In re Exterior Siding & Aluminum Coil Antitrust Litigation (M.D.L. No. 454) , 696 F.2d 613 ( 1982 )

JOHN R. GIBSON, Circuit Judge.

Petitioners, defendants in the action below, seek a writ of mandamus, contending that the district court¹ improperly granted class certification to plaintiffs in this action.

Plaintiffs Hoyt Construction Company, Inc., and Minnesota Exteriors, Inc., originally filed an antitrust action against defendants Alside, Inc., et al, in the District of Minnesota in 1975. Plaintiffs alleged numerous antitrust violations, including conspiracies to monopolize the exterior siding and aluminum coil business. Plaintiffs attempted to have a class certified consisting of all parties who had purchased aluminum coil or exterior metal siding and related building products and accessories directly from defendants since the early 1970s. District Judge Donald Alsop,² to whom the case was assigned, denied class certification on August 24, 1978, in a comprehensive order in which he concluded that plaintiffs had failed to meet the requirements of Rule 23(a) and (b)(3), Fed.R. of Civ.P. Plaintiffs then attempted to have a more narrowly defined class certified, but Judge Alsop refused on two occasions to reconsider his prior denial of class certification.

Subsequently on December 9, 1980, plaintiffs Western Builders, Inc. and Lagar Construction Company filed an action similar to the Hoyt case in the Northern District of California, and on December 22,1980, plaintiffs Midwest Builders and Materials, Inc., filed another similar action in the Northern District of .Illinois.

Defendants then moved to have the three cases centralized by the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. § 1407, and requested that the consolidated action be assigned to the District of Minnesota lor pretrial proceedings. Plaintiffs cross-moved for centralization of the actions, requesting that they be assigned either to the Northern District of California or to- the Northern District of Illinois. The Multidistrict Litigation Panel found that the three actions involved common questions of fact, and that centralization in the District of Minnesota would best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel found that all three actions alleged similar antitrust violations and that overlapping class certifications had been sought in all three actions. The Panel assigned the California and Illinois actions to the District of Minnesota since the case there was the most advanced,³ and designated Judge Charles R. Weiner, of the Eastern District of Pennsylvania, to sit by designation in the District of Minnesota “for coordinated or consolidated pretrial proceedings with the action already pending in that district.”

After the actions were assigned to Judge Weiner, plaintiffs moved again for class certification. On August 3, 1981, Judge Weiner certified a class consisting of parties who had purchased aluminum coil or exteri- or aluminum siding and related building products and accessories directly from defendants since the early 1970’s. Defendants subsequently moved to vacate Judge Weiner’s class certification order or, in the alternative, to have the question certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Judge Weiner refused to decertify the class, and further refused to certify for interlocutory appeal. Defendants have now petitioned for a writ of mandamus ordering Judge Weiner to vacate his class certification order.

The only individual plaintiffs before Judge Alsop were Hoyt Construction and Minnesota Exteriors, both Minnesota corporations which installed aluminum siding in the residential market. Judge Alsop denied class certification in Hoyt because he found that Hoyt and Exteriors’ claims were not typical of those of other members of the proposed class, which included groups as diverse as commercial and agricultural aluminum siding installers, aluminum siding manufacturers, and homeowners. Judge Alsop also found that plaintiffs Hoyt and Exteriors would not adequately represent the proposed class because their interests were not coextensive with the interests of the class, and because the interests of some class members were antagonistic to those of Hoyt and Exteriors. Judge Alsop also found that plaintiffs did not meet the requirements of Rule 23(b)(3), concluding that common questions of law or fact did not predominate and that a class action was not a superior method of adjudicating the case since much of the evidence as to liability would relate to less than the entire proposed class and since some of the claims would require individualized proof as to liability, damages, or both.

The underlying facts did not change between the time Judge Alsop made his rulings in Hoyt and the time Judge Weiner certified a class in the consolidated cases. The California and Illinois plaintiffs made the same allegations as the Hoyt plaintiffs and sought overlapping class certification. During argument it was conceded that plaintiffs were in contact with each other before the filing of the new cases. Judge Weiner did not base his decision on changed circumstances. Rather, he stated that he simply “differed as to result” with Judge Alsop and that he was exercising his discretion to certify a class based on the facts before him.

The requirements for issuance of a writ of mandamus impose a substantial burden on the party seeking the writ. In Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193, 196 (1980), the Supreme Court stated, “It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” The Court stated:

[T]he writ of mandamus “has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” [quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967).] Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.

Id. at 35, 101 S.Ct. at 190, 66 L.Ed.2d at 196.

A writ of mandamus will issue when a district court’s actions have “so exceeded its discretion as to be a usurpation of power.” Sperry Rand Corporation v. Larson, 554 F.2d 868, 872 (8th Cir.1977).

Although mandamus is an extraordinary remedy to be used only in very unusual circumstances, this court has previously observed that it “remains available in those extraordinary instances when the district court, in granting the maintenance of a class action, has exceeded ‘the sphere of its discretionary power.’ ” In Re Cessna Aircraft Distributorship Antitrust Litigation, 518 F.2d 213, 216 (8th Cir.), cert. denied 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282 (1975). We conclude that, in this instance, Judge Weiner has so exceeded his discretion.

The class action certification issue was before Judge Alsop three times, and he denied class certification on all three occasions. His original order denying class certification is well-reasoned and detailed. After his initial denial of class certification, plaintiffs in Hoyt attempted to narrow their class certification definition to eliminate some of the problems which had concerned Judge Alsop. Even after the narrowing of their definition, however, Judge Alsop still found, in a second detailed opinion, that class certification requirements had not been met. He also denied plaintiffs’ subsequent motion to alter and amend his class certification denial. The class definition which plaintiffs put before Judge Weiner was essentially identical to the one they had presented to Judge Alsop the first time. Thus, it was actually broader and less well defined than the second class certification definition which Judge Alsop had rejected as inadequate.

Class certification decisions are by their nature conditional and are subject to change. Id. at 215; Rule 23(c)(1), Fed.R. Civ.P. However, Rule 23 does not contemplate that a judge should overrule a previous class certification decision without a sound basis. The Advisory Committee Notes on subsection (c)(1) state, “A determination once made can be altered or amended before the decision on the merits if, upon fuller development of the facts, the original determination appears unsound.” This language contemplates that, although a Rule 23 ruling might be conditional, a judge will not alter a previous ruling unless a change in the facts of the case calls for it.

Judge Weiner did not make any new factual findings. It is true that Judge Alsop had before him only the Hoyt case, which included only two individual plaintiffs. By the time the case reached Judge Weiner, two additional complaints had been filed, but these were, as petitioners contend, virtual “carbon copies” of the Hoyt complaint, seeking overlapping class certifications. Judge Weiner based his ruling on what he perceived to be his power as a multidistrict transferee court. He stated, “It is clear from the [Multidistrict Litigation] Act itself that class certification determinations are to be resolved by the transferee court free from the influence of any initial determinations of transferor courts.” January 5, 1982 Order of Judge Weiner at 5. He concluded that the orders of a court in the preconsolidation stage of a case were entitled to little or no weight after the cases were consolidated and put before a transferee court.

The powers of a transferee court are wide-ranging. See: Weigel, The Judicial Panel on Multidistrict Litigation, Transfer- or Courts and Transferee Courts, 78 F.R.D. 575 (1978). We do not question the power of a transferee court to overturn the decisions of a transferor court under the proper circumstances. A transferee court must be free to alter conflicting orders of transferor courts in order to effectuate the purposes of 28 U.S.C. § 1407. The powers of a transferee court are not unlimited, however.

Although a judge may not be bound by the rulings of his predecessor, he also is not free to ignore them. This is the doctrine of “the law of the case”, which holds that a judge ordinarily should not overrule the decisions of a prior judge in the same case without good cause. See, generally: IB Moore’s Federal Practice 10.404. We have observed previously that the law of the case doctrine is a rule of practice rather than a command to courts. Otten v. Stonewall Insurance Co., 538 F.2d 210, 212 (8th Cir.1976). However, the doctrine “ ‘is something more than mere courtesy, which implies only deference to the opinion of others, since it has substantial value in securing uniformity of decision, and discouraging repeated litigation of the same question.’ ” German v. Universal Oil Products Co., 77 F.2d 70, 73 (8th Cir.1935) quoting from Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 485, 20 S.Ct. 708, 44 L.Ed. 856 (1900).

District courts have imposed law of the case limitations on themselves in the class certification area, as in other areas. See e.g.: Sley v. Jamaica Water and Utilities, Inc., 77 F.R.D. 391 (E.D.Pa.1977) (district judge refused to decertify class certified by his predecessor in the absence of changed circumstances). This court has frequently invoked the law of the case doctrine in refusing to reconsider issues brought up on prior appeals of the same case. See, e.g.: Otten, supra; Metzger v. Hossack, 165 F.2d 1 (8th Cir.1948).

Other circuits have recognized that a judge’s failure to defer to the rulings of his predecessor in the same case can amount to an abuse of discretion serious enough to warrant the granting of mandamus. See: Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir.1982); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir.), cert. denied 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968).

A court’s overruling of a motion by its predecessor does not constitute an abuse of discretion in all cases. In Zenith Laboratories, Inc. v. Carter-Wallace, Inc., 530 F.2d 508 (3d Cir.) cert. denied 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976), the Third Circuit upheld a district court’s decertification of a class certified by a predecessor. However, the court based its holding in large part on the important changes in circumstances which had occurred between the two rulings. It is this “changed circumstances” basis which has formed the rationale for allowing a district court to overrule its predecessor in most instances. See e.g.: In Re: The Upjohn Company Antibiotic Cleocin Products Liability Litigation, 664 F.2d 114 (6th Cir.1981). In the Upjohn case, the Sixth Circuit upheld a multidistrict transferee court’s power to vacate and modify protective orders entered by transferor courts, and concluded that the law of the case doctrine did not control. Even in an area as clearly within the transferee court’s discretion as discovery, however, the court stated that “a transferee judge ought as a practical matter to accord considerable deference to the judgment of the transferor court.” Id. at 120.

In this case the Multidistrict Litigation Panel contemplated that Judge Weiner would give consideration to Judge Alsop’s prior orders. The Panel’s primary reason for assigning the consolidated cases to the District of Minnesota rather than to the Districts of California or Illinois was the fact that the Minnesota case had progressed much further than the other two cases. The Panel’s order observed that class certification motions had been filed in the other two cases, but that only the Hoyt class certification motion had been ruled. Although the panel did not direct Judge Weiner to defer to Judge Alsop’s order re garding class certification, the Panel clearly intended Judge Weiner to make use of the substantial amount of work that had already been done by Judge Alsop.

We have before us a situation in which the Multidistrict Panel determined that several cases should be centralized in Minnesota, where the action had been pending for five years and where rulings, including class certification rulings, had been made. The district court of Minnesota was determined to be the “appropriate transferee forum.” When Judge Weiner was assigned to preside over further coordinated and consolidated pretrial proceedings, he sat by designation in the transferee court. Yet Judge Weiner in his order of January 5, 1982 placed strong emphasis on the responsibility of the transferee court to make class certification determinations “free from the influence of any initial determinations of transferor courts.” While he professed that the prior decisions of Judge Alsop were not ignored, he concluded that “this court, upon thorough consideration of the briefs and oral arguments now before it, differed as to the result.” (Emphasis in original.)

Judge Weiner’s order seemingly overlooks the fact that both Judge Alsop and he were sitting as judges of the same court-the District of Minnesota. Judge Weiner made no finding of changed circumstances, but simply disagreed with his predecessor The three orders of Judge Alsop had dealt with increasingly limited class definitions, but Judge Weiner’s order broadened the scope almost to that of the original definí tions rejected by Judge Alsop.

While Judge Weiner recognized the view of this court, as explained in Sperry Rand Corp. v. Larson, 554 F.2d at 871, n. 3, that interlocutory appeal certification can play a beneficial role when “it fairly appears that an immediate appeal may materially advance the ultimate termination of the litigation,” he declined to certify the cases for appeal pursuant to 28 U.S.C., § 1292(b) for two reasons. First, he rejected the claim that there was substantial ground for difference of opinion because of Judge Alsop’s ruling on class, because it was ’within the discretion of this court alone, as transferee court,” to grant certification. . Further, he observed the differing policy of the Third Circuit with respect to such appeals and felt that the delay caused by the appeal would impede rather than advance the ultimate termination of the litigation.

We recognize the broad authority placed in the transferee court by section 1407, but we are here dealing with differing rulings of the same district court. The Advisory Committee notes on Rule 23, as well as the law of the case doctrine, both contemplate that rulings on class certification will not be overturned absent changed circumstances. Here we have a painstaking and detailed analysis of the class certification issues in the earlier determinations of Judge Alsop, which had been recognized by the Multidistrict Panel. To have the transferee court, though sitting with a different judge, make a differing ruling only because the second judge “differed as to the result,” and considered the issue to be within his discretion a lone, so exceeds the sphere of that court’s discretionary power that it is a usurpation of power. Mandamus is the only possible and appropriate remedy, and this court has so applied the remedy in the past on class certification issues.

What we say does not limit the powers of a transferee court to modify or vacate the orders of the transferor court. We recognize that in multidistrict litigation a transferee court must have such broad discretionary powers. Our holding is limited simply to the situation where a district court is made a transferee court, and in a later decision reverses its position simply because the second judge differs as to the result with the predecessor judge, and without a change of circumstances.

A writ of mandamus is issued ordering (1) that the orders of the district court certifying a class entered August 3, 1981 and January 5, 1982 shall be vacated, and (2) that the district court shall refrain from recertifying a class unless and until a showing has been made of changed law or facts sufficient to justify departure from previous decisions of the district court.

1 . The Honorable Charles R. Weiner, United States District Judge for the Eastern District of Pennsylvania, sitting by designation in the District of Minnesota.

2 . The Honorable Donald D. Alsop, United States District Judge for the District of Minnesota.

3 . The Multidistrict Panel order stated:

Although no forum could be described as the nexus of this litigation, on balance we are persuaded that the District of Minnesota is the appropriate transferee forum because the action there is most advanced. The Minnesota action has been pending in that district for over five years. Rulings have been made on amendments to the complaint, — discovery issues, a noncommunication order, class certification motions and other matters. In contrast, the Illinois and California actions have been pending for a little more than four months.