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ARTICLE · 21 DECEMBER 2018

Issue Of First Impression – You Can't Redirect Remand

You can waive remand. That's Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).

United StatesLitigation, Mediation & Arbitration

You can waive remand. That's Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). But, if you agree to remand, you're going back whence you came. So said the Judicial Panel on Multidistrict Litigation earlier this month in In re: Biomet M2A Magnum Hip Implant Products Liability Litigation, 2018 WL 6426830 (JPML Dec. 6, 2018).

That's pretty much all the 4-paragraph opinion says on this issue of first impression. The JPML cannot "redirect the remand" to a non-originating court. What the opinion doesn't tell is why the request was being made in the first place. So, we did a little digging. At issue were three cases selected for remand from this MDL. The Chadwick case had been originally filed in state court in New Jersey and subsequently removed to federal court. Plaintiffs included as a defendant a company whose sole role in relation to the device at issue was to supply raw materials. That company, a New Jersey company, was the only thing

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