Opinion
No. 221.
November 5, 1975.
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, and STANLEY A. WEIGEL, Judges of the Panel.
Judge Murrah was unable to attend the Panel hearing and, therefore, took no part in the consideration or decision of this matter.
OPINION AND ORDER
A Lockheed C-5A aircraft, owned and operated by the United States Air Force, crashed shortly after takeoff from the Saigon Airport in the closing days of the Vietnam War. The plane, carrying over 300 persons, was evacuating Vietnamese orphans in the so-called "Baby-Lift." One hundred fifty-five people died as a result of the crash.
Five actions arising out of this tragedy are thus far pending in five different districts: one each in the District of the District of Columbia, the Southern District of New York, the Central District of California and the Southern and Northern Districts of Illinois. Lockheed, the sole defendant to date in each action, moves the Panel for an order transferring this litigation to the Northern District of Georgia for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. All responding parties, with one exception, agree that transfer under Section 1407 is appropriate, but they suggest transferee courts other than the Northern District of Georgia. Plaintiffs in the District of Columbia action favor transfer there while plaintiffs in the Southern and Northern Illinois actions favor transfer to their locale. Plaintiffs in the Northern Illinois action alternatively favor transfer to the Central District of California, as do plaintiffs in the action pending in that district in the event their prematurity argument is rejected.
Plaintiffs in the California action have argued that a transfer at this time would be premature since only a minimal number of actions have yet been filed with many more filings expected. We disagree. Although additional actions will likely be filed in this litigation, there has been sufficient development so that an informed decision on the propriety of transfer and the appropriate transferee court can be made. And, we note, there are well established procedures by which additional "tag-along" actions can be quickly considered for transfer under Section 1407. See Rules 9 and 10, R.P.J.P.M.L., 65 F.R.D. 253, 259-60 (1975).
See footnote 1, supra.
These actions clearly involve common questions of fact and we find that their transfer to the District of the District of Columbia for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
As is usually the case in multidistrict air disaster litigation, the only real issue in dispute among the parties is the location of the appropriate transferee forum. See, e.g., In re Air Crash Disaster at Florida Everglades on December 29, 1972, 360 F. Supp. 1394 (Jud.Pan.Mult.Lit. 1973). Lockheed suggests that the Northern District of Georgia is the appropriate transferee court because the C-5A aircraft in question was manufactured at its plant in Marietta, Georgia, and the discovery taken of it will therefore occur in that district.
Unlike air disaster litigation involving crashes occurring within the United States, which we have generally assigned to the district of the situs of the crash, there are as yet no general rules that govern our selection of a transferee court in litigations concerning overseas air disasters. We have, however, previously rejected requests to transfer such litigations to the particular district wherein the plane involved was manufactured. See, e.g., In re Air Crash Disaster at Pago Pago, American Samoa, on January 30, 1974, 383 F. Supp. 501 (Jud.Pan.Mult.Lit. 1974); In re Air Crash Disaster Near Papeete, Tahiti, on July 22, 1973, 397 F. Supp. 886 (Jud.Pan.Mult.Lit. 1975). And we are, as we noted in the Papeete decision, extremely reluctant to select a district, like the Northern District of Georgia in the instant litigation, in which no related action is pending. Accordingly, a transfer to the Northern District of Georgia will not be ordered.
See, e.g., In re Air Crash Disaster Near Upperville, Virginia, on December 1, 1974, 393 F. Supp. 1089 (Jud.Pan.Mult.Lit. 1975); In re Delta Airlines Crash at Boston, Massachusetts, on July 31, 1973, 373 F. Supp. 1406 (Jud.Pan.Mult.Lit. 1974).
The arguments on behalf of a transfer of this litigation to the Northern or Southern Districts of Illinois or the Central District of California are similarly unpersuasive. Other than the pendency of single actions in those districts involving few named plaintiffs, there is little that would commend them as appropriate transferee courts for this particular litigation.
The action pending in the District of the District of Columbia, on the other hand, involves the claims of the most significant number of plaintiffs. In addition to the six named plaintiffs, a group called Friends for All Children, Inc. (FFAC) has joined as plaintiff in that action. FFAC is the personal representative of 77 of the orphan decedents and has been appointed administrator of their estates. Thus, the claims of 83 of the 155 decedents are presently before the court in the District of Columbia. Moreover, the intervening political circumstances in Vietnam following the crash in question will likely complicate the discovery necessary in this litigation. The location, in and near the District of Columbia, of the Government agencies from whom discovery will accordingly be sought is an additional factor dictating the selection of the District of the District of Columbia as the appropriate transferee court.
It is therefore ordered that the actions listed on the following Schedule A and pending in districts other than the District of the District of Columbia be, and the same hereby are, transferred to the District of the District of Columbia and, with the consent of that court, assigned to the Honorable William B. Jones for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the action pending in that district and listed on Schedule A.
SCHEDULE A
Southern District of Illinois
Marcella P. Kaufman, etc. v. Civil Action Lockheed Aircraft Corp. No. S-Civ-75-9
Northern District of Illinois
American National Bank Civil Action Trust Company of Chicago, No. 75-C-2180 etc. v. Lockheed Aircraft Corp.
Southern District of New York
Patricia Dillenseger, etc. v. Civil Action Lockheed Aircraft Corp. No. 75 Civ. 3092-CHT
Central District of California
Garnett E. Bell, et al. v. Civil Action Lockheed Aircraft Corp., et al. No. CV75-2289-JWC
District of the District of Columbia
Richard H. Jones, etc. v. Civil Action Lockheed Aircraft Corp. No. 75-0874