In re Plumbing Fixtures Litigation

• Decision Date: 05 May 1972
• Docket Number: No. 3.,3.
• Citation: 342 F. Supp. 756
• Parties: In re PLUMBING FIXTURES LITIGATION. The State of North Carolina v. American Standard Inc., et al., E. D. North Carolina, Civil Action No. 2844.
• Court: Judicial Panel on Multidistrict Litigation

342 F. Supp. 756

In re PLUMBING FIXTURES LITIGATION The State of North Carolina v. American Standard Inc., et al., E. D. North Carolina, Civil Action No. 2844.

No. 3.

Judicial Panel on Multidistrict Litigation.

May 5, 1972.

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.

In 1968 the Panel filed its initial Opinion and Order in the Plumbing Fixtures Litigation, transferring 37 actions to the Eastern District of Pennsylvania for pretrial proceedings with two related actions pending in that district.¹ Since that time additional actions have been transferred² and there are approximately 370 actions pending in that district as a part of the litigation. The State of North Carolina recently filed an action against defendants in this litigation in the Eastern District of North Carolina, seeking recovery as parens patriae on behalf of all individual consumers within the state and also as Rule 23 class representative on behalf of all governmental entities within the state.

A conditional transfer order was entered in the North Carolina action by the Clerk of the Panel, acting pursuant to the Panel's Rule 12, 53 F.R.D. 119. North Carolina filed a timely opposition to the proposed transfer and moved to vacate the conditional transfer order. Defendants opposed that motion and urged transfer of the action to the Eastern District of Pennsylvania. At the initial argument on this matter North Carolina did not dispute that its action was substantially similar to the actions now pending before Judge Harvey. It did assert, however, that the proposed transfer might deprive it of a fair opportunity to present its claim for relief, noting that Section 1407 requires transfer only where it will "promote the just and efficient conduct of the action." 28 U.S.C. § 1407(a). Emphasis added

North Carolina argued that in its previous decisions³ the transferee court dismissed claims similar to those asserted in this complaint. And in reaching those decisions the transferee court is said to have interpreted the requirements of Section 4 of the Clayton Act, 15 U.S.C. § 15,⁴ less favorably to antitrust plaintiffs than to courts of the transferor district and circuit.⁵ Accordingly, North Carolina contended that transfer will result in the dismissal of its claims as too remote in the plumbing fixtures chain of distribution to support recovery of damages while denial of transfer will assure that the allegedly more generous law of the transferor circuit is applied to its case.

After the initial hearing the Panel vacated the conditional transfer order and reserved decision of the transfer question to give the parties an opportunity to obtain a ruling from the transferor court concerning the standing of North Carolina to bring this action.⁶

Defendants now move for reconsideration or clarification of the Panel's order. Their primary contention is that the matter should be reconsidered and the North Carolina action transferred. We have determined, on the basis of the briefs and arguments, that the motion for reconsideration should be granted and the action transferred to the Eastern District of Pennsylvania.

The sole basis for opposing transfer is North Carolina's fear that the transferee court will not apply the laws of the circuit in which its action was filed in deciding whether the state can maintain a treble damage action against these defendants under Section 4 of the Clayton Act. In our view these fears are groundless. It is clear that the substantive law of the transferor forum will apply after transfer, Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Indeed, the transferee court has expressly affirmed this point. Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 309 F.Supp. 1053, 1055 (E.D.Pa.1969). Since North Carolina does not deny that its action is otherwise appropriate for transfer, it must be transferred for pretrial proceedings with the other actions.

It is therefore ordered that the action, State of North Carolina v. American Standard Inc., et al., E.D. North Carolina, Civil Action No. 2844, be, and the same hereby is, transferred to the Eastern District of Pennsylvania and, with the prior consent of...