Friday, December 13, 2013

Rollins v. MERS (9th Cir. - Dec. 12, 2013)

MDL cases are often a mess.  The whole MERS (Mortgage Electronic Registration System) stuff is also a mess.  So it's perhaps not surprising that when the two come together, it's a total mess.

That's especially the case when, as here, the MDL court splits up causes of action, changes its mind, makes confusing (and/or arbitrary) distinctions, and the like.  Ugh.

For these reasons, I can see why the panel here is somewhat uncertain as to whether it has appellate jurisdiction, and hence remands for more details.

But, to be honest, it's not actually confusing in the slightest.

There was absolutely no way the MDL court was trying to make a Rule 54(b) finding -- and hence permit appellate review -- when it dismissed the causes of action at issue here.  That would require it to expressly state that there was no just reason for delaying appellate review.  That's a basic requirement of Rule 54(b).  Even (smart) first-year law students know it.  The fact that the MDL court didn't even try indicates that it wasn't trying to follow Rule 54(b) in the slightest.

So the Ninth Circuit shouldn't be "confused" about whether the MDL court "intended" to invoke Rule 54(b).  It didn't.

Now, what the Ninth Circuit may really be saying is that it thinks that there's no just reason for delay, and that the not-entirely-on-top-of-it MDL court should have realized that it could (and needed to) invoke Rule 54(b) in order to permit appellate review of this otherwise interlocutory dismissal.  Hence the Ninth Circuit's going to effectively remind the MDL court of that fact -- and give it an opportunity (once again) to invoke Rule 54(b) -- in the guise of seeking "clarification".

If that's what the Ninth Circuit's doing, well, shucks, I totally understand that.

Though that's not what the Ninth Circuit says it's doing.  Not surprisingly.  Because that's not the way the system's supposed to work.

So I don't think this case is confusing at all.  Seems pretty clear to me.  Both on the surface as well as under it.