Opinion
No. 13.
January 14, 1969.
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.
OPINION AND ORDER
On July 19, 1967, a Boeing 727 being operated by Piedmont Aviation, Inc., collided in mid-air with a private aircraft near Hendersonville, North Carolina resulting in the death of 82 persons. Litigation has been commenced in various federal and state courts on behalf of the estates of many of the persons who died in this catastrophe. On November 19, 1968, the defendant Lanseair, Inc., filed a motion with this Panel requesting the transfer of all pending federal actions to the United States District Court for the Western District of North Carolina for coordinated or consolidated pretrial proceedings. At that time, there were 61 cases pending in the Western District of North Carolina, two pending in the Western District of Missouri and one case, involving claims by the estates of thirteen decedents, pending in the Southern District of New York. (See Schedule A) Oral argument on this motion was held in Chicago, Illinois on December 6, 1968.
At the hearing, we were furnished with an affidavit which relates that thirty-five related cases are pending in state courts in North Carolina and Illinois.
Prior to this hearing, Judge Inzer B. Wyatt of the Southern District of New York, transferred the case pending in that court to the Western District of North Carolina for all purposes pursuant to 28 U.S.C. § 1404(a). A motion to transfer the two Western District of Missouri cases under Section 1404(a) was also filed in that court but disposition of it has been deferred pending disposition of the motion before us.
All parties were represented at the December 6th hearing and although all favored consolidated or coordinated pretrial proceedings in the Western District of North Carolina, counsel disagreed as to the proper action to be taken by us and the timing of such action.
We note that the federal court and the North Carolina state court are cooperating with regard to discovery. We think such cooperation between state and federal courts promotes the just and efficient conduct of such litigation and is to be highly commended.
Counsel representing the United States in the two cases pending in Missouri urged us to take no action on the Section 1407 motion until the motion to transfer those two cases to the Western District of North Carolina for all purposes pursuant to Section 1404(a) is ruled on by Judge Collinson. Counsel for the plaintiffs requested an immediate Section 1407 transfer and point out quite correctly that Judge Collinson may consider transfer of the cases for trial under Section 1404(a) following completion of pretrial proceedings. It is also urged that these two cases are somewhat different from the other actions involved in this litigation as they have been brought to the representatives of the estates of the two passengers of the private plane. We do not decide whether this difference will make a subsequent consolidation for trial inappropriate but it is uncontroverted that transfer for coordinated or consolidated pretrial proceeding will be for the convenience of parties and witnesses and will promote the just and efficient conduct of these actions. We see no reason to delay such a transfer.
Counsel for the plaintiffs in the New York case favored transfer of that case for coordinated or consolidated pretrial proceedings under Section 1407, but strongly opposed the Section 1404(a) transfer and have announced their intention to seek review of Judge Wyatt's order by an appropriate extraordinary writ. They urged us to transfer that case pursuant to Section 1407 so that consolidated pretrial proceedings may proceed while they seek review of the Section 1404(a) transfer.
Assuming, without deciding, that we still have jurisdiction to transfer the New York case, we decline to do so for action by the Panel at this time could disrupt the review proceeding now in process. Cf. In re Plumbing Fixtures Cases, 298 F. Supp. 484 (Judicial Panel on Multidistrict Litigation 1968). If the Section 1404(a) transfer order is set aside, the parties may request a transfer under Section 1407 and in the meantime they may make arrangements to participate in the discovery taking place in North Carolina.
Counsel for the defendants argue that this case is no longer pending in the Southern District of New York and thus may not be transferred under Section 1407.
Counsel for the plaintiffs filed an affidavit with the Panel agreeing to be bound by the North Carolina discovery proceedings. Counsel representing the defendant at the December 6, 1968 hearing also agreed to participate in and be bound by the North Carolina discovery proceedings.
It is therefore ordered that the two cases listed on the attached Schedule A now pending in the Western District of Missouri be and they are hereby transferred for coordinated or consolidated pretrial proceedings to the Western District of North Carolina and with the consent of the court heretofore filed with the Clerk of the Panel, assigned to the Honorable Woodrow Wilson Jones.
SCHEDULE A Southern District of New York
1. George E. Farrell v. Piedmont Aviation, Civil Action Inc., et al. No. 2538
Western District of Missouri
2. Marian J. Reynolds v. United States of Civil Action America No. 2434
3. Jacquelyn F. Anderson v. United States Civil Action of America No. 2435
Western District of North Carolina
4. Jo K. Krauel v. Piedmont Aviation, Inc., Civil Action et al. and United States of America No. 2736
5. Leonard G. Wright v. Piedmont Aviation, Civil Action Inc., et al. No. 2754
6. Mrs. Mabel F. Vaughn v. Piedmont Civil Action Aviation, Inc., et al. No. 2789
7. Mrs. Doris Lavner Feingerts v. Piedmont Civil Action Aviation, Inc., et al. No. 2790
8. Mrs. Virginia Lee Lambert v. Piedmont Civil Action Aviation, Inc., et al. No. 2793
9. Mrs. Yvonne Malee Gilmore v. Piedmont Civil Action Aviation, Inc., et al. No. 2807
10. Mrs. Catherine Segars v. Piedmont Civil Action Aviation, Inc., et al. No. 2822
11. Leonard G. Wright v. United States of Civil Action America No. 2825
12. Jefferson H. Bruton v. United States of Civil Action America No. 2836
13. Mrs. Doris Lavner Feingerts v. United Civil Action States of America No. 2839
14. Mrs. Evelyn H. Lewis v. Piedmont Aviation Civil Action Inc., et al. No. 2846
15. Calvin R. Cox v. United States of America Civil Action No. 2875
16. J. Wallace Paletou v. Piedmont Aviation Civil Action Inc., et al. No. 2880
17. Mrs. Yvonne Malee Gilmore v. United Civil Action States of America No. 2886
18. June McKelvey Salley v. Lanseair, Inc., Civil Action et al. No. 2887
19. June McKelvey Salley v. United States of Civil Action America No. 2888
20. Mattie Zulema Laughlin v. Piedmont Civil Action Aviation, Inc., et al. No. 2889
21. Jefferson H. Bruton v. Piedmont Aviation Civil Action Inc., et al. No. 2890
22. Jefferson H. Bruton v. United States of Civil Action America No. 2898
23. Jefferson H. Bruton v. United States of Civil Action America No. 2899
24. Jefferson H. Bruton v. United States of Civil Action America No. 2900
25. Jefferson H. Bruton v. United States of Civil Action America No. 2901
26. Paul Clarence Freeman, Sr. v. United Civil Action States of America No. 2903
27. J. Wallace Paletou v. United States of Civil Action America No. 2904
28. F.F. McNaughton v. United States of Civil Action America No. 2905
29. Jefferson H. Bruton v. United States of Civil Action America No. 2906
30. Mrs. Evelyn H. Lewis v. United States of Civil Action America No. 2908
31. Jefferson H. Bruton v. United States of Civil Action America No. 2909
32. Jefferson H. Bruton v. United States of Civil Action America No. 2910
33. Jefferson H. Bruton v. United States of Civil Action America No. 2911
34. Jefferson H. Bruton v. United States of Civil Action America No. 2912
35. Mrs. Catherine Segars v. United States of Civil Action America No. 2913
36. Jefferson H. Bruton v. United States of Civil Action America No. 2914
37. Jefferson H. Bruton v. United States of Civil Action America No. 2916
38. Henry B. Sinclair v. United States of Civil Action America No. 2920
39. Henry B. Sinclair v. United States of Civil Action America No. 2921
40. Henry B. Sinclair v. United States of Civil Action America No. 2922
41. Henry B. Sinclair v. United States of Civil Action America No. 2923
42. Jefferson H. Bruton v. United States of Civil Action America No. 2925
43. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2829
44. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2833
45. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2834
46. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2837
47. Jefferson H. Bruton v. United States of Americaand Piedmont Aviation Inc., et Civil Action al. No. 2838
48. Mrs. Virginia Lee Lambert v. United States of America and Piedmont Civil Action Aviation Inc., et al. No. 2842
49. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2851
50. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2854
51. Mrs. Mabel F. Vaughn v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2855
52. Paul Clarence Freeman, Sr. v. Piedmont Aviation Inc., et al. and United Civil Action States of America No. 2861
53. F.F. McNaughton v. Piedmont Aviation Inc., et al. and United States of Civil Action America No. 2870
54. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., Civil Action et al. No. 2915
55. Hattie Hardee v. Piedmont Aviation Inc., Civil Action et al. No. 2929
56. Jefferson H. Bruton v. United States of Civil Action America No. 2940
57. C.R. Rouse v. United States of America Civil Action No. 2944
58. C.R. Rouse v. United States of America Civil Action No. 2945
59. Donald A. Turgeon v. Piedmont Aviation Inc., et al. and United States of Civil Action America No. 2948
60. Donald A. Turgeon v. United States of Civil Action America No. 2949
61. Jefferson H. Bruton v. United States of Civil Action America No. 2950
62. Mrs. Margarita F. Jimenez v. Piedmont Aviation Inc., et al. and United Civil Action States of America No. 2952
63. Winifred M. Stephens v. Piedmont Aviation Inc., et al. and United States of Civil Action America No. 2959
64. Mrs. Margarita F. Jimenez v. United Civil Action States of America No. 2967