OPINION AND ORDER
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III and STANLEY A. WEIGEL, Judges of the Panel.
PER CURIAM.
The cases listed on the attached Schedule A were brought by the United States of America on behalf of the Commodity Credit Corporation to recover damages for alleged losses of grain
during shipment. Discrepancies between the weights recorded at the origin and the weights recorded at the destination form the basis for the Government claims. The grain was transported by the defendants in clear-record, covered hopper cars.
On April 25, 1969, the Panel ordered the parties in these cases to show cause why the cases should not be transferred for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407.
A
hearing was held in Denver, Colorado on May 23, 1969 and counsel for all parties were notified by the Clerk of the Panel.
These thirty-two cases involve many common questions of fact including those relating to general standards for loading and unloading hopper cars, general standards for weighing hopper cars, the integrity of the hopper cars by design and manufacture and the amount of shrinkage or loss of moisture which normally occurs in these grains. There are also questions of fact of limited commonality. As all shipments do not originate or terminate at the same point, the loading and weighing procedures used at any one terminal are not common to all cases. However many of the shipments involved in this litigation have the same points of origin and destination; therefore the facts relating to actual practice at those locations are common to several of these cases.
We are satisfied, as are the vast majority of the parties
that there are sufficient common questions of fact and that transfer of these cases for coordinated or consolidated pretrial proceedings will be for the convenience of the parties and their witnesses.
There is a special reason why the just and efficient conduct of these actions will be served by application of Section 1407. Although these cases are of great importance to the railroads, the Government, and the general public, they involve relatively small damage claims.
Therefore, every effort should be made by the parties and the courts to process these actions as efficiently, expeditiously and economically as possible. The transfer of these cases for coordinated or consolidated pretrial proceedings under Section 1407 is but the
first step
in realizing such a goal. Section 1407 is not the exclusive vehicle for insuring the just and- efficient conduct of cases having common questions of fact and law. In re Air Crash Disaster at Falls City, Nebraska on Aug. 6, 1966, 298 F.Supp. 1323 (Jud.Pan.Mult.Lit. 1969). Sections 1404(a), and 1406(a) when applicable, may be used in conjunction with or in place of Section 1407 to transfer related cases to a single court. In re Mid Air Collision near Hendersonville, North Carolina on July 19, 1967, 297 F.Supp. 1039 (Jud.Pan.Mult.Lit. 1969). It should be emphasized that the transfer of these eases under Section 1407 does not prevent the appropriate court from considering the possibility of transferring these cases for trial under Section 1404(a) when pretrial proceedings are complete. See Manual for Complex and Multidistrict Litigation, section 5.2.
In its initial response to the order to show cause, the Government suggested the District of Maryland as an appropriate transferee forum, a suggestion admittedly prompted by personal convenience. The defendants oppose this suggestion and approximately half of them have requested that the cases be transferred to either the Districts of Colorado, Kansas or Nebraska. Selection of one of these courts is urged because most of the grain involved in this litigation moved in the central states and because the Government records relating to grain shipments are located at the. off ice of the Agricultural Stabilization and Conservation Service in Kansas City. These factors coupled with the availability in each of these districts of an experienced and capable judge familiar with this litigation and with grain handling and storage problems in general compel the selection of one of
these three districts. The final choice is not an easy one. The physical proximity of the District of Kansas to the offices of the Agricultural Stabilization and Conservation Service and the willingness of Judge George Templar to accept responsibility for the coordinated or consolidated pretrial proceedings
has convinced us that the District of Kansas is the most appropriate transferee forum.
The Southern Railway Company opposes the inclusion of the two cases filed against it in the District of South Carolina in consolidated or coordinated pretrial proceedings on the grounds that pretrial proceedings in these two cases are almost complete and the cases are nearly ready for trial. It does not appear that the convenience of parties and witnesses or the just and efficient conduct of these two actions would be furthered by transferring them to the District of Kansas under Section 1407.
Cf.
In re Protection Device Cases, 295 F. Supp. 39, 40 (Jud.Pan.Mult.Lit.1968).
It is therefore ordered that the cases on the attached Schedule A, with the exception of the two cases pending in the District of South Carolina and those cases originally filed in the District of Kansas, are hereby transferred to the District of Kansas and with the consent of that court assigned to the Honorable George C. Templar for coordinated or consolidated pretrial proceedings.
SCHEDULE A
District of Kansas
1. United States of America v. The Atchison, Topeka and Santa Fe Railway Company Civil Action No. T-4314
2. United States of America v. Atchison, Topeka and Santa Fe Railway Company Civil Action No. T-4464
3. United States of America v. Chicago, Rock Island & Pacific Railroad Company Civil Action No. T-4323
4. United States of America v. Missouri Pacific Railroad Company Civil Action No. T-4317
District of Maryland
5. United States of America v. Pennsylvania Railroad Company Civil Action No. 19013
6. United States of America v. Western Maryland Railway Company Civil Action No. 19575
7. United States of America v. Baltimore & Ohio Railroad Company Civil Action No. 19520
8. United States of America v. Pennsylvania New York Central Transportation Company Civil Action No. 19797
Eastern District of Virginia
9. United States of America v.
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OPINION AND ORDER
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III and STANLEY A. WEIGEL, Judges of the Panel.
PER CURIAM.
The cases listed on the attached Schedule A were brought by the United States of America on behalf of the Commodity Credit Corporation to recover damages for alleged losses of grain
during shipment. Discrepancies between the weights recorded at the origin and the weights recorded at the destination form the basis for the Government claims. The grain was transported by the defendants in clear-record, covered hopper cars.
On April 25, 1969, the Panel ordered the parties in these cases to show cause why the cases should not be transferred for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407.
A
hearing was held in Denver, Colorado on May 23, 1969 and counsel for all parties were notified by the Clerk of the Panel.
These thirty-two cases involve many common questions of fact including those relating to general standards for loading and unloading hopper cars, general standards for weighing hopper cars, the integrity of the hopper cars by design and manufacture and the amount of shrinkage or loss of moisture which normally occurs in these grains. There are also questions of fact of limited commonality. As all shipments do not originate or terminate at the same point, the loading and weighing procedures used at any one terminal are not common to all cases. However many of the shipments involved in this litigation have the same points of origin and destination; therefore the facts relating to actual practice at those locations are common to several of these cases.
We are satisfied, as are the vast majority of the parties
that there are sufficient common questions of fact and that transfer of these cases for coordinated or consolidated pretrial proceedings will be for the convenience of the parties and their witnesses.
There is a special reason why the just and efficient conduct of these actions will be served by application of Section 1407. Although these cases are of great importance to the railroads, the Government, and the general public, they involve relatively small damage claims.
Therefore, every effort should be made by the parties and the courts to process these actions as efficiently, expeditiously and economically as possible. The transfer of these cases for coordinated or consolidated pretrial proceedings under Section 1407 is but the
first step
in realizing such a goal. Section 1407 is not the exclusive vehicle for insuring the just and- efficient conduct of cases having common questions of fact and law. In re Air Crash Disaster at Falls City, Nebraska on Aug. 6, 1966, 298 F.Supp. 1323 (Jud.Pan.Mult.Lit. 1969). Sections 1404(a), and 1406(a) when applicable, may be used in conjunction with or in place of Section 1407 to transfer related cases to a single court. In re Mid Air Collision near Hendersonville, North Carolina on July 19, 1967, 297 F.Supp. 1039 (Jud.Pan.Mult.Lit. 1969). It should be emphasized that the transfer of these eases under Section 1407 does not prevent the appropriate court from considering the possibility of transferring these cases for trial under Section 1404(a) when pretrial proceedings are complete. See Manual for Complex and Multidistrict Litigation, section 5.2.
In its initial response to the order to show cause, the Government suggested the District of Maryland as an appropriate transferee forum, a suggestion admittedly prompted by personal convenience. The defendants oppose this suggestion and approximately half of them have requested that the cases be transferred to either the Districts of Colorado, Kansas or Nebraska. Selection of one of these courts is urged because most of the grain involved in this litigation moved in the central states and because the Government records relating to grain shipments are located at the. off ice of the Agricultural Stabilization and Conservation Service in Kansas City. These factors coupled with the availability in each of these districts of an experienced and capable judge familiar with this litigation and with grain handling and storage problems in general compel the selection of one of
these three districts. The final choice is not an easy one. The physical proximity of the District of Kansas to the offices of the Agricultural Stabilization and Conservation Service and the willingness of Judge George Templar to accept responsibility for the coordinated or consolidated pretrial proceedings
has convinced us that the District of Kansas is the most appropriate transferee forum.
The Southern Railway Company opposes the inclusion of the two cases filed against it in the District of South Carolina in consolidated or coordinated pretrial proceedings on the grounds that pretrial proceedings in these two cases are almost complete and the cases are nearly ready for trial. It does not appear that the convenience of parties and witnesses or the just and efficient conduct of these two actions would be furthered by transferring them to the District of Kansas under Section 1407.
Cf.
In re Protection Device Cases, 295 F. Supp. 39, 40 (Jud.Pan.Mult.Lit.1968).
It is therefore ordered that the cases on the attached Schedule A, with the exception of the two cases pending in the District of South Carolina and those cases originally filed in the District of Kansas, are hereby transferred to the District of Kansas and with the consent of that court assigned to the Honorable George C. Templar for coordinated or consolidated pretrial proceedings.
SCHEDULE A
District of Kansas
1. United States of America v. The Atchison, Topeka and Santa Fe Railway Company Civil Action No. T-4314
2. United States of America v. Atchison, Topeka and Santa Fe Railway Company Civil Action No. T-4464
3. United States of America v. Chicago, Rock Island & Pacific Railroad Company Civil Action No. T-4323
4. United States of America v. Missouri Pacific Railroad Company Civil Action No. T-4317
District of Maryland
5. United States of America v. Pennsylvania Railroad Company Civil Action No. 19013
6. United States of America v. Western Maryland Railway Company Civil Action No. 19575
7. United States of America v. Baltimore & Ohio Railroad Company Civil Action No. 19520
8. United States of America v. Pennsylvania New York Central Transportation Company Civil Action No. 19797
Eastern District of Virginia
9. United States of America v. Chesapeake and Ohio Railway Company Civil Action No. 6541-N
10. United States of America v. Norfolk & Western Railway Company Civil Action No. 6404
11. United States of America v. Norfolk & Western Railway Company Civil Action No. 6895
District of Minnesota
12. United States of America v. Chicago, Burlington & Quincy Railroad Company Civil Action No. 298
13. United States of America v. Chicago North Western Railway Company Civil Action No. 273
14. United States of America v. Chicago North Western Railway Company Civil Action No. 315
15. United States of America v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company Civil Action No. 348
16. United States of America v. Soo Line Railroad Company Civil Action No. 297
Northern District of Texas
17. United States of America v. Fort Worth & Denver Railway Company Civil Action No. 1054
Western District of Missouri
18. United States of America v. Kansas City Southern Railway Company Civil Action No. 17018-3
Western District of Washington
19. United States of America v. Northern Pacific Railway Company Civil Action No. 3610
20. United States of America v. Spokane Portland & Seattle Railway Company Civil Action No. 8057
Western District of New York
21. United States of America v. New York Central Railroad Company Civil Action No. 1967-424
Eastern District of Pennsylvania
22. United States of America v. Reading Company Civil Action No. 68-44
23. United States of America v. Reading Company Civil Action No. 68-1611
24. United States of America v. Pennsylvania New York Central Transportation Company Civil Action No. 69-203
District of South Carolina
25. United States of America v. Southern Railway Company Civil Action No. 67-843
26. United States of America v. Southern Railway Company Civil Action No. 68-635
District of Nebraska
27. United States of America v. Union Pacific Railroad Co. Civil Action No. 02839
District op Colorado
28. United States of America v. Union Pacific Rail- Civil Action road Company No. C-1188
District op Oregon
29. United States of America v. Southern Pacific Civil Action Company No. 68-23
30. United States of America v. Southern Pacific Civil Action Company No. 68-542
Western District op Wisconsin
31. United States of America v. Great Northern Rail- Civil Action way Company No. 67-C-160
32. United States of America v. Great Northern Rail- Civil Action way Company No. 68-C-210