Opinion
No. 8B.
February 5, 1973.
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.
Although Judge Murrah was not present at the hearing, he has, with the consent of all parties, participated in this decision.
OPINION AND ORDER
The crash of a Trans World Airline passenger plane at the Greater Cincinnati Airport in 1967 led to the filing of more than seventy actions which were coordinated for pretrial purposes in the Eastern District of Kentucky. In re November 20, 1967 Greater Cincinnati Airport Air Disaster Litigation, 298 F. Supp. 353 (Jud.Pan.Mult.Lit. 1968); 298 F. Supp. 355 (Jud.Pan.Mult.Lit. 1969); 298 F. Supp. 358 (Jud.Pan.Mult.Lit. 1969). In August 1972 the transferee court entered an order stating that all discovery proceedings had been completed and that the cases appeared to be appropriate for remand to the respective transferor courts for trial. After receiving notification of the entry of this order and various papers from the parties to the litigation, the Panel ordered the parties to show cause, pursuant to revised Rule 15, 55 F.R.D. LI, why the cases should not be remanded. Based upon the responses to that order to show cause and the arguments presented at the hearing on this matter, we order all actions remanded to the transferor courts.
It is clear from the responses of the parties and the final order of the transferee court that all pretrial proceedings have been completed and that the cases are now ready for trial in the transferor forums. The pretrial processing of the litigation has generated several problems, however, concerning the compensation of liaison counsel and the effect of a summary judgment entered in favor of two defendants. Several parties urge that the Panel either attempt to resolve these problems or deny remand so that they may be resolved in the transferee court. We do not believe that Section 1407 authorizes us to do more than call these problems to the attention of the transferor courts in our order of remand.
The transferee court has denied the motion of the United States for transfer of certain actions in which it is a defendant to the Eastern District of Kentucky for all purposes, pursuant to 28 U.S.C. § 1404 (a).
In this litigation as in many others transferred by the Panel, it became necessary to appoint liaison counsel to coordinate the pretrial efforts of the plaintiffs. See, Manual for Complex Litigation § 1.90 (January 24, 1973 Revision). It appears that liaison counsel expended considerable effort in discovery and other pretrial matters and the transferee court acknowledged these efforts and ordered counsel to work out the appropriate compensation for liaison counsel on a case-by-case basis. The court further ordered that no settlement would be approved by the court unless approved by liaison counsel. Although this order was generally effective, the plaintiffs in some of the cases now before the Panel for remand have not paid liaison counsel for his efforts and liaison counsel has brought these facts to the attention of the Panel. While we are unable to order payment of these fees or to condition remand on such payment, we do think it appropriate to call these facts to the attention of the transferor courts since liaison counsel will have the right to seek relief in those courts after remand.
The remaining problem concerns two defendants in the litigation, General Dynamics Corp. and Kollsman Instrument Corp. After extensive discovery, plaintiffs moved for summary judgment against Trans World Airlines on the issue of liability and defendants General Dynamics and Kollsman moved for summary judgment in their favor against plaintiffs and for dismissal of the cross-claims and third-party claims asserted by Trans World Airlines against them. The transferee court granted plaintiffs' motion for summary judgment against Trans World Airlines. It also granted General Dynamics' and Kollsman's motion for summary judgment against the plaintiff and for dismissal of Trans World Airlines' cross-claims and third-party claims. Reidinger v. Trans World Airlines, 329 F. Supp. 487 (E.D.Ky. 1971). Although certain portions of the transferee court's judgment were appealed from and ultimately reversed, no appeal was taken from the order granting summary judgment in favor of General Dynamics and Kollsman. Reidinger v. Trans World Airlines, 463 F.2d 1017, 1018 (6th Cir. 1972). It appears, however, that no final judgment was entered in favor of these defendants, only the order holding them entitled to summary judgment.
Both General Dynamics and Kollsman urge the Panel to strike them as party defendants in the litigation on the basis of Judge Swinford's order and the lack of an appeal therefrom. They contend that unless such action is taken by the Panel, they will be required to proceed separately in each transferor district to secure final judgment in their favor. We lack the power to take such action, however, and can only remand the actions to the transferor courts with a description of the factual background of these defendants' problems. It will then be necessary for the defendants to seek relief from the transferor courts.
It is therefore ordered that all actions listed on the attached Schedule A be, and the same hereby are, remanded to the districts from which they were transferred.
SCHEDULE A
Eastern District of Kentucky
Margaret J. Zahneis, etc. v. Trans Civil Action World Airlines, et al. (S.D.Ohio, No. No. 1918L 6644)
Joyce E. Schiller, etc. v. Trans World Civil Action Airlines, et al. (S.D.Ohio, No. 6045) No. 1919L
John Bernard Doherty, etc. v. Trans Civil Action World Airlines (W.D.Pa., No. 67-1511) No. 1923L
Catherine Reed, etc. v. Trans World Civil Action Airlines (N.D.Ill., No. 68 C 110) No. 1926L
Julius Kashkin v. Trans World Airlines, Civil Action et al. (C.D.Calif., No. 67-1783) No. 1930L
John H. Klette, Jr., etc. v. Trans Civil Action World Airlines, et al. (W.D.Ky., No. No. 1935L 5892)
William J. Bauman, etc. v. Trans Civil Action World Airlines, et al., (C.D.Calif., No. No. 1951L 68-1877)
Julius Kashkin v. Kollsman Instrument Civil Action Corp. (N.D.Calif., No. 50334) No. 1954L
George Brokaw v. Standard Kollsman Civil Action Industries, Inc., et al. (N.D.Ill., No. No. 1957L 68 C 2209)
Mary Rita Murphy v. Standard Kollsman Civil Action Industries, Inc., et al. (N.D.Ill., No. 1958L No. 68 C 2210)
Mary Rita Murphy, etc. v. Standard Civil Action Kollsman Industries, Inc., et al. (N.D. No. 1959L Ill., No. 68 C 2211)
Virginia Sandish, etc. v. Standard Civil Action Kollsman Industries, Inc., et al. (N.D. No. 1960L Ill., No. 68 C 2212)
James E. Simpson, etc. v. Standard Civil Action Kollsman Industries, Inc., et al. (N.D. No. 1961L Ill., No. 68 C 2231)
Dolores Monkelis, etc. v. Standard Civil Action Kollsman Industries, Inc., et al. (N.D. No. 1962L Ill., No. 68 C 2248)
Francis A. Hoblak, etc. v. Standard Civil Action Kollsman Industries, Inc., et al. (N.D. No. 1963L Ill., No. 68 C 2249)
Dolores Monkelis, etc. v. Standard Civil Action Kollsman Industries, Inc., et al. (N.D. No. 1964L Ill., No. 68 C 2250)
The Central Trust Co., etc. v. Trans Civil Action World Airlines, et al. (S.D.Ohio, No. No. 1965L 6874)
The Central Trust Co., etc. v. Trans Civil Action World Airlines, Inc., et al. (S.D. No. 1966L Ohio, No. 6875)
The Central Trust Co., etc. v. Trans Civil Action World Airlines, Inc., et al. (S.D.Ohio, No. 1967L No. 6876)
Irene E. Mulligan, etc. v. Trans Civil Action World Airlines, et al. (S.D.Ohio, No. No. 1968L 6883)
Jean B. Smith, etc. v. Trans World Civil Action Airlines, et al. (S.D.Ohio, No. 6908) No. 1969L
Lena M. Claflin, etc. v. General Dynamics Civil Action Corp., et al. (S.D.Ohio, No. No. 1970L 6914)
Mary Rita Murphy v. Trans World Civil Action Airlines, Inc., et al. (W.D.Pa., No. No. 1972L 68-1260)
Mary Rita Murphy, etc. v. Trans Civil Action World Airlines, Inc., et al. (W.D.Pa., No. 1973L No. 68-1261)
George Brokaw v. Trans World Airlines, Civil Action et al. (W.D.Pa., No. 68-1303) No. 1974L
James E. Simpson, etc. v. Trans Civil Action World Airlines, et al. (W.D.Pa., No. No. 1976L 68-1340)
Virginia Sandish, etc. v. General Dynamics Civil Action Corp. (W.D.Pa., No. 68-1230) No. 1977L
Dolores Monkelis, etc. v. Trans World Civil Action Airlines, et al. (W.D.Pa., No. 68-1320) No. 1982L
Dolores Monkelis, etc. v. Trans World Civil Action Airlines, et al. (W.D.Pa., No. 68-1321) No. 1983L
Francis A. Hoblak, etc. v. Trans Civil Action World Airlines, et al. (W.D.Pa., No. No. 1984L 68-1322)
Virginia Sandish, etc. v. Trans World Civil Action Airlines et al. (W.D.Pa., No. 68-856) No. 1990L
Joy Ann Sweet, et al. v. Trans World Civil Action Airlines (C.D.Calif., No. 68-1893-HP) No. 1991L
Ruth M. Ness, etc. v. Trans World Civil Action Airlines, et al. (C.D.Calif., No. 68-1903-HP) No. 1992L
Margaret L. Kofink, etc. v. Trans Civil Action World Airlines, et al. (Mass., No. 68-1035-M) No. 1993L
William Duffy, etc. v. Trans World Civil Action Airlines, et al. (Mass., No. 68-1022-M) No. 1994L
Josephine Andrunas, etc. v. Trans Civil Action World Airlines, et al. (Mass., No. No. 1996L 68-1008-M)
Angelo A. Moreno, etc. v. Standard Civil Action Kollsman Industries, Inc. (N.D.Ill., No. 1980L No. 69 C 69)