Judicial Panel on Multidistrict Litigation.
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.
PER CURIAM.
This litigation arises out of an intra-corporate dispute between three musicians and their manager, Terry Knight. The musicians filed an action in the Southern District of New York against Knight seeking rescission of their various business agreements and charging Knight with fraud, securities laws violations and mismanagement of the parties' corporation, Grand Funk Railroad Enterprises, Ltd. While that action was pending, the musicians embarked independently on a nationwide concert tour performing as Grand Funk Railroad, a trademark secured by the corporation. Knight concurrently brought twenty-nine trademark infringement actions around the country against the performers and local concert organizers seeking either to enjoin or recover profits from the performances.
*1085 The Panel ordered all parties to show cause why these actions should not be transferred to one district for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407. The performers, Knight, and a few local defendants support transfer of all the actions to the Southern District of New York. On the other hand, the majority of the local municipal auditorium defendants are strongly opposed to transfer. On the basis of the pleadings filed and the hearing held, we find that transfer of these actions at this time would neither serve the convenience of the parties and witnesses nor promote the just and efficient conduct of the litigation.
The parties favoring transfer argue that the actions share common questions of fact concerning the validity and ownership of the trademark. They also assert that transfer to a single district will eliminate the possibility of inconsistent pretrial decisions on motions to stay proceedings which are pending in several of the infringement actions.
The parties opposing transfer argue that the infringement actions do not share any significant common questions of fact with each other because discovery in those actions will focus on the promotional activities which varied widely with each concert. The concert organizers also assert that they are merely third-parties to the underlying dispute between Knight and the performers. And they stress that since the original action in New York is at an advanced stage of discovery, transfer of the infringement actions may delay a decision on the underlying issue of trademark ownership.
These actions appear to contain limited common questions concerning the ownership of the Grand Funk Railroad trademark. And on its surface this litigation appears to resemble the actions in the Butterfield Patent Infringement Litigation, which we transferred to a single district for coordinated or consolidated pretrial proceedings. In re Butterfield Patent Infringement Litigation, 328 F. Supp. 513 (Jud.Pan.Mult.Lit. 1970). But there are significant distinguishable differences. In the Butterfield litigation, for example, plaintiff alleged that his patent on a corneal contact lens was being directly infringed by established rival lens producers. The present litigation, however, was spawned by an intra-corporate struggle for control; and Knight implicated the concert organizers, whose interests in the trademark were purely transitory, in an unsuccessful effort to block each concert and force the performers to recognize him as a minority shareholder. In addition, there was little, if any, discovery on the common issues in the Butterfield actions at the time of transfer; but in the present infringement actions discovery on the ownership issue is almost complete and that question is nearly ripe for decision in the original action filed in the Southern District of New York. As a result of the advanced stage of pretrial proceedings in the original action, we find that transfer of all the subsequently filed infringement actions to the Southern District of New York at this time would needlessly entangle third parties in the fundamental dispute and only tend to delay the expeditious handling of that action.
Furthermore, the Panel must weigh any benefit that transfer would provide in the way of eliminating the possibility of inconsistent pretrial decisions against the efficient administration of the litigation as a whole. It is clear that the discovery involving defendants' alleged infringement will focus on localized factual issues concerning the nature, scope, extent and effect of the alleged promotional activities. And inasmuch as the issue of trademark ownership is near the trial stage, transfer of these actions at this time will neither serve the convenience of the majority of the parties and witnesses nor promote the just and efficient conduct of the litigation. Our denial of transfer, however, is without prejudice to any party's right to renew their efforts toward coordinated or consolidated *1086 pretrial proceedings under Section 1407 if they feel future circumstances so require.
It is therefore ordered that transfer of these actions to a single district for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407 be, and the same hereby is, denied, without prejudice to the right of any party to move for transfer at a later time.
Southern District of Alabama
Terry Knight, etc. v. The City of Mobile, Alabama, Civil Action
et al. No. 7522-73-H
Eastern District of Arkansas
Terry Knight, etc. v. Arkansas Livestock Show Civil Action
Assn., et al. No. LR73C-49
Central District of California
Terry Knight, etc. v. The Forum of Inglewood, Civil Action
Inc., et al. No. 72-2817-MML
Northern District of California
Terry Knight, etc. v. Oakland-Alameda County Civil Action
Coliseum, Inc., et al. No. 72-2179-LHB
District of Colorado
Terry Knight, etc. v. City and County of Denver, Civil Action
Colorado, d/b/a Denver Coliseum, et al. No. C-4719
Southern District of Georgia
Terry Knight, etc. v. City of Savannah, Georgia, Civil Action
et al. No. 3072
Southern District of Indiana
Terry Knight, etc. v. City of Evansville, et al. Civil Action
No. 73-C-8
Southern District of Iowa
Terry Knight, etc. v. Veterans Memorial Auditorium Civil Action
Commission, et al. No. 73-24-1
District of Kansas
Terry Knight, etc. v. Wichita State University Civil Action
Intercollegiate Athletic Association, Inc., et al. No. W-5061
District of Maryland
Terry Knight, etc. v. The Mayor and City Council Civil Action
of Baltimore, et al. No. 72-1242-H
District of Massachusetts
Terry Knight, etc. v. Boston Garden Corp., Civil Action
et al. No. 72-3646-G
Terry Knight, etc. v. City of Springfield, Massachusetts, Civil Action
et al. No. 72-3743-G
*1087
District of Nebraska
Terry Knight, etc. v. City of Omaha, et al. Civil Action
No. CV73-0-137
District of Nevada
Terry Knight, etc. v. Gana Productions, Inc., Civil Action
et al. No. 1954
Eastern District of New York
Terry Knight, etc. v. County of Nassau, et al. Civil Action
No. 72-C1629
Southern District of New York
Terry Knight, etc. v. Levinson & Ross, et al. Civil Action
No. 72 Civ. 3996
Terry Knight, etc. v. Madison Square Garden Civil Action
Corp., et al. No. 72 Civ. 5110
Terry Knight, etc. v. American Broadcasting Civil Action
Company, Inc., et al. No. 73 Civ. 346
Mark Farner, et al. v. Terry Knight, et al. Civil Action
No. 72 Civ. 2026
Terry Knight, etc. v. Arlen Realty & Development Civil Action
Corp., et al. No. 73 Civ. 3484
Middle District of North Carolina
Terry Knight, etc. v. City of Winston-Salem, Civil Action
etc. No. C-60-WS-73
Western District of Oklahoma
Terry Knight, etc. v. Oklahoma City Public Civil Action
Property Authority, et al. No. Civ. 73-60B
Eastern District of Pennsylvania
Terry Knight, etc. v. Spectrum Arena, Inc., et Civil Action
al. No. 72-2312
District of Rhode Island
Terry Knight, etc. v. Providence Civic Center Civil Action
Authority, et al. No. 5076
District of South Carolina
Terry Knight, etc. v. Concept Entertainment Civil Action
Industries, Inc., et al. No. 73-152
Eastern District of Tennessee
Terry Knight, etc. v. City of Knoxville, Tennessee, Civil Action
et al. No. 8173
*1088
Middle District of Tennessee
Terry Knight, etc., v. James Armistead, et al. Civil Action
No. 6878
Western District of Tennessee
Terry Knight, etc. v. City of Memphis, Tennessee, Civil Action
et al. No. 73-56
Eastern District of Virginia
Terry Knight, etc. v. City of Richmond, Virginia, Civil Action
et al. No. 48-73-R
Southern District of West Virginia
Terry Knight, etc. v. National Shows, Inc., et Civil Action
al. No. CH-73-CA-29