Opinion
No. 123.
May 31, 1973.
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, IIIfn_, and STANLEY A. WEIGEL, Judges of the Panel.
Although Judges Wisdom and Lord were unable to attend the Panel hearing, they have, with the consent of all parties, participated in this decision.
OPINION AND ORDER
This litigation consists of three actions pending in federal court in either Kansas City, Kansas, or across the Missouri River in Kansas City, Missouri. White Industries, a party to all three actions, moves the Panel for an order transferring the Kansas action under 28 U.S.C. § 1407 to the Western District of Missouri for coordinated or consolidated pretrial proceedings. We find, and all parties generally agree, that these actions involve common questions of fact and that transfer of the Kansas action to the Western District of Missouri for coordinated or consolidated pretrial proceedings pursuant to Section 1407 will serve the convenience of the parties and witnesses and will promote the just and efficient conduct of the litigation.
Plaintiff White Industries has brought actions against Cessna Aircraft in the District of Kansas and the Western District of Missouri on behalf of a class of Cessna aircraft dealers in the United States, alleging violations of the Robinson-Patman Act and Section 1 of the Sherman Act. Also pending in the Western District of Missouri is an action brought by Cessna Finance Corporation against White Industries and its chief executive officer seeking payment on certain notes and security agreements executed by defendants in favor of Cessna Finance. In that action, defendant White Industries has counterclaimed against Cessna Finance and filed a third-party complaint against Cessna Aircraft, alleging violations of the federal antitrust laws similar to those asserted by White Industries in the two class action suits.
All parties agree that White Industries' antitrust claims are appropriate for coordinated or consolidated pretrial proceedings pursuant to Section 1407. And we find that such proceedings will insure that duplication of common discovery and inconsistent class determinations are prevented. In re Career Academy Antitrust Litigation, 342 F. Supp. 753, 754 (J.P.M.L. 1972).
Because the federal courts wherein these actions are pending are within a short driving distance of each other, the selection of either court as the transferee forum for this litigation will not inconvenience any of the parties. The parties, however, prefer the Western District of Missouri as the transferee forum and the Honorable William H. Becker of that district has agreed to serve as the transferee judge for this litigation. We find, therefore that the action pending in the District of Kansas must be transferred under Section 1407 to the Western District of Missouri and with the consent of that court assigned to Judge Becker.
Cessna Finance, however, objects to having its claim against White Industries, which is based on contractual obligations, included in the coordinated or consolidated pretrial proceedings. Also, Cessna Finance has moved the Missouri court pursuant to Rule 42, Fed.R.Civ.P., to sever all allegations in White Industries' counterclaim and third-party complaint alleging violations of the federal antitrust laws and consolidate them with the White Industries action against Cessna Aircraft pending in the Western District of Missouri.
Inasmuch as both Missouri actions are already pending in the transferee district and assigned to Judge Becker for all purposes, the question of whether Cessna Finance's contract claim should be included in the coordinated or consolidated pretrial proceedings should be decided by the transferee court. In re Convenient Food Mart Franchise Litigation, 350 F. Supp. 1166, 1168 (J.P.M.L. 1972). Furthermore, Cessna Finance's Rule 42 motion is a pretrial motion and may be properly addressed to the transferee judge for resolution.
It is therefore ordered that the action listed on the attached Schedule A and pending in the District of Kansas be, and the same hereby is, transferred to the Western District of Missouri and, with the consent of that court, assigned to the Honorable William H. Becker for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district.
SCHEDULE A
District of Kansas
White Industries, Inc. v. Delbert L. Roskam, Civil Action et al. No. KC 3518
Western District of Missouri
White Industries, Inc. v. The Cessna Civil Action Aircraft Co. No. 20245-4
Cessna Finance Corp. v. White Industries, Civil Action Inc., et al. No. 19925-4