Opinion
No. 24.
January 23, 1970.
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.
Judges MURRAH, WISDOM, LORD and WEIGEL were unable to attend both hearings but, with the consent of all parties have participated in this decision.
Transferred to the United States District Court for the Northern District of California by order of Chief Judge Schwartz on December 11, 1969.
OPINION AND ORDER
A hearing was held in Denver, Colorado on July 25, 1969 on the motion of the plaintiffs in several actions listed on Schedule B to transfer certain actions pending in other districts to the Northern District of California under 28 U.S.C. § 1407. This motion was denied and a second hearing was held in Washington, D.C. on September 26, 1969 on the initiative of the Panel to consider the transfer of the four actions listed on Schedule A to the Northern District of California. In re Western Liquid Asphalt Litigation, 303 F. Supp. 1053 (J.P.M.L. 1969). After considering the arguments presented at both hearings and the pleadings filed by all parties we have concluded that these four actions should be transferred to the Northern District of California for coordinated or consolidated pretrial proceedings with related actions pending there.
On December 11, 1969, the City of San Diego Case was transferred from the Southern District of California to the Northern District of California for all further proceedings, including trial. Although that action will therefore not be affected by this order, the prior position of the plaintiff with regard to the proposed section 1407 transfer and the subsequent action of Judge Schwartz support the selection of the Northern District of California as the most propitious transferee court.
The positions of the parties involved in the proposed transfer can be readily summarized. There is no disagreement as to action under section 1407 — all parties favor coordinated or consolidated pretrial proceedings. The only question is whether any or all of the consolidated cases should be transferred to the Western District of Washington rather than to the Northern District of California, where the other related cases have been transferred. The common defendants prefer that the Washington and Alaska cases be split off from the rest and consolidated in Washington, and the States of Washington and Alaska prefer that all cases be consolidated in Washington.
In opposing transfer of the Alaska and Washington actions to the Northern District of California, the defendants emphasize that only three of them are involved in the Alaska Case and only four in the Washington Case. Accordingly, so the argument goes, the other eight defendants in the actions now pending in San Francisco have no interest in the Alaska and Washington Cases and should not be required to participate in discovery in those actions.
Section 1407 is not only operative where there is multidistrict litigation involving common plaintiffs or defendants. In re Air Crash Disaster at Greater Cincinnati Airport Cases, 298 F. Supp. 353, 354 (J.P.M.L. 1968). See also, In re Gypsum Wallboard Antitrust Litigation, 303 F. Supp. 510 (J.P.M.L. 1969). If the thrust of the defendants' argument is that the Alaska and Washington Cases do not share common questions of fact with the other actions pending in the Northern District of California we are unpersuaded. The plaintiffs in these actions do not so contend. Indeed they join with the State of California in urging that all these actions possess substantial common questions of fact. The Alaska and Washington Cases clearly possess questions of fact which are common not only to the other actions to be transferred to the Northern District of California but also to the actions orginally filed in that district. We are satisfied that these common questions of fact are of sufficient magnitude and complexity to insure that the just and efficient conduct of these actions will be promoted by coordinated or consolidated pretrial proceedings conducted in a single district.
The plaintiff in an action originally filed in the Northern District of California.
For example, in its complaint the State of Washington charges the named defendants and other unnamed co-conspirators with fixing the price of asphalt and allocating customers throughout a market area which includes the States of Oregon, Washington and California. An identical charge is made in seven of the actions commenced in the Northern District of California. The State of Alaska's complaint adds that state to this trio while the State of California also includes the States of Arizona, Hawaii, Idaho, Montana and Nevada in its definition of the relevant market area. Thus facts relating to the existence, scope and effect of a regional conspiracy are common to virtually all of these actions.
The defendants further contend that transfer of these two actions to the Northern District of California would not serve the convenience of parties and witnesses. Such a transfer clearly cannot inconvenience the defendants as they are parties to actions now pending in the Northern District of California and none of the plaintiffs oppose the transfer of their actions to the Northern District of California.
In sum, we think this litigation is fairly typical multi-district antitrust litigation and that coordinated or consolidated pretrial proceedings are clearly mandated.
The following groups of antitrust litigation have been transferred under section 1407: In re Water Meters, 304 F. Supp. 873 (J.P.M.L. October 10, 1969), In re Concrete Pipe (West), 303 F. Supp. 507 (J.P.M.L. August 28, 1969), In re Admission Tickets, 302 F. Supp. 1339 (J.P.M.L. August 15, 1969), In re Concrete Pipe (East), 302 F. Supp. 244 (J.P.M.L. May 23, 1969), In re Gypsum Wallboard, 297 F. Supp. 1350 (J.P.M.L. 1969), In re Antibiotic Drugs, 295 F. Supp. 1402 (J.P.M.L. 1968), In re Plumbing Fixture Cases, 295 F. Supp. 33 (J.P.M.L. 1968), In re Protection Devices Equipment Central Station Protection Service Antitrust Cases, 295 F. Supp. 39 (J.P.M.L. 1968), In re Library Editions of Children's Books, 297 F. Supp. 385 (J.P.M.L. 1968).
At our first hearing we considered the possibility of transferring an action now pending in the Western District of Missouri, Master-Krete, Inc., et al. v. Chevron Asphalt Co., et al., (No. 16060) but reserved decision in our prior opinion and order. In re Western Liquid Asphalt Litigation, supra. We are now satisfied that the product involved in this action is so unrelated to the product involved in the other actions as to preclude the transfer of this action to the Northern District of California.
The Master-Krete Case basically involves a composition used for tennis courts while other actions involve liquid asphalt used in highway construction.
It is therefore ordered that the actions listed on Schedule A still pending in other districts be and the same are hereby transferred to the United States District Court for the Northern District of California for coordinated or consolidated pretrial proceedings and with the written consent of that court these actions are hereby assigned to the Honorable Russell E. Smith of the District of Montana.
Chief Judge Chambers has temporarily assigned Judge Russell Smith to the Northern District of California and Chief Judge Harris has consented to the assignment of these actions to Judge Smith.
SCHEDULE A Southern District of California
1. City of San Diego v. Union Oil Company of Civil Actionfn_ California, et al. No. 69-176-KWestern District of Washington
2. State of Washington, et al. v. Chevron Civil Action Asphalt Company, et al. No. 3846
District of Alaska
3. The State of Alaska v. Chevron Asphalt Co. Civil Action of California, et al. No. A-92-69 Civ
District of Arizona
4. Maricopa County v. American Petrofina Civil Action Inc., et al. No. 69-355-Phx
SCHEDULE B Northern District of California
1. Dean Miller v. Union Oil Company of Civil Action California, et al. No. 48391
2. Cascade Construction Co., Inc. v. Standard Civil Action Oil Company of California, et al. No. 49638
3. Pioneer Construction Co., Inc. v. Standard Civil Action Oil Company of California, et al. No. 49808
4. Page Paving Company v. Standard Oil Civil Action Company of California, et al. No. 50307
5. State of New Mexico, etc. v. American Civil Action Petrofina, Inc., et al. No. 50709
6. Klamath County, Oregon v. Standard Oil Civil Action Company of California, et al. No. 51258
7. State of California, etc. v. Standard Oil Civil Action Company of California, et al. No. 51107
8. State of Oregon v. Standard Oil Company Civil Action of California, et al. No. 50173
9. State of Arizona, etc. v. American Civil Action Petrofina, Inc., et al. No. 51092
10. City and County of San Francisco v. Union Civil Action Oil Company of California, et al. No. 51331
11. Sonoma County, California v. Standard Oil Civil Action Company of California, et al. No. 51701