In re Grain Shipments
| Decision Date | 26 June 1969 |
| Docket Number | No. 22.,22. |
| Parties | In re Multidistrict Commodity Credit Corporation Litigation Involving GRAIN SHIPMENTS. |
| Court | 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.
The cases listed on the attached Schedule A were brought by the United States of America on behalf of the Commodity Credit Corporation to recover damages for alleged losses of grain1 during shipment. Discrepancies between the weights recorded at the origin and the weights recorded at the destination form the basis for the Government claims. The grain was transported by the defendants in clear-record, covered hopper cars.2
On April 25, 1969, the Panel ordered the parties in these cases to show cause why the cases should not be transferred for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407.3 A hearing was held in Denver, Colorado on May 23, 1969 and counsel for all parties were notified by the Clerk of the Panel.
These thirty-two cases involve many common questions of fact including those relating to general standards for loading and unloading hopper cars, general standards for weighing hopper cars, the integrity of the hopper cars by design and manufacture and the amount of shrinkage or loss of moisture which normally occurs in these grains. There are also questions of fact of limited commonality. As all shipments do not originate or terminate at the same point, the loading and weighing procedures used at any one terminal are not common to all cases. However many of the shipments involved in this litigation have the same points of origin and destination; therefore the facts relating to actual practice at those locations are common to several of these cases.
We are satisfied, as are the vast majority of the parties4 that there are sufficient common questions of fact and that transfer of these cases for coordinated or consolidated pretrial proceedings will be for the convenience of the parties and their witnesses.5
There is a special reason why the just and efficient conduct of these actions will be served by application of Section 1407. Although these cases are of great importance to the railroads, the Government, and the general public, they involve relatively small damage claims.6 Therefore, every effort should be made by the parties and the courts to process these actions as efficiently, expeditiously and economically as possible. The transfer of these cases for coordinated or consolidated pretrial proceedings under Section 1407 is but the first step in realizing such a goal. Section 1407 is not the exclusive vehicle for insuring the just and efficient conduct of cases having common questions of fact and law. In re Air Crash Disaster at Falls City, Nebraska on Aug. 6, 1966, 298 F.Supp. 1323 (Jud.Pan.Mult.Lit. 1969). Sections 1404(a), and 1406(a) when applicable, may be used in conjunction with or in place of Section 1407 to transfer related cases to a single court. In re Mid Air Collision near Hendersonville, North Carolina on July 19, 1967, 297 F.Supp. 1039 (Jud.Pan.Mult.Lit. 1969). It should be emphasized that the transfer of these cases under Section 1407 does not prevent the appropriate court from considering the possibility of transferring these cases for trial under Section 1404(a) when pretrial proceedings are complete. See Manual for Complex and Multidistrict Litigation, section 5.2.
In its initial response to the order to show cause, the Government suggested the District of Maryland as an appropriate transferee forum, a suggestion admittedly prompted by personal convenience. The defendants oppose this suggestion and approximately half of them have requested that the cases be transferred to either the Districts of Colorado, Kansas or Nebraska. Selection of one of these courts is urged because most of the grain involved in this litigation moved in the central states and because the Government records relating to grain shipments are located at the office of the Agricultural Stabilization and Conservation Service in Kansas City. These factors coupled with the availability in each of these districts of an experienced and capable judge familiar with this litigation and with grain handling and storage problems in general compel the selection of one of these three districts. The final choice is not an easy one. The physical proximity of the District of Kansas to the offices of the Agricultural Stabilization and Conservation Service and the willingness of Judge George Templar to accept responsibility for the coordinated or consolidated pretrial proceedings7 has convinced us that the District of Kansas is the most appropriate transferee forum.
The Southern Railway Company opposes the inclusion of the two cases filed against it in the District of South Carolina in consolidated or coordinated pretrial proceedings on the grounds that pretrial proceedings in these two cases are almost complete and the cases are nearly ready for trial. It does not appear that the convenience of parties and witnesses or the just and efficient conduct of these two actions would be furthered by transferring them to the District of Kansas under Section 1407. Cf. In re Protection Device Cases, 295 F. Supp. 39, 40 (Jud.Pan.Mult.Lit.1968).
It is therefore ordered that the cases on the attached Schedule A, with the exception of the two cases pending in the District of South Carolina and those cases originally filed in the District of Kansas, are hereby transferred to the District of Kansas and with the consent of that court assigned to the Honorable George C. Templar for coordinated or consolidated pretrial proceedings.
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