Opinion
MASTER FILE 02 Civ. 3288 (DLC)
October 7, 2003
MEMORANDUM OPINION ORDER
By telephone conference call on Thursday, October 2, 2003, counsel for the Underwriter Defendants and for the Milberg Weiss Actions called to the Court's attention an issue requiring clarification of Orders addressing Individual Actions transferred to the Court's docket by the Judicial Panel on Multi-District Litigation ("MDL Panel"). Actions brought in courts across the country have been transferred to this district for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.
The arrival of a transferred action on this Court's docket triggers certain obligations under the May 28, 2003 Order addressing consolidation of the Individual Actions ("May 28 Order"), and the June 11, 2003 Order addressing remand motions ("June 11 Order"). The May 28 Order provides that any Individual Action transferred to this Court after July 11, 2003,
shall have the later of July 11, 2003, or twenty-one days following arrival on this Court's docket to file an amended complaint. No further amendments of any complaint in an Individual Action will be permitted without permission of the Court.
The June 11 Order provides that:
any plaintiff who has made a timely motion to remand in an action transferred and assigned to this Court on or after June 11, 2003, shall show cause within three weeks of the action's arrival on this Court's docket why the Remand Opinions do not require the denial of their motion to remand, or shall be deemed to have withdrawn their motion to remand.
Because these Orders require plaintiffs to take action within a limited time following "arrival on this Court's docket," the date when an action has "arrived" on the docket must be defined. Some understanding of the MDL process is useful in this regard.
On October 8, 2002 the MDL Panel transferred the first fifteen actions related to the In re WorldCom, Inc. Securities Litigation andERISA Litigation to this Court. Subsequent actions related to the Securities Litigation and the ERISA Litigation are transferred as "tag-along actions" pursuant to Panel Rule 1.1. 199 F.R.D. 425, 429 (2001). Rule 7.4, id. at 435, governs the transfer of tag-along actions. When the MDL Panel learns of a potential "tag-along action," the Clerk of the Panel may enter an order conditionally transferring the action. Id. Any party opposing the transfer has fifteen days from the date of the conditional transfer order to file an opposition to the transfer order. The order is not transmitted to the transferee court during that time. If the Panel receives a notice of opposition within the fifteen-day period, the conditional order is not transmitted to the transferee district court until further order of the MDL Panel. Panel Rule 7.4(c), id. If the MDL Panel determines that the action should be transferred, it lifts the stay of transmittal of the order. The transfer order becomes effective when it is filed with the clerk of the transferee court. Panel Rule 7.4(e), id. at 736. The clerk of the transferor district court is then directed to forward the complete original file and a certified copy of the docket sheet for the transferred action to the clerk of the transferee district' court. Panel Rule 1.6, id. at 428.
In an action transferred to this Court, then, there are two key dates. First, the action is transferred when the conditional transfer order is transmitted to this court and becomes effective by being filed with the Clerk of Court for the Southern District of New York. A docket number is assigned to the action, its individual file is opened, and this Court assumes jurisdiction over the action. Second, the file is transferred when the clerk of the transferor court sends the original file and a certified copy of its docket sheet to the Clerk of Court for the Southern District.
The question raised is whether the date the transfer order arrives or the date the file arrives is the date the action "arrives" on this Court's docket: for purposes of the May 28 and June 11 Orders. The Court has inadvertently used each of the two dates in two different Orders. In an Order dated July 23, 2003, addressing the response by six Milberg Weiss Actions to the June 11 Order regarding remand, the Court applied the date on which the file was received from transferor court. See In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288 (DLC), 2003 WL 21702284, at *1 n. 3 (S.D.N.Y. Jul. 23, 2003). In an Order dated September 15, 2003, the Court calculated the three weeks to respond to the June 11 Order from the date the conditional transfer order was filed with this court. See In re WorldCom. Inc. Sec. Litig., No. 02 Civ. 3288 (DLC), 2003 WL 22121113, at *1 (S.D.N.Y. Sept. 15, `2003).
In that Order, the motions were denied on the merits, not as time-barred. The Court noted, however, that some actions had responded to the June 11 Order prior to the date of "final transfer," i.e. prior to the date of receipt of the transferred file, and would be deemed to have waived the additional time provided by the June 11 Order.
In any event, the application would have been untimely under the June 11 Order using either date. The conditional, transfer order in that action was filed on June 20, and the file was received on July 11, 2003. The plaintiff did not file any document related to the remand motion until August 28 — more than three weeks after either of the relevant dates.
The date the action is transferred — i.e., the date the conditional transfer order is filed in the Southern District and becomes "effective" — should not start the clock on plaintiffs' obligations under the May 28 and June 11 Orders. Although the Court's jurisdiction commences on that date, none of the underlying documents in the transferred Individual Action are available in this court until the file arrives from the transferor court. The original complaint and any motions to remand filed prior to transfer do not arrive in the Southern District until sent by the clerk of the transferor court. Those seeking to compare the amended complaint to the original, or to review the remand papers in the public records of this court in connection with a submission due under the May 28 and June 11 Orders will not be able to do so until the file has arrived from the transferor court. Thus, while an action properly could be said to have "arrived on this Court's docket" at the time the conditional transfer order is filed here, in fairness to parties submitting the substantive responses required by the May 28 or June 11 Orders, the latter date, when the physical file in the action has arrived, is the more appropriate trigger. It is hereby.
ORDERED that a transferred action shall have "arrived on this Court's docket" for purposes of the May 28 and June 11 Orders on the date on which the clerk of this court receives the file and the certified docket from the transferor court.
SO ORDERED: