In Re Multidistrict Civil Actions Involving the Mid-Air Collision Near Hendersonville

297 F. Supp. 1039, 1969 U.S. Dist. LEXIS 9143

• Court: United States Judicial Panel on Multidistrict Litigation
• Decided: January 14, 1969
• Docket: 13
• Status: Published

Opinion

OPINION AND ORDER

PER CURIAM.

On July 19, 1967, a Boeing 727 being operated by Piedmont Aviation, Inc., collided in mid-air with a private aircraft near Hendersonville, North Carolina resulting in the death of 82 persons. Litigation has been commenced in various federal and state courts on behalf of the estates of many of the persons who died in this catastrophe. On November 19, 1968, the defendant Lanseair, Inc., filed a motion with this Panel requesting the transfer of all pending federal actions to the United States District Court for the Western District of North Carolina for coordinated or consolidated pretrial proceedings. At that time, there were 61 cases pending in the Western District of North Carolina, two pending in the Western District of Missouri and one case, involving claims by the estates of thirteen decedents, pending in the Southern District of New York. 1 (See Schedule A) Oral argument on this motion was held in Chicago, Illinois on December 6, 1968.

Prior to this hearing, Judge Inzer B. Wyatt of the Southern District of New York, transferred the case pending in that court to the Western District of North Carolina for all purposes pursuant to 28 U.S.C. § 1404(a). A motion to transfer the two Western District of Missouri cases under Section 1404(a) • was also filed in that court but disposition of it has been deferred pending disposition of the motion before us.

All parties were represented at the December 6th hearing and although all favored consolidated or coordinated pretrial proceedings in the Western District of North Carolina, 2 counsel disagreed as to the proper action to be taken by us and the timing of such action.

Counsel representing the United States in the two cases pending in Missouri urged us to take no action on the Section 1407 motion until the motion to transfer those two cases to the Western District of North Carolina for all purposes pursuant to Section 1404(a) is ruled on by Judge Collinson. Counsel for the plaintiffs requested an immediate Section 1407 transfer and point out quite correctly that Judge Collinson may consider transfer of the cases for trial under Section 1404(a) following completion of pretrial proceedings. It is also urged that these two cases are somewhat different from the other actions involved in this litigation as they have been brought to the representatives of the estates of the two passengers of the private plane. We do not decide whether this difference will make a subsequent consolidation for trial inappropriate but it is uncontroverted that transfer for coordinated or consolidated pretrial proceeding will be for the convenience of parties and witnesses and will promote the just and efficient conduct of these actions. We see no reason to delay such a transfer.

Counsel for the plaintiffs in the New York case favored transfer of that case for coordinated or consolidated pretrial proceedings under Section 1407, but strongly opposed the Section 1404(a) transfer and have announced their intention to seek review of Judge Wyatt’s order by an appropriate extraordinary writ. They urged us to transfer that case pursuant to Section 1407 so that consolidated pretrial proceedings may proceed while they seek review of the Section 1404(a) transfer.

Assuming, without deciding, that we still have jurisdiction to transfer the New York case, 3 we decline to do so for action by the Panel at this time could disrupt the review proceeding now in process. Cf. In re Plumbing Fixtures Cases, 298 F.Supp. 484 (Judicial Panel on Multidistrict Litigation 1968). If the Section 1404(a) transfer order is set asid.e, the parties may request a transfer under Section 1407 and in the meantime they may make arrangements to participate in the discovery taking place in North Carolina. 4

It is therefore ordered that the two cases listed on the attached Schedule A now pending in the Western District of Missouri be and they are hereby transferred for coordinated or consolidated pretrial proceedings to the Western District of North Carolina and with the consent of the court heretofore filed with the Clerk of the Panel, assigned to the Honorable Woodrow Wilson Jones!

SCHEDULE A

Southern District of New York

1. George E. Farrell v. Piedmont Aviation, Inc., et al. Civil Action No. 2538

Western District of Missouri

2. Marian J. Reynolds v. United States of America Civil Action No. 2434

3. Jacquelyn F. Anderson v. United States of America Civil Action No. 2435

Western District of North Carolina

4. Jo K. Krauel v. Piedmont Aviation, Inc., et al. and United States of America Civil Action No. 2736

5. Leonard G. Wright v. Piedmont Aviation, Inc., et al. Civil Action No. 2754

6. Mrs. Mabel F. Vaughn v. Piedmont Aviation, Inc., et al. Civil Action No. 2789

7. Mrs. Doris Lavner Feingerts v. Piedmont Aviation, Inc., et al. Civil Action No. 2790

8. Mrs. Virginia Lee Lambert v. Piedmont Aviation, Inc., et al. Civil Action No. 2793

9. Mrs. Yvonne Malee Gilmore v. Piedmont Aviation, Inc., et al. Civil Action No. 2807

10. Mrs. Catherine Segars v. Piedmont Aviation, Inc., et al. Civil Action No. 2822

11. Leonard G. Wright v. United States of America Civil Action No. 2825

12. Jefferson H. Bruton v. United States of America Civil Action No. 2836

13. Mrs. Doris Lavner Feingerts v. United States of America Civil Action No. 2839

14. Mrs. Evelyn H. Lewis v. Piedmont Aviation Inc., et al. Civil Action No. 2846

15. Calvin R. Cox v. United States of America Civil Action No. 2875

16. J. Wallace Paletou v. Piedmont Aviation Inc., et al. Civil Action No. 2880

17. Mrs. Yvonne Malee Gilmore v. United States of America Civil Action No. 2886

18. June McKelvey Salley v. Lanseair, Inc., et al. Civil Action No. 2887

19. June McKelvey Salley v. United States of America Civil Action No. 2888

20. Mattie Zulema Laughlin v. Piedmont Aviation, Inc., et al. Civil Action No. 2889

21. Jefferson H. Bruton v. Piedmont Aviation Inc., et al. Civil Action No. 2890

22. Jefferson H. Bruton v. United States of America Civil Action No. 2898

23. Jefferson H. Bruton v. United States of America Civil Action No. 2899

24. Jefferson H. Bruton v. United States of America Civil Action No. 2900

25. Jefferson H. Bruton v. United States of America Civil Action No. 2901

26. Paul Clarence Freeman, Sr. v. United States of Civil Action America No. 2903

27. J. Wallace Paletou v. United States of America Civil Action No. 2904

28. F. F. McNaughton v. United States of America Civil Action No. 2905

29. Jefferson H. Bruton v. United States of America Civil Action No. 2906

30. Mrs. Evelyn H. Lewis v. United States of America Civil Action No. 2908

31. Jefferson H. Bruton v. United States of America Civil Action No. 2909

32. Jefferson H. Bruton v. United States of America Civil Action No. 2910

33. Jefferson H. Bruton v. United States of America Civil Action No. 2911

34. Jefferson H. Bruton v. United States of America Civil Action No. 2912

35. Mrs. Catherine Segars v. United States of America Civil Action No. 2913

36. Jefferson H. Bruton v. United States of America Civil Action No. 2914

37. Jefferson H. Bruton v. United States of America Civil Action No. 2916

38. Henry B. Sinclair v. United States of America Civil Action No. 2920

39. Henry B. Sinclair v. United States of America Civil Action No. 2921

40. Henry B. Sinclair v. United States of America Civil Action No. 2922

41. Henry B. Sinclair v. United States of America Civil Action No. 2923

42. Jefferson H. Bruton v. United States of America Civil Action No. 2925

43. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2829

44. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2833

45. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2834

46. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2837

47. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2838

48. Mrs. Virginia Lee Lambert v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2842

49. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2851

50. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2854

51. Mrs. Mabel F. Vaughn v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2855

52. Paul Clarence Freeman, Sr. v. Piedmont Aviation Inc., et al. and United States of Ameriica Civil Action No. 2861

53. F. F. McNaughton v. Piedmont Aviation Inc., et al. and United States of America Civil Action No. 2870

54. Jefferson H. Bruton v. United States of America and Piedmont Aviation Inc., et al. Civil Action No. 2915

55. Hattie Hardee v. Piedmont Aviation Inc., et al. Civil Action No. 2929

56. Jefferson H. Bruton v. United States of America Civil Action No. 2940

57. C. R. Rouse v. United States of America Civil Action No. 2944

58. C. R. Rouse v. United States of America Civil Action No. 2945

59. Donald A. Turgeon v. Piedmont Aviation Inc., et al. and United States of America Civil Action No. 2948

60. Donald A. Turgeon v. United States of America Civil Action No. 2949

61. Jefferson H. Bruton v. United States of America Civil Action No. 2950

62. Mrs. Margarita F. Jimenez v. Piedmont Aviation Inc., et al. and United States of America Civil Action No. 2952

63. Winifred M. Stephens v. Piedmont Aviation Inc., et al. and United States of America Civil Action No. 2959

64. Mrs. Margarita F. Jimenez v. United States of America Civil Action No. 2967

1 . At the hearing, we were furnished with an affidavit which relates that thirty-five related cases are pending in state courts in North Carolina and Illinois.

2 . We note that the federal court and the North Carolina state court are cooperating with regard to discovery. We think such cooperation between state and federal courts promotes the just and efficient conduet of such litigation and is to be highly commended.

3 . Counsel for the defendants argue that this case is no longer pending in the Southern District of New York and thus may not be transferred under Section 1407.

4 . Counsel for the plaintiffs filed an affidavit with the Panel agreeing to be bound by the North Carolina discovery proceedings. Counsel representing the defendant at the December 6, 1968 hearing also agreed to participate in and be bound by the North Carolina discovery proceedings.