Judicial Panel on Multidistrict Litigation.
Before WM. TERRELL HODGES, Chairman, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA,[*] JULIA SMITH GIBBONS, D. LOWELL JENSEN and J. FREDERICK MOTZ, Judges of the Panel.
HODGES, Chairman.
This litigation consists of the five actions listed on the attached Schedule A and *700 pending in three districts as follows: three actions in the Western District of Washington and one action each in the District of Montana and the Eastern District of Washington. Plaintiffs in four actions move the Panel, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings in the Eastern District of Washington. In their reply, moving plaintiffs also suggest the District of Oregon as an alternative choice for transferee forum. Plaintiffs in the remaining action, pending in the Western District of Washington, would support centralization in any of the districts with actions pending, although they submit that the District of Montana would be the least appropriate of these districts.
Defendants Burlington Northern and Santa Fe Railway Co. and Bricker Zakovics Querin Thompson & Ritchey, P.C., oppose the plaintiffs' motion. Both defendants agree that this litigation should proceed in a single forum, but believe that these actions should be transferred for all purposes under 28 U.S.C. § 1404 and have filed motions to do so in the District of Montana and the Eastern District of Washington.[1] Defendants request that the Panel either not act until the courts where the actions are pending can rule on the Section 1404 motions, or, if the Panel does not defer its decision, transfer the actions pending outside the Western District of Washington to that district.
On the basis of the papers filed and hearing session held, the Panel finds that the actions in this litigation involve common questions of fact, and that centralization under Section 1407 in the Western District of Washington will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In all actions plaintiffs claim that the defendants conspired to settle claims, which were made by present and former employees of the defendant railroad for noise induced hearing loss, based upon a formula that allegedly grossly undervalued the claims. Centralization under Section 1407 in thus necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary.
In selecting the Western District of Washington as transferee district, we note that two of the four actions filed by moving plaintiffs are already pending there. We also observe that the fifth action, filed by different plaintiffs' counsel, is also in that district.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the attached Schedule A and pending in districts other than the Western District of Washington are transferred to the Western District of Washington and, with the consent of that court, assigned to the Honorable Marsha Pechman for coordinated or consolidated pretrial proceedings with the actions listed on Schedule A and pending in that district.
SCHEDULE A
MDL-1418 In re Burlington Northern & Santa Fe Railway Co. Employee Settlement Agreements Litigation
District of Montana
Russell Lambert v. Burlington Northern & Santa Fe Railway Co., et al., C.A. No. 9:01-94
Eastern District of Washington
James W. Hoffann v. Burlington Northern & Santa Fe Railway Co., et al., C.A. No. 2:01-102
*701 Western District of Washington
Norman Harding, et al., v. Burlington Northern & Santa Fe Railway Co., et al., C.A. No. 2:01-452
Donald D. Butts, et al., v. Burlington Northern & Santa Fe Railway Co., et al., C.A. No. 2:01-587
Gene Richards v. Burlington Northern & Santa Fe Railway Co., et al., C.A. No. 2:01-1258
[*] Judge Selya took no part in the decision of this matter.
[1] The District of Oregon already transferred an action, which was included on the motion before the Panel, to the Western District of Washington pursuant to Section 1404.
