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Volume XI, Number 337

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Sixth Circuit Panel Dismisses Motion to Enforce Writ of Mandamus

Several months ago this blog reported on Judge Kethledge’s opinion for the court that granted a writ of mandamus sought by retail pharmacy chain defendants in “Track One” of the opioid MDL. In that decision the Sixth Circuit directed the district court to strike the plaintiff counties’ amendments to their complaints (which contravened Rule 16(b) of the Federal Rules of Civil Procedure). Granting that relief rendered the petition moot as to the two other grounds on which the pharmacies had sought relief, as the court observed. The Sixth Circuit issued its opinion and judgment on April 15, and the next day, the district court entered an order striking the amendments at issue.

Two and a half months later, the pharmacy defendants filed a “Motion to Enforce Writ of Mandamus” under the Sixth Circuit case number for the mandamus petition. This filing advised the court of appeals that, on remand, the district court had created a new “Track Three bellweather trial” and had permitted amendments to the complaints on the new track. The motion argued that this action violated the Federal Rules of Civil Procedure and the party-presentation principle of constitutional jurisprudence. It asked the Sixth Circuit “to enforce its writ of mandamus by striking the district court’s ‘Track 3’ orders” and to reassign the MDL to a new judge.

Last week the same panel that issued the writ of mandamus (Siler, Griffin, Kethledge) dismissed the motion. Because the decision was by order and unpublished, it’s not accessible via the court’s opinions page, but it’s easy and worthwhile to reproduce in full:

Defendant CVS Pharmacy, Inc. and nine other national retail pharmacies (“Retail Pharmacies”) filed a putative “motion to enforce” this court’s writ of mandamus, issued on April 15, 2020. See In re Nat’l Prescription Opiate Litig., 956 F.3d 838 (6th Cir. 2020). Our rules do not provide for this kind of filing. Nor do they provide for any kind of motion practice to police the actions of federal district courts. See La Buy v. Howes Leather Co., 352 U.S. 249, 257 (1957). Nor have the Retail Pharmacies identified a clear basis for our jurisdiction over their interlocutory motion.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 206
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About this Author

Benjamin C. Glassman Trial Attorney Squire Patton Boggs Cincinnati, OH & Columbus, OH
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Former US Attorney Benjamin Glassman helps clients with some of their most difficult and sensitive problems -- whether by providing strategic advice, leading internal investigations or representing them at trial or on appeal. He divides his time between the Cincinnati and Columbus offices.

Ben served as the US Attorney for the Southern District of Ohio from 2016 to 2019, working in both Democratic and Republican administrations. As the chief federal law enforcement official for the more than 5 million residents of Ohio’s southern 48 counties, he oversaw the work of approximately 65...

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