OPINION AND ORDER
WILLIAM H. BECKER, Judge of the Panel.
After a hearing on August 8, 1968, on September 13, 1968, the Judicial Panel on Multidistriet Litigation, under Section 1407, Title 28, U.S.C., ordered the transfer to the Eastern District of Pennsylvania of 37 related multidistrict civil treble damage antitrust actions, pending in seven other districts, and assigned them to the Honorable John W. Lord, Jr., District Judge, 295 F.Supp. 33.
The actions so transferred included actions originally filed in the Northern District of California, the Southern District of New York and the District of Columbia.
Later the Panel learned of nine additional similar actions pending in the Northern District of California, the Eastern District of Virginia, the Southern District of New York, the Eastern District of Wisconsin, the District of Kansas and the District of Columbia. These nine additional actions are listed in the appended Schedule B.
On October 8, 1968, in accordance with current practice the Panel, on its initiative, issued an order to show cause why the nine additional similar actions should not also be transferred under Section 1407 to the Eastern District of Pennsylvania and assigned to Judge John W. Lord, Jr., on the basis of the record of the hearing of August 8, 1968. This order further provided for a hearing on October 16, 1968, on all matters relating to (1) the proposed transfer and assignment of the additional actions to Judge Lord, (2) the transfer of the actions to another district or districts, and (3) defendants’ motion to transfer the actions under Section 1407 to the Western District of Pennsylvania.
In the written responses to the order to show cause and notice of hearing, all parties except the City of New York agreed in substance to the proposed transfer and assignment of the nine additional actions to Judge John W. Lord, Jr., under Section 1407.
For the reasons hereinafter stated all actions listed in Schedule B will be transferred on the initiative of the Panel to the Eastern District of Pennsylvania and assigned to the Honorable John W. Lord, Jr., District Judge.
The Position of the City of New York
The City of New York and its related agencies (the “City”) on behalf of themselves and of a class to consist of all City, twon and school district governmental units in the State of New York having a population in excess of 50,000 persons, and of all public housing authorities in the State of New York, filed a civil treble damage antitrust action in the Southern District of New York on August 2, 1968. By letter of the same date addressed to the Clerk of the Panel, counsel for the City requested that it be allowed to participate in the hearing of August 8,1968, although its case was not among those listed in the defendants’ motion to transfer or in the notice and order for the hearing of August 8.
At the hearing on August 8, counsel for the City voluntarily appeared and stated, “We agree wholeheartedly * * with coordination, and we agree wholeheartedly that the proper forum would be Philadelphia, Pennsylvania” in the Eastern District of Pennsylvania.
In its response to the order to show cause and notice of hearing of October [487]*48716,1968, the City expressly adheres to its position that the proper forum for transfer under Section 1407 would be the Eastern District of Pennsylvania but requested that the Panel order transfer of its action subject to the following two requests :
“First, since the New York City action is brought as a class action, the court in New York has the following obligation under Rule 23(c) (1) of the Federal Rules of Civil Procedure: ‘As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained * * Upon such determination, the court is required to direct notice to the members of the class. We do not believe that under Section 1407(a) ‘pretrial proceedings’ encompass a class action determination. Certainly if the entire file is transferred it would be impossible for the transferor court to discharge its obligations under Rule 23. Therefore, we request the Panel to order, as Mr. Margolis requested on August 8, that the City’s action ‘be allowed to go forth in the Southern District of New York for a determination of the class and the validity of the class action [by that Court] at the same time that coordinated discovery * * * continues.’ (Transcript, pp. 117-8).
“Second, extensive pretrial discovery is already underway in the City’s case. The City requests that any transfer order by the Panel require completion of such discovery as the parties have agreed to or which has been ordered by the District Court for the Southern District of New York prior to the date of the Panel’s order.”
In summary the City requests that, in the civil action in which the City is plaintiff, the Panel order that action be transferred in part, that is for all pretrial purposes except determination of the class action questions which would be reserved by Panel order for determination after transfer by the transferor court.
In its response and in oral argument counsel for the City state that under Section 1407 (a) “pretrial proceedings do not include a class action determination.”
In oral argument the consequences of this contention were illuminated by the following colloquy with counsel for the City:
“JUDGE WEINFELD: Why do you call it a local action? Are you referring to the fact that you brought it within the Southern District and it involves municipalities within the State of New York and housing authorities within the State of New York?
“MR. MARGOLIS: What I meant was the court where we filed the suit should be the one to determine the class action.
“JUDGE WEINFELD: There are housing authorities right adjacent to New York State. You have them in New Jersey, you have them in Connecticut, you have them in Pennsylvania, and you have municipalities that come within the same categories. Why should you not go on a metropolitan or regional basis? In fact, that is the whole thrust of housing today, isn’t it?
“MR. MARGOLIS: Yes. Well, the City [chose] to restrict, in bringing its class action, on the basis of various judicial opinions on class actions.
“JUDGE WISDOM: You recognize that there may be conflicts in the courts with respect to the scope of this class action, do you not?
“MR. MARGOLIS: Yes.
“JUDGE WISDOM: Now, isn’t one of the purposes of this Act to avoid such pretrial conflicts ?
“MR. MARGOLIS: Our position is that we don’t believe that the class action is part of pretrial. That is our position.
“JUDGE WISDOM: I recognize that that is your position, but how do you justify it?”
The City apparently requests that the reservation of power of the transferor court to determine the class action issue [488] be accomplished by dividing the papers in the file between the transferor court and the transferee court, that is, by not transferring “the entire file”.
In substance the City contends that in a transfer under Section 1407 the transferee court lacks the power to determine the class action issue, and that that power remains in the transferor court after transfer.
Rulings on the City’s Requests
We do not agree with this interpretation. On the contrary we hold that there should not be separation of the class action issues and a reservation to the transferor court of power to determine the class action issues because (1) the Panel lacks the power to order such a separation or reservation, and (2) the exercise of such a power, if possessed, would be unwise and indiscrete.
The second request, that the Panel in its order of transfer require completion of discovery agreed upon or which has been ordered by the transferor court, is denied for the same reasons.
Reasons for the Rulings
First, the nature of the questions to be determined by the Panel should be analyzed.
The contentions of the City raise questions of statutory construction. No question of the constitutionality of Section 1407 or of its application in these cases is raised. Only transfer under Section 1407 is under consideration. The City does not appeal to the discretion of the Panel or to forbearance by the Panel in the use of its statutory powers on principles of comity, but rather contends the Panel has no power to transfer the class action issue. In these circumstances, the questions presented are plainly questions of construction of the statute authorizing transfer. See Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254, 1. c. 1260, and Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, 10 A.L.R.2d 921, 922, both of which involved analogous questions of construction of the related Section 1404(a) providing for inter-district transfer for all purposes (change of venue) of civil actions for the convenience of parties and witnesses in the interest of justice. See also annotations on constitutionality, construction and application of Federal Statutes providing for transfer of civil actions. 5 A.L.R.2d 1239; 10 A.L.R.2d 932.
Construction of the Clear Language of Section 1107
Under applicable principles of statutory construction, the language of the statute should be examined first. If the statutory language is clear, the words plain and the meaning clear, “there is no need to refer to the legislative history”. Ex Parte Collett, supra, 337 U.S., 1. c. 61, 69 S.Ct., 1. c. 947, 93 L.Ed., 1. c. 1211.
Paragraph (a) of Section 1407 is relied on by the City and contains some of the critical language. It reads as follows:
“(a) When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multi-district litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded.”
Paragraph (b) following immediately is as follows:
“(b) Such coordinated or consolidated pretrial proceedings shall be con[489] ducted by a judge or judges to whom such actions are assigned by the judicial panel on multidistrict litigation. For this purpose, upon request of the panel, a circuit judge or a district judge may be designated and assigned temporarily for service in the transferee district by the Chief Justice of the United States or the chief judge of the circuit, as may be required, in accordance with the provisions of chapter 13 of this title. With the consent of the transferee district court, such actions may be assigned by the panel to a judge or judges of such district. The judge or judges to whom such actions are assigned, the members of the judicial panel on multidistrict litigation, and other circuit and district judges designated when needed by the panel may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.”
The language of paragraph (a) plainly and clearly authorizes transfer of “civil actions”. The power is not granted to transfer of “civil actions or parts thereof” or “civil actions except the class action issue” as the City would have us hold. In federal civil procedure, and particularly in federal statutes authorizing transfer, the phrase “civil action” has a definite meaning. Rules 2 and 3, F.R.Civ.P.; cf. Ex Parte Collett, supra, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed., 1. c. 1210.
Nor does paragraph (a), or any other, invest the Panel with the power to require completion of discovery underway, discovery as the parties have agreed to, or which has been ordered by the transferor court as requested by the City.
No contention has been made by the City that discovery is not a part of the pretrial proceedings contemplated by Section 1407. It is only in respect to determination of the class action questions under Rule 23, F.R.Civ.P., that this contention is made. Yet the Panel is requested to make special orders about discovery binding on the transferee court.
Paragraph (b) clearly provides that the “coordinated or consolidated pretrial proceedings shall be conducted by the judge or judges to whom such actions are assigned” by the Panel. So if discovery, including completion of discovery, and determination of the class action questions are part of the pretrial proceedings, then those powers are by clear statutory mandate required to be conducted by the transferee court. The use of the word “shall” in the first sentence of paragraph (b) of Section 1407 makes this clear. The pretrial powers of the transferee court include the powers to modify, expand, or vacate earlier discovery orders. To coordinate discovery in the related cases, exercise of these powers may be necessary or desirable. The Panel has neither the power nor the disposition to direct the transferee judge in the exercise of his powers and discretion in pretrial proceedings.
The only power granted to the Panel to limit exercise of the pretrial powers of the transferee court is found in the proviso of paragraph (a) permitting the Panel to separate any “claim, cross-claim, counter-claim, or third-party claim” of a transferred civil action and to remand “any of such claims before the remainder of the action is remanded.” This power is in harmony with a portion of paragraph (b) of Rule 42, F.R.Civ.P., authorizing the ordering of separate trials of claims, cross-claims, counter-claims and third-party claims in furtherance of convenience and to avoid prejudice where conducive to expedition and economy.
While paragraph (a) of Section 1407 permits separation and remand by the Panel of claims, cross-claims, counterclaims and third-party claims separable under paragraph (b) of Rule 42, it does not permit the Panel to order a separate trial “of any separate issue or * * * issues” which are also separable under paragraph (b) of Rule 42. This unequivocal and obviously deliberate withholding from the Panel of power to separate is[490] sues in a single civil action assigning one or more to the transferee court and one or more to the transferor court is a clear, precise and wise limitation on the powers of the Panel.
There are other clear indications that Congress did not intend to permit the Panel to partition the issues in a single claim for relief and to assign powers of supervision and decision of the separate parts to two courts to be exercised contemporaneously. By authorizing the Panel to transfer “civil actions” (not parts thereof) for coordinated or consolidated pretrial proceedings and by limiting the Panel’s powers of separation and remand to claims, cross-claims and counter-claims or third-party claims, Congress has made it “impossible to read the section as excising” the powers to determine the class action questions from the order of transfer. Cf. Ex Parte Collett, supra, 337 U.S., 1. c. 58, 69 S.Ct., 1. c. 946, 93 L.Ed., 1. c. 1210.
The purpose of Section 1407 as shown independently by its clear language, corroborated by the legislative history,1 including the reports of the [491] Congressional Committees and of the Judicial Conference, and by testimony before Congress of its authors, makes it clear that its remedial aim is to eliminate the potential for conflicting contemporaneous pretrial rulings by coordinate [492] district and appellate courts in multidistrict related civil actions. The contentions of the City in this ease, if sustained, would make possible, and perhaps [493] probable, pretrial chaos in conflicting class action determinations which Section 1407 was designed to make impossible.
In March 1965, a draft of Section 1407 was recommended for approval by the Judicial Conference of the United States by the Co-Ordinating Committee for Multiple Litigation in a formal report dated March 2, 1965, describing the purposes and operation of the proposed section. The section in its original form was drafted by the Co-Ordinating Committee. This report is part of the legislative history. Ex Parte Collett, supra, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed., 1. c. 1214. In March 1965, the Judicial Conference of the United States approved the proposed legislation in principle. On the basis of this approval a bill incorporating the proposed new section was introduced in the House of Representatives as H.R. 8276, 89th Congress, by Congressman Emanuel Celler and referred to the Committee on Judiciary. This report contained not only the original draft of the proposed Section 1407, but also a formal comment thereon which recognized the dangers in simultaneous prosecution of separate class actions under then proposed and now adopted Class Action Rule 23. The comment included a reference to difficulties of separate actions involving repetitious discovery mentioned in the Advisory Committee note to the proposed amended, now adopted, Rule 23. The full comment of the Co-Ordinating Committee is set forth in the appendix following this opinion and order.
It is in the field of class action determinations in related multidistrict civil actions that the potential for conflicting, disorderly, chaotic judicial action is the greatest. Under the recently amended Class Action Rule 23, F.R. Civ.P., powers for defining classes of parties, including plaintiffs and defendants, are not expressly limited by space, time, description of party or nature of claim or defense. Already, in related multidistrict litigation coming to the attention of the Panel, separate district courts have been requested to make conflicting class action determinations. In these circumstances it is not certain that each district court will always be able to learn of the conflicting requests made to other courts. It is certain, however, that if these conflicting requests are determined under Section 1407 in a transferee court, the information and means for fair, speedy and economical coordinated determinations will exist. It is the clear intent of Section 1407 to invest the transferee court with the exclusive powers, after transfer, to make the pretrial determinations of the class action questions. In the similar protection devices litigation we said: “Determination of all matters involving questions of class actions shall be left to the sound judgment of Judge Metzner (the transferee judge).” In re Protection Devices and Central Station Protection Service Antitrust Cases, No. 9,295 F.Supp. 39 at page 40.
To this concept the City replies that the pretrial determination of the class questions is not a part of the “pretrial proceedings” as used in Section 1407. No authority is cited for this unusual contention. The easy answer to this contention is probably the best one, [494] namely, that pretrial, as an adjective, means before trial — that all judicial proceedings before trial are pretrial proceedings. This is known not only by lawyers and judges, but is known or can readily be learned by laymen. See Random House Dictionary of the English Language, unabridged ed. 1141. See also “Pretrial Calendar” 33 Words and Phrases 511.
From a legal standpoint the class action request and its determination are the most urgent of the pretrial proceedings. This is recognized explicitly in subparagraph (c) (1) of Rule 23, F.R. Civ.P., which specially commands that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Under this subparagraph the order when made may be conditional, and may be altered or amended at any time before the decision on the merits. (So the process may continue through pretrial and after the pretrial proceedings have been completed. This leaves the transferor court some power and discretion before transfer and after remand.)
In an action filed as a class action most pretrial processes (specifically and generally listed in Rule 16, F.R.Civ.P., under the title “Pretrial Procedure; Formulating Issues”) involve or are affected by an affirmative class action determination. Those specifically listed in Rule 16 include:
“(1) The simplification of the issues;
“(2) The necessity or desirability of amendments to the pleadings;
“(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; * * *.”
In order to make it clear that the Rule 16 orders and Rule 23 orders are of the same pretrial nature, subparagraph (d) (3) of Rule 23 expressly permits the Court to combine Rule 23 orders and Rule 16 pretrial orders. It would be interesting to learn how this could be done in a single civil action with the Rule 16 proceedings in the transferee court and the Rule 23 proceedings in the transferor court. The problem becomes practically insoluble when the class action request is in the complaint, with control of amendment of the complaint, the addition of parties and the giving of notice shared contemporaneously by one transferee court and several transferor courts with exclusive separate jurisdiction.
Further, the wide and general understanding that determination of the class action questions is a part of pretrial proceedings constitutes the basis of the listing of this as a subject, the processing of which should begin at the First Principal (Preliminary) Pretrial Conference, in the suggested procedures of the Manual for Complex and Multidistrict Litigation approved in September 1968 by the Judicial Conference of the United States. See Manual, pages 14, 22 and 23.
Unless the determination of the class action question is treated as a part of the pretrial proceedings, the transferee court will be unable to determine the parties (formal and represented) to the local and transferred actions, will be unable to coordinate the pretrial proceedings and will be unable to control the simplification of the issues through control of amendment of the pleadings, and through comprehensive control of discovery.
Another of the innumerable potential alarming consequences of the construction of Section 1407 submitted by the City is the conflict and delay which may result from early appeals from class action determinations. Under current interpretation there is a right to early appeal by the plaintiff from an order “dismissing” the class action request before trial of the action. Eisen v. Carlisle & Jacquelin (C.A.2, 1966), 370 F.2d 119, cert. den. 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967), 2nd appeal (C.A.2, 1968), 391 F.2d 555. If, in multidistrict-multicircuit litigation such as this, powers to determine the class issues are reserved to the trans[495] feror courts, under the City’s construction of the statute, multicircuit appeals on conflicting class action requests would be possible. Such multicircuit appeals would be fraught with multiplied delay, confusion, conflict, inordinate expense and inefficiency, which Section 1407 intended to eliminate. With multiple pretrial class issue action orders and appeals in the transferor districts and circuits, the transferee court would be helpless to process the pretrial proceedings in a manner which “will promote the just and efficient conduct of such actions” in accordance with paragraph (a) of Section 1407. On the other hand, if all pretrial proceedings, after order of transfer and before remand, are conducted in the transferee court the pretrial proceedings and appellate proceedings for early review of pretrial rulings will ordinarily lie in the Court of Appeals for the transferee district from the time of transfer until remand. Consequently, coordination at the appellate level will also be achieved in one Court of Appeals, in the absence of an exceptional appeal before transfer.
As shown above, the contentions of the City are based on an erroneous construction of the phrase “pretrial proceedings” as used in the text of the bill. No judicial authority is cited in support of the City’s contentions. No other reasons or analogous experience is cited by the City. No part of the legislative history is cited by the City. On the other hand, the legislative history unequivocally supports the plain meaning of the statute. Adoption of the construction proposed by the City would result in an unauthorized and unintended frustrating judicial amendment to this salutary legislation.
Partition of the pretrial processes in a single claim for relief, with contemporaneous exercise of jurisdiction by two or more district courts over the separated parts, is not only unprecedented in federal jurisprudence but violates well settled principles of judicial management. Two , courts of exclusive different jurisdictions, or venues, cannot exercise control over the same single claim for relief at the same time. As noted above under Rule 42(b), F.R.Civ.P., and Section 1407, separate claims for relief can be separated and transferred under Section 1404 as in Leesona Corp. v. Cotwool Manufacturing Corp. (D.S.C.) 204 F.Supp. 139, app. dismissed (C.A.4, 1962), 308 F.2d 895, or remanded under Section 1407. This is possible because several separate claims for relief in a single civil action are severable in the interests of justice. A single claim for relief, however, is separable by issues for trial under Rule 42 only if the entire action and all issues therein remain under control of one court (as distinguished from a judge of the one court). The reason is that, in federal civil procedure, the claim for relief is the irreducible legal unit for purposes of venue and jurisdiction by a single court at a particular time. This unitary concept of the claim for relief permits transfer of the claim for relief from one district court to another as in case of a transfer under Sections 1404(a), or 1407. But in no such separation and transfer is contemporaneous dual control by two or more district courts of a single claim for relief (or separate issues thereof) permissible in the federal system.
In substance a transfer under Section 1404(a) is a “change of venue” (that is a “change of courtrooms”) for completion of pretrial and for trial or other disposition. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L. Ed.2d 945, 1. c. 962-963. By analogy a transfer under Section 1407 is a change of venue for pretrial purposes.
On change of venue the overwhelming authority holds that the jurisdiction and powers of the transferee court are coextensive with that of the transferor court; that the transferee court may make any order to render any judgment that might have been rendered by the transferor court in the absence of transfer. 92 C.J.S. Venue § 207 pp. 980-981 and cases therein cited, cf. Greve v. Gibraltar Enterprises (D.N.M.) 85 F.[496] Supp. 410, 1. c. 414; that after an order changing venue the jurisdiction of the transferor court ceases; and that thereafter the transferor court can issue no further orders, and any steps taken by it are of no effect. Phebus v. Search (C.A.8) 264 F. 407, 1. c. 409; 21 C.J.S. Courts § 517a; 20 Am.Jur.2d § 149; 56 Am.Jur. Venue, § 78, p. 79. These principles are applicable to a transfer under Section 1407 from the time of entry of the order of transfer until the time of entry of an order of remand.
In the case of class action determinations made by the transferor court prior to transfer, the provisions of Rule 23 apply permitting the transferee court to determine the class action questions and to review and revise any class action order as in its sound judicial discretion is desirable or necessary in the interests of justice.
In the case of the City under consideration, it does not appear that the class action question is under submission, or that an initial decision is imminent. Discovery processes have been employed but all discovery processes completed or in progress will be useful after the transfer. No cause to defer transfer of the case of the City appears. Transfer without condition will be ordered.
What has been said of the power to determine the class action issue disposes of the request for an order in respect to discovery. This matter is committed to the transferee court after order of transfer. All discovery processes in progress and discovery orders remain in effect unless vacated or modified by the transferee court in the same manner they could be modified by the transferor court. It is clearly stated in the notice and order for hearings of the Panel that discovery processes are not suspended thereby.
The Principles of Comity
The Panel is keenly aware of the problems of the District Courts and Courts of Appeal in which is pending multidistrict litigation subject to transfer under Section 1407. There is no disposition on the part of the Panel to act hastily or without a considerate and well deserved respect for these courts, on principles of comity.
It is obvious that, under Section 1407, there will be proposals to transfer civil actions in which important pretrial motions are under submission or are reaching the point of submission. These motions include motions for dismissal, for summary judgment or for determination of the class action questions, among others. In one case of which the Panel has formal notice, an appeal from a pretrial denial of the class action issue is presently pending in the Court of Appeals of a proposed transferor court. The problems arising from these special circumstances require careful and thoughtful solution by the Panel.
On principles of comity, where appropriate, the Panel has in the past timed its actions and constructed its orders in a manner which will permit the transferor courts (and Courts of Appeals if any are involved) to reach timely decisions on particular issues without abrupt, disconcerting, untimely or inappropriate orders of transfer by the Panel. This policy of comity has been followed in the past and will be followed in the future by the Panel.
The successful use of Section 1407 requires cooperation among the Courts, and by the Panel in an atmosphere of trust, confidence, comity and good will. The Panel believes these conditions exist and will continue to exist.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that, on the initiative of the Panel, the nine civil treble damage antitrust actions listed in Schedule B attached be, and they are hereby, transferred without special conditions or reservations to the Eastern District of Pennsylvania and assigned to the Honor[497] able John W. Lord, Jr., District Judge of the Eastern District of Pennsylvania, with the consent in writing of the transferee court attached hereto.