Rollins v. Mortgage Electronic Registration Systems, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUSTIN ROLLINS, on behalf of No. 12-16261
himself and all other similarly
situated persons, D.C. No.
Plaintiff-Appellant, 2:11-cv-00027-
JAT
v.
MORTGAGE ELECTRONIC ORDER
REGISTRATION SYSTEMS, INC.;
MERSCORP, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued and Submitted
November 8, 2013—San Francisco, California
Filed December 12, 2013
Before: A. Wallace Tashima, William A. Fletcher,
and Jacqueline H. Nguyen, Circuit Judges.
Order
2 ROLLINS V. MERS
SUMMARY*
Final Judgment
The panel ordered a limited remand to the MDL court to
specify whether it intended that its dismissal order be treated
as an appealable final judgment pursuant to Federal Rule of
Civil Procedure 54(b).
The United States Judicial Panel on Multidistrict
Litigation issued an order that split the claims presented in
this case and other cases with some claims transferred to the
MDL court and others remanded to the transferor courts. The
panel held that it was unable to determine whether they had
jurisdiction to hear this appeal from the MDL court’s order
because the claims in this case that remain in the transferor
court were still pending and the MDL court did not expressly
find that its dismissal order was a final appealable order.
COUNSEL
John R. Ates (argued), Ates Law Firm, P.C., Alexandria,
Virginia; David C. Ates, David Ates, P.C., Atlanta, Georgia,
for Plaintiffs-Appellants.
Robert M. Brochin, Morgan, Lewis & Bockius LLP, Miami,
Florida, for Defendants-Appellees.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROLLINS V. MERS 3
ORDER
This appeal comes to us in an unusual procedural posture
and presents a nuanced issue of appellate jurisdiction. The
United States Judicial Panel on Multidistrict Litigation
(“JPML”) issued an order that split the claims presented in
this and numerous other cases – some claims were transferred
to the MDL court, while others were remanded to the
transferor courts. As a result of the JPML order, the MDL
court, when confronted with a motion to dismiss, could only
act on a portion of the motion. The MDL court, recognizing
that its authority to act was limited to only some of the
claims, granted the motion in part, thereby dismissing some,
but not all, of the claims pending in this action.
Because the claims in this case that remain in the
transferor court still are pending, and because the MDL court
did not expressly find that its dismissal order was an
appealable final judgment, we are unable to determine
whether we have jurisdiction to hear this appeal from the
MDL court’s order.1 Therefore, we order a limited remand
for the MDL court to specify whether it intended that its
dismissal order be treated as an appealable final judgment
pursuant to Federal Rule of Civil Procedure 54(b).
1
We have no cases addressing whether, when the JPML “splits” a civil
action and remands some claims to the transferor court under 28 U.S.C.
§ 1407(a), and the MDL court enters judgment on the transferred claims,
such a judgment is a “final decision” under 28 U.S.C. § 1291, even though
the claims remanded to the transferor court remain pending, or the
converse situation.
4 ROLLINS V. MERS
BACKGROUND
A.
On December 7, 2009, the JPML established MDL No.
2119, In re: Mortgage Electronic Registration Systems
(MERS) Litigation, before District Judge James A. Teilborg
in the District of Arizona (the “transferee court” or “MDL
court”). At that time, the JPML centralized six actions in the
MDL court.
According to the JPML,
This litigation concerns the MERS system, an
electronic mortgage registration system and
clearinghouse that tracks beneficial ownership
interests in, and servicing rights to, mortgage
loans. Plaintiffs allege, inter alia, that the
members and/or shareholders of MERSCORP
and its subsidiary MERS conspired to
establish the MERS system – an electronic
system for registering mortgages – as a means
by which to intentionally hide from plaintiffs
the true identity of the actual beneficial
owners of negotiable promissory notes. All
actions arise, in part, from allegations
concerning the formation and operation of the
MERS system. Centralization under Section
1407 will eliminate duplicative discovery,
prevent inconsistent pretrial rulings (including
with respect to class certification), and
conserve the resources of the parties, their
counsel and the judiciary.
ROLLINS V. MERS 5
Significantly, however, the JPML did not transfer the
cases in their entirety to the MDL court, instead ordering that
“claims unrelated to the formation and/or operation of the
MERS system [would be] simultaneously remanded to their
respective transferor courts.” Confusion ensued.
B.
On October 15, 2010, Plaintiff Dustin Rollins filed a
putative class action in the Superior Court of Fulton County,
Georgia. On November 19, 2010, Defendants Mortgage
Electronic Registration Systems, Inc. and MERSCORP, Inc.
(together, “MERS”) removed this action to the United States
District Court for the Northern District of Georgia (the
“transferor court”).
On January 3, 2011, the JPML transferred part of this
action to the MDL court for coordinated pretrial proceedings
in the In re: MERS Litigation. As with the original six cases
and all subsequent actions, the JPML ordered that any of
Rollins’s claims that were “unrelated to the formation and/or
operation of the MERS system were separated and
simultaneously remanded” to the Northern District of
Georgia.2
On May 25, 2012, the MDL court granted in part and
denied in part MERS’s motion to dismiss Rollins’s claims
that were before that court. Specifically, the MDL court
dismissed Rollins’s second claim for relief – for statutory
2
The JPML did not identify, claim by claim, in this or any other MERS
case, which claims were transferred to the MDL Court and which claims
met its “unrelated” definition and, thus, were remanded to the transferor
court.
6 ROLLINS V. MERS
wrongful foreclosure – and partially dismissed Rollins’s first,
third, fourth, fifth and sixth claims for relief – for declaratory
judgment, tortious wrongful foreclosure, equitable relief,
punitive damages and attorneys’ fees. The MDL court further
ordered that parts of Rollins’s first, third, fourth, fifth and
sixth claims be remanded to the Northern District of
Georgia.3 Thus, the dismissal order did not resolve all claims
in this action.
Nevertheless, on May 25, 2012, the MDL court entered
judgment in favor of MERS and against Rollins. On May 28,
2012, Rollins appealed.
DISCUSSION
A.
Section 1407 provides that the JPML “may separate any
claim, cross-claim, counter-claim, or third-party claim and
remand any of such claims” to a transferor court. “[T]he vast
majority of transferred cases are disposed of completely in the
transferee court,” In re Food Lion, Inc. FLSA Effective
Scheduling Litig., 73 F.3d 528, 532 (4th Cir. 1996) (emphasis
added), but a not insignificant number of them, like this case,
involve a “transfer order with simultaneous separation and
remand.” In re: Kugel Mesh Nernia Patch Prods. Liab.
Litig., 560 F. Supp. 2d 1362, 1363 (J.P.M.L. 2008).4
3
Thus far, there has been no subsequent litigation in the Northern
District of Georgia.
4
Other cases reflecting this practice include the following: In re:
Countrywide Fin. Corp. Mortg.-Backed Sec. Litig., 812 F. Supp. 2d 1380,
1384–85 (J.P.M.L. 2011); In re Tri-State Water Rights Litig., 481 F. Supp.
ROLLINS V. MERS 7
The “claim-splitting” in this case resulted in considerable
confusion in the MDL court and for the parties. The dividing
line between claims related and unrelated to the “formation
and/or operation of the MERS system” was, at best, murky.
As the JPML recognized,
The MERS system purportedly operates as
follows: When a home is purchased, the
lender obtains from the borrower a promissory
note and a mortgage instrument naming
MERS as the mortgagee (as nominee for the
lender and its successors and assigns). In the
mortgage, the borrower assigns his right, title,
and interest in the property to MERS, and the
mortgage instrument is then recorded in the
local land records with MERS as the named
mortgagee. When the promissory note is sold
(and possibly re-sold) in the secondary
mortgage market, the MERS database tracks
that transfer. As long as the parties involved
in the sale are MERS members, MERS
remains the mortgagee of record (thereby
avoiding recording and other transfer fees that
are otherwise associated with the sale) and
continues to act as an agent for the new owner
of the promissory note.
2d 1351, 1353 (J.P.M.L. 2007); In re Long-Distance Tel. Serv. Fed. Excise
Tax Refund Litig., 469 F. Supp. 2d 1348, 1350 (J.P.M.L. 2006); In re
Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1379 (J.P.M.L. 2006);
In re Aredia & Zometa Prods. Liab. Litig., 429 F. Supp. 2d 1371, 1373
(J.P.M.L. 2006); In re Celexa & Lexapro Prods. Liab. Litig., 416 F. Supp.
2d 1361, 1363 (J.P.M.L. 2006); In re Vioxx Mktg., Sales Practices &
Prods. Liab. Litig., 416 F. Supp. 2d 1354, 1355 (J.P.M.L. 2006).
8 ROLLINS V. MERS
Given the almost omnipresent role of the “MERS system”
from loan origination to mortgage foreclosure, it is difficult
to differentiate between claims related and unrelated to the
“formation and/or operation of the MERS system” in the
context of cases alleging wrongful foreclosure and similar
claims. Indeed, the record – specifically, the MDL court’s
series of “interpretation orders” – demonstrates that the
JPML’s transfer order was not self-effectuating.
In Rollins’s case, for example, the MDL court remanded
to the transferor court his tortious wrongful foreclosure claim
and the subsidiary claims for relief to the extent those claims
were based on Georgia’s corporate fiduciary statute. But
previously (“[a]t first glance”), the MDL court had
interpreted the JPML transfer order and ruled that the MDL
court had jurisdiction over these same claims. Nevertheless,
“[u]pon reevaluation of the substance of” these claims, the
MDL court reversed its initial ruling, concluding that “its
prior interpretation of the conditional transfer order was in
error.”
Moreover, the JPML transferred part of Rollins’s action
from the transferor court (in the Eleventh Circuit) to the MDL
court (in our circuit). In light of the MDL court’s dismissal
order and subsequent entry of judgment, Rollins was faced
with a judgment that dismissed only some of his claims. At
the same time (and notwithstanding that judgment), the MDL
court’s dismissal order remanded some of Rollins’s claims
back to the transferor court (outside of our circuit).
B.
Under Federal Rule of Civil Procedure 54(b), “When an
action presents more than one claim for relief . . . , the court
ROLLINS V. MERS 9
may direct entry of a final judgment as to one or more, but
fewer than all, claims . . . only if the court expressly
determines that there is no just reason for delay.” As noted
above, the MDL court’s dismissal order did not resolve all
claims in this action. Significantly, however, neither the
MDL court’s dismissal order nor its judgment included an
express determination under Rule 54(b) that “there is no just
reason for delay.”
“Absent Rule 54(b) certification, the present appeal may
be subject to dismissal as an appeal from a nonfinal
decision.” Quach v. Cross, 216 F. App’x 666, 666 (9th Cir.
2007) (citing 28 U.S.C. § 1291; Am. States Ins. Co. v. Dastar
Corp., 318 F.3d 881, 884 (9th Cir. 2003)). Nevertheless,
“[a]n order containing a Rule 54(b) certification is sufficient
to validate a prematurely filed notice of appeal if neither
party is prejudiced.” Id. at 667 (citing Aguirre v. S.S. Sohio
Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986)). As in Quach,
“We find that neither party would be prejudiced by a Rule
54(b) certification entered on limited remand.” Id.
It may be that, by entering judgment, the MDL court
intended for the judgment to be appealable, but without a
Rule 54(b) certification, we cannot be certain. Under these
circumstances, Rollins hardly can be blamed for filing a
“protective” – if perhaps technically premature – appeal.
CONCLUSION
Accordingly, we order a limited remand to the MDL court
for its consideration as to whether its May 25, 2012, dismissal
order should be certified as an appealable final judgment
under Rule 54(b). See, e.g., Nat’l Ass’n of Home Builders v.
Norton, 325 F.3d 1165, 1168 (9th Cir. 2003) (“This matter is
10 ROLLINS V. MERS
therefore remanded to the district court for the limited
purpose of its granting or denying plaintiffs’ motion for a
Rule 54(b) certification.”); Quach, 216 F. App’x at 666.
On limited remand, the district court either should
expressly determine that there is no just reason for delay, see
Fed. R. Civ. P. 54(b), or should decline to enter a Rule 54(b)
certification. This panel shall retain jurisdiction over this
appeal. A copy of this order shall serve as the mandate of
limited remand. See Norton, 325 F.3d at 1168.
IT IS SO ORDERED.