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In re Diet Drugs Products

August 11, 2005

IN RE: DIET DRUGS (PHENTERMINE/ FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION
MIKE COCKRELL, ET AL., APPELLANTS IN NO. 04-2413 SANDRA S. SORRELL, ET AL., APPELLANTS IN NO. 04-2463 ROBERT SHOEMAKER, ET AL., APPELLANTS IN NO. 04-2464 LISA PHELPS-DORRIS, ET AL., APPELLANTS IN NO. 04-2575 CLAUDIA EDWARDS, ET AL., APPELLANTS IN NO. 04-2886 JENNIFER LEGG, ET AL., APPELLANTS IN NO. 04-2887 ANGELA MARTIN, ET AL., APPELLANTS IN NO. 04-2888 MARY KILLEBREW, ET AL., APPELLANTS IN NO. 04-2889 TERESA RUSSUM, ET AL., APPELLANTS IN NO. 04-2891 EILEEN TURNER, ET AL., APPELLANTS IN NO. 04-2897 JANICE MCCRORY, ET AL., APPELLANTS IN NO. 04-2898 MITZI M. WILSON, ET AL., APPELLANTS IN NO. 04-2982 BARBARA A. GEISERT, ET AL., APPELLANTS AT NO. 04-3845 PAMELA G. ELLISON, ET AL., APPELLANTS AT NO. 04-3846 ASHLEY IRWIN, ET AL., APPELLANTS AT NO. 04-4392 ELVIA AGUIRRE, ET AL., APPELLANTS AT NO. 05-2216 CARMELA ARAUJO, ET AL., APPELLANTS AT NO. 04-2217 DELORES BAKER, ET AL., APPELLANTS AT NO. 05-2218 LYDIA N. BELL, ET AL., APPELLANTS AT NO. 05-2219 MARIA L. ALEXANDER, ET AL., APPELLANTS AT NO. 05-2220 HOLLY J. ANDERSON, ET AL., APPELLANTS AT NO. 05-2221 ILENE R. ALLEN, ET AL., APPELLANTS AT NO. 05-2222 JERRY CHAVEZ, ET AL., APPELLANTS AT NO. 05-2223 CAROLYN A. HUNTER, ET AL., APPELLANTS AT NO. 05-2224 LESLIE BALES, ET AL., APPELLANTS AT NO. 05-2225 URSULA ASHER, ET AL., APPELLANTS AT NO. 05-2226 LARRY M. RUSSELL, ET AL., APPELLANTS AT NO. 05-22 27 ALYSMAY ANTONUCCI, ET AL., APPELLANTS AT NO. 05-2488



Appeals from the United States District Court for the Eastern District of Pennsylvania (MDL No. 1203 and D.C. Nos. 03-cv-20626, 04-cv-20086, 04-cv-20094, 04-cv-20096, 03-cv-20326, 03-cv-20316, 03-cv-20329, 03-cv-20229, 03-cv-20360, 04-cv-20097, 03-cv-20625, 03-cv-20280, 04-cv-20098, 04-cv-20099, 03-cv-20428, 04-cv-27317, 04-cv-21387, 04-cv-26961, 04-cv-26581, 04-cv-26750, 04-cv-23759, 04-cv-22924, 04-cv-22900, 04-cv-21668, 04-cv-20899, 04-cv-20100, 04-cv-20095 & 04-cv-22922) District Judge: Honorable Harvey Bartle, III.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued June 7, 2005

Before: AMBRO, STAPLETON and ALARCÓN*fn1, Circuit Judges

OPINION OF THE COURT

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).*fn2 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.*fn3

III. 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.*fn4

We may acquire jurisdiction over appeals through final judgments under 28 U.S.C. § 1291*fn5 and collateral orders under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir. 2005).*fn6 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 (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 ...


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