In re Drowning Incident at Quality Inn Northeast, Washington, D. C., on May 3, 1974

405 F. Supp. 1304, 1976 U.S. Dist. LEXIS 17046

• Court: United States Judicial Panel on Multidistrict Litigation
• Decided: January 22, 1976
• Docket: Docket No. 222
• Status: Published

Opinion

PER CURIAM.

Osvaldo Torres, Jr. was a 13-year-old student participating in a field trip to the District of Columbia sponsored by his junior high school in the Bronx, New York. While swimming at the Quality Inn Northeast in Washington, D. C., where the group was staying, Osvaldo Torres drowned. His body vas discovered at the bottom of the pool.

Two actions alleging various types of negligence were thereafter instituted by the Administratrix of his estate: one in the District of the District of Columbia and the other in the Southern District of New York. Defendants in the District of Columbia action include the owners of the Quality Inn where the drowning occurred, the Inn’s general manager and the entities and individuals responsible for maintaining and supervising the pool. Defendants in the New York action are the City of New York, its Board of Education and Teachers Tours, Inc., which had arranged for transportation, accommodations, sightseeing, food, lodging and other services for the junior high group.

Plaintiff moves the Panel for an order transferring the District of Columbia action to the Southern District of New York for coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407, with the action pending in that district. Defendants in the District of Columbia action oppose transfer while defendants in the New York action have taken no position on the question. We find insufficient basis for transfer under Section 1407 and, accordingly, deny the motion.¹

Movant argues that transfer of the District of Columbia action to the Southern District of New York is appropriate because all witnesses to the incident are located in New York, other than the life guard on duty at the time of the drowning, whose deposition has already been taken in the District of Columbia. She maintains that the requisite common questions of fact exist and that judicial time will be conserved by resolving both actions in a single legal proceeding.

The existence of common questions of fact between actions is, as we have often noted, but one condition precedent to transfer under Section 1407. See, e. g., In re Highway Accident Near Rockville, Connecticut, on December 30, 1972, 388 F.Supp. 574, 575 (Jud.Pan.Mult. Lit.1975). Before a transfer will be ordered, the Panel must be satisfied that all the statutory criteria have been met. Id. In the circumstances of this particular litigation, we are not persuaded that the requested transfer would serve the overall convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.

Only two relatively simple negligence actions are involved here — too few and not complex enough to warrant transfer. See In re Scotch Whiskey Antitrust Litigation, 299 F.Supp. 543 (Jud.Pan.Mult. Lit.1969).

Inasmuch as plaintiff is the same in each of these actions, she can seek an appropriate order to make discovery taken in either action applicable to the other. Cf. Manual for Complex Litigation, Part I, § 3.11 (rev. ed. 1973). Furthermore, plaintiff can take other measures to avoid unnecessary duplication of discovery, for example: she could file notices for a particular deposition in both the New York and District of Columbia courts, thereby making the deposition applicable in each jurisdiction; she could seek orders from the two courts directing the parties to coordinate their pretrial efforts; and she could seek a stipulation among the parties that all discovery may be used in both actions. Thus, suitable alternatives to a transfer under Section 1407 are available to the movant in this litigation.

Plaintiff, moreover, has apparently misconstrued the result that is attendant upon transfers under Section 1407. Although pretrial proceedings are conducted under the supervision of a single judge, the actions are thereafter returned to their respective transferor courts for trial unless, of course, they have previously been terminated in the transferee court or transferred by the transferee judge under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406. See Rule 11, R.P.J.P.M.L., 65 F.R.D. 253, 260 (1975). Accordingly, witnesses who reside in New York will probably be involved in trial in the District of Columbia even if we granted the motion now before us. And, whether or not we grant the motion, discovery from those witnesses will likely occur in proximity to where they live. See Rule 45(d)(2), Federal Rules of Civil Procedure.

It is therefore ordered that the motion pursuant to 28 U.S.C. § 1407 to transfer the actions listed on the following Schedule A be, and the same hereby is, denied.

1 . All the parties waived their right to oral argument and, pursuant to Rule 14, R.P.J.P.M.L., 65 F.R.D. 253, 264 (1975), the question of transfer under Section 1407 was submitted on briefs