Third Circuit disposition — 00-1393

Filed February 26, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1393
IN RE: DIET DRUGS
(PHENTERMINE, FENFLURAMINE, DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
Lydia D. Gonzalez, Jo Ann Gorena, and Maria I.
Smith, on behalf of themselves and the certified
Texas Gonzalez class of all other similarly
situated individuals and class counsel for the
certified Texas Gonzalez class,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
MDL 1203
(Honorable Louis C. Bechtle)
Argued October 9, 2001
Before: SCIRICA, GREENBERG and COWEN,
Circuit Judges
(Filed: February 26, 2002)
JOHN W. MacPETE, ESQUIRE
(ARGUED)
2775 North State Highway 360,
Suite 1321
Grand Prairie, Texas 75050
KEITH M. JENSEN, ESQUIRE
514 East Belknap
Fort Worth, Texas 76102
Attorneys for Appellants
PETER L. ZIMROTH, ESQUIRE
(ARGUED)
Arnold & Porter
399 Park Avenue
New York, New York 10022-4690
ROBERT D. ROSENBAUM, ESQUIRE
Arnold & Porter
555 12th Street, N.W.
Washington, D.C. 20004
MICHAEL T. SCOTT, ESQUIRE
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street

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Philadelphia, Pennsylvania
19103-7301
Attorneys for Appellee,
American Home Products
Corporation
ARNOLD LEVIN, ESQUIRE
(ARGUED)
Levin Fishbein Sedran & Berman
510 Walnut Street, Suite 500
Philadelphia, Pennsylvania 19106
Attorney for Appellees,
Brown Class Representative
Plaintiffs
OPINION OF THE COURT
SCIRICA, Circuit Judge.
In this matter involving competing mass tort class
actions in federal and state courts, we address an
interlocutory appeal in a complex multidistrict federal class
action comprising six million members from an order
enjoining a mass opt out of a state class. We will affirm.
I.
The underlying case involves two drugs, both appetite
suppressants, fenfluramine--marketed as "Pondimin"--and
2
dexfenfluramine--marketed as "Redux." Both drugs were in
great demand. Between 1995 and 1997, four million people
took Pondimin and two million people took Redux. In 1997,
data came to light suggesting a link between the drugs’ use
and valvular heart disease. In July 1997, the United States
Food and Drug Administration issued a public health
advisory alert. On September 15, 1997, American Home
Products removed both drugs from the market. Subsequent
clinical studies support the view the drugs may cause
valvular heart damage.
Following the FDA’s issuance of the public health
warning, several lawsuits were filed. The number of
lawsuits increased exponentially after American Home
Products withdrew the diet drugs from the market.
Approximately eighteen thousand individual lawsuits and
over one hundred putative class actions were filed in federal
and state courts around the country. American Home
Products removed many of the state cases to federal courts,
increasing the number of federal cases. In December 1997,
the Judicial Panel for Multidistrict Litigation transferred all
the federal actions to Judge Louis Bechtle in the United
States District Court for the Eastern District of
Pennsylvania, creating Multidistrict Litigation 1203 ("MDL
1203").

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In April 1999, American Home Products began "global"
settlement talks with plaintiffs in the federal action together
with several plaintiffs in similar state class actions. The
parties reached a tentative settlement agreement for a
nationwide class in November 1999. Known as the"Brown
class," the proposed class included all persons in the
United States, as well as their representatives and
dependents, who had ingested either or both of the diet
drugs. The global settlement contemplated different kinds
of relief, including medical care, medical screening,
payments for injury, and refunds of the drugs’ purchase
price.
The purchase-price-relief provisions were separated into
two sections, one for those who had taken the drugs for
sixty days or less, the other for those who had taken the
drugs for more than sixty days. Short term users were to be
paid $30 per month’s use of Pondimin, and $60 per
3
month’s use of Redux. Long term users would receive the
same amounts per month, subject to a $500 cap and the
availability of sufficient money in an overall settlement
fund. Unlike short term users, long term users were
entitled to other benefits, such as medical screening.
The District Court entered an order on November 23,
1999, conditionally certifying a nationwide settlement class
and, concurrently, preliminarily approving the settlement.
To opt out, a class member was to "sign and submit written
notice to the Claims Administrator[s] with a copy to
American Home Products, clearly manifesting the Class
Member’s intent to opt out of the Settlement." The opt-out
period extended until March 23, 2000. The court scheduled
a fairness hearing for May 1, 2000 on class certification
and final settlement approval. On August 28, 2000, the
District Court entered a final order certifying the class and
approving the settlement.
In July 1997--after the FDA warning, but before
American Home Products withdrew the drugs from the
market--appellants filed a putative class action in Texas
state court, Gonzalez et al. v. Medeva Pharmaceuticals, Inc.,
et al. The Gonzalez case was one of the first cases filed and
preceded the creation of MDL 1203 by several months. The
proposed Gonzalez class, including all Texas purchasers of
the two diet drugs, was a subset of what would become the
Brown class. The Gonzalez action was limited insofar as it
sought actual purchase-price recovery only, together with
treble damages under the Texas Deceptive Trade Practices
Act-Consumer Protection Act ("DTPA"), Tex. Bus. & Comm.
Code, S 17.41 et seq.
The Gonzalez complaint did not allege a federal cause of
action and the named parties were not diverse.
Nonetheless, in January 1998, American Home Products
removed the case to federal court shortly after MDL 1203

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was created, contending federal diversity jurisdiction
obtained. American Home Products asserted Medeva
Pharmaceuticals, a non-diverse defendant, was fraudulently
joined for the purpose of defeating diversity jurisdiction.
Soon after removal to the United States District Court for
the Southern District of Texas, the Gonzalez case was
4
transferred to the Eastern District of Pennsylvania as a part
of MDL 1203.
Shortly thereafter, the Gonzalez plaintiffs moved to
remand the case back to Texas state court, contending
Medeva Pharmaceuticals was a proper defendant. The
Gonzalez plaintiffs also argued the amount-in-controversy
requirement was not met, as purchase-price recovery would
only amount to a few hundred or, perhaps, a few thousand
dollars per plaintiff. Furthermore, they argued they would
not be seeking statutory attorneys’ fees under the Texas
DTPA. As noted, on November 23, 1999, Judge Bechtle
granted conditional certification of the Brown class and
preliminary approval of the settlement. On February 15,
2000--during the MDL 1203 opt-out period--the District
Court granted the Gonzalez plaintiffs’ motion for remand,
finding that Medeva Pharmaceuticals was a proper
defendant.
One month later, on March 14, 2000, the Gonzalez
plaintiffs filed a new complaint, their "Fifth Amended Class
Action Petition," in the District Court of Hidalgo County,
Texas. They dropped their class claims against Medeva
Pharmaceuticals and claimed entitlement to statutory
attorneys’ fees. Accordingly, American Home Products
contends, the barriers to federal diversity jurisdiction were
removed.
Less than a week later, on March 20, 2000, the Hidalgo
County court held a hearing on certification of the Gonzalez
class. On March 22, it certified the class, defined as "all
persons who purchased dexfenfluramine (Redux) and/or
fenfluramine (Pondimin) in Texas, who are solely seeking
the recovery of the amounts to acquire same, as well as any
statutory trebling which may result from the claims
asserted under the Texas Deceptive Trade Practices-
Consumer Protection Act." The certification of the Gonzalez
class occurred eight days before the end of the opt-out
period for the Brown settlement. At this time, most
members of the Gonzalez class were also members of the
Brown class, except for those who had individually opted
out.
On March 22, the same day as the entry of the Texas
class certification order, the Gonzalez plaintiffs acted to
5
erase this overlap, by moving, in Hidalgo County, for a

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court order opting out all of the unnamed members of the
Gonzalez class from the Brown class. The Texas court
scheduled a hearing for 9:00 a.m. the next morning. In
response, American Home Products sought a temporary
restraining order in the District Court for the Eastern
District of Pennsylvania, the MDL court, seeking to prevent
the Gonzalez class from implementing a mass opt out.
On March 23, hearings were held in both courts on their
respective motions. In Texas, the Hidalgo County court held
its hearing and the same day entered an order partially
opting out the Gonzalez class from MDL 1203. The District
Court for the Eastern District of Pennsylvania also issued
an order that day, granting American Home Products’s
motion and entering a temporary restraining order directed
against the relief sought at the Texas hearing. The federal
order denied the effect of the sought-for opt out and
ordered Gonzalez class counsel to refrain from pursuing the
opt out. It was to remain in effect for ten days. A hearing
was scheduled for March 29 "on whether to make the
injunction permanent." The District Court’s order was
dated, "March 23, 2000 at 11:55 A.M." For what it is worth,
the Hidalgo County court would later issue an order
"clarifying" that its opt-out order had been issued before
11:55 Eastern Time.
The Texas opt-out order purported to opt out the
Gonzalez class from MDL 1203 only partially:
[I]t is . . . ORDERED, ADJUDGED AND DECREED
that the unnamed members of the certified class in
this case be [sic] are hereby opted-out of the proposed
settlement in MDL 1203, solely to the effect that their
purchase price recovery claims, and potential DTPA
trebling of same, will be pursued in this case,
accordingly, any and all of their other claims, including
but not limited to, claims for medical screening,
medical monitoring, personal injury, mental anguish
and/or punitive damages are not effected by this order.1
_________________________________________________________________
1. Because the Gonzalez class included only persons "who are solely
seeking the recovery of the amounts to acquire" Redux and Pondimin, it
is unclear whether any claims would remain within MDL 1203 for opted-
out Gonzalez class members. In any event, there is no need to resolve
this issue at this time.
6
Gonzalez v. Medeva Pharm., Inc., No. 4223-97B, at 3 (Tex.
Dist. Ct. Mar. 23, 2000). The Texas court also ordered "that
Class counsel shall take all other steps necessary, if any, to
opt-out the entire certified class in this case from the
proposed settlement in MDL 1203 to the extent, and only to
the extent, set forth in the preceding paragraph." Id.
On March 28, American Home Products took further legal
action. First, it filed a second notice of removal to the
United States District Court for the Southern District of

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Texas, contending diversity jurisdiction obtained at that
time. It also filed--together with lead counsel for the Brown
class--a motion for a permanent injunction and declaration
with respect to the Hidalgo County court’s attempt to opt
out the unnamed Texas plaintiffs.2
On March 29, the District Court held a hearing on
American Home Products’s motion for a permanent
injunction and declaration. One of the Gonzalez class’s
attorney’s, John W. MacPete, was admitted pro hac vice for
the purpose of opposing the motion. At the hearing, Judge
Bechtle announced his intention to enter the permanent
order sought by American Home Products and Brown class
counsel, stating the order of the Hidalgo County court
would "interfere with this Court’s jurisdiction and the
administration of this case, as well as the right and
obligation of this court to bring this proceeding to a final
judgment." On April 6, 2000, the District Court issued a
written order, PTO 1227--the subject of this appeal.
PTO 1227, entitled "Permanent Injunction and
Declaration Regarding Purported Class-Wide Opt-Outs,"
contains two main parts. The first is an injunction directed
primarily at counsel for the Gonzalez class:
Counsel for the named plaintiffs in Gonzalez v. Medeva
Pharmaceuticals, Inc., et al., originally filed in Hidalgo
County, Texas . . . and removed to the United States
District Court for the Southern District of Texas on
March 28, 2000, and all those acting in concert with
_________________________________________________________________
2. As noted, on March 23, the District Court for the Eastern District of
Pennsylvania had issued a temporary restraining order directed against
the relief sought at the Texas hearing.
7
them, are hereby permanently enjoined from taking
any action to effect, secure, or issue notice of any
purported class opt out, on behalf of the unnamed
absent members of any class which may have been
certified in Gonzalez, from the class action settlement
which this Court has conditionally certified and
preliminary [sic] approved . . . .
PTO 1227, at 2.
The second part is declaratory in nature. It states,
"Insofar as the Hidalgo County order purports to affect or
determine the opt out status of any member of the MDL-
1203 class it is null and void and of no effect." The District
Court also stated, "The Hidalgo County’s order is also null
and void and of no effect insofar as it purports to authorize
or effect a partial opt-out on behalf of any member of the
MDL-1203 class." Id. at 2-3. This was because the Texas
order "interfere[d] with [the District] Court’s authority to
determine the means and methods by which members of
such class may elect to opt out of the MDL-1203 class." Id.

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at 2.
On April 26, 2000, the Gonzalez plaintiffs moved to
remand Gonzalez back to state court a second time. The
remand motion was considered in the federal District Court
for the Southern District of Texas on May 3. That court
declined to rule on the motion, referring it instead to Judge
Bechtle, assuming Gonzalez would be referred to his court
as part of MDL 1203. On May 12, the MDL panel
transferred Gonzalez to the Eastern District of
Pennsylvania. American Home Products contends the
Gonzalez plaintiffs made no attempt, following transfer, to
seek resolution of the remand motion by Judge Bechtle in
the Eastern District of Pennsylvania. In any event, no
action has been taken directly on the Gonzalez matter in
federal court since its transfer in May 2000.
The day after they filed their motion to remand, the
Gonzalez plaintiffs filed a notice of appeal of PTO 1227.
Both American Home Products and Brown class
representatives are appellees.
On August 28, 2000, Judge Bechtle issued a final order
8
certifying the Brown class and approving the settlement.3
The Gonzalez case was, at that time, one of the cases
consolidated under--and settled as part of--MDL 1203.
Judge Bechtle also issued, concurrently, a blanket
injunction against commencement or prosecution of parallel
actions in other courts.
Appellants challenge PTO 1227 on several grounds. Their
principal arguments address whether the District Court
overstepped the limitations on its power with respect to
_________________________________________________________________
3. For clarity, we include the following time line of the relevant events:
1997:
July 31: Gonzalez filed in Hidalgo County, Texas.
Dec. 10: MDL 1203 created.
1998:
Jan. 20: First Gonzalez removal.
Jan. 26: First motion to remand filed.
Aug. 19: Gonzalez transferred to the E.D. Pa.
1999:
Nov. 23: Conditional certification of Brown class; preliminary
approval of settlement; commencement of opt-out
period.
2000:
Feb. 15: Gonzalez remanded.
Mar. 14: Fifth Amended Class Action Petition filed in Gonzalez.
Mar. 20: Hearing on Gonzalez class certification.
Mar. 23: TRO hearing and order (11:55) against Texas opt out.
Hearing and order (before 11:55) opting out Gonzalez
class.
Mar. 28: Second notice of removal filed.

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Motion for permanent injunction filed.
Mar. 29: Hearing on permanent injunction.
Mar. 30: End of opt-out period.
Apr. 6: Permanent injunction/declaration (PTO 1227) entered.
Apr. 26: Second motion to remand filed.
Apr. 27: Notice of appeal of PTO 1227 filed by Gonzalez
plaintiffs.
May 1-11: Fairness hearing on settlement.
May 3: S.D. Tex. declines consideration of remand pending
transfer.
May 12: Gonzalez transferred from S.D. Tex. to E.D. Pa. as
part of MDL 1203.
Aug. 28: Final approval of settlement and certification of
Brown class.
9
state court actions. Appellants contend the District Court’s
order: (1) violates the limitations on federal courts enjoining
state court proceedings under the Anti-Injunction Act; (2)
fails to afford the Texas order full faith and credit; and (3)
violates the Rooker-Feldman doctrine’s prohibition on lower
federal courts’ reviewing state court decisions. Additionally,
they challenge the District Court’s personal jurisdiction
over the Gonzalez plaintiffs and their counsel.4
II.
"Because there ‘exists a strong policy to conserve judicial
time and resources,’ we have held that ‘preliminary matters
such as . . . personal jurisdiction . . . should be raised and
disposed of before the court considers the merits or quasi-
merits of a controversy.’ " Bel-Ray Co. v. Chemrite (PTY) Ltd.,
181 F.3d 435, 443 (3d Cir. 1999) (quoting Wyrough &
Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir.
1967)). Accordingly, we turn first to appellants’ challenge to
the District Court’s in personam jurisdiction.5
_________________________________________________________________
4. Appellants raise two issues that need not detain us. First, they claim
the District Court did not have subject matter jurisdiction because the
amount-in-controversy requirement for diversity jurisdiction was not met
in the Gonzalez case. This appeal, however, is from an order in MDL
1203, over which the District Court undisputedly had subject matter
jurisdiction.
Second, they claim the District Court failed to adhere to the
requirements of the Declaratory Judgment Act, 28 U.S.C. S 2201, which
lists certain pleading requirements allegedly not met by American Home
Products. Because the District Court’s order cannot properly be viewed
as a declaratory judgment under the Declaratory Judgment Act,
however, this statute and its requirements are not relevant.
5. Because the present appeal is of an interlocutory order, our
jurisdiction is limited. We have jurisdiction to review the District Court’s
injunction under 28 U.S.C. S 1292(a)(1), which permits review of
"[i]nterlocutory orders of the district courts of the United States . . .
granting, continuing, modifying, refusing or dissolving injunctions . . . ."
We have pendant appellate jurisdiction over the issue of personal

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jurisdiction, because, in this case, that issue"bear[s] upon the propriety
of the preliminary injunction." Associated Bus. Tel. Sys. Corp. v. Greater
Capital Corp., 861 F.2d 793, 796 (3d Cir. 1988).
10
Because the District Court enjoined counsel for the
Gonzalez plaintiffs from pursuing the mass opt out, it must
first have obtained personal jurisdiction over these
attorneys. Appellants deny the court either had jurisdiction
over members of the Gonzalez class or their attorneys.
Ordinarily, in personam jurisdiction depends on
sufficient minimum contacts with the forum, "such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice." Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quotation omitted).
The "minimum contacts" requirement is satisfied where a
class member has received adequate notice of the action
and has been afforded an opportunity--but has declined--
to opt out of the lawsuit. Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 811-12 (1985); see also Carlough v. Amchem
Prods., Inc., 10 F.3d 189, 201 (3d Cir. 1993) ("[P]rior to
notice and the opt out period, and absent minimum
contacts with the Pennsylvania forum or consent to its
jurisdiction, a federal injunction enjoining state action
would violate due process."). The Court in Shutts also
stated, "[T]he Due Process Clause of course requires that
the named plaintiff at all times adequately represent the
interests of the absent class members." 472 U.S. at 812.
Appellants do not contest the adequacy of the notice sent
to the unnamed class members in Texas. Because any
remaining unnamed class members had not opted out of
the Brown class, all unnamed Brown class members were
subject to the jurisdiction of the District Court for purposes
of MDL 1203, so long as they were adequately represented.
The named Gonzalez plaintiffs had opted out of the Brown
class, so they may not be properly deemed to have
impliedly consented to jurisdiction under the Shutts rule.
472 U.S. at 812; see also Carlough, 10 F.3d at 199 ("A
plaintiff class member who is afforded an opportunity to opt
out, but who fails to exercise that option, may be deemed
to have consented to jurisdiction."). Regardless, the
substantial majority of the Gonzalez class was subject to
Shutts jurisdiction, assuming adequate representation.
Appellants contend, however, the members of the
Gonzalez class were not adequately represented by the
named Brown plaintiffs. They argue the interests of the
11
Gonzalez plaintiffs--who are seeking only purchase-price
recovery--are at odds with the interests of many of the
Brown plaintiffs--a subset of whom seek recovery for
injuries, including the possibility of future injuries.
Appellants cite several cases in which settlements have

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been rejected for inadequate representation where there
were competing subclasses. E.g., Ortiz v. Fibreboard Corp.,
527 U.S. 815 (1999) (finding impermissible conflict between
plaintiffs exposed to asbestos during period manufacturer
was fully insured, and those exposed later); Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591 (1997). Appellants also
contend the purchase-price relief contemplated by the
settlement is substantially less than that sought in
Gonzalez.
That various subclasses in the Brown class could find
themselves in competition does not by itself establish an
actual conflict undermining adequacy of representation. In
its final certification order, the District Court made
extensive findings supporting the opposite conclusion. In
particular, it found (1) there were no trade-offs between the
classes; (2) the benefits had been bargained for separately;
and (3) there was no conflict between those seeking future
benefits and those seeking them immediately. Appellants
have challenged none of these findings. For this reason
alone, there is no basis on which to find actual conflicts
sufficient to establish that purchase-price-only plaintiffs
were not adequately represented. Accordingly, the District
Court had personal jurisdiction over all unnamed members
of the Brown class, including those also members of the
Gonzalez class. Because the District Court had personal
jurisdiction over members of the Gonzalez class, it also had
jurisdiction over attorneys purporting to represent, and act
on behalf of, that class--a subset of the Brown class. Cf.
Carlough, 10 F.3d at 201 (affirming finding of jurisdiction
underlying injunction aimed at out-of-state class members
and their attorneys and representatives).
Furthermore, the relief sought in Texas was squarely
aimed at MDL 1203 and at the status of the Texas plaintiffs
in that action. As such, the attorneys--and therefore, the
named Gonzalez plaintiffs on whose behalf they acted--
"should reasonably [have] anticipate[d] being haled into
12
court there." World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980). Consequently, no "traditional notions
of fair play and substantial justice" are offended by the
District Court asserting jurisdiction over either these
plaintiffs or their attorneys.
III.
Appellants’ central arguments--those based on the Anti-
Injunction Act, the Full Faith and Credit Act, and the
Rooker-Feldman doctrine--all address constraints on the
District Court’s authority to limit state court actions and
their effects. But American Home Products maintains it is
unnecessary to address these arguments because it had
removed the case to federal court a second time before
entry of PTO 1227, thereby dissolving any possible state-
federal conflict.

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American Home Products contends its filing of the
removal notice immediately defeated the jurisdiction of the
state court, placing it in the federal court.6 After removal,
interlocutory orders of the state court are transformed into
orders of the court to which the case is removed. 7 Thus,
they contend, the Hidalgo County court order purporting to
_________________________________________________________________
6. Removal is effective upon filing a notice of removal in both the relevant
federal and state courts, and providing notice to the other parties. 28
U.S.C. S 1442(a), (d). At that time, "the State court shall proceed no
further unless and until the case is remanded." 28 U.S.C. S 1442(d). "A
proper filing of a notice of removal immediately strips the state court of
its jurisdiction." Yarnevic v. Brink’s, Inc. , 102 F.3d 753, 754 (4th Cir.
1996). Thus, even if a case is later remanded, it is under the sole
jurisdiction of the federal court from the time of filing until the court
remands it back to state court. California ex rel. Sacramento Metro. Air
Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1011 (9th Cir. 2000)
("[F]urther proceedings in a state court are considered coram non judice
and will be vacated even if the case is later remanded.") (citing 14C
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure S 3737 (3d ed. 1998)).
7. "Whenever any action is removed from a State court to a district court
of the United States, . . . [a]ll injunctions, orders, and other proceedings
had in such action prior to its removal shall remain in full force and
effect until dissolved or modified by the district court." 28 U.S.C. S 1450.
"In sum, whenever a case is removed, interlocutory state court orders
are transformed by operation of 28 U.S.C. S 1450 into orders of the
federal district court to which the action is removed. The district court
is thereupon free to treat the order as it would any such interlocutory
order it might itself have entered." Nissho-Iwai Am. Corp. v. Kline, 845
F.2d 1300, 1304 (5th Cir. 1988).
13
opt Gonzalez class members out of the Brown class was, at
the time of PTO 1227, an order of the federal court. And it
remains so, as the Gonzalez case has not since been
remanded. If there were a jurisdictional conflict, American
Home Products contends, it was between two federal
courts, not between a federal and a state court.
We do not believe resolution along these lines is so clear
cut. PTO 1227 was essentially a reiteration of the District
Court’s original temporary restraining order, which had
been issued before the second removal and was effective for
a ten-day period. Removal, therefore, occurred during the
effective period of the District Court’s temporary restraining
order blocking the effect of the Texas order--in the midst of
a conflict between the federal and state courts. By filing a
removal notice during the pendency of the temporary
restraining order, American Home Products attempted to
resolve a significant existing dispute involving difficult
issues of federal and state authority. And it did so in the
face of an existing--if potentially modifiable 8-- ruling
remanding the case for lack of subject matter jurisdiction.9
_________________________________________________________________
8. The removal statute, 28 U.S.C. SS 1441-52, does not categorically

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prohibit the filing of a second removal petition following remand. Doe v.
Am. Red Cross, 14 F.3d 196, 200 (3d Cir. 1993). As stated in a leading
treatise, "[I]f subsequent pleadings or conduct by the parties or various
other circumstances brings a case that was not previously removable
within the removal jurisdiction of the federal courts, a second notice of
removal is permissible." 14C Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice & Procedure S 3739, 495-96 (3d ed.
1998).
9. We recognize that federal district courts can, in most cases, prevent
parties from successfully manipulating the removal rules in this way.
Ruling on the validity of the removal before issuing orders conflicting
with state court orders will permit the state court orders to continue to
be effective until the case is remanded, or until the district court
determines it will maintain jurisdiction over the case. In such cases, the
filing of an invalid or questionable removal petition cannot, by itself,
defeat the operation of the state court order. In this case, because the
removal notice was filed in the Southern District of Texas, the District
Court was not afforded an opportunity to so rule. Thus, the District
Court--quite blamelessly--did not address the merits of the second
removal.
14
This case illustrates the remarkable extent to which
lawsuits can be turned into procedural entanglements. One
view of this may be that the actions taken here represent
nothing more than astute lawyering. Another is that the
legal jockeying employed by both sides exhibits a proclivity
to attempt to manipulate the rules for immediate tactical
advantage--a use at odds with the purposes of these rules,
and one dissonant with the equitable nature of class action
proceedings.
Rather than enter this tenebrous world of procedural
machinations, we think it preferable to address the
Gonzalez plaintiffs’ main arguments. As we discuss, the
District Court’s order was an appropriate exercise of its
authority regardless of the status of the Texas opt-out
order.
IV.
a. Anti-Injunction Act/All Writs Act.
The District Court issued PTO 1227 under the All Writs
Act, which provides "all courts established by Act of
Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law." 28 U.S.C. S 1651. The power
granted by the All Writs Act is limited by the Anti-
Injunction Act, 28 U.S.C. S 2283, which prohibits, with
certain specified exceptions, injunctions by federal courts
that have the effect of staying a state court proceeding.
Appellants contend the District Court’s order was
prohibited by the Anti-Injunction Act. American Home
Products and the Brown plaintiffs claim the injunction falls
under one of the Act’s exceptions. We hold the District
Court’s order was not barred by the Anti-Injunction Act and

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was a valid exercise of its power under the All Writs Act.
The Anti-Injunction Act prohibits most injunctions"to
stay proceedings in a State court." 28 U.S.C.S 2283.10
_________________________________________________________________
10. The Anti-Injunction Act does "not preclude injunctions against the
institution of state court proceedings, but only bar[s] stays of suits
already instituted." Dombrowski v. Pfister , 380 U.S. 479, 484 n.2 (1965).
15
Insofar as PTO 1227 enjoined Gonzalez class counsel, and
those working in concert, from pursuing the opt out
contemplated by the Texas opt-out order, it operated to stay
the proceedings in the Hidalgo County court, if only
indirectly. An order directed at the parties and their
representatives, but not at the court itself, does not remove
it from the scope of the Anti-Injunction Act. "It is settled
that the prohibition of S 2283 cannot be evaded by
addressing the order to the parties . . . ." Atl. Coast Line
R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287
(1970). Therefore, to the extent PTO 1227 had the effect of
staying the Hidalgo County court’s proceedings, it was
prohibited by the Anti-Injunction Act, unless it fell within
one of the Act’s exceptions.
By its terms, the Anti-Injunction Act allows such
injunctions "as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments." 28 U.S.C. S 2283. None of the
parties suggests the injunction was expressly authorized by
an act of Congress, or the injunction was aimed at
protecting or effectuating a judgment of the District Court.11
Accordingly, the injunction evades the Act’s restrictions
only if it was "necessary in aid of its jurisdiction."
The exceptions in the Anti-Injunction Act are to be
construed narrowly. "Any doubts as to the propriety of a
federal injunction against state court proceedings should be
resolved in favor of permitting the state courts to proceed in
an orderly fashion to finally determine the controversy." Atl.
Coast, 398 U.S. at 297. These "exceptions are narrow and
are not to be enlarged by loose statutory construction."
_________________________________________________________________
11. The exception allowing injunctions necessary"to protect or effectuate
. . . judgments" applies only where a preclusive judgment has been
made. "The exception ‘is founded in the well-recognized concepts of res
judicata and collateral estoppel.’ ‘[A]n essential prerequisite for applying
the relitigation exception is that the claims or issues which the federal
injunction insulates from litigation in the state proceedings [must]
actually have been decided by the federal court.’ " In re Prudential Ins.
Co. of Am. Sales Practice Litig., 261 F.3d 355, 364 (3d Cir. 2001) (quoting
Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147-48 (1988) (alterations
in original)).
16

-- 13 of 24 --

Chick Kam Choo, 486 U.S. at 146 (citation and alterations
omitted); Prudential, 261 F.3d at 364.
In Atlantic Coast, the Court emphasized an order directed
at a state court proceeding must be necessary in aid of
jurisdiction--"it is not enough that the requested injunction
is related to that jurisdiction." 398 U.S. at 295.
Acknowledging the language is nonetheless broad, the
Court elaborated: an injunction is necessary in aid of a
court’s jurisdiction only if "some federal injunctive relief
may be necessary to prevent a state court from so
interfering with a federal court’s consideration or
disposition of a case as to seriously impair the federal
court’s flexibility and authority to decide that case." Id.
Without more, it may not be sufficient that prior
resolution of a state court action will deprive a federal court
of the opportunity to resolve the merits of a parallel action
in federal court. "The traditional notion is that in personam
actions in federal and state court may proceed
concurrently, without interference from either court, and
there is no evidence that the exception to S 2283 was
intended to alter this balance." Vendo Co. v. Lektro-Vend
Corp., 433 U.S. 623, 642 (1977) (plurality opinion). In
ordinary actions in personam, "[e]ach court is free to
proceed in its own way and in its own time, without
reference to the proceedings in the other court. Whenever a
judgment is rendered in one of the courts and pleaded in
the other, the effect of that judgment is to be determined by
the application of the principle of res adjudicata by the
court in which the action is still pending . . . ." Kline v.
Burke Constr. Co., 260 U.S. 226, 230 (1922). Therefore, it
may not be sufficient that state actions risk some measure
of inconvenience or duplicative litigation. In re Baldwin-
United Corp., 770 F.2d 328, 337 (2d Cir. 1985). An
injunction may issue, however, where "the state court
action threatens to frustrate proceedings and disrupt the
orderly resolution of the federal litigation." Winkler v. Eli
Lilly & Co., 101 F.3d 1196, 1202 (7th Cir. 1996). In other
words, the state action must not simply threaten to reach
judgment first, it must interfere with the federal court’s
own path to judgment.
17
Several factors are relevant to determine whether
sufficient interference is threatened to justify an injunction
otherwise prohibited by the Anti-Injunction Act. First, we
look to the nature of the federal action to determine what
kinds of state court interference would sufficiently impair
the federal proceeding. Second, we assess the state court’s
actions, in order to determine whether they present a
sufficient threat to the federal action. And finally, we
consider principles of federalism and comity, for a primary
aim of the Anti-Injunction Act is "to prevent needless
friction between the state and federal courts." Okla. Packing
Co. v. Okla. Gas & Elec. Co., 309 U.S. 4, 9 (1940).

-- 14 of 24 --

We turn first to the nature of the federal action. While, as
noted, the "necessary in aid of jurisdiction" exception does
not ordinarily permit injunctions merely to prevent
duplicative actions in personam, federal courts are
permitted to stay later-initiated state court proceedings over
the same res in actions in rem, because "the exercise by the
state court of jurisdiction over the same res necessarily
impairs, and may defeat, the jurisdiction of the federal
court already attached." Kline, 260 U.S. at 229; see also In
re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab.
Litig., 134 F.3d 133, 145 (3d Cir. 1998) (" GM Trucks II").
Federal courts may also issue such injunctions to protect
exclusive federal jurisdiction of a case that has been
removed from state court. GM Trucks II, 134 F.3d at 145.
We have recognized another category of federal cases for
which state court actions present a special threat to the
jurisdiction of the federal court. Under an appropriate set of
facts, a federal court entertaining complex litigation,
especially when it involves a substantial class of persons
from multiple states, or represents a consolidation of cases
from multiple districts, may appropriately enjoin state court
proceedings in order to protect its jurisdiction. Carlough v.
Amchem Prods., Inc., 10 F.3d 189, 202-04 (3d Cir. 1993).
Carlough involved a nationwide class of plaintiffs and
several defendants--primarily manufacturers of asbestos-
related products--and third-party defendants--primarily
insurance providers. We found the complexity of the case to
be a substantial factor in justifying the injunction imposed.
Id. at 202-03.
18
Implicit in Carlough is the recognition that maintaining
"the federal court’s flexibility and authority to decide" such
complex nationwide cases makes special demands on the
court that may justify an injunction otherwise prohibited by
the Anti-Injunction Act. Several other courts have
concurred.12 See, e.g., Hanlon v. Chrysler Corp., 150 F.3d
1011 (9th Cir. 1998); Winkler, 101 F.3d at 1203 ( "[T]he
Anti-Injunction Act does not bar courts with jurisdiction
over complex multidistrict litigation from issuing
injunctions to protect the integrity of their rulings."); Wesch
v. Folsom, 6 F.3d 1465, 1470 (11th Cir. 1993); Battle v.
Liberty Nat’l Life Ins. Co., 877 F.2d 877, 882 (11th Cir.
1989); Baldwin-United, 770 F.2d at 337-38; In re
Corrugated Container Antitrust Litig., 659 F.2d 1332, 1334-
35 (5th Cir. Unit A 1981) (approving injunction in a
"complicated antitrust action [that] has required a great
deal of the district court’s time and has necessitated that it
maintain a flexible approach in resolving the various claims
of the many parties."); In re Columbia/HCA Healthcare
Corp. Billing Practices Litig., 93 F. Supp. 2d 876 (M.D. Tenn.
_________________________________________________________________
12. In several cases, courts have analogized complex litigation cases to
actions in rem. As one court reasoned, "the district court had before it
a class action proceeding so far advanced that it was the virtual
equivalent of a res over which the district judge required full control."

-- 15 of 24 --

Baldwin-United, 770 F.2d at 337; see also Wesch, 6 F.3d at 1470; Battle
877 F.2d at 882 ("[I]t makes sense to consider this case, involving years
of litigation and mountains of paperwork, as similar to a res to be
administered."). The in rem analogy may help to bring into focus what
makes these cases stand apart. In cases in rem,"the jurisdiction over
the same res necessarily impairs, and may defeat, the jurisdiction of the
federal court already attached." Kline, 260 U.S. at 229. Similarly, where
complex cases are sufficiently developed, mere exercise of parallel
jurisdiction by the state court may present enough of a threat to the
jurisdiction of the federal court to justify issuance of an injunction. See
Baldwin-United, 770 F.2d at 337 (noting such cases, like cases in rem,
are ones in which "it is intolerable to have conflicting orders from
different courts") (quoting 17 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure , S 4225, at 105 n.8
(Supp. 1985)). What is ultimately important, in any event, is that in both
kinds of cases state actions over the same subject matter have the
potential to "so interfer[e] with a federal court’s consideration or
disposition of a case as to seriously impair the federal court’s flexibility
and authority to decide the case." Atl. Coast , 398 U.S. at 295.
19
2000); In re Lease Oil Antitrust Litig. (No. II) , 48 F. Supp. 2d
699, 704 (S.D. Tex. 1998); Harris v. Wells, 764 F. Supp.
743 (D. Conn. 1991); In re Asbestos Sch. Litig. , No. 83-
0268, 1991 WL 61156 (E.D. Pa. Apr. 16, 1991), aff ’d mem.,
950 F.2d 723 (3d Cir. 1991); In re Joint E. & S. Dist.
Asbestos Litig., 134 F.R.D. 32 (E.D.N.Y & S.D.N.Y 1990).
This is not to say that class actions are, by virtue of that
categorization alone, exempt from the general rule that in
personam cases must be permitted to proceed in parallel.
See In re Glenn W. Turner Enters. Litig., 521 F.2d 775, 780
(3d Cir. 1975). Federal courts ordinarily refrain from
enjoining a state action even where the state court is asked
to approve a settlement substantially similar to one the
federal court has already rejected. GM Trucks II , 134 F.3d
at 145. That a state court may resolve an issue first (which
may operate as res judicata), is not by itself a sufficient
threat to the federal court’s jurisdiction that justifies an
injunction, unless the proceedings in state courts threaten
to "frustrate proceedings and disrupt the orderly resolution
of the federal litigation." Winkler, 101 F.3d at 1202. Still,
while the potentially preclusive effects of the state action
may not themselves justify an injunction, they might do so
indirectly. If, for example, the possibility of an earlier state
court judgment is disruptive to settlement negotiations in
federal court, the existence of the state court action might
sufficiently interfere with the federal court’s flexibility to
justify an injunction.
The threat to the federal court’s jurisdiction posed by
parallel state actions is particularly significant where there
are conditional class certifications and impending
settlements in federal actions. Carlough, 10 F.3d at 203.
Many--though not all--of the cases permitting injunctions
in complex litigation cases involve injunctions issued as the
parties approached settlement. E.g., Carlough; Baldwin-
United, 770 F.2d at 337; Corrugated Container, 659 F.2d at

-- 16 of 24 --

1335; Asbestos Sch. Litig., 1991 WL 61156, at *3; Joint E.
& S. Dist. Asbestos Litig., 134 F.R.D. at 36-37. But see
Winkler, 101 F.3d at 1202 (protecting effect of discovery
ruling); Harris, 764 F. Supp. at 745-46 (same). Complex
cases in the later stages--where, for instance, settlement
negotiations are underway--embody an enormous amount
20
of time and expenditure of resources. It is in the nature of
complex litigation that the parties often seek complicated,
comprehensive settlements to resolve as many claims as
possible in one proceeding. These cases are especially
vulnerable to parallel state actions that may "frustrate the
district court’s efforts to craft a settlement in the multi-
district litigation before it," Carlough, 10 F.3d at 203
(quoting Baldwin-United, 770 F.2d at 337), thereby
destroying the ability to achieve the benefits of
consolidation. In complex cases where certification or
settlement has received conditional approval, or perhaps
even where settlement is pending, the challenges facing the
overseeing court are such that it is likely that almost any
parallel litigation in other fora presents a genuine threat to
the jurisdiction of the federal court. See id .
This case amply highlights these concerns. MDL 1203
represented the consolidation of over two thousand cases
that had been filed in or removed to federal court. The
Brown class finally certified comprised six million members.
The District Court entered well over one thousand orders in
the case. This massive consolidation enabled the possibility
of a global resolution that promised to minimize the various
difficulties associated with duplicative and competing
lawsuits. The central events in this dispute occurred after
two years of exhaustive work by the parties and the District
Court, and after a conditional class certification and
preliminary settlement had been negotiated and approved
by the District Court. There can be no doubt that keeping
this enormously complicated settlement process on track
required careful management by the District Court. Any
state court action that might interfere with the District
Court’s oversight of the settlement at that time, given the
careful balancing it embodied, was a serious threat to the
District Court’s ability to manage the final stages of this
complex litigation.13 Duplicative and competing actions were
_________________________________________________________________
13. Among other vulnerabilities, it is worth highlighting one example.
The settlement agreement in this case expressly permitted American
Home Products to terminate the settlement agreement, at its discretion,
based on the number of opt outs. That provision was, of course, created
with the complicated opt-out provisions crafted specifically for MDL 1203
in mind. External actions that would disturb that balance, by altering
the number of opt outs through a different mechanism, clearly would
substantially interfere with MDL 1203.
21

-- 17 of 24 --

substantially more likely to "frustrate proceedings and
disrupt the orderly resolution" of this dispute at the time
PTO 1227 was issued than they would be in ordinary
actions in personam. Winkler, 101 F.3d at 1202. This is
especially true where, as here, the litigants in state court
have the ability to tailor their state actions to the terms of
the pending federal settlement.
Determining the applicability of the Carlough rule also
requires assessment of the character of the state court
action, for we must assess the level of interference with the
federal action actually threatened by the state court
proceeding. In Carlough, our approval of the injunction was
supported by the direct threat to the federal action the state
court action represented. After the district court had
provisionally certified the Carlough class, and after a
preliminary settlement had been negotiated and presented
to the court, a parallel action was filed in West Virginia. As
here, the plaintiffs in that case--Gore v. Amchem Products,
Inc.--sought an order of the state court opting out the
members of the West Virginia class from the federal class.
10 F.3d at 196. They also sought a declaration that
Carlough would not be binding on the members of the West
Virginia class. Id. at 195-96.
We viewed the filing of the West Virginia action as an
intentional "preemptive strike" against the federal action.
Id. at 203. The purpose of the West Virginia filing was "to
challenge the propriety of the federal class action." Id. We
found "it difficult to imagine a more detrimental effect upon
the district court’s ability to effectuate the settlement of this
complex and far-reaching matter then would occur if the
West Virginia state court was permitted to make a
determination regarding the validity of the federal
settlement." Id. at 204.
Also significant in Carlough was the threat posed by the
attempt to secure a mass opt out. We noted that permitting
a state court to issue such an order "would be disruptive to
the district court’s ongoing settlement management and
would jeopardize the settlement’s fruition." Id. Additionally,
we noted the confusion that would likely result among West
Virginia residents as to their status in the "dueling
lawsuits." Id. All of this amounted to direct interference
22
with the district court’s ability to manage the federal action
effectively.
The interference that would have been caused by the
Hidalgo County court’s order implicates the same concerns
that animated our decision in Carlough. The Texas court’s
order directly affected the identity of the parties to MDL
1203 and did so contrary to a previous District Court order.
It sought to "declare what the federal court should and
should not do with respect to the federal settlement." GM
Trucks II, 134 F.3d at 145. Furthermore, as in Carlough,
the Texas order would have created confusion among those

-- 18 of 24 --

who were members of both the federal and the state
classes. It would be difficult to discern which, if any, action
one was a party to, especially since the Texas order was
entered during, and shortly before the end of, the MDL
1203 opt-out period.
Attempting to distinguish their case from Carlough,
appellants contend their action cannot be characterized as
a preemptive strike against the federal action because the
Gonzalez action was filed before the creation of MDL 1203.
Cf. GM Trucks II, 134 F.3d at 145 (distinguishing the state
court action there at issue as not falling under this
characterization). Yet we do not believe a state court action
must necessarily be a preemptive strike before meriting the
Carlough exception. The test, as always, is whether the
state court proceeding "so interfer[es] with a federal court’s
consideration or disposition of a case as to seriously impair
the federal court’s flexibility and authority to decide that
case." Atl. Coast, 398 U.S. at 295. Of course, where a state
court proceeding amounts to an attack on a federal action,
we are more likely to find significant interference. We are
also less likely to find that comity demands deference to the
state court action. But there are any number of factors that
may play a role, and we do not understand either Carlough
or GM Trucks II to hold that this element is necessary, in all
cases, for application of the exception.
In any event, appellants’ attempt to distinguish Carlough
on this ground fails. While the relative timing of the filing
of the actions makes clear that Gonzalez was not filed as a
preemptive strike on MDL 1203, there is no doubt the
motion requesting the Texas court to opt Gonzalez class
23
members out of the Brown class was a preemptive strike.
The District Court found it necessary to enjoin only the part
of the action that directly--and by design--interfered with
the federal action.14
Because an injunction must be necessary in aid of
jurisdiction to fall under this application to the Anti-
Injunction Act, it is important to carefully tailor such
injunctions to meet the needs of the case. Notably, the relief
we approved in Carlough was substantially broader than
the relief granted by the District Court here. The federal
order in Carlough enjoined the West Virginia plaintiffs, as
well as their attorneys and representatives, from pursuing
the Gore action or initiating similar litigation in any other
forum. 10 F.3d at 196. The injunction in Carlough
effectively stayed the entire parallel state action, not only
the attempted opt out, or other portions directed squarely
at the federal action. Here, by contrast, the District Court’s
order enjoined only the pursuit of the attempted mass opt
out--the part of Gonzalez that unquestionably interfered
with the management of MDL 1203. It did not prevent the
Gonzalez plaintiffs from individually opting out.
Furthermore, the injunction was not directed at a
proceeding in which plaintiffs had merely requested relief

-- 19 of 24 --

that threatened to interfere with the federal action, it was
directed at a proceeding in which the state court had
actually granted such a request, making the interference
substantially more manifest. Under these circumstances,
we find the District Court’s injunction to be well within its
"sound discretion." Carlough, 10 F.3d at 204.
The propriety of an injunction directed at the Texas order
is also consistent with considerations of federalism and
comity. The Texas plaintiffs who wished to opt out of the
Brown class were given an adequate opportunity to
_________________________________________________________________
14. Even if the District Court had, as in Carlough, enjoined the state
court action in toto, it is far from clear that the fact that Gonzalez was
filed before the creation of MDL 1203 would be dispositive. It is
conceivable that an earlier filed state court action might present just as
great an interference with the federal proceeding as a later filed state
action. While the prior filing of a state action will generally be a factor,
and may, in certain circumstances, be dispositive, there is no apparent
value in adopting a rigid rule to that effect.
24
individually opt out of the federal action, a factor we found
significant in Carlough. 10 F.3d at 203-04. As such, Texas
residents retained the option to commence lawsuits in the
forum of their choice. Id. at 203. Furthermore, the
injunction only prevented application of a particular order
that was directed squarely at the federal action. Cf.
Baldwin-United, 770 F.2d at 337 ("To the extent that the
impending state court suits were vexatious and harassing,
our interest in preserving federalism and comity with the
state courts is not significantly disturbed by the issuance of
injunctive relief."). It did not so much interfere with the
state court proceeding as prevent state court interference
with the federal proceeding. Failing to act on the Hidalgo
County order threatened to "create the very ‘needless
friction between state and federal courts’ which the Anti-
Injunction Act was designed to prevent." Winkler, 101 F.3d
at 1203 (quoting Okla. Packing Co., 309 U.S. at 9). "While
the Anti-Injunction Act is designed to avoid disharmony
between federal and state systems, the exception inS 2283
reflects congressional recognition that injunctions may
sometimes be necessary in order to avoid that disharmony."
Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634,
639 (2d Cir. 1987).
The District Court’s order clearly falls under the
"necessary in aid of its jurisdiction" exception to the Anti-
Injunction Act. The complexity of this multidistrict class
action in its mature stages--with a provisionally certified
class and preliminarily approved settlement--entailed that
the District Court required flexibility to bring the case to
judgment. The nature of the Texas order was such that the
required flexibility and eventual resolution were directly
threatened. Finally, the principle embodied in the Anti-
Injunction Act that federal courts maintain respect for state
court proceedings is not undermined by the issuance of the

-- 20 of 24 --

injunction.
Our holding that PTO 1227 was necessary in aid of the
District Court’s jurisdiction for purposes of the Anti-
Injunction Act necessarily implies it was authorized under
the All Writs Act as well. For the All Writs Act grants federal
courts the authority to issue all writs "necessary or
appropriate in aid" of a court’s jurisdiction. 28 U.S.C.
25
S 1651(a). Insofar as it also permits writs"appropriate in
aid" of jurisdiction, the court’s authority to issue writs is, if
anything, broader than the exception contained in the Anti-
Injunction Act. But since "[t]he parallel‘necessary in aid of
jurisdiction’ language is construed similarly in both the All-
Writs Act and the Anti-Injunction Act," a finding that an
injunction is "necessary in aid" of jurisdiction for purposes
of one these statutes implies its necessity for purposes of
the other. Prudential, 261 F.3d at 365; Carlough, 10 F.3d at
201-02 n.9. Accordingly, the District Court was empowered
to issue PTO 1227 under the All Writs Act, and was not
prevented from doing so by the Anti-Injunction Act.
b. Full Faith and Credit Act.
As noted, the Hidalgo County court order opting out
Texas class members supported a finding that its action
sufficiently interfered with MDL 1203 to justify application
of an exception to the Anti-Injunction Act. But appellants
contend the Texas order invoked the protections of the Full
Faith and Credit Act, 28 U.S.C. S 1738. Once issued, they
argue, the order was entitled to full faith and credit,
foreclosing the District Court’s authority to issue a contrary
order, even if permitted under the Anti-Injunction Act.
The Full Faith and Credit Act provides, "The . . . judicial
proceedings of any court of any . . . State . . . shall have the
same full faith and credit in every court within the United
States . . . as they have by law or usage in the courts of
such State . . . from which they are taken." 28 U.S.C.
S 1738.
Where applicable, the Act "directs all courts to treat a
state court judgment with the same respect that it would
receive in the courts of the rendering State." Matsushita
Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996). Under
Texas law, "[c]ollateral estoppel will bar relitigation of an
issue if the facts sought to be litigated in the first action
were fully and fairly litigated in the prior action, those facts
were essential to the judgment in the first action, and the
parties were cast as adversaries in the first action."
Texacadian Energy, Inc. v. Lone Star Energy Storage, Inc.,
829 S.W.2d 369, 373 (Tex. App.-Corpus Christi 1992). But
26
"[i]nterlocutory orders on matters that are simply collateral

-- 21 of 24 --

or incidental to the main suit do not operate as res judicata
or collateral estoppel." Id. "The trial court . . . retains
continuing control over interlocutory orders and has the
power to set those orders aside any time before a final
judgment is entered." Fruehauf Corp. v. Carrillo, 848 S.W.2d
83, 84 (Tex. 1993).
The Texas order was "collateral or incidental to the main
suit." "An order or judgment that is merely a ruling on a
technical or procedural aspect of a case is not res judicata."
Starnes v. Holloway, 779 S.W.2d 86, 93 (Tex. App.-Dallas
1989). The Texas court’s order was a procedural one that
had no direct effect on the substance of the Gonzalez
action. Cf. Bally Total Fitness Corp. v. Jackson , 53 S.W.3d
352 (Tex. 2001) (order affecting likelihood of opt outs
interlocutory and therefore not appealable). Accordingly, it
was not entitled to preclusive effect under the Full Faith
and Credit Act.
c. The Rooker-Feldman Doctrine.
Appellants claim PTO 1227 exceeded the District Court’s
authority under the related Rooker-Feldman doctrine, which
prohibits review of state court decisions by federal courts
other than the United States Supreme Court. D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923). According to the Gonzalez
plaintiffs, the District Court did so in declaring the Texas
order "null and void and without effect."
Under the Rooker-Feldman doctrine, inferior federal
courts lack subject matter jurisdiction to review, directly or
indirectly, state court adjudications. Rooker , 263 U.S. at
416. Review of such adjudications must be pursued in the
state appellate system, and, if necessary, by way of review
of the state’s highest court in the United States Supreme
Court.
In most cases, where consideration of an issue is
precluded under the Rooker-Feldman doctrine, the issue
will also be res judicata, and therefore precluded from
consideration under the Full Faith and Credit Clause. And
conversely, an issue that is res judicata will ordinarily be
27
subject to the Rooker-Feldman doctrine’s prohibition. The
Rooker-Feldman doctrine differs from ordinary preclusion,
however, in that it is jurisdictional.15
We have ordinarily applied the doctrine to prevent review
of final decisions of state courts. See GM Trucks II, 134
F.3d at 143; FOCUS v. Allegheny County Court of Common
Pleas, 75 F.3d 834, 840 (3d Cir. 1996). In Port Authority
Police Benevolent Association v. Port Authority Police
Department, 973 F.2d 169 (3d Cir. 1992), however, we
found the doctrine precluded review of a preliminary
injunction issued by a state court. Id. at 178 (finding the
doctrine applicable because "the preliminary injunction

-- 22 of 24 --

issued by the New York trial court . . . resolved, at least for
the moment, the dispute between the parties which forms
the basis of the federal complaint at issue in this case"). We
need not decide here the extent to which the doctrine is to
apply to other kinds of interlocutory orders--and, in
particular, procedural ones--because we believe, in any
event, the District Court’s order did not constitute"review"
for purposes of the Rooker-Feldman doctrine.
American Home Products argues--correctly in our view--
that the District Court did not review the Texas opt-out
order, it simply applied its indisputable authority to
determine the opt-out rules for the plaintiff class before it,
and to determine who had properly opted out under those
rules. Making determinations concerning the identity of the
parties to a case before it is at the core of the District
Court’s authority. The Texas opt-out order purported to
make a determination with respect to the parties to the
federal action. It was, in other words, effectively an attempt
_________________________________________________________________
15. The substantial overlap of the two doctrines has led some
commentators to call into question the utility of recognizing this
additional, jurisdictional bar to consideration of state judgments. 18
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure S 4469.1, at 657-58 (Supp. 2001) ("All of the
desirable results achieved by the jurisdiction theory could be achieved by
supplementing preclusion theory with familiar theories of abstention,
comity, and equitable restraint."); see also Thomas D. Rowe, Jr., Rooker-
Feldman: Worth Only the Powder to Blow It Up? , 74 Notre Dame L. Rev.
1081 (1999).
28
to make an interlocutory procedural ruling in a case
pending before another court.
As noted, the manifest impropriety of the Texas order
does not justify its review by the District Court. Errors are
to be corrected by appeal through the state system. But
regardless of whether the Texas order was entered in error,
there was a significant question of what effect that order
would have on MDL 1203. The District Court had earlier
determined that lawyers could not effect mass opt outs of
all of their clients with the filing of a single notice, holding
that "[o]pting out is an individual right and it must be
exercised individually." Just as it was clearly within the
court’s discretion to turn away attempts by lawyers to opt
out class members en masse, it was within the court’s
authority to determine the effect of the Texas opt-out order
within MDL 1203.
We have said that "Rooker-Feldman precludes a federal
action if the relief requested in the federal action would
effectively reverse the state decision or void its ruling."
FOCUS, 75 F.3d at 840 (quoting Charchenko v. City of
Stillwater, 47 F.3d 981, 983 (8th Cir. 1995)). PTO 1227 had
the effect of voiding the Texas court’s order, but only
insofar as it had an effect on the management of MDL 1203

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--an area in which the district courts’ discretion must be
preserved. The Rooker-Feldman doctrine does not work to
defeat a district court’s authority over the management of
its own case. Because PTO 1227 did not reach beyond that
authority, it did not run afoul of the Rooker-Feldman
doctrine.
Appellants’ approach would permit a state court to issue
orders directed squarely at the inner workings of federal
cases, subject only to reversal by superior state courts and
the United States Supreme Court. This approach would
undermine the federalism values the doctrine seeks to
protect. We have recognized the doctrine seeks to preserve
finality and respect for state courts. Guarino v. Larsen, 11
F.3d 1151, 1157 (3d Cir. 1993). But permitting a state
court to interfere with a federal court’s management of its
cases would serve neither purpose and would facilitate the
kind of interference between state and federal courts the
doctrine is meant to avoid. Accordingly, we hold that where,
29
as here, a federal court’s proper exercise of its jurisdiction
to manage its cases has the secondary effect of voiding a
state court determination, it is not a review of that order for
purposes of the Rooker-Feldman doctrine.
V.
For the foregoing reasons, we will affirm the order issued
by the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
30

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