Opinion
No. 38.
January 8, 1975.
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, and STANLEY A. WEIGELfn_, Judges of the Panel
Although Judges Lord and Weigel were not present at the hearing, they have, with the consent of all parties, participated in this decision.
OPINION AND ORDER
The above-captioned action is one of several arising from a mid-air aircraft collision near Dayton, Ohio, on March 9, 1967. The actions in this litigation were transferred by the Panel to the Southern District of Ohio and assigned to the Honorable Carl A. Weinman for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. In re Multidistrict Civil Actions Involving the Air Crash Disaster Near Dayton, Ohio, on March 9, 1967, 310 F. Supp. 798 (Jud.Pan.Mult.Lit. 1970). Upon the suggestion of the transferee court, the Panel conditionally remanded the above-captioned action to the Eastern District of Michigan for further proceedings and trial. See R.P.J.P.M.L. 15(f), 53 F.R.D. 119 (1971), as amended 55 F.R.D. LI, LII-LIII (1972). Defendant Tann Co. opposes remand. On the basis of the transferee court's suggestion, the papers filed and the hearing held, we order this action remanded to the Eastern District of Michigan for further proceedings.
There have been extensive pretrial and trial proceedings in this litigation before Judge Weinman. And all of the actions comprising this litigation, except the Humphreys action, have now been either terminated in the transferee district or remanded to the appropriate transferor court. Nevertheless, defendant Tann opposes remand of this remaining action on the ground that pretrial proceedings in that action have not yet been completed. Defendant asserts that it has pretrial motions currently pending before the transferee court and that these motions should be decided by the transferee court.
The governing statute states that each action transferred by the Panel "shall be remanded by the [P]anel at or before the conclusion of such [coordinated or consolidated] pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated". 28 U.S.C. § 1407(a). Since the Humphreys action is the only action remaining in this litigation, we find that no purpose would be served by delaying remand of this action to the Eastern District of Michigan.
It is not contemplated that a Section 1407 transferee judge will necessarily complete all pretrial proceedings in all actions transferred and assigned to him by the Panel, but rather that the transferee judge in his discretion will conduct the common pretrial proceedings with respect to the various actions and any additional pretrial proceedings as he deems otherwise appropriate. Thus, in considering remand of this action, the Panel is greatly influenced by the transferee judge's suggestion that remand of the action is appropriate. Cf. In re Penn Central Commercial Paper Litigation, 358 F. Supp. 284 (Jud.Pan.Mult. Lit. 1973). His suggestion is obviously an indication that he perceives his role under Section 1407 to have ended.
Furthermore, the motions in the Humphreys action currently pending before the transferee court are of a nature unique to that action and their resolution does not require any particular expertise that the transferee judge might have gained from supervising this litigation. Accordingly, these motions can just as easily be presented to the transferor court for decision.
It is therefore ordered that the action entitled George H. Humphreys, etc. v. Herman Tann d/b/a Tann Co., et al., (E.D.Michigan, C.A. No. 32421), S.D. Ohio, Civil Action No. 3834ML(F), be, and the same hereby is, remanded to the Eastern District of Michigan.