We’ve complained before about MDL “master” or “consolidated” complaints being used to deprive defendants of the ability to pursue their rights to seek dismissal on TwIqbal and other pleading-related grounds. In individual actions, defendants have the right to put the plaintiffs’ pleadings to the test required by Rules 8 and 12. That has not necessarily been the case in MDLs, where plaintiffs frequently take the position that master complaints, no matter how prolix, are merely “administrative” conveniences that should not be subject to any review under the rules.
There has not been much appellate discussion of the use of master complaints in MDLs. We found a rather extensive discussion in a recent decision, Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020), that – being about food and purported economic losses – is otherwise not something most of our readers would come across. The question of the status of the MDL complaints in Bell arose in the context of the timeliness of appeals from the dismissal of two “consolidated” MDL complaints. Id. at 474.
The jurisdictional question in turn depended on when “final judgments” were entered against the claims in certain MDL consolidated complaints. Id. at 488. While not a formal judgment, the order stated that the defendants against which those complaints were filed were “dismissed from this litigation.” Id. Plaintiffs thereafter failed to take an appeal for more than the 150 days specified in Fed. R. Civ. P. 58(c) and F.R.A.P. 4(a)(7) necessary for judgments to become final by what amounts to adverse possession. That gave plaintiffs the usual 30 day period to file a notice of appeal. As Bell pointed out, “[p]laintiffs missed that deadline by more than three months.” Id.
The “default rule” in MDLs “is that separate actions transferred for those pretrial proceedings retain their separate identities,” including – Bell states − “especially” in situations requiring “entr[y of] final judgments and pursuing appeals.” Id. at 489. In the “default” situation, dismissal of any MDL plaintiff’s individual complaint creates “an appealable final judgment.” Id. (citing Gelboim v. Bank of America Corp., 574 U.S. 405, 413 (2015)).
But this “default” status can be changed. “[T]ransferee courts and parties may choose to manage those cases in ways that can change that default rule and give up the separate identities of the original suits transferred to the MDL litigation.” Id. (citations omitted).
And a major way of doing that is the use of consolidated master complaints. Quoting a footnote in Gelboim – that we told our readers at the time had “interesting implications” – Bell stated:
“Parties may elect to file a ‘master complaint’ . . . which supersede[s] prior individual pleadings. In such a case, the transferee court may treat the...
