In re PLUMBING FIXTURE CASES.
No. 3.Judicial Panel on Multidistrict Litigation.
September 13, 1968.MEMORANDUM AND ORDER
ALFRED P. MURRAH, Chairman.
This matter came on for consideration on the 8th day of August, 1968, pursuant to Panel order on the joint motion of eight defendants in 39 treble damage actions pending in 8 different United States district courts to transfer these actions "to one United States district court for the purpose of coordinating or consolidating pretrial proceedings * * *" under Section 1407, Title 28, United States Code. The motion further requested that "the Western District of Pennsylvania be designated as the transferee district court * * *." A schedule of the actions affected by the motion is attached hereto and marked Schedule A. The order setting the matter for hearing provided that the Panel would also consider on its own initiative transfer of these actions to a district court other than the Western District of Pennsylvania.
The 39 actions are based upon two alleged criminal conspiracies charged in two separate indictments (Nos. 66-295 and 66-296) returned in the Western District of Pennsylvania. In each of the actions, damages are claimed to have resulted from alleged antitrust violations in the manufacture and sale of certain plumbing fixtures.
Two of the civil actions (Nos. 41773 and 41774) are pending in the Eastern District of Pennsylvania before the Honorable John W. Lord, Jr. These two cases are based in part upon both of the alleged criminal conspiracies in the Western District of Pennsylvania and are fairly representative of the litigation. Judge Lord has actively conducted pretrial proceedings in these cases and has adopted a comprehensive discovery schedule. As a result of intervention the two actions in the Eastern District of Pennsylvania now involve more claims for relief than are involved in any other district.
After hearing argument of counsel, and considering all relevant factors, the Panel is of the opinion that because of the commonality of many of the principal factual issues, the geographical accessibility *34 of Philadelphia to Pittsburgh where the criminal proceedings are pending, the relatively advanced discovery in the Eastern District of Pennsylvania and the availability there of an experienced Judge well acquainted with the litigation, it would best serve the convenience of the parties and witnesses, and promote the just and efficient conduct of the affected cases to transfer the 37 affected actions pending in other districts to the Eastern District of Pennsylvania and to the Honorable John W. Lord, Jr., for all pretrial proceedings under Section 1407, Title 28, United States Code. The transferee court, through Chief Judge Thomas J. Clary, has consented to the transfer of all these cases to the Eastern District of Pennsylvania. Judge Lord is able and willing to undertake and cooordinate pretrial proceedings in these 39 cases.
Seven of the defendants, referred to as the "short-line" defendants in some of these cases including the two cases pending in the Eastern District of Pennsylvania, object to the consolidated discovery proceedings on the grounds that the civil actions are based upon two separate criminal conspiracies; that the so-called "short-line" defendants are parties to only 18 of the 39 civil actions in only four jurisdictions arising out of conspiracy No. 66-296; that the discovery is not therefore common to all cases; and that it would be prejudicial to these defendants to coordinate the discovery proceedings with the other cases to which they are not parties and have no interest. The plea is that the cases involving the so-called "short-line" defendants should remain in the jurisdictions where they are presently pending.
It does appear that the actions against the eight moving defendants arise out of a separate conspiracy alleged in a separate indictment. But they are not unrelated to the actions wherein the "short-line" defendants are parties. In these civil actions there are questions of fact common to the 39 actions on economic, technical and conspiratorial issues. The civil actions pending in the Eastern District of Pennsylvania involve alleged conspiracies based upon both indictments in the Western District of Pennsylvania, and it therefore seems appropriate to transfer all the cases to the Eastern District of Pennsylvania, leaving to the transferee judge the sole power to determine in his discretion the order and procedures for conducting separate pretrial procedures in respect to the separate alleged conspiracies.
For the foregoing reasons, the motion to transfer the subject cases to one district for coordinated pretrial proceedings will be granted. But insofar as the motion requests that the Western District of Pennsylvania be designated as the transferee court, it will be denied. Instead, on the initiative of the Panel and on oral motion of counsel for the parties in some of the cases, all of the cases involved here will be transferred to the Eastern District of Pennsylvania.
It is therefore ordered that the joint motion of eight defendants be, and it is hereby, granted insofar as it requests transfer of the 37 civil treble damage actions pending in districts other than the Eastern District of Pennsylvania (listed in Schedule A attached) to one United States District Court for the purpose of coordinated or consolidated pretrial proceedings. It is further
Ordered that the motion be, and it is hereby denied insofar as it requests that the Western District of Pennsylvania be designated as the transferee district court. It is further
Ordered that the 37 treble damage actions pending in districts other than the Eastern District of Pennsylvania and listed in Schedule A hereto attached be, and they are hereby, transferred on the initiative of the Panel under Section *35 1407 of Title 28, United States Code, to the Honorable John W. Lord, Jr., of the Eastern District of Pennsylvania and to the Eastern District of Pennsylvania, all with the consent in writing of the transferee court attached hereto.
SCHEDULE A
Northern District of California
Eastland Construction Co. Civil Action
v. No. 46162
American Radiator & Standard Sanitary
Corp., et al.
Eastland Construction Co. Civil Action
v. No. 46163
Crane Co., et al.
Volk-McLain Communities, Inc. Civil Action
v. No. 46811
Crane Co., et al.
Volk-McLain Communities, Inc. Civil Action
v. No. 46812
American Radiator & Standard Sanitary
Corp., et al.
Sheldon L. Pollack Corp. Civil Action
v. No. 46924
American Radiator & Standard Sanitary
Corp., et al.
Hadley Cherry, Inc. Civil Action
v. No. 48271
Crane Co., et al.
Hadley Cherry, Inc. Civil Action
v. No. 48273
American Radiator & Standard Sanitary
Corp., et al.
Paul A. Weisberg Civil Action
v. No. 48765
American Radiator & Standard Sanitary
Corporation, et al.
Abrams Construction Co., Inc. Civil Action
v. No. 48766
American Radiator & Standard Sanitary
Corporation, et al.
David M. Chelimsky Civil Action
v. No. 48767
American Radiator & Standard Sanitary
Corporation, et al.
*36
David A. Kohl d/b/a David A. Kohl Construction Civil Action
Co. No. 48768
v.
American Radiator & Standard Sanitary
Corporation, et al.
Arthur B. Moss and Jerome G. Moss Civil Action
v. No. 48769
American Radiator & Standard Sanitary
Corporation, et al.
Seacrest Co., a Partnership Civil Action
v. No. 48770
Crane Co., et al.
Seacrest Co., a Partnership Civil Action
v. No. 48771
American Radiator & Standard Sanitary
Corporation, et al.
Security Builders, a limited partnership Civil Action
v. No. 48772
American Radiator & Standard Sanitary
Corporation, et al.
Stabler Construction Co., Inc. Civil Action
v. No. 48773
American Radiator & Standard Sanitary
Corporation, et al.
R. A. Watt Company, Inc. Civil Action
v. No. 48774
American Radiator & Standard Sanitary
Corporation, et al.
R. A. Watt Company, Inc. Civil Action
v. No. 48775
Crane Co., et al.
David M. Chelimsky Civil Action
v. No. 48801
Crane Co., et al.
Abrams Construction Co., Inc. Civil Action
v. No. 48802
Crane Co., et al.
David A. Kohl d/b/a David A. Kohl Construction Civil Action
Co. No. 48803
v.
Crane Co., et al.
Arthur B. Moss and Jerome G. Moss Civil Action
v. No. 48804
Crane Co., et al.
*37
Stabler Construction Co., Inc. Civil Action
v. No. 48805
Crane Co., et al.
Paul A. Weisberg Civil Action
v. No. 48806
Crane Co., et al.
The State of California and the Regents Civil Action
of the University of California No. 48994
v.
American Radiator & Standard Sanitary
Corporation, et al.
The State of Illinois, its Departments, Divisions, Civil Action
Agencies and Political Subdivisions No. 49004
v.
American Radiator & Standard Sanitary
Corporation, et al.
The State of West Virginia Civil Action
v. No. 49005
American Radiator & Standard Sanitary
Corporation, et al.
Millagee Investment Co., Inc. Civil Action
v. No. 49368
American Radiator & Standard Sanitary
Corporation, et al.
Eastern District of Pennsylvania
The Philadelphia Housing Authority Civil Action
v. No. 41773
American Radiator & Standard Sanitary
Corporation, et al.
Lindy Bros. Builders, Inc., et al. Civil Action
v. No. 41774
American Radiator & Standard Sanitary
Corporation, et al.
Western District of Pennsylvania[*]
Montefiore Hospital Civil Action
v. No. 67-1315
American Radiator & Standard Sanitary
Corporation, et al.
*38
District of Columbia
Federal West Joint Venture Limited Partnership Civil Action
No. 2812-67
v.
American Standard, Inc., et al.
Northern District of Illinois (Eastern Division)
S. Harvey Klein, Trustee in Bankruptcy 68 Civil Action
for Sumner Sollett Company, Bankrupt No. 77
v.
American Standard Inc., et al.
Edward Limperis, Trustee in Bankruptcy 68 Civil Action
for Dover Construction Company, et al. No. 78
v.
American Radiator & Standard Sanitary
Corp., et al.
S. Harvey Klein, Trustee in Bankruptcy 68 Civil Action
for Foremost Home Improvements, Inc., No. 79
Bankrupt
v.
American Radiator & Standard Sanitary
Corp., et al.
Southern District of New York
The State of New York 68 Civil Action
v. No. 2036
American Radiator & Standard Sanitary
Corp., et al.
New York State Thruway Authority 68 Civil Action
v. No. 2037
American Radiator & Standard Sanitary
Corporation, et al.
Western District of Washington
State of Washington Civil Action
v. No. 7749
American Radiator & Standard Sanitary
Corporation, et al.
District of Minnesota (Fourth Division)
The State of Minnesota Civil Action
v. No. 4-68-181
American Standard Inc., et al.
NOTES
[*] A criminal and a civil action instituted by the United States are also pending in the Western District of Pennsylvania: Criminal Action No. 66-295 and Civil Action No. 66-1184.