Summary
denying a motion to transfer and consolidate two actions because there were no unusually complex questions of fact or discovery issues overriding the potential inconvenience to the plaintiffs
Summary of this case from Cirulli v. Bausch Lomb, Inc.Opinion
No. 19.
May 21, 1969.
Before ALFRED H. MURRAH, Chairman, and JOHN MINOR WISDOM, WILLIAM H. BECKER, JOSEPH S. LORD, III, EDWIN A. ROBSON, STANLEY A. WEIGEL, and EDWARD WEINFELD, Judges of the Panel.
OPINION AND ORDER
On February 24, 1969 certain defendants in the cases listed on the attached schedule A filed a motion with the Panel urging the transfer of the Colorado case to the District of New Jersey for coordinated or consolidated pretrial proceedings. A hearing on this motion was held in New York on March 31, 1969. The Colorado plaintiffs have strongly opposed the transfer of their case to New Jersey.
The New Jersey plaintiffs do not oppose the proposed transfer.
The main thrust of both complaints involves a claim that the two principal defendants, Schenley and Buckingham, through the former's acquisition of controlling interest of the latter, have conspired, monopolized and restrained the trade in distilled spirits (and particularly scotch whiskey) in violation of sections 1 and 2 of the Sherman Act ( 15 U.S.C. § 1 and 2). The complaints further charge that this national conspiracy was implemented by local conspiracies in geographical areas covered by the separate complaints. All parties agree that there is at least one essential common question of fact between both cases: the effect of the acquisition by Schenley of Buckingham on the national liquor market.
An amended complaint has recently been filed in the New Jersey action and the moving defendants contend that any differences between the claims in the two actions have now been eliminated, a contention vigorously opposed by the Colorado plaintiffs. Since we have assumed the existence of substantial common questions of fact we need not determine whether the amended complaint has the effect claimed by the defendants.
The legislative history provides a guide for determining under what conditions litigation involving a minimum number of cases is appropriate for consolidation under § 1407.
If only one question of fact is common to two or three cases pending in different districts there probably will be no order for transfer, since it is doubtful the transfer would enhance the convenience of parties and witnesses or promote judicial efficiency. It is possible, however, that a few exceptional cases may share unusually complex questions of fact * * * (and that) substantial benefit may accrue to courts and litigants through consolidated or coordinated pretrial proceedings. (Senate Report 454 to accompany S. 159, pages 4-5), U.S. Code Cong. Admin.News 1968, p. 1901.
The two cases are not, in our opinion, exceptional cases sharing unusually complex questions of fact. If this litigation involved the number of cases generally associated with multidistrict civil treble damage antitrust litigation, the common questions of fact might be sufficient to invoke § 1407, but where, as here, there are a minimal number of cases involved in the litigation the moving party bears a strong burden to show that the common questions of fact are so complex and the accompanying common discovery so time-consuming as to overcome the inconvenience to the party whose action is being transferred and its witnesses. These factors do not emerge from the present record. Nor do these two cases appear to be merely forerunners of many such actions.
The Panel has ordered transfers under § 1407 in the following groups of civil treble damage antitrust cases: Library Edition of Children's Books (44 cases), Plumbing Fixtures (59 cases), Protection Devices (82 cases), Antibiotic Drug (97 cases), Gypsum Wallboard (52 cases).
In short, we are not convinced that the just and efficient conduct of these two cases will be furthered by the transfer of one of the cases under § 1407 to the district in which the other case was originally filed. We are compelled to add that we see no reason why the duplicative discovery envisioned by the defendants should occur. Counsel for all parties under the guidance of the courts and using the procedures described in the Manual for Complex and Multidistrict Litigation should be able to conduct pretrial proceedings so that inconvenience to all parties and witnesses can be minimized and duplicate discovery can be avoided.
The motion to transfer is denied.
District of Colorado District of New Jersey
SCHEDULE A 1. Davis Bros., Inc. v. Schenley Industries, Inc., Civil Action et al. No. C-1137 2. Reitman Industries, Inc., et al. v. Schenley Industries, Civil Action Inc., et al. No. 1309-68