August 25, 2019

Tenth Circuit: Writ of Mandamus Inappropriate Absent Clear and Indisputable Injury

The Tenth Circuit Court of Appeals issued its opinion in In re RBS Securities, Inc. on Thursday, September 4, 2014. The panel decided, sua sponte, that its original order dated August 25, 2014, be published with a slight modification.

The National Credit Union Administration Board brought a number of actions against RBS Securities and other defendants in the District of Kansas, the Central District of California, and the Southern District of New York. RBS and the other defendants moved to centralize the litigation in the District of Kansas, but the Judicial Panel on Multidistrict Litigation (JPML) denied the request due to dissimilarities between litigants. However, the JPML offered alternatives to consolidation, including informal cooperation between the attorneys to minimize duplicative discovery. The parties developed a Master Discovery Protocol (MDP) at a joint hearing between the three districts. Judge Cote from New York relayed that she would be the coordination judge for the MDP. RBS objected.

RBS petitioned the Tenth Circuit to strike Section 2 of the MDP, in which Judge Cote was designated the coordination judge, through a mandamus petition. The Tenth Circuit found that mandamus was a drastic remedy which it could not support. Referring to the MDP, the Tenth Circuit noted that the Kansas court required signature of a Kansas judge on all orders, and RBS’s right to mandamus was therefore not clear and indisputable. The motion was denied.

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