Opinion
No. 313.
December 5, 1977.
OPINION AND ORDER
This litigation consists of two actions pending in two federal districts: one in the Southern District of Texas and one in the Northern District of Texas.
The plaintiff in the Southern District of Texas action is a Spanish-surnamed individual employed by Texas Instruments Incorporated (TI) at its manufacturing facility in Stafford, Texas, a suburb of Houston. TI is the sole defendant in this action. Plaintiff alleges that TI has engaged in a pattern and practice of employment discrimination on the basis of race and national origin. This action was commenced as a class action under Rule 23(b)(2), Fed.R.Civ.P., on behalf of all Blacks and Spanish-surnamed Americans who are employed by TI at any of its facilities in the United States. On October 13, 1977, however, leave to proceed as a class action was denied, and the action is therefore proceeding as an individual action.
The Equal Employment Opportunity Commission (EEOC) is the plaintiff in the Northern District of Texas action. The EEOC alleges, inter alia, that defendant TI committed the following forms of employment discrimination at its Dallas and Austin, Texas facilities: (1) discrimination on the basis of race against Blacks through hiring, promotion and discharge; (2) discrimination on the basis of sex against males in hiring and in the maintenance of sex-segregated job classifications; (3) promotion discrimination on the basis of national origin against Spanish-surnamed Americans; and (4) discrimination against females with respect to maternity leave and benefits policy.
The EEOC has moved for leave to file a supplemental complaint which would expand the issues in this action to include the following allegations as to TI's Dallas and Austin sites: (1) discrimination on the basis of race against Blacks through training, recruitment and placement; (2) discrimination on the basis of sex against females through promotion, training, recruitment and placement; and (3) discrimination on the basis of national origin against Spanish-surnamed Americans through hiring, training, recruitment and placement. The EEOC's supplemental complaint also seeks to raise a Texas-wide claim on the issue of TI's maternity leave and benefits policy. The motion for leave to file this supplemental complaint has been briefed, argued and submitted for decision.
Plaintiff in the Southern District of Texas action moves the Panel for an order pursuant to 28 U.S.C. § 1407 transferring that action to the Northern District of Texas as for coordinated or consolidated pretrial proceedings with the action pending there. TI opposes transfer.
We conclude that transfer under Section 1407 would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of this litigation and, accordingly, we deny the motion to transfer.
Movant argues that these actions share numerous questions of fact concerning widespread employment discrimination by TI. Thus, movant asserts, absent Section 1407 proceedings, there is a danger of duplicative discovery and conflicting rulings on pretrial matters.
We find these arguments unpersuasive. Although the scope of the complaint in the Southern District of Texas action is somewhat unclear because of the recent decision concerning the class action allegations in that complaint, we recognize that the two actions before us may at least share some questions of fact concerning TI's alleged employment discrimination on the basis of national origin against Spanish-surnamed Americans. Nevertheless, only two actions are involved here and we are not convinced that these common factual questions are sufficiently complex or that the accompanying discovery on those issues will be so time consuming as to justify transfer under Section 1407. See In re Southern Railway Employment Practices Litigation, 441 F. Supp. 926 (Jud.Pan.Mult.Lit., filed December 1, 1977); In re Scotch Whiskey, 299 F. Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969).
We observe that suitable alternatives to Section 1407 transfer are available to all parties in this litigation, should the need for coordination between the two actions arise. Concerning the possibility of duplicative discovery, for example, notices for a particular deposition could be filed in both actions, thereby making the deposition applicable in each action; the parties could seek to agree upon a stipulation that all discovery relevant to both actions may be used in both actions; and any party could seek orders from the two courts directing the parties to coordinate their pretrial efforts. See In re Commercial Lighting Products, Inc. Contract Litigation, 415 F. Supp. 392, 393 (Jud.Pan.Mult.Lit. 1976). See also Manual for Complex Litigation, Part I, § 3.11 (rev.ed. 1977). In addition, consultation and cooperation between the two concerned district courts, if deemed appropriate by those courts, coupled with the cooperation of the parties, would be sufficient to minimize the possibility of conflicting pretrial rulings. See In re Southern Railway Employment Practices Litigation, supra, 441 F. Supp. at 926.
IT IS THEREFORE ORDERED that the motion to transfer the actions listed on the following Schedule A be, and the same hereby is, DENIED.
SCHEDULE A Northern District of Texas Civil Action No.
Equal Employment Opportunity Commission CA3-75-1093-G v. Texas Instruments, Inc.Southern District of Texas
Augustine V. Jalomo v. Texas Instruments, 76-11-1119 Inc.