Summary
noting that "it would be improper to permit a transferor judge to overturn orders of a transferee judge even though error in the latter might result in reversal of the final judgment of the transferor court."
Summary of this case from Reorganized FLI, Inc. v. Williams Cos.Opinion
1978
THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, TRANSFEROR COURTS AND TRANSFEREE COURTS by Stanley A. Weigel
Paper presented by Judge Weigel at a meeting of Transferee Judges held December 8, 1977 at San Diego, California. The author thanks the staff of the Panel and his law clerk, Mary C. Castle, for their assistance.
Judge, United States District Court for the Northern District of California; Member Judicial Panel on Multidistrict Litigation.
This paper considers three sets of interrelated powers involved in transfers of civil actions under the provisions of 28 U.S.C. § 1407. The powers are those of the Judicial Panel on Multidistrict Litigation, of the courts to which the Panel effects transfer (transferee courts) and of those from which transfer is made (transferor courts). The emphasis will be on the broad powers of the transferee courts.
Section 1407 of Title 28 U.S.C. is a product of the successful operation of the Coordinating Committee for Multiple Litigation of the U.S. District Courts. That Committee was composed of nine federal judges who supervised nationwide discovery proceedings during the wave of electrical equipment antitrust cases in the early 1960's. It recommended a schedule of pretrial proceedings and uniform pretrial and discovery orders on common factual issues. It arranged for national depositions and established central document depositories. The Committee, enlisting the cooperation of the scores of district court judges and the hundreds of lawyers involved, brought about an unprecedented judicial economy in the handling of some 2,000 separate lawsuits.
H.R. Rep. No. 1130. 90th Cong., 2d Sess., reprinted in [1968] U.S. Code Cong. Admin. News pp. 1898, 1899.
Section 1407 eliminates the need to rely on cooperation as the means of coordinating or consolidating pretrial proceedings when "civil actions involving one or more common questions of fact are pending in different districts." The statute, providing for a Judicial Panel on Multidistrict Litigation, empowers that body to order transfer "to any district for coordinated or consolidated pretrial proceedings" upon the Panel's "determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions."
28 U.S.C. § 1407(a).
Antitrust enforcement actions commenced by the United States are exempt from transfer under Section 1407. 28 U.S.C. § 1407(g). Actions brought pursuant to the parens patriae provisions of the Antitrust Improvement Act of 1976 ( 15 U.S.C. § 15c et seq.) may be transferred by the Panel for trial as well as for pretrial. 28 U.S.C. § 1407(h). Actions for equitable relief arising under the securities laws in which the Securities Exchange Commission (SEC) is a plaintiff are also exempt from transfer under Section 1407 absent the consent of the SEC. 15 U.S.C. § 78u(g).
28 U.S.C. § 1407(d) (1976).
28 U.S.C. § 1407(a) (1976).
Under the statute, transfer proceedings can be initiated by motion filed with the Panel or by the Panel itself. Parties in all actions for which such proceedings are contemplated are given notice of a hearing to determine whether transfer should be ordered. The Panel's order of transfer is reviewable only by extraordinary writ, issued by a court of appeals pursuant to 28 U.S.C. §§ 1407(e) and 1651. Under authority granted by Section 1407, the Panel has prescribed rules of procedure which set forth the mechanics of transfer.
65 F.R.D. 253-266 (1975).
A case can be transferred under Section 1407 only if the prospective transferor court has subject matter jurisdiction. Lack of personal jurisdiction, however, is not grounds for opposing transfer because any party contesting personal jurisdiction can make the appropriate motion before the transferee court.
Bancohio Corp. v. Fox, 516 F.2d 29, 32 (6th Cir. 1975).
In re Gypsum Wallboard, 302 F.Supp. 794 (Jud.Pan.Mult.Lit. 1969); In re Library Editions of Children's Books, 299 F.Supp. 1139, 1142 (Jud.Pan.Mult.Lit. 1969). See nn. 32-34 58 and accompanying text, infra.
A transfer under Section 1407 becomes effective upon the filing of the Panel's order of transfer with the clerk in the transferee district. Thereafter it is generally accepted that the jurisdiction of the transferor court ceases and the transferee court assumes complete pretrial jurisdiction. The mere pendency of a motion or of an order to show cause before the Panel in no way limits the jurisdiction of the court in which the action is pending. Nor does such pendency before the Panel "affect or suspend orders and pretrial proceedings" in that court. All discovery in progress and all orders of the transferor court remain in effect after transfer unless and until modified by the transferee judge who may modify, expand, or vacate prior orders of the transferor court.
28 U.S.C. § 1407(c) (1976).
The Panel, as a matter of practice, simultaneously mails copies of its transfer order to all judges assigned to actions in the litigation and to the clerks in all involved districts, including the transferee district. Upon receipt of the Panel's order, the transferee court clerk sends certified copies of that order to the transferor courts, 28 U.S.C. § 1407(c), and the entire files are then transferred to the transferee court, Rule 17, R.P.J.P.M.D.L., 65 F.R.D. 253, 265-66 (1975).
See In re Plumbing Fixture Cases, 298 F.Supp. 484, 495-96 (Jud;Pan.Mult.Lit. 1968); City of St. Paul v. Harper Row Publishers, Inc., 292 F.Supp. 837 (D.Minn. 1968).
In Meat Price Investigators Assn. v. Spencer Foods, Inc., No. 77-1605, 572 F.2d 163 (8th Cir., filed Sept. 19, 1977), it was decided to retain jurisdiction over an appeal from an order that had been entered in an action by a transferor court after transfer of that action by the Panel. The Eighth Circuit reasoned that the order appealed from involved the allegedly unethical conduct of attorneys in the eighth circuit, a matter of considerable concern to that court, and that hearing of the appeal would not materially impede progress of the pretrial proceedings in the transferee court.
See In re Four Seasons Securities Laws Litigation, 63 F.R.D. 115, 122 (W.D.Okl. 1974) (party desiring to file amended com-plaint after transfer of an action under Section 1407 must file complaint in trans-feree court, not in transferor court); In re Plumbing Fixture Cases, 298 F.Supp. 484, 495-96 (Jud.Pan.Mult.Lit. 1968).
Rule 16, R.P.J.P.M.D.L., 65 F.R.D. 253, 264-65 (1975), reprinted in 28 U.S.C. fol. § 1407 (1976); A. O. Smith v. Federal Trade Commission, 417 F.Supp. 1068, 1090 (D.Del. 1976); Air Crash Disaster at Paris, France on March 3, 1974, 376 F.Supp. 887, 888 (Jud.Pan.Mult.Lit. 1974); General Tire Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112, 116 (D.C.N. Y. 1970). See Tennessee Valley Authority v. Westinghouse Electric Corp., 69 F.R.D. 5, 7 n. 2 (E.D.Tenn. 1975); Kaiser Industries Corp. v. Wheeling-Pittsburgh Steel Corp., 328 F.Supp. 365, 370 (D.Del. 1971); In re Frost Patent, 316 F.Supp. 977, 987 n. 2 (Jud.Pan.Mult.Lit. 1970); In re Four Seasons Securities Laws Litigation, 362 F.Supp. 574, 575 n. 2 (Jud.Pan.Mult.Lit. 1973). As a matter of individual practice, many district judges elect to suspend pretrial proceedings in cases in which a Panel transfer order is anticipated.
In re Master Key, 320 F.Supp. 1404, 1407 (Jud.Pan.Mult.Lit. 1971). See In re Penn Central Securities Litigation, 62 F.R.D. 181, 187 (E.D.Pa. 1974); In re Plumbing Fixture Cases, 298 F.Supp. 484, 496 (Jud.Pan.Mult.Lit. 1968).
E. g., In re Plumbing Fixture Cases, 298 F.Supp. 484, 489 (Jud.Pan.Mult.Lit. 1968).
There are no decisions dealing with the question as to whether a transferor judge may modify, expand or vacate prior orders of a transferee judge. Modifications or expansions to further the effectiveness of such orders would appear to be proper-perhaps necessary in some instances. However, it would be improper to permit a transferor judge to overturn orders of a transferee judge even though error in the latter might result in reversal of the final judgment of the transferor court. If transferor judges were permitted to upset rulings of transferee judges, the result would be an undermining of the purpose and usefulness of transfer under Section 1407 for coordinated or consolidated pretrial proceedings because those proceedings would then lack the finality (at the trial court level) requisite to the convenience of witnesses and parties and to efficient conduct of actions.
Since the transfer order does deprive the transferor court of jurisdiction, the Panel undertakes to avoid ordering transfer when important motions have been fully submitted and await decision by the prospective transferor court. The Panel often accomplishes that objective informally by a letter from the Chairman of the Panel informing each transferor judge of the prospective transfer. The letter also advises that, if requested, the Panel will defer transfer until the judge decides any matter fully submitted and ripe for decision. Occasionally, the Panel will enter an order deferring decision on the question of transfer until a matter so submitted is decided by the prospective transferor judge. Or the Panel may stay transfer pending such decision.
In re L. E. Lay Co. Antitrust Litigation, 391 F.Supp. 1054, 1056 (Jud.Pan. Mult.Lit. 1975); In re Professional Hockey Antitrust Litigation, 352 F.Supp. 1405, 1406 (Jud.Pan.Mult.Lit. 1973); In re Plumbing Fixture Cases, 298 F.Supp. 484, 496 (Jud.Pan.Mult.Lit. 1968).
See, e. g., In re Air Crash Disaster at John F. Kennedy International Airport, MDL-227 (J.P.M.D.L., filed July 20, 1977) (unpublished order deferring Panel decision on question of transfer of tag-along action until decision by transferor court on sub judice motion to remand that action to state court); In re Technitrol, Inc. Patent Litigation, MDL-186 (J.P.M.D.L., filed Dec. 2, 1974) (unpublished order deferring Panel decision on question of transfer until decision by district court on sub judice motion for summary judgment that might render question of transfer moot); In re Professional Hockey Antitrust Litigation, 352 F.Supp. 1405, 1406 (Jud.Pan.Mult.Lit. 1973); In re Kaehni Patent, 311 F.Supp. 1342, 1344 (Jud.Pan.Mult. Lit. 1970) (transfer order stayed pending decision of transferor court on motion to dismiss). Cf. In re Deering Mieliken Patent, 328 F.Supp. 504, 505-06 (Jud.Pan. Mult.Lit. 1970) (transfer under Section 1407 denied to allow decision by district judges on motions for transfer under 28 U.S.C. § 1404 that might render question of transfer under Section 1407 moot if decided favorably; some of the motions were sub judice while others were not yet fully submitted).
The Panel is authorized to separate any claim, cross-claim, counterclaim, or third-party claim from an action transferred under Section 1407 and to remand any such claim to the transferor district before remanding the remainder. This procedure has been used by the Panel to transfer claims in actions involving common questions of fact while simultaneously excluding the non-common claims from transfer. If there is ambiguity as to whether a particular claim involves common questions of fact, the Panel will order transfer and rely on the transferee judge's determination of commonality. If that judge concludes that a claim should not be included, he may then recommend that it be separated and remanded by the Panel.
28 U.S.C. § 1407(a) (1976).
See, e. g., In re Equity Funding Corp. of America Securities Litigation, 385 F.Supp. 1262, 1263 n. 2 (Jud.Pan.Mult.Lit. 1974); In re Boise Cascade Securities Litigation, 364 F.Supp. 459, 461 (Jud.Pan.Mult.Lit. 1973); In re Antibiotic Drugs, 309 F.Supp. 155, 156 (Jud.Pan.Mult.Lit. 1970). The Panel is not authorized to exclude specific issues from transfer. See In re Antibiotic Drugs. 299 F.Supp. 1403, 1405 (Jud.Pan.Mult.Lit. 1969); In re Plumbing Fixture Cases, 298 F.Supp. 484, 489-90 (Jud.Pan.Mult.Lit. 1968). See also In re Boise Cascade Securities Litigation, 364 F.Supp. 459, 461 (Jud. Pan.Mult.Lit. 1973).
See In re Westinghouse Electric Corporation Uranium Contracts Litigation, 405 F.Supp. 316, 318 (Jud.Pan.Mult.Lit. 1975); In re Midwest Milk Monopolization Litigation, 386 F.Supp. 1401, 1403 (Jud.Pan. Mult.Lit. 1975); In re Four Seasons Securities Laws Litigation, 361 F.Supp. 636, 638 (Jud.Pan.Mult.Lit. 1973); In re IBM, 314 F.Supp. 1253, 1254 (Jud.Pan.Mult.Lit. 1970).
See also nn. 64-67 and accompanying text, infra, concerning remand by the Panel of an action or claim at the suggestion of a transferee judge.
In determining choice of the transferee district, the Panel does not consider litigants' dissatisfaction with past or anticipated rulings of a prospective transferee judge. The Panel does not review decisions of the transferee court. Only the Court of Appeals for the transferee district has that authority.
See, e. g., In re Holiday Magic Securities Litigation, 433 F.Supp. 1125, 1126 (Jud.Pan.Mult.Lit. 1977); In re Molinaro/Catanzaro Patent Litigation, 402 F.Supp. 1404, 1406 (Jud.Pan.Mult.Lit. 1975); In re Glenn W. Turner Enterprises Litigation, 368 F.Supp. 805, 806 (Jud.Pan. Mult.Lit. 1973).
State of Utah v. American Pipe and Construction Co., 316 F.Supp. 837, 838-40 (C.D.Cal. 1970). See In re Glenn W. Turner Enterprises Litigation, 368 F.Supp. 805, 806 (Jud.Pan.Mult.Lit. 1973).
The transferee judge assigned to multidistrict litigation possesses all pretrial powers over the transferred actions exercisable by a district court under the Federal Rules of Civil Procedure. In other words, the transferee judge may make any pretrial order that the transferor court might have made in the absence of transfer.
See In re Antibiotic Antitrust Actions, 333 F.Supp. 299, 303 (S.D.N.Y. 1971). The legislative history of Section 1407 suggests that Congress intended the transferee judge to have complete control over all aspects of pretrial proceedings in the transferred actions. See Statement of Dean Neal at Hearings on S. 3815 Before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., excerpted in 298 F.Supp. 484, 491 n.l (Jud.Pan.Mult.Lit. 1968); H.R. Rep. No. 1130, 90th Cong., 2d Sess. at 3 (1968), reprinted in [1968] U.S. Code Cong. Admin. News pp. 1898, 1900; Report of the Coordinating Committee on Multiple Litigation, Comment on Proposed § 1407 at 21, excerpted in 298 F.Supp. 484, 499 (Jud. Pan.Mult.Lit. 1968).
Subsequent rulings by transferee judges and by the Panel have made it clear that the power of the transferee judge includes the power to supervise all pretrial matters and to rule on all pretrial motions. See, e. g., Kaiser Industries Corp. v. Wheeling-Pittsburgh Steel Corp., 328 F.Supp. 365, 370-71 (D.Del. 1971); In re Plumbing Fixture Cases, 298 F.Supp. 484, 493-96 (Jud. Pan.Mult.Lit. 1968).
In re FMC Corp. Patent Litigation, 422 F.Supp. 1163, 1165 (Jud.Pan.Mult.Lit. 1976); In re Plumbing Fixture Cases, 298 F.Supp. 484, 495-96 (Jud.Pan.Mult.Lit. 1968).
It is the province of the transferee judge to determine the degree and manner in which pretrial proceedings are coordinated or consolidated. The Panel has neither the power nor the inclination to make any determinations regarding the actual conduct of the coordinated or consolidated pretrial proceedings.
See In re Olympia Brewing Co. Antitrust Litigation, 415 F.Supp. 398, 401 (Jud. Pan.Mult.Lit. 1976); In re Equity Funding Corporation of America Securities Litigation, 375 F.Supp. 1378, 1384 (Jud.Pan. Mult.Lit. 1974); In re Four Seasons Securities Laws Litigation. 328 F.Supp. 221, 223 (Jud.Pan.Mult.Lit. 1971).
In specific situations, the Panel has refused to order separation of the issues of liability and damages in air disaster litigation upon transfer, leaving that determination to the transferee judge. In re Air Crash Disaster at Duarte, California, 346 F.Supp. 529, 530-31 (Jud.Pan.Mult.Lit. 1972); In re San Juan, Puerto Rico, Air Crash Disaster, 316 F.Supp. 981, 982 (Jud. Pan.Mult.Lit. 1970). The Panel has also refused to order expedited discovery in one action among others transferred, leaving that determination to the transferee judge. In re Westinghouse Electric Corp. Uranium Contracts Litigation, 436 F.Supp. 990, 996 (Jud.Pan.Mult.Lit., filed August 1, 1977).
The transferee judge has control over all aspects of discovery. The unique discovery interests of any party can be accommodated by him in a schedule providing for discovery on non-common issues to proceed concurrently with those which are common. Or the transferee judge may leave discovery on any unique issue for the supervision of the transferor court upon remand. The transferee judge can make results of completed discovery available to parties in related actions, and to parties in actions that are later filed in the transferee district or in "tag-along" actions, i. e., those transferred by the Panel to be joined with cases previously ordered to be transferred.
See, e. g., In re Republic National-Realty Equities Securities Litigation, 382 F.Supp. 1403, 1405-06 (Jud.Pan.Mult.Lit. 1974); In re Antibiotic Drugs, 299 F.Supp. 1403, 1406 (Jud.Pan.Mult.Lit. 1969).
See In re Amtrak Train Derailment at Frankewing, Tennessee, 431 F.Supp. 916, 918 (Jud.Pan.Mult.Lit. 1977).
See Manual for Complex Litigation, Parts 1 11, § 3.11 (rev. ed. 1977); In re South Central States Bakery Products Litigation, 433 F.Supp. 1127, 1130 (Jud.Pan. Mult.Lit. 1977); In re Olympia Brewing Co. Antitrust Litigation, 415 F.Supp. 398, 401 (Jud.Pan.Mult.Lit. 1976).
Through cooperative efforts of the transferee court and of courts of other jurisdictions, pretrial proceedings may effectively be coordinated with those in related actions pending in other jurisdictions, such as state courts or the United States Court of Claims.
See In re Cement and Concrete Antitrust Litigation, 437 F.Supp. 750, 753 (Jud. Pan.Mult.Lit., filed September 13, 1977); In re Air Crash Disaster at Florida Everglades, 360 F.Supp. 1394, 1395-96 (Jud. Pan.Mult.Lit. 1973).
See In re Western Electric Co., Inc. Semiconductor Patent Litigation, 415 F.Supp. 378, 380 (Jud.Pan.Mult.Lit. 1976).
In carrying out the Section 1407 pretrial program, a transferee judge also is empowered to serve as a deposition judge in any federal district. If requested by the transferee judge, the Panel may provide a deposition judge to assist him.
28 U.S.C. § 1407(b); In re IBM Peripheral EDP Devices Antitrust Litigation, 411 F.Supp. 791, 792 (Jud.Pan.Mult.Lit. 1976).
28 U.S.C. § 1407(b). See Manual for Complex Litigation, Part 1, § 2.32 (rev.ed. 1977).
A transferee judge assigned to multidistrict litigation pursuant to an intercircuit assignment outside his home district may conduct some of the pretrial proceedings in his home district. If so, the transferee judge technically is still sitting in the transferee district and all orders entered must bear the caption of that district for filing there.
See In re San Juan, Puerto Rico, Air Crash Disaster, 316 F.Supp. 981, 982 n. 3 (Jud.Pan.Mult.Lit. 1970).
The Panel has sometimes transferred actions before service has been effected on all parties named in the complaints. Thereafter, the transferee court may, by its own process, obtain jurisdiction over those parties to the same extent that they would have been subject to the jurisdiction of the transferor court. The transferee judge also has the power to determine whether jurisdiction is proper over a party served prior to transfer.
See, e. g., In re Library Editions of Children's Books, 299 F.Supp. 1139, 1142 (Jud.Pan.Mult.Lit. 1969).
Maricopa County v. American Petrofina, Inc., 322 F.Supp. 467, 469 (N.D.Cal. 1971). See, e. g., In re Library Editions of Children's Books, 299 F.Supp. 1139, 1142 (Jud.Pan.Mult. Lit. 1969).
See In re Gypsum Wallboard, 302 F.Supp. 794, 794 (Jud.Pan.Mult.Lit. 1969).
In those cases in which litigants have sought to name new defendants or third-party defendants in the transferee district, it has been held that only such new defendants may be added as would have been subject to the jurisdiction of the transferor court.
See, e. g., Allegheny Airlines v. LeMay, 448 F.2d 1341, 1342 (7th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 565, 30 L.Ed.2d 553 (1971) (third parties named in transferee district after transfer dismissed because not subject to jurisdiction of transferor court, though subject to jurisdiction of transferee court); Maricopa County v. American Petrofina, Inc., 322 F.Supp. 467, 469 (N.D.Cal. 1971). Cf. In re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 177-78 (C.D.Cal. 1976) (claims against additional parties not previously named in any action can be pled as part of consolidated complaints filed in transferee district where those parties are subject to jurisdiction of the transferee district).
The transferee court is free to rule on the sufficiency of any pleadings filed in transferred actions and to allow amendments. It is not bound by the complaints or other pleadings filed in the transferor districts. An amended complaint filed after transfer must be filed in the transferee court.
See In re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 177 (C.D.Cal. 1976). See generally In re Practice of Naturopathy Litigation, 434 F.Supp. 1240, 1243 (Jud.Pan. Mult.Lit. 1977).
See In re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 177 (C.D.Cal. 1976).
In re Four Seasons Securities Laws Litigation, 63 F.R.D. 115, 122 (W.D.Okl. 1974).
Some transferee judges have requested the filing of consolidated complaints in order to facilitate coordination and consolidation of pretrial proceedings in a group of actions. This may be followed in appropriate situations by transfer of some or all actions to the transferee district for trial under 28 U.S.C. § 1404(a) or § 1406, and by order requiring consolidated complaints for trial purposes encompassing any or all issues in those actions.
See, e. g., Katz v. Realty Equities Corp. of N.Y., 521 F.2d 1354, 1358-59 (2d Cir. 1975); In re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 175-77 (C.D.Cal. 1976). Both cases clearly state that a consolidation of the complaints for pretrial purposes will not merge the suits into a single cause of action or make those who are parties in one suit parties in another.
See nn. 42-44, infra, and accompanying text.
See In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1009-15, 1015 n. 12 (5th Cir. 1977).
The power of a transferee judge to order transfer of those actions for all purposes pursuant to 28 U.S.C. § 1404(a) or § 1406 is an accepted procedure in multidistrict practice. Under these statutes, actions may be transferred for trial to the transferee district, or to another district. A transferee judge sitting outside his or her home district pursuant to an intercircuit assignment may, in consideration of the judge's own convenience as well as that of the parties and witnesses, transfer all actions to the judge's home district for trial. In doing so, the transferee judge is, of course, bound by the venue limitations in Sections 1404(a) and 1406. In contrast, the Panel is not limited by venue, and may transfer actions under Section 1407 to any district for pretrial proceedings.
Originally, some doubt was expressed concerning the authority of a transferee judge to order transfer under Section 1404(a) or Section 1406 of actions before the judge under Section 1407. See generally The Judicial Panel and the Conduct of Multidistrict Litigation, 87 Harv. L.Rev. 1001, 1031-32 (1974); The Experience of Transferee Courts Under the Multidistrict Litigation Act, 39 U.Chi. L.Rev. 588, 606-07 (1972).
These initial doubts have been foreclosed by numerous authorities in which the power of a transferee judge to order such transfers has been assumed or upheld. See, e. g., Rule 11(b), R.P.J.P.M.D.L., 65 F.R.D. 253, 261 (1975); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 402 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975); Pfizer, Inc. v. Lord, 447 F.2d 122, 124-25 (2d Cir. 1971); In re Bristol Bay, Alaska, Salmon Fishery Antitrust Litigation, 424 F.Supp. 504, 507 (Jud.Pan.Mult.Lit. 1976); Alaska Airlines v. United States, 399 F.Supp. 906, 912 (N.D.Cal. 1975); In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341, 345 (S.D.N.Y. 1974); In re Caesars Palace Securities Litigation, 360 F.Supp. 366, 374 (S.D.N.Y. 1973); In re Aircrash Near Duarte, California, 357 F.Supp. 1013, 1015-16 (C.D.Cal. 1973); In re Brown Co. Securities Litigation, 355 F.Supp. 574, 577 (S.D.N.Y. 1973); Greyhound Computer Corp. v. IBM Corp., 342 F.Supp. 1143, 1145 (D.Minn. 1972); In re Aircrash Disaster Near Hanover, New Hampshire, 342 F.Supp. 907, 907 (D.N.H. 1971); Illinois v. Harper Row Publishers, Inc., 308 F.Supp. 1207, 1211 (N.D.III. 1969); In re Grain Shipments, 300 F.Supp. 1402, 1404 (Jud.Pan.Mult.Lit. 1969). Cf. In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1009 n. 4 (5th Cir. 1977) (transferee court assumed it could exercise the power to transfer cases to itself under Section 1404(a), but the Fifth Circuit did not reach that issue).
See, e. g., In re Western Electric Corp. Uranium Contracts Litigation, F.Supp. (E.D.Va., filed June 21, 1977); In re Aircrash Near Duarte, California, 357 F.Supp. 1013, 1015 (C.D.Cal. 1973).
See, e. g., Illinois v. Harper Row Publishers, Inc., 308 F.Supp. 1207, 1211 (N.D.Ill. 1969).
Pfizer, Inc. v. Lord, 447 F.2d 122, 125 (2d Cir. 1971); Alaska Airlines v. United States, 399 F.Supp. 906, 910 (N.D.Cal. 1975).
See In re Penn Central Commercial Paper Litigation, 62 F.R.D. 341, 344-45 (S.D. N.Y. 1974) (action against national bank, in which venue is restricted by 12 U.S.C. § 94 to district in which national bank is founded, may not be transferred for all purposes under Section 1404(a) by a Section 1407 transferee judge). See also Radzanower v. Touche Ross Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976).
28 U.S.C. § 1407(a). See In re Aviation Products Liability Litigation, 347 F.Supp. 1401, 1404 (Jud.Pan.Mult. Lit. 1972).
The Panel similarly is not encumbered by the venue considerations under 12 U.S.C. § 94 for actions against national banks, and may transfer such actions under Section 1407 for pretrial purposes. In re Investors Funding Corporation of New York Securities Litigation, 437 F.Supp. 1199, 1202-1203 (Jud.Pan.Mult.Lit., filed August 8, 1977); In re Falstaff Brewing Corporation Antitrust Litigation, 434 F.Supp. 1225, 1229 (Jud.Pan.Mult.Lit. 1977).
In view of their powers to order transfers under Sections 1404(a) and 1406, some transferee judges have chosen to defer venue objections of parties until the conclusion of pretrial proceedings. At that time, defects in venue as to any claim or action may be cured by transfer to a district in which venue is appropriate. The rationale for this approach is that any cure of venue at an earlier time would eventually result in re-inclusion of the action or claim in the coordinated or consolidated pretrial proceedings by the Panel in a transfer under Section 1407. The net result would be little more than delay in pretrial proceedings.
See, e. g., In re Equity Funding Corpo-ration of America Securities Litigation, 416 F.Supp. 161, 178-79 (C.D.Cal. 1976); Maricopa County v. American Petrofina, Inc., 322 F.Supp. 467, 469 (N.D.Cal. 1971).
See In re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 178-79 (C.D.Cal. 1976).
It is generally accepted that a transferee judge has authority to decide all pretrial motions, including motions that may be dispositive, such as motions for judgment approving a settlement, for dismissal, for judg ment on the pleadings, for summary judgment, for involuntary dismissal under Rule 41(b), for striking an affirmative defense, for voluntary dismissal under Rule 41(a) and to quash service of process. In several instances, there has been appellate review of the rulings of a transferee court on such motions. In each instance, the authority of the transferee court has either been taken for granted, or expressly affirmed.
See H.R. Rep. No. 1130, 90th Cong., 2d Sess. at 3 (1968), [1968] U.S. Code Cong. Admin.News p. 1900. See, e. g., In re REA Express, Inc., Private Treble Damage Antitrust Litigation, 412 F.Supp. 1239, 1241 n. 5 (E.D.Pa. 1976); In re King Resources Company Securities Litigation, 385 F.Supp. 588 (Jud.Pan.Mult.Lit. 1974); In re Gypsum Wallboard, 302 F.Supp. 794, 794 (Jud.Pan.Mult.Lit. 1969). Cf. In re Motor Vehicle Air Pollution Control Equipment, 52 F.R.D. 398, 402 (C.D.Cal. 1970) (the function of the transferee judge is to coordinate pretrial proceedings with the view of returning cases to the transferor judge in condition to be tried expeditiously to the benefit of all parties to the litigation).
See In re Four Seasons Securities Laws Litigation, 370 F.Supp. 219, 227 n. 12 (W.D.Okl. 1974); Pfizer, Inc. v. Lord, 447 F.2d 122, 123 (2d Cir. 1971).
In re King Resources Co. Securities Litigation, 385 F.Supp. 588, 590 (Jud.Pan. Mult.Lit. 1974); Kaiser Industries Corp. v. Wheeling-Pittsburgh Steel Corp., 328 F.Supp. 365, 371 (D.Del. 1971). See In re REA Express, Inc., Private Treble Damage Antitrust Litigation, 386 F.Supp. 1406, 1407 (Jud.Pan.Mult.Lit. 1975).
Kaiser Industries Corp. v. Wheeling-Pittsburgh Steel Corp., 328 F.Supp. 365, 371 (D.Del. 1971).
Humphreys v. Tann, 487 F.2d 666, 668 (6th Cir. 1973), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 307 (1974); In re Gypsum Wallboard, 340 F.Supp. 990, 992 (Jud.Pan.Mult.Lit. 1972); Reidinger v. Trans World Airlines, Inc., 463 F.2d 1017, 1018 n. 2 (6th Cir. 1972); Kaiser Industries Corp. v. Wheeling-Pittsburgh Steel Corp., 328 F.Supp. 365, 371 (D.Del. 1971).
See In re Four Seasons Securities Laws Litigation, 63 F.R.D. 115, 120 (W.D.Okl. 1974).
In re REA Express, Inc., Private Treble Damage Antitrust Litigation, 368 F.Supp. 1406, 1407 (Jud.Pan.Mult.Lit. 1975).
Humphreys v. Tan, 487 F.2d 666, 668 (6th Cir. 1973), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 307 (1974).
In re King Resources Co. Securities Litigation, 385 F.Supp. 588, 590 (Jud.Pan. Mult.Lit. 1974).
See, e.g., Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 191, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974); Grunin v. International House of Pancakes, 513 F.2d 114, 118-20 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975); State of West Virginia v. Chas. Pfizer Co., 440 F.2d 1079, 1081-85 (2d Cir.), cert. denied. 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971).
See, e.g., Humphreys v. Tann, 487 F.2d 666, 668 (6th Cir. 1973), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 LEd.2d 307 (1974); Reidinger v. Trans World Airlines, Inc., 463 F.2d 1017, 1018, n. 2 (6th Cir. 1972).
Section 1407 provides that each action transferred by the Panel shall be remanded by the Panel, at or before the conclusion of pretrial proceedings, to the district from which the action was transferred unless it shall have been previously terminated. In point of fact, slightly less than five percent of the actions transferred by the Panel have been remanded. Most actions are terminated either in the transferee district (often by settlement) or are transferred by the transferee judge to the transferee district or to another district for trial pursuant to Sections 1404(a) or 1406.
28 U.S.C. § 1407(a). See generally Rule 11, R.P.J.P.M.D.L., 65 F.R.D. 253, 260-63 (1975), concerning Panel procedures relating to remand of actions transferred by the Panel.
Since the creation of the Panel in 1968, over 5,500 civil actions, including 3,075 actions transferred by the Panel and 2,498 actions originally filed in transferee districts have been centralized for pretrial proceedings pursuant to Section 1407(a). As of June 30, 1977, over 3,200 of those actions had been terminated in the transferee courts or transferred by the transferee judges to other districts for trial. In contrast, only 152 actions have been remanded by the Panel to their transferor districts. September 1977 Report of the Judicial Panel on Multidistrict Litigation at 1 and Appendix, Summary of Multidistrict Litigation.
The Panel alone has the power to remand an action or claim. In the exercise of that power, the Panel defers to the views of the transferee judge. Absent a recommendation of remand from the transferee judge, any party advocating remand bears an especially heavy burden.
28 U.S.C. § 1407(a); Rule 11(b), R.P.J. P.M.D.L., 65 F.R.D. 253, 260-63 (1975); In re "East of the Rockies" Concrete Pipe, 302 F.Supp. 244, 254 n.l (Jud.Pan.Mult. Lit. 1969) (Weigel, J., concurring).
See, e. g., In re Evergreen Valley Project Litigation, 435 F.Supp. 923, 924 (J.P.M.D.L., filed August 15, 1977); In re IBM Peripheral EDP Devices Antitrust Litigation, 407 F.Supp. 254, 256 (Jud.Pan. Mult.Lit. 1976); In re A. H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, 406 F.Supp. 540, 542 (Jud. Pan.Mult.Lit. 1975); In re Molinaro/Catan-zaro Patent Litigation, 402 F.Supp. 1404, 1406-07 (Jud.Pan.Mult.Lit. 1975); In re Air Crash Disaster Near Dayton, Ohio, 386 F.Supp. 908, 909 (Jud.Pan.Mult.Lit. 1975); In re Four Seasons Securities Laws Litigation, 361 F.Supp. 636, 638 (Jud.Pan.Mult. Lit. 1973).
In re Midwest Milk Monopolization Litigation, 435 F.Supp. 930, 932 (J.P.M.D.L., filed August 18, 1977); In re Holiday Magic Securities Litigation, 433 F.Supp. 1125, 1126 (Jud.Pan.Mult.Lit. 1977). See In re CBS Color Tube Patent Litigation, 342 F.Supp. 1403, 1404-05 (Jud.Pan.Mult.Lit. 1972).
The transferee judge may, at the conclusion of the common pretrial proceedings, recommend that an action or claim be remanded for local discovery or further proceedings. The transferee judge may also, at any time, recommend remand of an action or claim deemed no longer appropriate for inclusion in the coordinated or consolidated pretrial proceedings.
See, e. g., In re Frost Patent, 316 F.Supp. 977, 980 (Jud.Pan.Mult.Lit. 1970); In re Photocopy Paper, 305 F.Supp. 60, 62 n. 5 (Jud.Pan.Mult.Lit. 1969); In re "East of the Rockies" Concrete Pipe, 302 F.Supp. 244, 254 (Jud.Pan.Mult.Lit. 1969) (Weigel, J., concurring).
See, e. g., In re IBM Peripheral EDP Devices Antitrust Litigation, 407 F.Supp. 254, 255 (Jud.Pan.Mult.Lit. 1976) (essentially distinct action that cannot effectively be coordinated in pretrial proceedings with other actions remanded upon suggestion of the transferee judge); In re Transit Company Tire Antitrust Litigation, 67 F.R.D. 57, 59 (W.D.Mo. 1975) (transferee judge severed unrelated counterclaim and recommended that the Panel remand that counterclaim); In re Equity Funding Corporation of America Securities Litigation, 375 F.Supp. 1378, 1387 (Jud.Pan.Mult.Lit. 1974) (claim outside of mainstream of overall litigation may be separated and remanded at the conclusion of any common discovery); In re Convenient Food Mart Franchisee Litigation, 350 F.Supp. 1166, 1168 (Jud.Pan.Mult.Lit. 1972) (claims that are unable to be coordinated in discovery with other claims may be separated and remanded upon suggestion of transferee judge).
While the powers of the transferee judge are extremely broad, they are not unlimited. For one example, although the transferor court no longer has jurisdiction over the case, it is inappropriate for a transferee judge to permit parties to ignore prior unmodified orders of the transferor judge. For another, in all its actions, the transferee court must consider the impact of its decisions if and when the transferred cases are returned to the originating courts for trial. And the transferee court must apply the substantive law of the transferor forum, including that forum's choice of law rules.
In re Penn Central Securities Litigation, 62 F.R.D. 181, 187 (E.D.Pa. 1974).
In re Career Academy Antitrust Litigation, 57 F.R.D. 569, 571 (E.D.Wis. 1972).
In re Air Crash Disaster at Boston, Massachusetts on July 31, 1973, 399 F.Supp. 1106, 1108 (D.Mass. 1975); Stirling v. Chemical Bank, 382 F.Supp. 1146, 1150 n. 5 (S.D.N.Y. 1974), aff'd 516 F.2d 1396 (2d Cir. 1975); In re Four Seasons Securities Laws Litigation, 370 F.Supp. 219, 228 (W.D.Okl. 1974); In re Plumbing Fixtures Litigation, 342 F.Supp. 756, 758 (Jud.Pan.Mult.Lit. 1972); In re Air Crash Disaster Near Hanover, New Hampshire, 314 F.Supp. 62, 63 (Jud.Pan.Mult.Lit. 1970); Philadelphia Housing Authority v. American Radiator Standard Sanitary Corp., 309 F.Supp. 1053, 1055 (E.D.Pa. 1969). But see In re Paris Air Crash, 399 F.Supp. 732, 744-47 (C.D.Cal. 1975) (damages law of transferee forum applied in all actions). See also Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).
Through creative use of their broad powers, transferee judges have developed salutary solutions to many of the staggering problems associated with complicated and intricate multidistrict litigation. In so doing, transferee judges have contributed immeasurably to the public welfare and to the capacity of the federal judiciary to carry its ever increasing burden of litigation.
That is no mean achievement.