In re Warehouse Construction Contract Litigation

387 F. Supp. 734, 1975 U.S. Dist. LEXIS 14438

• Court: United States Judicial Panel on Multidistrict Litigation
• Decided: January 9, 1975
• Docket: No. 180
• Status: Published

Opinion

OPINION AND ORDER

PER CURIAM.

Eight plaintiffs originally filed an action in a Georgia state court against Dobson and Johnson, Inc. and the Third National Bank of Nashville, Tennessee. The action was later removed to the Northern District of Georgia where defendant Third National Bank was dismissed on grounds of improper venue pursuant to the bank venue statute, 12 U.S.C. § 94. In order to overcome the bank venue problem, six of the eight plaintiffs in the Georgia action proceeded to file a virtually identical action against the same two defendants in the Middle District of Tennessee.

Defendant Dobson and Johnson filed a motion in the Georgia action requesting transfer of that action to the Middle District of Tennessee pursuant to 28 U. S.C. § 1404(a) or, in the alternative, transfer of the claims of seven of the eight plaintiffs. Shortly thereafter, defendant moved the Panel for an order transferring the Georgia action to the Middle District of Tennessee pursuant to 28 U.S.C. § 1407, but requested a stay of its motion before the Panel pending the decision of the Georgia court concerning the Section 1404(a) motion. Defendant urged that the Section 1407 motion be reinstated if the entire action were not transferred by the Georgia court. The Panel granted the stay and the Georgia court has since issued an order transferring the claims of seven of the eight plaintiffs to the Middle District of Tennessee under Section 1404(a). The court noted that none of the plaintiffs opposed transfer and that the eighth plaintiff’s claim was not transferred because it could not have been brought in Tennessee. The Panel subsequently lifted its stay and the question of whether the Georgia action containing the remaining plaintiff’s claim against defendant Dobson and Johnson should be transferred under Section 1407 to the Middle District of Tennessee is now before the Panel.¹ Plaintiff has not indicated any opposition to the motion. We find that these actions involve common questions of fact and that transfer of the Georgia action to the Middle District of Tennessee for coordinated or consolidated pretrial proceedings with the action pending there will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.

Plaintiffs are all subcontractors who were employed to construct a large warehouse in Duluth, Georgia. After the structure was partially completed, the owners halted construction. Both defendants were involved in the financing of this project and plaintiffs allege that these defendants fraudulently induced them to resume work.

Defendant Dobson and Johnson argues that this litigation involves complex factual issues because it is related to a Chapter X reorganization proceeding filed by the owners of the warehouse that resulted in the plaintiff subcontractors receiving limited partnership interests in the warehouse. Defendant maintains that, in spite of the fact that there are only two actions in this litigation, the factual issues are sufficiently complex to warrant a Section 1407 transfer. In addition, defendant contends that the discovery concerning all claims in this litigation will involve the same witnesses and information and therefore transfer will prevent duplication of discovery and inconsistent pretrial rulings. Defendant also points out that the Tennessee court has set an early trial date and suggests that the litigation will proceed expeditiously there.

We are persuaded by movant’s arguments and find that the criteria are indeed satisfied for transfer of the Georgia action under Section 1407 to the Middle District of Tennessee for coordinated or consolidated pretrial proceedings with the action pending there. Moreover, plaintiff’s apparent acquiescence sub silentio to the motion for transfer of this action to Tennessee under Section 1407 is an additional factor favoring its transfer.

It is therefore ordered that, pursuant to 28 U.S.C. § 1407, the action listed on the attached Schedule A pending in the Northern District of Georgia be, and the same hereby is, transferred to the Middle District of Tennessee and, with the consent of that court, assigned to the Honorable L. Clure Morton for coordinated or consolidated pretrial proceedings with the action pending there and listed on Schedule A.

SCHEDULE A

Northern District of Georgia

Northside Iron and Metal Co., Inc.; et al. v. Dobson and Johnson, Inc. Civil Action No. 16181

Middle District of Tennessee

Northside Iron and Metal Co., Inc. v. Dobson and Johnson, Inc., et al. Civil Action No. 74 — 47 — NA—CA

1 . The parties waived their right to oral argument and, at their request, the question of transfer of this action under 28 U.S.C. § 1407 was submitted on the briefs.