In re Multidistrict Civil Actions Involving the MID-AIR COLLISION NEAR HENDERSONVILLE, NORTH CAROLINA ON JULY 19, 1967.

Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, III, and STANLEY A. WEIGEL, Judges of the Panel.

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 *1040 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 aside, the parties may request a transfer under Section 1407 and in the meantime they may make arrangements *1041 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.,        Civil Action
          et al.                                           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.      Civil Action
          and United States of America                     No. 2736
   5. Leonard G. Wright v. Piedmont Aviation, Inc.,        Civil Action
          et al.                                           No. 2754
   6. Mrs. Mabel F. Vaughn v. Piedmont Aviation, Inc.,     Civil Action
          et al.                                           No. 2789
   7. Mrs. Doris Lavner Feingerts v. Piedmont Aviation,    Civil Action
          Inc., et al.                                     No. 2790
   8. Mrs. Virginia Lee Lambert v. Piedmont Aviation,      Civil Action
          Inc., et al.                                     No. 2793
   9. Mrs. Yvonne Malee Gilmore v. Piedmont Aviation,      Civil Action
          Inc., et al.                                     No. 2807
  10. Mrs. Catherine Segars v. Piedmont Aviation,          Civil Action
          Inc., et al.                                     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      Civil Action
          America                                          No. 2839
  14. Mrs. Evelyn H. Lewis v. Piedmont Aviation            Civil Action
          Inc., et al.                                     No. 2846
  15. Calvin R. Cox v. United States of America            Civil Action
                                                           No. 2875
  16. J. Wallace Paletou v. Piedmont Aviation Inc.,        Civil Action
          et al.                                           No. 2880
  17. Mrs. Yvonne Malee Gilmore v. United States           Civil Action
          of America                                       No. 2886

*1042
                       SCHEDULE A—Cont'd
      Western District of North Carolina—Cont'd
  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,         Civil Action
          Inc., et al.                                     No. 2889
  21. Jefferson H. Bruton v. Piedmont Aviation Inc.,       Civil Action
          et al.                                           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

*1043
                       SCHEDULE A—Cont'd
      Western District of North Carolina—Cont'd
  42. Jefferson H. Bruton v. United States of America      Civil Action
                                                           No. 2925
  43. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2829
  44. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2833
  45. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2834
  46. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2837
  47. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2838
  48. Mrs. Virginia Lee Lambert v. United States of        Civil Action
          America and Piedmont Aviation Inc., et al.       No. 2842
  49. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2851
  50. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               No. 2854
  51. Mrs. Mabel F. Vaughn v. United States of America     Civil Action
          and Piedmont Aviation Inc., et al.               No. 2855
  52. Paul Clarence Freeman, Sr. v. Piedmont Aviation      Civil Action
          Inc., et al. and United States of America        No. 2861
  53. F. F. McNaughton v. Piedmont Aviation Inc.,          Civil Action
          et al. and United States of America              No. 2870
  54. Jefferson H. Bruton v. United States of America      Civil Action
          and Piedmont Aviation Inc., et al.               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.,         Civil Action
          et al. and United States of America              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       Civil Action
          Inc., et al. and United States of America        No. 2952
  63. Winifred M. Stephens v. Piedmont Aviation Inc.,      Civil Action
          et al. and United States of America              No. 2959
  64. Mrs. Margarita F. Jimenez v. United States of        Civil Action
          America                                          No. 2967

NOTES

[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 conduct 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.