Opinion
23-CV-02786 (NGG) (JMW)
07-27-2023
DEAN NASCA et al., Plaintiffs, v. BYTEDANCE, LTD. et al., Defendants.
Harris L. Marks, Esq. Belluck & Fox LLP Attorney for Plaintiffs Dean and Michelle Nasca Matthew P. Bergman, Esq. Social Media Victims Law Center PLLC Attorney for Plaintiffs Dean and Michelle Nasca David Mattern, Esq. King & Spalding Attorney for Defendants ByteDance, Inc. and TikTok, Inc. Kristen Renee Fournier, Esq. King & Spalding Attorney for Defendants ByteDance, Inc. and TikTok, Inc. Andrew G. Muccigrosso, Esq. LIRR Law Department Attorney for Defendants Metropolitan Transportation Authority and Long Island Railroad William D. Wexler, Esq. William D. Wexler, Esq. Attorney for Defendant Town of Islip
Harris L. Marks, Esq. Belluck & Fox LLP Attorney for Plaintiffs Dean and Michelle Nasca
Matthew P. Bergman, Esq. Social Media Victims Law Center PLLC Attorney for Plaintiffs Dean and Michelle Nasca
David Mattern, Esq. King & Spalding Attorney for Defendants ByteDance, Inc. and TikTok, Inc.
Kristen Renee Fournier, Esq. King & Spalding Attorney for Defendants ByteDance, Inc. and TikTok, Inc.
Andrew G. Muccigrosso, Esq. LIRR Law Department Attorney for Defendants Metropolitan Transportation Authority and Long Island Railroad
William D. Wexler, Esq. William D. Wexler, Esq. Attorney for Defendant Town of Islip
REPORT AND RECOMMENDATION
JAMES M. WICKS, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Michelle and Dean Nasca commenced this lawsuit against Defendants alleging various claims including product liability and negligence as a result of Defendants' actions which they claim led to the death of their son. Defendant ByteDance LTD., ByteDance, Inc., TikTok, Inc. timely removed the action contending that this Court has diversity subject matter jurisdiction based upon Plaintiffs' fraudulent misjoinder of Defendants TikTok and the Metropolitan Transportation Authority (“MTA”). (DE 1 at 5.)
Now before the Court, on referral from the Honorable Nicholas G. Garaufis, is Plaintiffs' motion for remand (DE 15), which is grounded in the contention that Defendant TikTok failed to establish complete diversity, since there was no fraudulent misjoinder. However, Defendants TikTok, MTA, and the Town of Islip (“Town”) strenuously oppose the motion, asserting that fraudulent misjoinder indeed exists and therefore this Court lacks subject matter jurisdiction. For the reasons that follow, the undersigned respectfully recommends Plaintiffs' motion be GRANTED and the case be remanded.
BACKGROUND
The following facts are taken from Plaintiff's original complaint filed in the Supreme Court of New York, County of Suffolk. (DE 1-1 at 6-94.)
The TikTok Algorithm and Business Practices
Defendant ByteDance Ltd. is a Chinese internet technology company headquartered in Beijing and incorporated in the Cayman Islands. (DE 1-1 ¶ 14.) ByteDance Ltd. owns and operates the TikTok video-sharing app, and maintains exclusive ownership and control over ByteDance, Inc. and TikTok, Inc. (collectively the “TikTok Defendants”). (Id.) Defendant ByteDance, Inc. is a Delaware corporation with its principal place of business in Mountainview, California, while Defendant TikTok, Inc. is a California corporation with its principal place of business in Culver City, CA. (Id. ¶¶ 14, 16.) Known in China as “Doujin,” TikTok hosts a wide variety of short-form user videos-upon opening the app, individual TikTok users are presented with an endless stream of algorithmically-curated videos. (Id. ¶¶ 48, 50.) In 2017, TikTok became available outside of mainland China, and following a merge with another Chinese social media app in 2018, TikTok was made accessible to worldwide users. (Id. ¶ 49.)
Both the Chinese and American iterations of TikTok utilize the For You Page (“FYP”) feature, which reviews user information, prior history, and other factors to create an individualized collection of videos for each user. (Id. ¶ 50.) The FYP is intended to maximize both the amount of time users spend on the app and their level of engagement, which leads to increased advertising revenue. (Id. ¶ 51.) Though the TikTok app is free to download, it generates “astronomical” profits from advertisers who allegedly pay a premium to have their products presented to TikTok users, and through the sale of user data. (Id. ¶ 58.) Plaintiffs allege that due to this advertisement-based revenue structure, the TikTok Defendants have developed insidious features-such as randomized, unpredictable rewards and a “pull to refresh” feature that emulates the thrill of gambling-to hijack and manipulate users' brain chemistry. (Id. ¶ 61.) As such, Plaintiffs contend TikTok is a dangerously addictive app that is particularly harmful to minors due to their underdeveloped frontal lobes, diminished capacity for impulse control, and susceptibility to addiction. (Id. ¶ 105.)
Plaintiffs further allege that the TikTok Defendants specifically market and design TikTok to be as enticing as possible to children and teenagers, as this demographic is the “key to long-term profitability and success.” (Id. ¶ 71.) To support this assertion, Plaintiffs cite documents from a 2021 data leak: social media companies Facebook and Instagram evidently conducted field research into TikTok to determine how it effectively dominated the youth market. (Id. ¶ 72.) Furthermore, TikTok's marketing campaigns often feature young actors, and TikTok's COO and CEO have made statements characterizing the app as “welcoming” and “sunny.” (Id. ¶¶ 114-118.) Internal TikTok documents allegedly indicate that in the United States alone, approximately eighteen million children below the age of fourteen use TikTok each day. (Id. ¶ 55.)
Plaintiffs also assert that the Defendant TikTok, to further transfix minors, created an algorithm that presents young users with psychologically disturbing videos because such videos produce a greater dopamine response in children as opposed to safe, benign content. (Id. ¶ 6.) These videos allegedly glorify violence, depression, suicide, and self-harm. (Id. ¶ 131.) Plaintiffs claim that the TikTok Defendants were aware of the potentially injurious impact of this algorithm-they state that the Chinese version of TikTok limits screentime for minor users and shows them science experiments, museum videos, and educational content. (Id. ¶ 79.) The American app, conversely, amplifies various “challenges” regardless of their safety-for example, in December 2021, American children and teenagers were inundated with videos promoting an extreme, restrictive diet. (Id. ¶ 102.)
The Complaint also describes the TikTok Defendants' data collection practices as unscrupulous and deceptive. (Id. ¶ 52.) While TikTok representatives have assured the public that the company does not share user information with the Chinese government, ByteDance Ltd. is partially owned by the Chinese Government, and leaked audio from internal meetings indicates that ByteDance employees had access to personal data. (Id. ¶ 116.) Furthermore, TikTok's purported minimum age requirement is largely unenforced, and the app contains no warnings-to parents or to general users-that mention the potentially adverse effects of using the app, or the possibility that Chinese government officials may view user data. (Id. ¶ 54.) Plaintiffs assert that this absence of adequate warnings, the inherent insidiousness of the app, and the collective negligence of the Defendants resulted in Chase Nasca's premature death. (Id. ¶ 155.)
The Incident and the MTA and Town of Islip Defendants
The decedent plaintiff Chase Nasca lived with his parents, Plaintiffs Dean and Michelle Nasca, in Suffolk County, New York at the time of his death. (Id. ¶ 11.) Plaintiffs describe Chase as a smart, athletic, social child who never demonstrated outward symptoms of depression. (Id. ¶ 125-126.) Plaintiffs first became aware of Chase's TikTok use in 2019 or 2020, and though they did not consent to Chase's download of the application, they allegedly believed that it contained only “silly dance videos.” (Id. ¶ 128.) Unbeknownst to the Plaintiffs, Chase's FYP began matching him with depressive, and dangerous content in October 2021. (Id. ¶ 129.) While Chase searched for uplifting content such as motivational speeches and clips from television shows, the algorithm showed him bleak, suicide-themed content-at times, the videos included depressing background music that had been suggested by TikTok itself. (Id.) His mental health began to deteriorate, and Plaintiffs allege that the provocative content drew Chase into the app as it pushed him closer to suicide; some of the videos even suggested that young people should kill themselves by stepping in front of a moving train. (Id. ¶ 9.) Even after Chase's death, TikTok would continue to curate a steady stream of violent videos to display on his FYP. (Id. ¶ 133.)
On February 18, 2022, Chase stopped at the train tracks (which were owned, inspected, and maintained by the MTA Defendants and the Town of Islip) in Bayport, New York after a trip to the gym. (Id. ¶ 138.) Although numerous individuals had been killed by trains at that very location, Plaintiffs allege that the MTA Defendants and the Town of Islip affirmatively declined to construct a fence; therefore, Chase was able to enter the tracks at 6:35 pm. (Id. ¶ 138.) Chase sent a single message to a friend before he was struck and killed by a train owned by the MTA Defendants. (Id. ¶ 139-140.)
PROCEDURAL HISTORY
On May 11, 2022, Plaintiffs first filed a pro se Notice of Claim against the MTA and the Town of Islip, followed by the filing of the action. (Id. ¶¶ 26-32; DE 15 at 1-2.)
Plaintiffs retained counsel and filed their case against Defendant TikTok and its parent company, ByteDance, in the Northern District of California, joining approximately 200 other cases against social media companies. Nasca, et al., v. ByteDance Inc., et al., No. 22-cv-06134 (YGR), (N.D. Cal. Oct. 18, 2022). There, they brought a strict products liability, negligence, unjust enrichment, and invasion of privacy claim against TikTok. (DE 1 ¶ 2.) However, once counsel learned of the pro se claim and performed follow-up research on actionable claims against the MTA, he counseled his clients to voluntarily dismiss their claims and brought suit in the Suffolk County Supreme Court, this time adding the MTA Defendants. (Id. ¶ 4.) Plaintiffs allege that dismissing their California claims was also imperative because the statute of limitations for Plaintiffs to file a claim against MTA would expire soon and the only way to sue both the MTA and TikTok would be to sue in state court since diversity was not met between the MTA and Plaintiffs alone. (DE 15 at 2.) Of relevance here, Plaintiffs sued Defendant TikTok under the same causes of action as in the California suit (DE 1-1 at 62-74) and sued the MTA and Town of Islip for its negligence. (Id. at 75.) Common claims amongst all Defendants are wrongful death and loss of services. (DE 21 at 3.)
Defendant TikTok removed the case to this Court on April 13, 2023. (DE 1.) In its removal petition, it noted that this action is part of a series of lawsuits against content-sharing companies like TikTok, Instagram LLC, and YouTube LLC which have been consolidated into a multidistrict litigation (“MDL”). (Id. ¶ 1.) TikTok states that the claim against the MTA is “completely unrelated” to the TikTok claims (Id. ¶ 5) and the MTA Defendants have been fraudulently misjoined so the Court should disregard the lack of diversity between Plaintiffs and MTA. (Id. at 7.)
Shortly after removal, the undersigned questioned the jurisdictional predicate and directed Defendants to show cause as to why this Court has jurisdiction since complete diversity was admittedly absent. (Electronic Order dated Apr. 18, 2023.)
In the interim, the Defendant TikTok and Plaintiffs filed a consent motion to stay all proceedings pending the resolution of the subject matter jurisdiction issue. (DE 6.) Judge Garaufis granted the parties' motion. (DE 7.) MTA filed a similar motion, also granted by Judge Garaufis. (DE 13-14.)
Letter briefs on the jurisdictional issues were filed (DE 11-12), and Plaintiffs soon filed a formal motion on May 11, 2023 requesting that the Court remand the matter to state court. (DE 15.) This motion was referred by Judge Garaufis to the undersigned for a Report and Recommendation. (DE 19-22.) The Court held oral argument on Plaintiffs' motion to remand on July 6, 2023. (DE 24.)
In their motion, Plaintiffs argue that the Court should decline to adopt fraudulent misjoinder, as advanced by Defendants, claiming it would be an improper expansion of federal jurisdiction. (DE 15.)
Defendant TikTok opposes, stating that the Court should defer considering this fraudulent misjoinder issue because the MDL dealing with similar issues will address whether the case should be remanded. (DE 21.) Further, it disagrees with Plaintiffs in that fraudulent misjoinder has been applied in other federal courts. (Id.) And finally, the defendants were “misjoined” because they bear no connection to each other. (Id.) It requests that the Court await for the MDL to address the jurisdiction question, but if not, deny the motion to remand and sever the claims against the MTA Defendants versus those against TikTok. (Id.)
On June 1, 2023, the Town of Islip filed a letter with the Court requesting that the Court deny Plaintiffs' motion to remand because Plaintiffs have fraudulently misjoined the Town of Islip along with the TikTok Defendants. (DE 20 at 1.) It further asserts that there is nothing in common between the allegations against the TikTok Defendants and the Town of Islip, namely because the Complaint consists of “mental health harms caused by the use of online services.” (Id.) This significantly contrasts with the claims lodged against the MTA and Town of Islip which consists of negligence in the failure to fence off the train track. (Id.) The Town further asserts that the type of evidence produced by either Defendant will be drastically different- TikTok will produce evidence related to mental health effects and raise defenses under federal law such as the First Amendment, as well as other documents relative to a product liability case, whereas the Town will focus on evidence pertaining to negligence. (Id.) Ultimately, the Town requests that the Court disregard the Town's and MTA's “citizenship” for diversity purposes, remand Plaintiffs' claims against the Town and MTA, and maintain jurisdiction over the remaining claims against TikTok. (Id. at 2.)
The MTA has argued similarly, that is, that there are different and distinct transactions here that led to the resulting death. (DE 22 at 2.)
The Related MDL
TikTok removed this case based on fraudulent misjoinder and then filed it with other actions before the Multidistrict Litigation (“MDL”). (DE 15 at 3.) A conditional transfer order was issued, meaning that this case could potentially be transferred to the Northern District of California along with all the other related cases filed by TikTok. Plaintiffs filed a Notice of Opposition to the transfer order and filed a motion to vacate the order subsequently thereafter. (DE 21 at 4.) In light of the MDL, Plaintiffs urge this Court to adopt the methodology used in within this District's cases-that is, decide the remand issue before allowing it to be transferred to the MDL. (DE 15 at 3-4.)
TikTok, on the other hand, says the Court should wait until the transfer is decided because the MDL court will assess the jurisdictional question. (DE 21 at 1.) It concludes that deferring to the MDL court is the most efficient thing to do at this juncture, specifically because it would conserve judicial resources in deciding the issue now; address jurisdictional questions consistently; and prevent the Court from evading jurisdictional requirements. (Id. at 5-6) Fraudulent Misjoinder
Plaintiffs posit that only the Eleventh Circuit, and not the Second Circuit, has adopted the doctrine of fraudulent misjoinder. (DE 15 at 5.) And, the Fifth Circuit has explicitly rejected this doctrine, while all other Circuits have yet to adopt it. (Id. at 5).
Plaintiffs argue that in addressing TikTok's claim, the court will be interpreting state procedural law-an area left for state courts-which further supports the notion that it should decline to adopt the fraudulent misjoinder doctrine. (Id. at 7.) And, if the Suffolk County Supreme Court wishes to sever the Defendants, then TikTok's relief at that time would be to remove the severed case to federal court once again. (Id.)
Defendants on the other hand ask that this Court apply the doctrine although the Second Circuit has not yet adopted it. (DE 21 at 10.) It further points to cases within other Circuits, which have seemingly approved application of the doctrine despite not adopting it in some cases. (Id.)
Plaintiffs maintain that TikTok's barrage of suicide videos, coupled with MTA's failure to fence off the track in an area known to have had suicides occur in the past, provides the Court with enough evidence to satisfy the “same transaction or occurrence” prong of the permissive joinder rule. (DE 15 at 9-10).
Defendant argues that the TikTok claims or the MTA claims arising out of the same transaction or occurrence would “involve markedly different facts[,] evidence” and legal theories. (DE 21 at 15.) And Plaintiffs have not demonstrated a “logical relationship” between the two Defendants, nor have they alleged that the Defendants acted in concert or conspired to kill Chase Nasca. (Id. at 16.)
Plaintiffs respond that the two Defendants' (TikTok and the MTA) conduct is “incapable” of being divided. (DE 15 at 10.) Tiktok's algorithms collected ample location data-thus, Plaintiff claims that Defendants are “inextricably relate[d]” to one another, as the algorithm tracked Chase's location and lured him to the unfenced train tracks. (Id. at 1-2.)
Defendants argue that in this case, each defendant will raise different defenses. (DE 21 at 19.) For instance, Plaintiffs' claims zero in on whether TikTok's algorithms were addictive and whether TikTok failed to provide adequate warnings to its users, which will necessarily implicate various federal laws. (Id. at 19-20.) However, the claims against the MTA will focus on negligence and defenses privy to municipalities. (Id.)
In its reply, Plaintiffs, for the first time raise the defense that the claims will share common questions of fact, namely “the cause and extent of Plaintiffs' damages” including each defendant's culpability. (DE 19 at 7.)
Defendants argue that “egregiousness” is not necessary to find misjoinder but the simple fact that Plaintiffs have re-filed their case in different court with different defendants is “clear evidence” of “forum shopping and joinder gamesmanship.” (DE 21 at 22.) It further maintains that neither bad faith nor egregiousness are needed to establish fraudulent misjoinder; a court can find Plaintiffs fraudulently misjoined the MTA solely on the basis that it filed suit against TikTok and then dismissed its claims only to add the MTA. (Id.)
In its reply, Plaintiffs state there was no bad faith in the alleged claims because they only sought to dismiss their federal claims before the statute of limitations expired and dismissed its claims in the MDL and re-filed in state court, as it was the only way it could preserve its claims against the MTA defendants. (DE 19 at 1.)
DISCUSSION
It is axiomatic that federal courts are of limited jurisdiction and “possess[] only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts generally entertain cases falling into two categories, namely, cases involving a federal question, 28 U.S.C. § 1131, and cases where parties are citizens of different states and the amount in controversy exceeds $75,000, 28 U.S.C. § 1132. Further, “it is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377 (internal citations omitted). Where, as here, an action is removed to federal court based on diversity of citizenship jurisdiction, “complete diversity” must exist, meaning that “all plaintiffs must be citizens of states diverse from those of all defendants.” Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117-18 (2d Cir. 2014) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)). Where an action is removed and the removal is challenged, the burden rests with the removing party (defendant) to establish that federal subject matter jurisdiction exists, keeping in mind that the “federal courts construe the removal statute narrowly, resolving any doubts against removability.” Ferreira v. N.Y. Daily News, No. 08-CV-1520 (RRM)(MDG), 2009 WL 890577, at *2 (E.D.N.Y. Mar. 31, 2009) (quoting Thomas v. Baldwin, 189 F.Supp.2d 1, 2 (E.D.N.Y. 2002)); see Percy v. Oriska Gen. Contracting, 20-cv-6131 (NGG), 2021 WL 2184895, at *5 (E.D.N.Y. May 27, 2021) (“On a motion to remand to state court, ‘the burden falls squarely upon the removing party to establish its right to a federal forum by competent proof.'”) (citation omitted). Thus, the burden here lies with Defendant TikTok, and the present motion is viewed through that lens.
Defendant TikTok and Plaintiffs standing alone, are diverse. The amount in controversy exceeds $75,000-thus, there is no doubt that diversity jurisdiction under 28 U.S.C. § 1441(b) exists between those parties. (DE 21 at 7.) However, the heart of this dispute is whether Defendant TikTok properly removed this action since the joining of MTA and Town Defendants admittedly defeats diversity. Defendant TikTok asserts that removal based on fraudulent misjoinder is appropriate because Plaintiffs have improperly joined a non-diverse party, here the MTA, which defeats diversity and confines the case to state court. (DE 1 at 8.) Further, it states that the set of claims against TikTok and the MTA are completely different from one another. (Id. at 11.) Thus, TikTok demands that the Defendants be severed to preserve jurisdiction between the two sides.
A. Should the Court Await Decision by the MDL?
Before addressing whether fraudulent misjoinder exists, the Court must first consider the threshold issue of whether it should even assess the motion to remand at all. Specifically, the parties here debate whether the Court should defer to the MDL's ruling on the pending conditional transfer order or decide the motion to remand immediately.
According to Judicial Panel on Multidistrict Litigation Rule 2.1(d), pending conditional transfer orders before the Panel “does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court.” Panel Rule 2.1(d); see also In re Consolidated Fen-Phen Cases, No. 03-CV-3081 (JG), 2003 WL 22682440, at *2 (E.D.N.Y. Nov. 12, 2003) (citing this MDL rule).
In Fen-Phen, the Court decided whether to remand immediately instead of deferring because the removal issue at hand was not one previously decided by the MDL court. Fen-Phen, 2003 WL 22682440, at 2. TikTok states that Youngers et al. v. Meta Platforms, Inc. et al. decided this very issue of whether to remand based on fraudulent misjoinder. See Youngers et al. v. Meta Platforms, Inc. et al., No. 22-cv-00608, 2023 U.S. Dist. LEXIS 18852 (D.N.M. Feb. 1, 2023). But as Plaintiffs point out, the Youngers court had not decided the issue of remand and whether fraudulent misjoinder actually existed because the case was transferred before any decision on the remand motion was made. (DE 19 at 2.) Further, Plaintiffs noted at Oral Argument that out of the 200 cases in the MDL, this is the only case involving non-social media defendants alleged to be an instrument of a suicide. Oral Argument at 11:14 (discussing other cases in the MDL involving other tragedies, but not suicide).
When arguing that the Court should defer consideration of the jurisdictional question, the Defendant relies upon a case the Court finds inapposite. In Aguilar v. Merck & Co., No. 05-CV-4865 (SJ), 2005 U.S. Dist. LEXIS 59164, at *1 (E.D.N.Y. Nov. 22, 2005), the Court chose to defer to the Panel's ruling on the issue of transfer. Aguilar, however, had different facts than those alleged here: it was against a manufacturer and various medical providers, and other transferee courts had already decided to defer on the issue. Id. at *5 (noting that plaintiffs' motions to remand had already been deferred until after transfer to the MDL litigation since the issues in the motion were not “unique”). Thus, it was important to defer there, where several other similar cases had already gone through this motion to remand process and deferring would avoid “inconsistent rulings” and “conserve[e],. .judicial resources.” Id. at *6-7. The case before the Court, however, involves different factual circumstances-alleged fraudulent misjoinder not for a pharmaceutical case, but against a social media company and a railroad company resulting in the same injury.
Further, it is prudent for the Court to decide the issue now instead of deferring to the Judicial Panel on Multidistrict Litigation's decision because the joining of the MTA and Town Defendants wholly divests the Court of its diversity jurisdiction-that is, because the MTA and Town Defendants are rooted in New York and because Plaintiffs are from New York, diversity jurisdiction does not exist between the parties as they stand. See Abruzzo Docg Inc. v. Acceptance Indemn. Ins. Co., No. 20-CV-4160 (MKB), 2021 U.S. Dist. LEXIS 220196, at *18 (E.D.N.Y. Nov. 15, 2021) (noting that federal courts cannot act if complete diversity is not apparent on the face of a complaint for removal); Labrecque v. Johnson & Johnson, No. 15-CV-1141 (RNC), 2015 U.S. Dist. LEXIS 134550, at *4 (D. Conn. Oct. 2, 2015) (“If this Court does not have jurisdiction, then the MDL court will not have jurisdiction either.”)
And finally, the undersigned finds that the principles of judicial economy and efficiency would be best served by deciding the motion now as opposed to waiting on the MDL to decide the issue. (DE 19 at 3-4); see Edmondson v. Pfizer, Inc., No. 16-CV-1944 (CEJ), 2017 U.S. Dist. LEXIS 16891, at *4 (E.D. Mo. Feb. 7, 2017) (finding a deferral on the MDL decision inappropriate because the district court was better suited to determine jurisdiction and waiting to rule on the remand motion “would not promote the efficient administration of justice”);
Fayetteville Ark. Hosp. Co. v. Anneal Pharms., LLC, No. 5:20-CV-5036, 2020 U.S. Dist. LEXIS 86467, at *11 (W.D.Ark. May 18, 2020) (deciding the motion to remand because the court should “put[] a case.. .in a court that has the jurisdiction to resolve it” and it is inefficient to wait for the Judicial Panel for Multidistrict Litigation to resolve the case when it may not have jurisdiction).
It is for these reasons that the undersigned recommends deciding the motion to remand now as opposed to awaiting decision by the MDL.