrine

provides a narrow exception to the general rule permitting appellate review only of final orders. An appeal of a nonfinal order will lie if (1) the order from which the appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate from the merits of the dispute; and (3) the order is effectively unreviewable on appeal from a final judgment.

In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir.1997) (citations omitted).

Because we conclude that the filing fee Order fails to satisfy the third prong, we confine our analysis to it. Powers v. Southland Corp., 4 F.3d 223, 231 (3d Cir.1993). Under this prong, an order must be effectively unreviewable, meaning that "review postponed will, in effect, be review denied." Zosky v. Boyer, 856 F.2d 554, 561 (3d Cir.1988). From another angle, "review after final judgment is ineffective if the right sought to be protected would be, for all practical and legal purposes, destroyed if it were not vindicated prior to final judgment." In re Ford Motor Co., 110 F.3d at 962.

Initially, we observe that the "right" that plaintiffs assert involves payment of a monetary sum, which differs from the more typical collateral order cases involving, for example, the right to be free from trial or the right to withhold privileged materials from disclosure. The difference between those cases and the situation confronted here is clear: once a party has stood for trial or the putatively privileged material is disclosed, the very right sought to be protected has been destroyed. Id. at 963. That is not to conclude that there may never be a situation where the stakes are monetary and yet an order may be appealable under Cohen. Cf., e.g., Palmer v. Chicago, 806 F.2d 1316, 1320 (7th Cir.1986) (holding that award of fees paid into fund to be distributed to prisoner-plaintiffs was appealable under the collateral order doctrine in part because the defendant may not have been able to recover that money in the event the order establishing the fund was overturned). As there is no suggestion that the sums involved will not be recoverable at the conclusion of the litigation, the situation we confront raises different considerations than the more typical collateral order cases.

Key to plaintiffs' argument is the assertion that the Order cannot be reviewed after final judgment. This argument cannot succeed, however, as it does not square with the merger rule—that interlocutory orders merge into the final judgment and may be challenged on appeal from that judgment. See OSHA Data/CIH, Inc. v. United States DOL, 220 F.3d 153, 162 n. 20 (3d Cir.2000) ("[I]t is a well-known general principle that interlocutory orders merge in the final judgment of the District Court."); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir.1977) (indicating...