Opinion
DOCKET NO. 1332, C.A. No. 1:02-97, C.A. No. 2:02-3
June 17, 2002
TRANSFER ORDER
Before the Panel are motions brought, pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), by plaintiff in a District of District of Columbia action (Netscape) and plaintiff in a Southern District of West Virginia action (West Virginia). Each plaintiff asks the Panel to vacate the Panel's order conditionally transferring the plaintiffs respective action to the District of Maryland for inclusion in the centralized pretrial proceedings occurring there in this docket before Judge J. Frederick Motz.
On the basis of the papers filed and hearing session held, the Panel finds that the two actions involve common questions of fact with actions in this litigation previously transferred to the District of Maryland, and that transfer of the actions to that district for inclusion in the coordinated or consolidated pretrial proceedings occurring there will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel is persuaded that transfer is appropriate for reasons expressed by the Panel in its original order directing centralization in this docket, wherein the Panel held that the District of Maryland was the proper Section 1407 forum for actions involving allegations pertaining to Microsoft's alleged antiteompetitive conduct in a purported market for personal computer operating systems. See In re Microsoft Corp. Windows Operating Systems Antitrust Litigation, MDL-1332, 2000 U.S. Dist. Lexis 5559 (J.P.M.L. Apr. 25, 2000).
Plaintiff in the Netscape action initially urged that transfer should be denied, inter alia, because i) most of the other MDL-1332 actions were brought by or on behalf of Microsoft customers, whereas Netscape was brought by a Microsoft competitor, and ii) transfer of Netscape at this late juncture in the MDL-1332 proceedings might be inefficient for the parties, witnesses and courts. At oral argument, however, plaintiff substantially lessened the degree of its opposition to transfer for coordinated or consolidated pretrial proceedings. In any event, we point out that transfer under Section 1407 does not require a complete identity or even majority of common factual issues as a prerequisite to transfer. Nor is the presence of a differing type of plaintiff significant when all the underlying actions still arise, as here, from a common alleged factual core of anticompetitive behavior. We observe that transfer under Section 1407 has the salutary effect of placing all actions in this docket before a single judge who can formulate a pretrial program that: 1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues, In re Joseph F. Smith Patent Litigation, 407 F. Supp. 1403, 1404 (J.P.M.L. 1976); 2) permits already completed discovery that is relevant to tag-along actions to be made applicable to those actions with a minimum of duplication and expense; and 3) ensures that pretrial proceedings will be conducted in a manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties. Finally, we note that whenever a party can demonstrate to the transferee judge that distinctions present in a transferred action have rendered continued inclusion of the action in MDL-1332 unnecessary or inadvisable, procedures are available whereby Section 1407 remand may be accomplished with a minimum of delay. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. at 436-38.
Plaintiff in the West Virginia action argues that Section 1407 transfer should be denied because the federal courts lack jurisdiction. Plaintiff urges the Panel not to order transfer before plaintiffs motion to remand to state court is resolved by the transferor court. We note, however, that such motions can be presented to and decided by the transferee judge. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir. 1990); In re Prudential Insurance Company of America Sales Practices Litigation, 170 F. Supp.2d 1346, 1347-48 (J.P.M.L. 2001).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, these two actions are transferred to the District of Maryland and, with the consent of that court, assigned to the Honorable J. Frederick Motz for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.