General Tire & Rubber Co. v. Jefferson Chemical Co.

On Rehearing

MEMORANDUM

Defendant’s motion for reargument is granted.

In my view, plaintiff’s motion before the Judicial Panel on Multidistrict Litigation under 28 U.S.C. § 1407 to consolidate discovery proceedings in the numerous pending actions relating to the validity of the Frost patent is not inconsistent with nor does it supersede the plaintiff’s motion before me- under 28 U.S.C. § 1404(a) to transfer defendant’s Frost patent counterclaim in this action to the District of Delaware. Sections 1404(a) and 1407 are not mutually exclusive and may properly be used in concert and to complement one another. In re Koratron, 302 F.Supp. 239 (J.P.M.L.1969); In re Grain Shipments, 300 F.Supp. 1402 (J.P.M.L.1969); Manual for Complex and Multidistrict Litigation, Section 5.32(2). Nor do I see any basis for defendant’s claim'that the making of the motion under Section 1407 before the Panel ousted this Court of jurisdiction to decide the Section 1404 (a) motion before it. See In re Mid-Air Collision Near Hendersonville, N. C., 297 F.Supp. 1039 (J.P.M.L. 1969).

My opinion of April 6, 1970 stated that the Frost patent pleadings did not refer in any way to the Heiss patent. That statement was not accurate in that the Heiss patent is the thirteenth reference to prior art listed in paragraph 13 of defendant’s second counterclaim. Nevertheless, as I stated in my opinion:

“The Frost patent counterclaim involves a claim for relief independent of and separate and distinct from the complaint and counterclaim on the Heiss patent. The two patents do not appear to be related. While both are concerned with the broad field of poly*117urethane chemistry, the inventions, the dates of invention, the inventors, places of invention and the ownership are all different. The operative facts and the legal issues concerning the validity of the Heiss patent are different from those concerning the validity of the Frost patent. The respective claims for relief as to the two patents do not arise out of the same transactions and occurrences.”

These and the other critical findings upon which I based my decision to sever and transfer are in no way impeached by anything which the defendant has presented. I see no reason to change my decision directing severance and transfer.

Defendant has shown nothing on this motion for reargument which would justify the transfer of the litigation relating to the Heiss patent to the Delaware Court, as it rather casually suggests. On reargument, I adhere to my decision of April 6, 1970 granting plaintiff’s motion to sever the second counterclaim relating to the Frost patent and to transfer the second counterclaim as so severed to the District of Delaware and denying plaintiff’s motion for a stay of the action relating to the Heiss patent.

I have this day signed the order presented by the plaintiff implementing that decision.