Opinion
No. 306.
August 16, 1977.
Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, JOSEPH S. LORD, III, STANLEY A. WEIGEL, ANDREW A. CAFFREY, and ROY W. HARPER, Judges of the Panel.
OPINION AND ORDER
On March 27, 1977 a Boeing 747 jet aircraft being operated by KLM-Royal Dutch Airlines (KLM) collided with a Boeing 747 jet aircraft being operated by Pan American World Airways (Pan Am) on the runway at the Los Rodeos Airport in Tenerife, Canary Islands. The KLM aircraft was carrying 248 passengers and crew members and the Pan Am aircraft was carrying 396 passengers and crew members at the time of the collision. Over 550 of those persons were killed.
Presently, 40 actions arising from the collision are before the Panel as a result of motions by various parties to transfer the actions in this litigation to a single district pursuant to 28 U.S.C. § 1407 for coordinated or consolidated pretrial proceedings. Fifteen of these actions are pending in the Northern District of California; thirteen in the Central District of California; three in the Southern District of New York; two each in the Northern District of Illinois and the District of Alaska; and one each in the Eastern District of California, the Southern District of California, the District of Arizona, the Western District of Washington, and the District of Puerto Rico. KLM is a defendant in all actions, Pan Am is a defendant in all but one of the actions, and Boeing is a defendant in several of the actions. Additional defendants in some of the actions include Royal Cruise Lines, booking agent for the Pan Am flight; the Government of Spain, operator of the airport at which the collision occurred; the insurance underwriter for the airport authority; and the surviving pilot and first officer of the Pan Am aircraft. Plaintiffs in the actions generally allege that negligent conduct of the defendants in operation, maintenance or design of either of the two aircraft or the airport caused persons aboard the aircraft to sustain injuries or resulted in the wrongful death of plaintiffs' decedents. Two of the actions, McClintock and Marshall, which are pending in the Northern District of California, have been brought as class actions on behalf of various victims of this collision or their estates.
All parties in this litigation anticipate a considerable number of tag-along actions, some of which have already been filed but came to the attention of the Panel too late to be included in the Panel hearing on this matter. See Rules 1, 9 and 10, R.P.J.P.M.L., 65 F.R.D. 253, 255, 259-60 (1975).
Two additional actions that were pending in the Northern District of California have been dismissed since the Panel hearing: Richard Bernasconi, et al. v. KLM-Royal Dutch Airlines, et al., Civil Action No. C-77-0778-WHO; and Dennis Querantes, et al. v. KLM-Royal Dutch Airlines, et al., Civil Action No. C-77-0779-WHO.
An additional action that is pending in the Southern District of California, James F. Barth, et al. v. Pan American World Airways, Inc., et al., Civil Action No. 77-0345-GT, was also included in the motions. On principles of comity, after receiving a request from the judge to whom Barth is assigned, we are deferring our ruling concerning this action pending that judge's decision on a matter he has under consideration. See In re Plumbing Fixture Cases, 298 F. Supp. 484, 496 (Jud.Pan.Mult.Lit. 1968).
All parties that have submitted briefs favor transfer of the actions in this litigation to a single district pursuant to Section 1407 for coordinated or consolidated pretrial proceedings. The only dispute among the parties is over the selection of an appropriate transferee forum. Four different districts have been suggested — the Northern, Central and Southern Districts of California and the Southern District of New York. Clearly, these actions involve common questions of fact and we find that their transfer under Section 1407 to the Southern District of New York will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
The parties that favor a California forum as the transferee district generally contend that the center of gravity of this litigation is located in California. They assert that most of the passengers on the Pan Am aircraft were residents of California or other west coast states; that a majority of the survivors of the collision are residents of California; that several actions arising from this collision have been filed in California state courts and many additional actions arising from this collision are expected to be filed in state or federal courts located in California; and that all the major defendants in this litigation are located in or near, or do substantial business in, California. Thus, the parties that favor a California forum maintain that a California forum will be convenient to the greatest number of parties and witnesses and will best facilitate coordination of discovery efforts between the actions pending in California state courts and those pending in federal court.
Though any of the three California forums that have been suggested, as well as the New York forum, could be described as an appropriate transferee forum for this litigation, on balance, we are persuaded that the Southern District of New York is the preferable forum.
The New York forum appears to have a greater nexus to the liability phase of the litigation than a California forum. The surviving pilot and first officer of the Pan Am aircraft reside in the New York area and are key witnesses. Also important are investigators of the collision from the Federal Aviation Administration and the National Transportation Safety Board, who apparently reside in either the New York area or the Washington, D.C. area. In addition, Pan Am's headquarters are located in New York and, as certain defendants and plaintiffs represent, many of the relevant documents and witnesses will be found in the New York vicinity. We observe that other centers of discovery in the liability phase will be the Netherlands, where KLM's headquarters are located; Spain, which is conducting its own investigation of the collision; and of course the Canary Islands, the situs of the crash.
Related actions are pending in New York state courts as well as California state courts. Hence, our selection of either a New York or California federal forum would facilitate the coordination of pretrial efforts between state and federal courts regarding the actions arising from this disaster. See In re Bomb Disaster at Roseville, California, 399 F. Supp. 1400, 1403 (Jud.Pan.Mult.Lit. 1975).
One party requests that the Panel enter an order which requires that: 1) Pan Am and KLM file a list of passengers and next of kin; 2) the passengers and next of kin be notified of these proceedings and 3) Pan Am and KLM file a list of settled claims. The Panel is not empowered to enter such an order under Section 1407, however. A request of this type should be presented to the federal district court in which one of the constituent actions was originally filed or to the transferee court following transfer under Section 1407.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the following Schedule A and pending in districts other than the Southern District of New York be, and the same hereby are, transferred to the Southern District of New York and, with the consent of that court, assigned to the Honorable Robert J. Ward for coordinated or consolidated pretrial proceedings with the actions already pending there and listed on Schedule A.
SCHEDULE A District of Alaska Civil Action No.
Wilma Lee Bowen, etc. v. Pan A77-107-Civ American World Airways, Inc., et al.
William Blackmon, etc. v. Pan A77-108-Civ American World Airways, et al.
District of Arizona
Central District of California
Norma Jean Boen, et al. v. Pan Civ-77-394-PHX-WPC American World Airways, Inc., et al.
Mary Finley, etc. v. Pan American CV-77-1201-F World Airways, Inc., et al.
Mary Finley, etc. v. Boeing Co., CV-77-1245-AAH et al.
Frank L. Foley, Jr., et al. v. CV-77-1263-WMB Pan American World Airways, et al.
Dan Harlow, et al. v. Pan American CV-77-1475-RJK World Airways, Inc., et al.
Julie A. Levengood v. Pan American CV-77-1476-WMB World Airways, Inc., et al.
June Perry, et al. v. Pan American CV-77-1478-R World Airways, Inc., et al.
Robert Hale v. Pan American CV-77-1479-LTL World Airways, Inc., et al.
H. Clifton Kroon, etc. v. His CV-77-1511-AAH Catholic Majesty, the King of Spain, a sovereign nation, et al.
Burke Kaplan, etc. v. KLM-Royal CV-77-1719-LEW Dutch Airlines, et al.
Edward Hirshfield, etc. v. KLM-Royal CV-77-1720-AAH Dutch Airlines, et al.
Ann D. Kaessner, et al. v. Pan CV-77-1391-MML American World Airways, et al.
Steven Alan Lewis, et al. v. Pan CV-77-1588-RF American World Airways, Inc., et al.
Dorothy D. Kelly, et al. v. KLM-Royal CV-77-2310-RJK Dutch Airlines, et al.
Harold E. Roman McClintock, C-77-0665-WHO et al. v. Pan American World Airways, et al.
Eugene J. Marshall, etc. v. Pan C-77-0711-WHO American World Airways, Inc., et al.
Albert K. Emerzian, et al. v. Pan C-77-0758-WHO American World Airways, et al.
Allen Calandra, et al. v. KLM-Royal C-77-0780-WHO Dutch Airlines, et al.
Betty Guerriero, et al. v. KLM-Royal C-77-0781-WHO Dutch Airlines, et al.
Walter Michael H. Watt, etc. v. C-77-0838-WHO His Catholic Majesty, et al.
Betty I. Rodriguez, etc. v. Pan C-77-0863-WHO American World Airways, Inc., et al.
Bethene M. Moore v. Pan American C-77-0874-WHO World Airways, et al.
Elfriede Naik, et al. v. KLM-Royal C-77-0901-WHO Dutch Airlines, et al.
C. Carl Nelson, Jr., et al. v. C-77-0963-WHO KLM-Royal Dutch Airlines, et al.
Norman L. Shapro, etc. v. KLM-Royal C-77-0938-WHO Dutch Airlines, et al.
Laura Callahan, etc. v. The Government C-77-0981-WHO of the Kingdom of Spain, et al.
Donald Vogel, et al. v. The Government C-77-0982-WHO of the Kingdom of Spain, et al.
Arthur R. Reed, et al. v. The C-77-0983-WHO Government of the Kingdom of Spain, et al.
William Bodinson, et al. v. KLM-Royal C-77-0956-WHO Dutch Airlines, et al.
Sarah B. Petersen, et al. v. Pan 77-0205-GT American World Airways, Inc., et al.
Maurice Magante, et al. v. Pan S-77-252-PCW American World Airways, Inc., et al.
Marianne Jakoubek, et al. v. Pan 77-C-1311 American World Airways, Inc., et al.
Charles H. Ziebel, et al. v. Pan 77-C-1711 American World Airways, Inc., et al.
John C. Amador v. KLM-Royal 77-Civ-1795 Dutch Airlines, et al.
J. Edwin Harper, etc. v. KLM-Royal 77-Civ-1820 Dutch Airlines, et al.
James W. Flood, et al. v. KLM-Royal 77-Civ-2462 Dutch Airlines, et al.
Adolfo Torrech Nieves, et al. v. 77-520 KLM-Royal Dutch Airlines, et al.
Donald F. Dally, etc. v. KLM-Royal C-77-275S Dutch Airlines, et al.