Increasing attention has been given to the failure of MDL courts to apply the FRCP, particularly Rule 12(b)(6), to address meritless and inadequately pleaded claims on federal dockets in MDLs. In non-MDL cases, such claims are routinely disposed of by Rule 12(b)(6), but in an MDL, avoiding the clear impact of the rules is deemed a “necessary evil” associated with the size of the MDL. We would much rather have courts view “necessity” as the mother of invention in this regard to find a way to enforce Rule 1’s admonition that the FRCP should “govern all actions and proceedings,” rather than the misuse of Master pleadings.
A case from a few weeks ago illustrates well that this is not a theoretical concern. Baca v. Johnson & Johnson, No. CV-20-01036-PHX-DJH, 2020 WL 6450294 (D. Ariz. Nov. 2, 2020), is one of myriad similar cases in which plaintiffs allege defects in pelvic repair systems. Before June, 2018, such cases would have been transferred to the Southern District of West Virginia as part of the Multi-District Litigation, In re: Ethicon, Inc. Pelvic Repair System Products Liability Litigation, MDL No. 2327 (“MDL”). But the MDL has since stopped accepting transfers, and so the case got traditional treatment, which meant the Rules were actually applied.