*3 responses MURRAH, In the Before ALFRED P. written to the order Chair- man, WISDOM, hearing, ED- show cause and and JOHN MINOR notice all WEINFELD, City except WARD EDWIN A. ROB- the of New York agreed SON, BECKER, in substance to the WILLIAM H. JOSEPH LORD, III, assignment transfer S. A. ad- and STANLEY WEI- the nine Judge GEL, Judges Lord, ditional of the Panel. actions to John W. Jr., under 1407. Section AND
OPINION ORDER For the reasons hereinafter stated all actions listed in B will be trans- Schedule BECKER, Judge WILLIAM H. on ferred initiative Panel to Panel. Pennsylvania Eastern District August hearing 8, 1968, on After a on assigned to the Honorable John W. September 13, Judicial Panel on Lord, Jr., Judge. District Litigation, Multidistriet under Section U.S.C., Title ordered the trans- The City Position New York Pennsyl- fer to the Eastern District City York vania of related multidistrict New and its related agencies (the damage “City”) actions, pending treble on behalf of them- antitrust districts, assigned City, selves and of in seven a class consist of all Jr., governmental Lord, twon and them to school district Honorable John W. Judge, having F.Supp. units New York District State of 33. population 50,000 persons, excess transferred actions so included ac- public housing and of all authorities in originally tions filed the Northern Dis- York, the State of filed a New civil treble California, trict District Southern damage antitrust in the action Southern New York and District of Colum- August District on New York 1968. bia. By letter of the same date addressed to Latеr the learned of nine Panel addi- Panel, the Clerk of the counsel tional similar actions in the City requested par- that it be allowed to California, Northern District ticipate hearing August 8,1968, in the Virginia, Eastern District of the South- although among its case not was those York, ern District the Eastern of New listed in the motion to defendants’ trans- Wisconsin, District District fer or in the and order for notice Kansas and the District of Columbia. hearing August These nine actions listed additional August 8, hearing At the on counsel appended B. Schedule City voluntarily appeared for the 8, 1968, On in accordance with October * * stated, agree wholeheartedly “We practice Panel, current on its initia- coordination, agree we whole- tive, why issued to show cause an order heartedly proper that the forum would be the nine similar actions should additional Pennsylvania” Philadelphia, in the East- not also be transferred Section Pennsylvania. ern District of Pennsyl- 1407 to the District of Eastern Judge assigned response In vania and John W. its order to show Lord, hearing Jr., of the record of cause and basis notice October argument response City 16,1968, expressly to its its in oral adheres City for the position proper forum trans- counsel state under Sec- (a) “pretrial procеedings East- tion 1407 do 1407 would be the fer under Section request- Pennsylvania include a class but action determination.” District ern of its the Panel ed that argument consequences of In oral following re- subject two to the illuminated were contention quests : following colloquy with counsel “First, York since New City: brought action, you Why do “JUDGE WEINFELD: following in New York has you it a action? Are refer- call local 23(c) (1) obligation under Rule ring brought you to the fact Procedure: ‘As Rules of Civil Federal in- District and it within Southern practicable com- after soon as municipalities within State volves *4 brought as a of action mencement housing authorities of New York action, shall determine the court class York? the within State New main- it is to be so order whether meant “MR. What I MARGOLIS: ** Upon deter- such tained suit the court we filed the was where required to di- mination, the is court class the one to determine the should be class. the to the members rect notice action. do that Section not believe We There WEINFELD: “JUDGE 1407(a) proceedings’ encom- ‘pretrial housing right adjacent authorities Cer- pass a action determination. class in York You have them New State. tainly is transferred entire file if the you Jersey, in New have them Connect- impossible the transferor for be would Pennsylvania, icut, you have them in obligations discharge un- its court you municipalities that come have request the Therefore, we Rule 23. der Why categories. within same Margolis order, re- as Mr. Panel go metropolitan you not on a should City’s August that quested on regional fact, In that is basis? go in the forth allowed tion ‘be housing today, it? isn’t whole thrust York of New District Southern Well, va- class Yes. “MR. MARGOLIS: determination [by bringing that lidity City restrict, class action [chose] coordi- action, that the same time the basis various at its class Court] *** continues.’ discovery opinions actions. on class nated 117-8). (Transcript, pp. recognize You “JUDGE WISDOM: “Second, discovery that there be conflicts extensive respect scope underway of this already City’s to the is case. courts with in the you action, City requests do not? or- that transfer require completion der the Panel “MR. Yes. MARGOLIS: parties such Now, isn’t “JUDGE WISDOM: agreed to or ordered which has been purposes of this Act to avoid the District Court Southern ? conflicts prior date District York to the New position is “MR. MARGOLIS: Our order.” Panel’s the class we that that don’t believe that, summary City requests In pretrial. our part is That action is City in the action which the civil position. plaintiff, that the Panel order action be recognize that I WISDOM: “JUDGE pre- part, is for all transferred that you position, how do your but that except purposes determination justify it?” be the class requests City apparently Panel for determina- reserved transferor power of the reservation after the transferor transfer issue class action to determine court court. by dividing accomplished papers 1404(a) providing lated for in- Section purposes all file between transferor ter-district is, court, (change venue) and the actions for transferring “the entire witnesses in file”. convenience justice. also interest annota- See substance contends that constitutionality, tions on construction a transfer under 1407 the trans- Section application of Federal Statutes power feree court lacks determine viding actions. 5 transfer of civil issue, power the class action and that 1239; 932. 10 A.L.R.2d A.L.R.2d remains court after transfer. Language the Clear Construction of
Rulings City’s Requests on the Section 1107 agree We do not inter principles applicable Under pretation. contrary theOn we hold that language statutory construction, there separation should not be first. If should examined statute class action issues and a reservation to clear, statutory language the words power transferor сourt of to deter meaning clear, plain “there is no and the mine the (1) class action issues because history”. legislative need to refer to the power the Panel lacks the to order such U.S., Collett, supra, c. Ex Parte separation reservation, (2) L.Ed., S.Ct., 1.c. 1211. 1.c. *5 power, exercise possessed, of such a if Paragraph (a) of 1407 is re- Section would be unwise and indiscrete. by City lied on and contains some of The request, second Panel in language. the critical It reads as fol- its require completion order of transfer lows: agreed of discovery upon or which has “(a) involving When civil actions by been court, ordered the transferor questions one or more common of fact denied for the same reasons. districts, are in different such may any actions be transferred dis- Rulings Reasons trict or coordinated consolidated pretrial proceedings. transfers First, Such questions the nature of the to be by judicial panel shall made be on by the determined Panel should be anal- by yzed. multi-district authorized upon section its determination City The contentions of raise proceedings transfers for such questions statutory construction. No for the will be convenience question constitutionality of the of Sec prоmote and witnesses and will tion application 1407 or its in these just and efficient of such conduct Only cases is raised. transfer under Sec tions. Each action so transferred shall tion 1407 consideration. The by panel be remanded at before or appeal does not discretion to the proceed- pretrial the conclusion of such by the Panel or to the Panel forbearance ings to the from which it district was statutory powers prin use of its on transferred unless it shall been ciples comity, but rather contends the previously Provided, how- terminated: power Panel has no to transfer the class any ever, panel may That circumstances, action issue. In these counter-claim, claim, cross-claim, or questions presented plainly questions are third-party claim and remand authorizing construction of the statute such claims before the remainder Blaski, transfer. See Hoffman v. remanded.” 335, 1254, U.S. 4 L.Ed.2d S.Ct. following (b) immediately Paragraph Collett, c. and Ex Parte 337 U.S. is as follows: S.Ct. 93 L.Ed. 10 A.L.R. 921, 922, “(b) 2d of which involved anal or consoli- both coordinated Such ogous questions pretrial proceedings of the re- shall be con- construction dated judges by judge quested special or whom to make dis- ducted a orders about assigned ju- covеry binding by are court. the transferee such actions litigation. panel on multidistrict dicial Paragraph (b) clearly provides upon request of the purpose, For this pre the “coordinated or consolidated judge panel, or district a circuit shall be conducted assigned may designated judge be judges judge or actions to whom such temporarily for in the trans- service assigned” if dis are the Panel. So feree district the Chief Justice covery, including completion of discov judge United or the chief States ery, and determination class ac circuit, may required, in ac- be part pretrial are chapter provisions cordance with proceedings, powers then those are 13 of this title. With the consent statutory required to clear mandate be court, such ac- transferee district The conducted court. may assigned by panel tions sen use the word “shall” in first judge judges The or of such district. (b) paragraph tence of of Section judge judges such actions whom pretrial powers of this clear. The makes assigned, ju- members powers the transferee include litigation, panel on multidistrict dicial modify, expand, or dis vacate earlier judges and district circuit covery To coordinate orders. designated panel when needed cases, of these in the related exercise may powers exercise district necessary powers or desirable. judge purpose for the power The neither nor Panel has conducting depositions judge disposition to direct the transferee coordinated powers of his and dis the exercise proceedings.” pretrial proceedings. cretion in language paragraph (a) plainly granted power to the Panel clearly authorizes “civil pretrial powers *6 to limit exercise the power granted actions”. is not to found the the court is parts of “civil there actions or paragraph (a) permitting proviso the except the of” or “civil actions class any cross-claim, separate “claim, Panel to City us action issue” as the have counter-claim, third-party aof or claim” procedure, hold. and federal civil to remand and transferred civil action particularly in federal statutes authoriz remainder “any claims before the of such transfer, ing phrase the “civil action” power This is remanded.” action 3, meaning. 2 has definite Rules and a portion para- harmony is with F.R.Civ.P.; Collett, supra, cf. Ex Parte F.R.Civ.P., 42, graph (b) author- Rule 944, L.Ed., 55, 1. c. 93 337 U.S. S.Ct. 69 ordering separate trials izing the 1210. cross-claims, claims, and counter-claims con- third-party in furtherance claims (a), paragraph any or Nor does prejudice where to and avoid venience power other, to the Panel with invest economy. expedition to and conducive completion discovery require under way, discovery have (a) paragraph of Section While agreed by to, or been ordered which has by separation permits and remand by requested the transferor court as cross-claims, counter- claims, Panel of City. separable third-party claims claims and 42, (b) does paragraph Rule it has made No contention been separate to permit the Panel discovery part not a that is *** any separate or issue contemplated by “of proceedings Sec- separable under are also respect only issues” which to deter- It tion 1407. is unequiv- (b) This Rule 42. questions paragraph mination withholding obviously deliberate F.R.Civ.P., con- this ocal and that Rule separate power is- to re- the Panel Panel from Yet is made. tention assigning single
sues in a civil action dated and limit- ing powers separation or more to the transferee court and Panel’s and claims, one оr more to the remand to cross-claims and coun- clear, precise third-party claims, wise limitation on the ter-claims Con- gress powers “impossible of the Panel. has made read the excising” powers section as to de- There clear indications that questions termine the class action Congress permit did not intend to the order of transfer. Ex Parte Col- Cf. single partition Panel the issues in a lett, supra, U.S., S.Ct., 1. c. c. 1. assign powers claim relief and L.Ed., 1. c. 1210. supervision decision parts to purpose courts to be exercised con- two of Section 1407 as temporaneously. By authorizing independently clear shown its lan (not legislative guage, Panel to transfer “civil actions” corroborated parts thereof) history,1 including reports coordinated consoli- (S. 159, claim, cross-claim, Congress) 1. S. 3815 90th was re trial of claim, third-party claim, counter- Improve ferred to the on Subcommittee et cetera. Machinery provision ments in Judicial before which “The Sec- hearing splitting an initial off claims send- advocates tion 1407 originating ing bill was held on October them back to During hearings analogy 42(b) Neal,* those Dean is based on to Rule one of I authors of the Judicial think that correct. Conference bill, questions “Now, suggestiоn, answered as I un- relevant the other precise here, it, issue as follows: derstood was that instead of trans- Tydings. provides ferring “Mr. The bill toto for the case in pre-trial pre-trial proceedings, the transfer of claims or co-ordinated only might suggested cedures. been It has certain be trans- that conceivably is too broad and ferred to the transferee court and other that disposed of, presumably the transfer should be for un- issues left to be during period time, by der the Rules of Federal Civil Procedure the same only, pre-trial leaving other It matters transferor court. seems to me that district, the transferor to be there three rather serious conduct- are at least perhaps objections ed at the same time or later. to that. suggestion place, “The is also I the ‘unit’ “In the first think it would be any satisfactory bill, very which is transferred under difficult frame claim, broad, you is too definition would tell what ‘is- sues of fact’ need be transferred. Do kinds of issues should be dealt with you thoughts respect and what kind transferee court points? court, imagine *7 those two the transferor and I can great argument “Dean Let Neal. me take the deal of and second discussion question appropriate going particular first. I think the on as to whеther a is- unit to deal with is a claim or sue is of posed that should dis- a cross- the kind be counterclaim, claim or because of back home or should be dis- that is posed by the basic unit under the Federal Rules of Civil Procedure insofar of the transferee court. place, they “In it me the second seems to deal separability exceedingly with of actions. that it be awkward would might specifically “Reference be made to have the determination of issues in 42(b) being partly ju- to Rule the of Federal case in Rules of the made one Procedure, partly Civil in which risdiction and another. deals with the problem might say pend- of consolidation. I “The idea a case could that be really provides ing that Senate Bill 3815 in districts at the two different procedure quite just analogous for a that same time seems to me to be a most provides for, idea, to what Rule 42 awkward and inconvenient and where pending district, great problems timing cases are in the there are of that same 42(b) provides involved, suppose. and Rule that in further- would be I would Certainly prej- ance of convenience or to avoid it would be to dis- convenient udice, may pose you got the court in actions of which certain issues beforе consolidated, you it has order the on and if to other had to de- issues * Neal, University Chicago Law, formerly Secretary Dean Phil C. the School of Executive Co-Ordinating Multiple and Consultant the Litigation. to Committee for Dean Neal was passage of the authors of and advocates of the of Section Title U.S.C. Congressional of the that Ju- clear its remedial aim to eliminate Committees and testimony potential conflicting contempo- the Conference, be- and dicial rulings by authors, coordinate Congress makes raneous its fore possess powers may be must all issues these that certain cide ordinarily district exercised district court another be determined first court, getting process on in under the a case before it whole the ex- Federal Rules of Civil Procedure or common the co-ordinated interrupted. cept might ceedings court would be that the transferee be required place, me to for trial it seems to remand action the third “In anything leaving pend- of the issues disclosed factual idea of that pretrial proceedings ing in the transferee while in Only settled, going for- if an action was court. summary judg- depriving dismissed, really way determined ward is disposed important ment, judicial system or othеrwise of in ac- of the of some togeth- bringing advantages Rules of the eases cordance with Federal Civil Procedure, would be no remand.” there er. sup hearing example, testifying think, about the vari- Others at this in “I Judge port questions rulings bill Alfred law which of the were Chief on ous equip- (10th Cir.), Judge up early A. P. Murrah Edwin in the electrical came tolling (N.D.Ill.), Bane, Es Robson quire, Charles A. such ment cases Johnston, Esquire, limitations, the effect of Edward R. statute doctrine, Olson, Esquire, ef- Ronald W. go the Chica concealment fraudulent Clary Judge pleas Bar. of nolo contendere Chief Thomas J. fect (E.D.Pa.) support in bill testified of the on. so things important January before the same subcommittee on “I think one equip- electrical conduct about questions addition, Report No. that these the House cases was ment hearing early Congress, Session, brought 90th 2d which the in were all determined, appeals Judiciary were Committee on recommended were questions passage bill, following: of objective not have the stated and we did taken legislation widely times in “The provide different is to at decided management litigation. parts centralized different certainly supervision pretrial proceedings “Also, there would only litigation having advantage оne court of ‘just to in de-. multidistrict assure having instead conduct’ and efficient of such cide those get decisions tions. The possibility of different committee believes that dozens duplication eventual- with conflicts for conflict and courts different by appeal. pretrial procedures ly resolved sug- short, me, related cases can avoided “It seems leaving manage- this gestion minimized centralized objective quite impractical accomplish state is ment. To divided only way, provides if one wants to bill for the transfer of venue that the orig- partly purpose determined of an for the limited a case inating partly conducting pretrial proceed- in the trans- district and coordinated district, ings. do it is the division statute affects feree for, pretrial stages calls liti- in time in multidistrict purposes gation. say, place moved all the case is It would not affect up district, pos- the transferee of trial sibility exclude case or proceedings, pre-trial of transfer under other Fed- conclusion back.” be sent eral statutes. then pre- ¤ *8 %¡ sjt ¤ suggestions to restrict of the H* None ‘pretrial “By proceedings’ powers the term men- court of the transferee trial prac- incorpo- Tydings committee has to were referenee tioned Senator procedure precede and which tice new section. rated generally hearing writer, in- an action. These in a the same At of deposition discovery, and, bill, describing operation of volve and of the statement course, governed by are the Federal said: See, g., “Upon temporary Rules of Civil Procedure e. proceed- pretrial rule 16 and rules 26-37. Under Section 1407 new ings Federal rules the would be court in the transferee authority court would have to render the cur- with accordance conducted summary judgment, provisions lim- to control and Federal Rules of the rent pretrial impose proceedings, it to and The transferee Procedure. Civil appellate district and ease, courts multidis- tions of the in this if sustain- ed, trict related possible, civil actions. conten- perhaps would make and i.e., by dupli- preventing sanctions for failure to make discov- of the action — ery comply pretrial pretrial discovery pro- or orders.” cation of and added) (Emphasis ceedings as to is- the common issue or Report (Emphasis added) In Senate No. 90th Con- sues.” gress, Session, 1st the Committee on Ju- Professor Currier submitted for consid- diciary passage bill, rеcommended of the of the eration amendment subcommittee stating, among things: permit other of the bill to the transferor court purpose proposed legisla- “unique process “The of the to issues” while the machinery provide processed tion is to formal transferee court the “common transfer, suggestion to for coordinated or con- issues”. The as follows: was pretrial procedures, solidated “The minimum unit to be transferred judicial necessary appears larger tions in different dis- to be than is tricts, permit or more common to maximum realization legislation. purpose of fact. The action ***** transferred, to be that and even “Paragraph (e) provides ‘claim’ that will remain the trans- subsequent separates review transfer panel or- feree court after re- only by claims, cross-claims, etc., ders of the is to be had ex- other mands traordinary pursuant normally unique writ to 28 U.S.C. will include some fac- pro- issues, damages, 1651, cedure, This tual Act. such as in addi- the All Writs expeditious appeal, more than tion ground to common issues that are purposes proceed- consistent with overall for transfer. Pretrial proposed Paragraph (e) ings unique also these will issues provides panеl no review be facilitated consolidation and hence normally ought shall he in than the not to be conducted forum Appeals unless, V.S. Court the trans- the transferee court district, avoiding multiplicity 1404(a), thus criteria section the entire feree proceedings minimizing review cmd action is one which should be transfer- of the possibilities conflicting rulings." red there. (Emphasis added) extremely likely, course, “It Congress keenly was aware of the mean- that posed legislation the transferee court under the ing presented question pretrial the bill on the limit City. to the common issues even Currier, require though Professor Thomas S. the bill does not University Virginia School, unique Law be limitation. The issues could analyzed Depu- pretrial proceedings studied and ty H.R. left in the Trubow, Tydings Counsel Sub- court after has the action analyses sugges- questionable committee. His been remanded. But it is appendix pretrial proceedings tions were included in the whether unique on printed transcript Hearings always on S. issues should be made to Chicago, pretrial proceedings 3815 at October conclusion of await pages Efficiency may at 84 to inclusive. his anal- on common issues. re- ysis correctly quire precedence given, Professor Currier stated following: conflict, pretrial event “ (2) Scope common issues. But such conflicts of transfer. —The legislation contemplates prove infrequent. transfer of to be In the context court, cases, equipment ‘action’ to the transferee but recent electrical purpose many example, potential deponents limited and dis- covery proceedings. judicial panel damages may no issues have had litigation play pretrial proceedings on multidistrict is author- role any ‘claim, conspiracy, ized to and remand on issues of cross-claim, counterclaim, third-party likely in- other ability source of conflict —the remanding attorney claim’ before the entire civil of a defendant’s to at- action, pretrial proceedings and is to remand the entire ac- two simultane- tend ously not, practical matter, ‘at before’ conclusion of con- —is proceedings. really applicable large corporate solidated Thus de- fendants, apt repre- the minimum unit trans- *9 anyway. attorneys is a ‘claim.’ The is claim that a of sented host ferred dispatch appears to be transferred must involve ‘one or “It thus of lit- questions fact,’ igation more common would be better served if the proposed legislation scope transfer is to be ordered when it will limited the ‘promote just (in- and efficient conduct’ to common issues of fact conflicting flicting, disorderly, probable, pretrial chaos ac- chaotic greatest. tion is the action determinations which Section the recent- class Under impossible. ly designed 23, to amended Action Rule F.R. 1407 was make Class Civ.P., powers defining classes 1965, draft Section In March including parties, plaintiffs and defend- approval was recommended ants, expressly by space, are not limited Conference the United States Judicial time, description party or nature Co-Ordinating Mul- Committee Already, claim or defense. in related report Litigation tiple formal dated in a litigation coming at- multidistrict to the 2, 1965, describing purposes March Panel, separate tention of proposed operation section. requested con- courts have to make been original form was The in its section flicting In class action determinations. Co-Ordinating Committee. drafted these circumstances it is not certain that legislative part report his- is This always each to district court be able will Collett, supra, tory. 337 U.S. Ex Parte conflicting requests to learn of the made 944, L.Ed., In 55, c. 1214. 1. S.Ct. certain, hоwever, It is courts. the Judicial Conference March conflicting requests if are deter- these approved proposed the United States mined under 1407 in a transferee Section legislation principle. the basis On court, information and means incorporating approval bill this fair, speedy and economical coordinated posed in the introduced section was new is the clear determinations will exist. It Representatives House H.R. intent of 1407 to the trans- Section invest Congressman Congress, Emanuel 89th powers, feree court with exclusive referred to the Committee Celler and transfer, pretrial to de- after make Judiciary. report not contained This ques- terminations of the class action original proposed only draft protection In tions. the similar devices comment also a formal but Section “Determination of all said: we dangers recognized thereon which involving questions of matters class separate prosecution simultaneous judgment shall left the sound tions proposed and then class actions under Judge (the Metzner adopted Rule Action 23. Class now judge).” re Protection Devices and In to difficul- reference comment included a Anti- Central Protection Station Service repeti- involving ties of actions 9,295 page Cases, F.Supp. 39 at trust No. in the Advi- mentioned tious sory Committee note to amended, adopted, Rule 23. The full now City replies concept To this Co-Ordinating comment of the Commit- determination of following appendix tee set forth is part “pre opinion and order. proceedings” as used in Section the field of class action authority
It 1407. No is cited for this un multidistrict easy determinations in related usual contention. answer potential one, for con actions that probably this contention is the best law), cluding asking issues mixed fact and the Panel do construction permitted Congress deliberately court what declined to do. pro contemporaneous conduct In addition attention is invited to dis- issues, unique subject ceedings on the cussions of the Judicial prior Bill Conference conflict, priority, in the event to its amendment and enactment. pretrial proceedings Proceedings in the transferee Consolidation Under Pro- event, legislation posed court. Section the Judicial Code: 1407 of expressly pretrial proceed limit should Questions Unanswered of Transfer ings Review, Chicago in the transferee common 33 U. of B.Kev. l.c. (1966) ; issues.” The Problem Venue suggested Litigation Multiple deliberate- This amendment was District Part IV. ly bill, 159, enacting Bill, Lawyer omitted S. The Celler 41 Notre Dame (1966). new section into law. The now l.c. 523-526 *10 494 namely, pretrial, adjective, single an a as civil action with Rule the 16 judicial pro- proceedings means trial —that all before transferee and court ceedings pretrial pro- proceedings are the Rule before trial 23 in the trans- ceedings. problem feror prac- This is known not court. The becomes tically lawyers judges, and but known insoluble when the class action re- readily by laymen. quest complaint, learned See
can
is in the
with control
Dictionary
Eng-
Random
complaint,
amendment of
House
ad-
Language, unabridged
parties
dition
giving
lish
1141. See
ed.
and the
of no-
33
and
tice
contemporaneously
also “Pretrial Calendar”
Words
shared
transferee
Phrases
court and several
transferor
courts with
jurisdic-
exclusive
legal standpoint
From a
the class
tion.
request
and its determination
are
Further,
general under-
and
the wide
urgent
pretrial proceed-
the most
standing
the class
that determination of
ings.
recognized explicitly in
This is
part
pretrial
action
subparagraph
(c)
(1)
Rule
F.R.
basis
constitutes
Civ.P.,
specially
which
commands
listing
subject,
processing
this
practicable
soon as
com-
“[a]s
after
begin
Prin-
of which
at the First
should
brought
mencement
an
as a
action
Conference,
(Preliminary)
cipal
Pretrial
action,
class
the court
shall determine
suggested procedures
Man-
by order
whether
to be
main-
so
Complex
Liti-
ual
and Multidistrict
subparagraph
tained.” Under
this
gation
approved
September
1968
may
conditional,
order when made
the Judicial
United
Conference
may
and
be altered or amended at
pages 14,
Manual,
22 and 23.
States. See
time before the
decision
the merits.
(So
process may
Unless
through
the determination
of the class
continue
pretrial
question
part
action
pretrial proceed-
is treated as a
and after
pretrial
ings
proceedings,
completed.
been
This leaves
court will
power
to determine
be unable
some
and dis-
(formal
represented)
cretion
to the
before transfer
re-
after
mand.)
actions,
local and transferred
will be
unable to coordinate
an
action filed
class action
ceedings
will
be unable
control
pretrial processes (specifically
most
simplification
through
issues
generally
16, F.R.Civ.P.,
listed
Rule
pleadings,
control of amendment of the
Procedure;
the title
“Pretrial
through
comprehensive
control of
Formulating
Issues”)
involve or
af-
discovery.
fected
an affirmative
de-
potential
Another of the innumerable
termination.
specifically
Those
listed
alarming consequences of the construc-
16
Rule
include:
tion of Section 1407 submitted
issues;
“(1)
simplification
The
delay
is the conflict and
“(2)
necessity
desirability
early appeals
result
from
from class ac-
pleadings;
amendments
to the
tion determinations.
in-
Under current
“(3)
obtaining
possibility
ad-
terpretation
right
early
there is a
fact and
missions of
of docu-
appeal by
plaintiff
unneces-
ments which will avoid
“dismissing”
request
the class action
* *
sary proof;
*.”
before
trial of
action.
Eisen v.
Jacquelin
In order make
Rule
(C.A.2,
it clear that
1966),
Carlisle &
orders and Rule 23 orders are of
F.2d
cert. den. 386 U.S.
pretrial nature,
(d)
subparagraph
same
S.Ct.
(1967),
495 venues, City’s control courts, construc- cannot exercise over the under feror single appeals statute, same claim for relief at same multicircuit tion of the requests 42(b), conflicting time. As under Rule noted above on ap- F.R.Civ.P., separate 1407, and possible. multicircuit Section Such would be fraught multiplied separated claims for can be relief peals would be confusion, conflict, transferred ex- under 1404 as in delay, inordinate Section inefficiency, Corp. Leesona v. Manufactur- which Section Cotwool pense and ing Corp. 139, (D.S.C.) F.Supp. app. mul- 204 eliminate. With intended to 1407 (C.A.4, 1962), dismissed F.2d tiple pretrial action orders 308 class issue or remanded transferor districts under Section 1407. This appeals possible is circuits, transferee court because several pretrial pro- single process the claims for in a helpless to relief pro- ceedings which “will tion in manner are severable the interests in a justice. single just relief, A efficient conduct claim for how- mote the ever, para- separable by is in accordance with for trial un- such actions” issues only graph (a) der 42 On Rule if the of Section entire action proceedings, hand, pretrial and all if all issues therein remain other under con- (as distinguished re- and before trol one court order of transfer from after judge mand, court). a the transferee the one are conducted The reason that, ap- pretrial is procedure, court federal civil еarly legal claim pellate proceedings review of for relief is the irreducible ordinarily rulings purposes pretrial jurisdic- lie in the unit for will venue and single Appeals particular tion a for the dis- Court of court at a unitary concept re- time. until This trict time of transfer of the claim permits Consequently, at for relief coordination mand. transfer of the claim appellate achieved relief level will also from one district court to an- Appeals, other as in absence one Court case of a transfer under Sec- 1404(a), exceptional appeal an transfer. tions before 1407. But in no such separation contempo- and transfer above, the contentions As shown raneous dual control two or dis- more City con- based erroneous are single trict courts of a claim for relief “pretrial phrase of the struction (or separate thereof) permissible issues ceedings” as used in text the bill. system. in the federal judicial authority support No cited in City’s No contentions. other rea- substance transfer analogous experience 1404(a) “change Section sons or is cited is a of venue” (that legislative City. part “change his- is a courtrooms”) No of the tory City. completiоn pretrial On other is cited and for trial or legislative history unequivocal- disposition. hand, Van Dusen v. Bar rack, ly meaning supports plain U.S. S.Ct. 11 L. Adoption the construction Ed.2d By analogy statute. 1. c. 962-963. proposed by would result in an change Section 1407 is a frustrating of venue for purposes. unauthorized and unintended legis- judicial salutary amendment change On of venue lation. overwhelming authority that holds jurisdiction powers Partition of the transferee relief, with single processes claim court coextensive with jurisdic contemporaneous court; exercise transferor the transferee over district courts court more make order to render two judgment un might separated parts, is not have been rendered jurisprudence precedented federal the transferor court in the absence of principles pp. transfer. settled C.J.S. Venue 980- well § but violates , cited, management. Two 981 and courts therein cf. cases v. Greve jurisdictions, (D.N.M.) Enterprises or Gibraltar 85 F. exclusive different 414; Supp. Appeal 1. c. that after an order in which multi- jurisdiction changing litigation subject venue the un- to transfer ceases; disposi- and that there der Section 1407. There is no *12 part no after the transferor court can issue tion on the the Panel to act hastily orders, any steps by further taken or and without a and well considerate respect courts, of no effect. Phebus v. Search deserved are for these (C.A.8) 409; principles comity. 21 C.J.S. F. c. 517a; 149; Courts 20 Am.Jur.2d § § that, It is obvious under Section Venue, 78, p. prin Am.Jur. 79. These § proposals transfer civil will to there ciples applicable a un are transfer important pretrial mo- in which actions entry der Section from the time of under or are reach- tions are submission of the order of until time transfer ing point mo- of submission. These entry an order of remand. dismissal, tions include motions de action summary judgment case class or for determination by among transferor questions, terminations made the class action transfer, provisions prior court In one Panel others. case of which the permitting apply trans notice, pre- appeal of Rule 23 a has formal ac class feree court to determine the trial denial the class action issue is and revise presently to review pending Ap- and in the Court in peals action order its sound class court. transferor problems arising desirable or neces special discretion is from these justice. sary in require the interests of circumstances careful and thoughtful solution the Pаnel. City under In the case of the appear consideration, comity, it does principles ap- On where question under sub past class propriate, Panel has mission, or that an initial decision timed its actions and constructed its or- Discovery processes have imminent. permit ders a manner which will proc discovery employed but all Ap- been (and transferor courts Courts of completed progress will or be peals esses involved) if are reach time- No cause to ly useful after the transfer. particular decisions on issues without defer transfer of the case of the abrupt, disconcerting, untimely inap- appears. without condition propriate Transfer orders of policy comity will be ordered. Panel. This has been past followed in the and will fol- power to What has been said lowed in the future the Panel. disposes determine the class action issue respect request an order in of the The successful use of re- Section 1407 discovery. committed to This matter is quires cooperation among Courts, of trans- the transferee court after order atmosphere Panel in an discovery processes progress All fer. trust, confidence, comity good will. remain in effect ordеrs The Panel these believes conditions ex- trans- unless vacated or modified ist and will continue to exist. they feree manner court the same could be transferor modified Conclusion clearly court. It is stated the notice foregoing reasons, hereby For the it is hearings Panel that, ORDERED on the initiative discovery processes are not sus- damage Panel, the nine civil treble pended thereby. antitrust actions listed in Schedule B at- be, they tached hereby, trans- Principles Comity special ferred without conditions or res- keenly prob- The Panel is aware of the ervations to the Eastern District of Pennsylvania lems of the District and Courts assigned Courts Honor- Judge Title the transferee Jr., of 1407 of Lord, District W. able John jurisdiction Pennsylvania, has to determine District the Eastern tion motions Rule absent writing the trans- consent in with the court. motion in the transferor hereto. court attached feree However, Rule motion under when a argued already has been or submitted Judge WEINFELD, EDWARD judge court and is dissenting in part, (concurring in Panel by him at undetermined the time part). entry by the the transfer order Panel actions in the transfer of I concur transfer order section judge for coordinated does not divest the transferor *13 However, I proceedings. dissent jurisdiction to make his determination as fol- respect motions Rule 23 motion. Notwithstand- lows: ing, judge, matter of as a juris- comity, decline to exercise entry upon agree or- I the transferee court. diction and defer to pursuant to section Panel der B* SCHEDULE of California District
Northern Angeles Department Civil Action City Water of Los 1. The Angeles City No. Los and Power v. Corpora- Sanitary & Standard American Radiator tion, et al. Civil Action of Hawaii
2. State No. 49541 v. Sanitary Corpora- Radiator & Standard American tion, al. et Virginia
Eastern District Civil Action Petros 3. Edward S. No. 4887-A v. Corpora- Sanitary & Standard American Radiator tion, et al. Mangano Builders, Inc. Civil Action A. and M & M
4. Vincent No. 4888-A v. Corpora- Sanitary & Standard American Radiator tion, et al. Mangano Action Civil Vincent
5. A. 4889-A No. v. Corpora- Sanitary American Radiator & Standard tion, et al. York of New District
Southern al, York, Civil Action et of New 6. No. 68-3149 v. Sanitary Corpora- Radiator & Standard American tion, et al.
* F.Supp. 33) originally listing (Lettered A transferred. cases “B” because Schedule ¡of
Eastern District Wisconsin 7. State of-Wisconsin Civil Action v. No. 68-C-230
Plumbing Association, Fixture et al. Manufacturers
District of Kansas Kansas, Londerholm, State ex rel. Robert C. Civil Action Attorney General No. T-4481 v. Standard, Inc.,
American et al.
District Columbia Co., 9. Blake Construction Inc. Civil Action v. No. 2104-68 Standard, Inc., American et al. *14 Co-Ordinating The con- Committee
APPENDIX necessary sidered pro- whether changes accomplished cedural could PART I existing rule-making authority. Report Study Co-Ordinating From venue, led Com- to the conclusion that Litigation Multiрle historically legislative mittee on Recom- a matter of con- cern, mending by any appro- would New Section Title 28 be affected priate problems. solution of the An earlier proposed draft of similar stat- Proposed Multi- Comment § provided ute necessary would have Litigation District statutory authority but would have re- reso- As directed the March 1964 quired implementation by substantial panel lution of the Judicial Conference of specifically delegated States, Co-Ordinating rule-making flexible authority. Com- United After considering (a comments Multiple Litigation received on an for sub- mittee draft, earlier the Committee has con- Pre- committee of the Committee on objectives cluded that its can be achieved Practice) ex- Trial Procedure and has by the specific more limited and statute legislation rules for amined the need proposed now only which authorizes im- special problems presented to treat by plementing rules not inconsistent with litigation. During the multi-district Congress Act of or the Federal Rules analyzed past year has the Committee of Civil Procedure. equip- experience its in the electrical litigation, with the ment consulted techniques, Two pre- court control of judgеs lawyers participated in who proceedings and centralization of program for ad hoc coordination proceedings, pro- such are basic to the appraised pro- cases, numerous those posal. By authorizing unified treatment posals designed expedite proceedings involving for multi-district actions one pending when are related civil actions fact, or more common Proposed in more than district. § possibility statute would create important an is recommended as applying pre-trial to these ordered step improving cases administra- procedures generally cases. like for this class recom- those Limited protracted cases mended Transfer. See, Rec- single Handbook district. major innovation Trial Procedures ommended solely pre-trial purposes. Cases, F.R.D. Protracted objectives eliminating statute’s (adopted Judicial Conference assuring duplication conflict and and of 1960). Cen- United States —March pre-trial efficient and economical pre-trial tralization ceedings would be achieved without thus addi- sought minimize the losing the benefits of local trials engen- litigation costs which tional appropriate advantage An districts. through litigation in multi-district dered statute multi-district discovery, conflicting overlapping techniques, over alternative depositions and docu- repetitive such as action, action remains each production and minor variances ment litigants individual suit with the interrogatories im- written retaining separate control their in- over answering pose on the undue burdens Advisory terests. The Committee’s Note parties. Proposed (F.R.Civ.P.) Rule 23 com- that, ments “Even when a number Scope the Statute. proceeding actions are simul- taneously, experience shows that pre-trial The statute affects burdens on the and the courts litigation. stages It in multi-district by arrange- can sometimes be reduced place of trial not affect avoiding repetitious discovery ments for under other case or exclude transfer Preliminary or the like.” Pro- Draft of (e. g., statutes Title U.S.C. §§ posed Amendments Rules Civil (a) 1406(a)) prior con- to or at the Procedure United District States proceedings. pre-trial clusion of *15 (U.S. Printing Courts 118 Government 1964). Office, Proposed 1407 would § which would af- The civil actions litigant’s priv- maximize traditional meet the statute must several fected ileges selecting where, when and how First, general requirements. they must rights to enforce his substantive or as- questions of common one or more involve minimizing sert pos- his defenses while Second, they pending in fact. must complexity sible undue multi-party from Although pres- more than one district. jury trials. procedures permit or coordinated ent proposed Under 1407 § related cases consolidated treatment pow- usual district court would have single brought or transferable provided ers the Federal Rules district, pro- procedures these do not Procedure, including authority to Civil vide for such treatment the cases where summary judgment, render control must dis- remain several pre-trial proceedings, and to and limit proposed would not tricts. The statute impose dis- sanctions for failure to make existing affect of coordinated methods covery comply pre-trial or orders. pend- or consolidated treatment cases deposition judges pow- have would Third, ing single cir- in a district. deponents over and the actions as ers coordinat- cumstances must be judges in which districts pre-trial ed or consolidated depositions are taken. just promote and efficient This final re- conduct of such actions. forum Transfer to the most desirable quirement applicability limits pre-trial provided permitting litigation in which statute any Present transfer “to district.” actions, significant economy efficiency provisions civil transfer for pre-trial pro- which are not limited to judicial administration be obtained. 500
ceedings,
(1)
empowered
districts
the transferee
to:
initiate
restrict
proceedings;
example,
28,
(2)
transfer
For
Title
U.S.C.
transfer civil
available.
any
change
1404(a)
“to
for coordinated
actions
or consolidated
limits
§
pre-trial proceedings
where
[the
other district or division
with the consent
brought.”
might
been
district
from which the
have
courts
action]
28,
1406(a)
assign
transferred;
(3)
actions are
Similarly, Title
U.S.C. §
judge
judges
or
pro-
district
or
restricts
“to
to conduct such
transfer
ceedings
request
division in which it
could
the Chief Justice
[a case]
Analogous
brought.”
problems
assignments
make
been
inter-circuit
purpose;
(4)
multiple bankruptcy
designate
presented
are
petitions
act as and
when
judges
against
deposition judges
other
district;
same
are filed
Bankruptcy
(5)
bankrupt.
32 of the
remand transferred
Section
Act,
55, permits
they
actions to the districts
Title
U.S.C.
from which
§
were
transfer and
“in
transferred at or
consolidation
before
con-
proceed
pre-trial
clusion of
proceedings.
which can
with the same for the
greatest
granted
Chief
designate
authority
Justice
convenience of
panel’s membership
interest.”
shall consist of seven
circuit
Benefits
judges.
procedures for related
been
cases have
recognized
grounds
allocating
litiga-
un
When
multi-district
Pop
1404(a).
der Title
among
assigning
U.S.C. §
the districts or
Lines,
al.,
Inc.,
kin v. Eastern Air
et
judge
judges
pre-trial
to conduct
F.Supp.
(E.D.Pa.);
204
431
ceedings,
functioning
panel
would be
granted
Barrack,
nom.,
mandamus
sub
primarily
capacity.
in an administrative
Administratrix,
al.,
et
v.
Analogous
Van Dusen
procedures
dividing
al.,
U.
Judge,
S. District
F.2d
et
309
single
of a
district are
business
(1962),
remanded,
rev’d. and
376 found in certain
where this
districts
U.S.
84 S.Ct.
L.Ed.2d
performed by
function is
an executive
(1964),
granted
the district court
de
judges.
committee of
For
the district
1404(a)
fendants’
example,
10(c),
motions to transfer
§
Rule
General
Rules of
personal injury
wrongful
death United States District Court
actions to
Illinois,
another district
provides:
where
Northern District of
cases which arose from the same crash
*16
“(c) Executive Committee: The
pending, stating
were
that:
assignment of
cases
calendars
*
*
requires
*
justice
interest of
“The
judges
shall
be done
transfer of these cases
general
direction of an Executive
reasons,
for
transferee District
among
these
consisting
judges
Committee
of three
*
(1)
*
others:
Consolidation
of this court
arising
all
acci-
the cases
from
experience
The Committee’s
or-
in
proceedings
purposes
be-
dent for
ganizing
deposition program
for the
likely
procure fairer
fore
equipment
electrical
antitrust
litigants
orderly
and more
for all
trials
indicates that swifter and
flexi-
more
expense
needless time and
save
procedures
assign-
ble
for inter-circuit
including
public,
jurors,
for the
judges
depositions
ment of
to conduct
litigants
other
ing
whose cases are await-
stages
are desirable. At some
(Emphasis supplied.)
trial.”
gram may
require judges
may
not
or
require
deposition judges.
several
At
Judicial Panel on
Liti-
Multi-District
prompt
times
attention from a
gation.
larger group
judges may
be useful.
provides
designa- Frequent changes
judicial
statute
person-
The
for
of judicial
assigned
panel
nel
tion of a
on multi-district
to this task
also be
hand,
ing).
has been
changes
On the other
it
advantageous.
rapid
permit
To
argued
appropriate
are
personnel,
that such orders
judicial
assignment of
in the
for direct
review under
the doctrine
panel and
authorizes
statute
Executrix,
al.,
Cohen,
et
assigned
v. Beneficial
judges
are
the cases
to whom
Corp.,
al.,
Industrial
337 U.S.
Loan
et
powers
a district
to “exercise
(1948).
S.Ct.
et 346 U.S. 1406(a) proceed- reports (§ respectfully (1953) recommends L.Ed. Judicial Conference of consideration of the United § favorable meeting forthcoming of the States. at the Judge Judge Circuit Chief Joe E. Estes Chief Alfred Judge George Murrah, H. Boldt P. Chairman. Judge Sylvester Chief J. Judge Ryan Byrne William M. Judge Thomas Chief J. Judge Clary Becker William H. Judge Chief Roszel C. Judge Edwin Thomsen A. Robson March States, upon by the determination II Part panel promote transfer will requested Congressman Celler justice and efficient conduct of Department Justice. of the views requires suits. The transfer con- January Department, in a letter dated sent of the court in which the suit Attorney signed by Deputy 1966, and pending, and each action so transfer- Clark, enact- Ramsey favored General panel red shall be remanded at amendments, bill two of the ment or before the conclusion of the excluding prosecutions government (1) proceedings to the which district from scope laws from antitrust under the may panel was transferred. The provi- (2). bill, and deletion of any claim, claim, cross con- original requiring bill
sions of counterclaim, party or third claim which district court sent remаnd such claims before transferred before the action is remainder of the action is remanded. follows: letter reads as This is made. “The coordinated or consolidated request your response “This is pretrial proceedings shall be conducted Department the views of the judge judges assigned by or concerning a bill H.R. Justice judicial panel. panel may request, temporary transfer provide for the ‘To purpose, assign- temporary single district for coordinated ato judge proceedings of ment circuit or district different actions the transferee district the Chief more which districts involve Justice the United or the States fact, and for common judge chief of the circuit. Proceed- purposes.’ ings transfer of an action new section panel “The bill would add a be initiated Code, to title notice United States in all of permit manner, to a the transfer actions concerned of time single place or con- hearing district for coordinated to determine pretrial proceedings of civil whether solidated the transfer shall be made. pending in districts actions different The concurrence of four members of panel which involve one or more common necessary shall be *18 panel. transfer shall action fact. Such When actions by judicial panel made a on multi- be have been transferred the order consisting litigation, panel, refusing district seven no district court to judges appointed to circuit consent litigation transfer of related may of the United Chief Justice make order for or (15 Clayton 5(b) U.S.C. Act discovery conflict with in permit (b)) running statute of tolls the the transfer- in discovery proceedings damage suits their limitations red actions. is while Government specific no is present, there “At plaintiffs proceeding. Private conduct governing provision discovery information to uncover use proceedings on discovery and relating damages or informa- to massive basis. a already obtained have tion that we discovery was which program, national grand juries, through the use of un- response to established investigative informal demands equip- of electrical precedented number Moreover, to if we wish interviews. actions, damage in- was ment treble delay, may be forced such avoid we authority under stituted plaintiffs private in- to share with rule-making power, Supreme Court already possession formation in our delegation in a resulted in turn which prefer keep to confidential and thаt we coordinating authority com- to a relinquish to control of con- a purpose of judges for mittee of discovery proceeding a solidated to procedure working appropriate out an attorney. private plaintiff’s While handling common exempting the Government from this outgrowth of problems. The bill is an legislation may occasionally burden gained experience under this they may because defendants discovery program, and is national questions posed answer similar both codify attempt apparent some by private Government steps [For taken thereunder. parties, justified this is Program, general discussion see importance securing public Goldberg, Neal The Electrical quickly as relief antitrust cases Equipment Novel Antitrust Cases: possible. To Government treat Administration, Judicial A.B.A.J. differently arbitrary, is (1964).] purpose governmental suit normally legislation private recommended differs from was that of “This protect suit: the Judicial the Government Conference seeks to public Department competitive injury, from United States. private sug- primarily while Justice favors its enactment but gests recovering damages interested it be amended in two injuries already respects. suffered. We there- fоre recommend the Government’s pros- that Government “We believe exempted civil antitrust suits be from laws antitrust ecutions legislation. hand, this On the other scope of be excluded should damage the Government’s suits should applied to If the bill the measure. included, pur- for the Government’s anticipated actions, such antitrust pose bringing suit private plaintiffs would that numerous same as private party. that of a Ac- immediately damage suits file treble cordingly, suggested it is that a new filing following a Government (g) subsection be added to section 1 consequence, Government suit. of the bill to read as follows: Department would suits filed this substantially “(g) Nothing certainly shall this section almost disadvantage apply delayed, which the often awaiting complainant injured competitors United is a who are States arising antitrust laws. suit of the Government the outcome damage predicate upon laws’ as used herein their ‘Antitrust no include those referred to Furthermore there acts actions. amended, injured 15,1914, participation need Act October (38 730; 12), stage competitors 15 U.S.C. Stat. at since section *19 504 19, 1936 Act of June also include 13, (49 1526; 15 13a U.S.C. Stat. 13b) September Act
26, 1914, 21, 1938 as March added 56); (52 116, 117, 15 U.S.C. Stat. not include 4A of but shall section 15, 1914, the Act added October as 282; July 7, (69 Stat. 15a). U.S.C. “Also, provision we that the believe requires the bill which consent of the district from which an
action is transferred should be deleted. require super- To such consent seems fluous since seven circuit judges must consider the
transfer and four members panel approve it before it can take
place. Requiring the consent of the give judge transferor district power require veto and in essence voluntary cooperation of all in order Tuttle, Angeles, (Rob- Glad Los & Cal. proceedings. consolidate White, Angeles, Cal., ert Glenn Los counsel), plaintiff. Budget “The Bureau of the has objection advised that no there is Ruckelshaus, Atty. D. William Asst. report submission of this from the (Steven Sosnov, City, Gen. R. York New standpoint of the Administration’s attorney), for defendant. program.” RAO, Judge, FORD,
Before Chief Judge, OLIVER, Judge. Senior
OLIVER, Judge: Senior
The merchandise involved “Cengar Op- test consists of certain Air imported England. erated Saws” them The collector customs classified S., CENGAR U. INC. paragraph machine tools v. 1930, of the Tariff ofAct as modified duty UNITED STATES. T.D. at the rate assessed per centum ad valorem. 3762; C.D. Protest No. 65/19717-80501. challenges plaintiff the classifica- Court, United States Customs claiming Cengar tion, that the said saw Second Division. tool, properly is not a machine and is April paragraph classifiable T.D. Tariff Act as modified 55615 and T.D. T.D. other, specially machine, provided for, per dutiable at rate of lOVz centum valorem, ad later amended