DOCKET NO. 1428, C.A. No. 3:01-1794
July 17, 2002
WILLIAM TERRELL HODGES, CHAIRMAN, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN AND J. FREDERICK MOTZ, JUDGES OF THE PANEL
Before the Panel is a motion brought, pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), by defendant TUV Rheinland of North America, Inc. (TUV NA) to vacate the Panel's order conditionally transferring the action to the Southern District of New York for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket. Plaintiffs oppose the motion to vacate and favor inclusion of the action in MDL-1428.
On the basis of the papers filed and hearing session held, the Panel finds that this action involves common questions of fact with the actions in this litigation previously transferred to the Southern District of New York, and that transfer of the action to the Southern District of New York for inclusion in the coordinated or consolidated pretrial proceedings in that district will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel further finds that transfer of the action is appropriate for reasons expressed by the Panel in its original order directing centralization in this docket. The Panel held that the Southern District of New York was the proper Section 1407 forum for actions involving claims of liability arising out of a fire on a mountain train in Kaprun, Austria, on November 11, 2000. See In re Ski Train Fire in Kaprun, Austria, on November 11, 2000, 175 F. Supp.2d 1379 (J.P.M.L. 2001).
TUV NA argues that this action presents issues distinct from those presented in the previously transferred actions and unique to this defendant. Specifically, TUV NA argues that the plaintiffs have alleged that TUV NA operated as an alter ego of the other defendants named in this action and would be liable for the allegedly negligent conduct of those other entities. TUY NA maintains that these allegations of an alter ego relationship will require significant discovery, which will likely dominate the preliminary proceedings in this action. We find this argument unpersuasive. This action, like those already included in MDL-1428, arises from the same fire, and factual questions concerning the cause or causes of the fire will be common to each action. The presence of different legal theories in some of the actions with regard to the alleged liability of each defendant does not negate the existence of common questions of fact regarding the cause or causes of the fire and the attendant circumstances. See In re Aircraft Accident at Barrow, Alaska, on October 13, 1978, 474 F. Supp. 996 (J.P.M.L. 1979); In re Air Crash Disaster in the Ionian Sea on September 8, 1974, 438 F. Supp. 932, 934 (J.P.M.L. 1977).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, John S. Habblett, et al. v. TUV Oesterreich, et al., D. Connecticut, C.A. No. 3:01-1794, is transferred to the Southern District of New York and, with the consent of that court, assigned to the Honorable Shira Ann Scheindlin for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.