Opinion
No. 106.
July 26, 1972.
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 not present at the hearing, they have, with the consent of all parties, participated in this decision.
OPINION AND ORDER
On June 6, 1971, a United States Marine Corps Phantom Jet fighter and a Hughes Air West DC-9 commercial airliner collided in mid-air near Duarte, California. The pilot of the Phantom Jet and the 44 passengers and five crew members aboard the DC-9 received fatal injuries. The radar intercept officer aboard the Phantom Jet is the sole survivor of the collision.
More than thirty actions arising out of this crash have been filed in the Central District of California and have been assigned to Judge Peirson M. Hall. Nine other civil actions are pending in the District of Utah and two in the Western District of Washington. On its own initiative the Panel ordered the parties to these actions to show cause why they should not be transferred to a single district for coordinated or consolidated pretrial proceedings. On the basis of the responses to the Panel's order and the arguments presented at the hearing, we hold that to further the convenience of the parties and witnesses and to promote the just and efficient conduct of the litigation the actions must be transferred to the Central District of California for pretrial proceedings.
All parties responding to the Panel's order to show cause concede that the Central District of California is the most appropriate district for transfer under Section 1407. We agree. The mid-air collision out of which these actions arose occurred in that district and both planes involved in the collision originally departed from locations within that district. In addition, the lone survivor of the crash and the majority of witnesses reside there. Furthermore, the majority of the litigation has been filed there, a document depository has been established and all parties have been participating in the discovery program being supervised by Judge Hall in that district.
The responding plaintiffs in the Utah and Washington actions argue, however, that any transfer should be limited to discovery relating to the issue of liability. They contend that discovery relating to the issue of damages is local in nature and does not concern questions of fact common to the other cases.
Section 1407(a) authorizes the Panel to "separate any claim, cross-claim, counter-claim, or third-party claim" from the remainder of the transferred action and to remand such claims to the transferor district. See, e.g., In re Hotel Telephone Charge Antitrust Litigation, 341 F. Supp. 771 (Jud.Pan.Mult.Lit. 1972); In re Penn Central Securities Litigation, 325 F. Supp. 309 (Jud.Pan.Mult.Lit. 1971). It does not authorize the Panel to transfer one issue raised by a claim, such as liability, while remanding another issue raised by the same claim such as damages. For this reason we deny respondents' request. Cf. In re Antibiotic Drugs Antitrust Litigation, 299 F. Supp. 1403 (Jud.Pan.Mult.Lit., 1969); In re Air Crash Disaster at Greater Cincinnati Airport, 298 F. Supp. 353 (Jud.Pan.Mult.Lit., 1968). We also think it more conducive to effective judicial management to allow the transferee judge to determine whether and to what extent discovery on separate issues is appropriate for coordinated or consolidated pretrial proceedings. See, In re San Juan, Puerto Rico Air Crash Disaster, 316 F. Supp. 981 (Jud.Pan.Mult.Lit., 1970).
It is therefore ordered that all actions listed on the attached Schedule A pending in the District of Utah and the Western District of Washington be, and the same hereby are, transferred to the Central District of California and, with the consent of that court, assigned to the Honorable Peirson M. Hall for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district.
SCHEDULE A
District of Utah DOCKET NO. 106
Coy M. Morris, et al. v. United Civil Action States of America, et al. No. C-73-72
Marian C. Dunn, et al. v. United Civil Action States of America, et al. No. C-74-72
Alice W. Mangum, et al. v. United Civil Action States of America, et al. No. C-75-72
Jeanne Pyke, et al. v. United Civil Action States of America, et al. No. C-76-72
Jeanne M. Pyke, et al. v. United Civil Action States of America, et al. No. C-77-72
Afton G. Allen, et al. v. United Civil Action States of America, et al. No. C-78-72
Virginia H. Pyke, et al. v. United Civil Action States of America, et al. No. C-80-72
Janet T. Schoenhals, et al. v. Civil Action United States of America, et al. No. C-81-72
John Jay Garcia, et al. v. United Civil Action States of America No. C-92-72Central District of California
Margaret M. Reeves, etc. v. Hughes Civil Action Air Corp., etc. No. 71-1425-PH
In the Matter of the Petition of Civil Action Glenda Gabel, etc. No. 71-1431-PH
Howard Brand, et al. v. Hughes Civil Action Air West, Inc. No. 71-1465-PH
Norene E. Forgy, et al. v. Hughes Civil Action Air West, Inc. No. 71-1555-PH
Glenda Gabel, etc. v. Hughes Civil Action Air Corp., etc. No. 71-1595-PH
James D. Dean, M. D. v. Hughes Civil Action Air Corp., etc. No. 71-1822-PH
Albert Denegal, Jr., etc. v. Hughes Civil Action Air West, Inc. No. 71-1996-PH
Ralph D. Miller, et al. v. Hughes Civil Action Air Corp., etc. No. 71-2021-PH
Chase Apgar, et al. v. Hughes Civil Action Corp., etc. No. 71-2253-PH
In the Matter of the Petition of Civil Action Afton G. Allen, etc. No. 71-2334-PH
In the Matter of the Petition Civil Action of Janet T. Schoenhals, et al. No. 71-2335-PH
In the Matter of the Petition of Civil Action John Jay Garcia, etc. No. 71-2336-PH
In the Matter of the Petition Civil Action of Virginia H. Pyke, etc. No. 71-2337-PH
In the Matter of the Petition of Civil Action Jeanne M. Pyke, etc. No. 71-2338-PH
In the Matter of the Petition of Civil Action Jeanne F. Pyke, etc. No. 71-2339-PH
Helen F. Fennell, etc. v. Hughes Civil Action Air Corp., etc. No. 71-2528-PH
Glen Leroy Hunter, et al. v. Hughes Civil Action Air Corp., etc. No. 71-2791-PH
In the Matter of the Petition of Civil Action Alice Wilkinson Mangum, etc. No. 71-2796-PH
Otto Conrad Davidson, etc. v. Hughes Civil Action Air Corp., etc. No. 71-2831-PH
Cynthia Kalbfleisch, etc. v. Hughes Civil Action Air Corp., et al. No. 71-2878-PH
Michael Rene Garcia, etc. v. Hughes Civil Action Air Corp., etc. No. 71-2932-PH
Glenda Gabel, etc. v. The United Civil Action States of America, et al. No. 72-1-PH
John D. McCorden, et al. v. Hughes Civil Action Air Corp., et al. No. 72-25-PH
Daniel Subic, et al. v. Hughes Civil Action Air West, Inc. No. 72-54-PH
Elizabeth W. Kaufman, etc. v. United Civil Action States of America, et al. No. 72-344-PH
Lee C. Potter, et al. v. Hughes Air Civil Action Corp., etc. No. 72-450-PH
Judith V. Wilkerson, etc. v. Hughes Civil Action Air Corp., et al. No. 72-469-PH
Norene E. Forgy, et al. v. The United Civil Action States of America, et al. No. 72-633-PH
Michael Rene Garcia, etc. v. United Civil Action States of America No. 72-635-PH
Helen E. Fennell, etc. v. The United Civil Action States of America, et al. No. 72-875-PH
Howard Brand, et al. v. The United Civil Action States of America No. 72-924-PHWestern District of Washington
Carol Nicolay, etc. v. United States Civil Action 262-72
Etta Mae Bruner, etc. v. United Civil Action States of America No. 329-72C2