1:72-F-00103•IN RE: Air Crash Disaster at Toronto International Airport on July 5, 1970
IN RE: Air Crash Disaster at Toronto International Airport on July 5, 1970
1:72-F-00103Jpml1 de mai. de 2015
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Case MDL No. 103 Document 2 Filed 05/01/15 Page 1 of 7 BEFORE THE JUDICIAL PANEL), "1, ON CL, | © MULTIDISTRICT LITIGATION Ce EAT JU ae ’ <0 By pe ~ 137» IN RE AIR CRASH DISASTER ) oft ny, TE AT TORONTO INTERNATIONAL ) SE gp AIRPORT OW JULY 5, 1970 ) DOCKET. NO. 103 OPINION AND ORDER BEFORE ALFRED P. MURRAH, CHAIRMAN, JOHN MINOR WISDOM¥*, EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH S. LORD, ITI*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL PER CURIAM On July 5, 1970, a passenger aircraft operated by Air Canada crashed near Toronto International Airport, fatally injyring one hundred passengers and nine crew members. Since the time of the crash 34 wrongful death actions have been $ instituted in the federal and state courts. Some of these cases were filed in the Central District of California and several additional actions were either removed to or trans- ferred to that district. All of the actions pending in that district and listed on the attached Schedule A have been assigned to Judge Peirson Hall and pretrial proceedings in those cases are now underway. The only federal action arising from this crash not pending in the Central District of California is the wrongful death action brought by Henry Smith in the Northern District of Illinois. Air Canada earlier moved for transfer of that * Judges Wisdom and Lord were not present at the hearing, but they have, with the consent of all parties, participated in this decision.
Case MDL No. 103 Document2 Filed 05/01/15 Page 2 of 7 I, } | action to California pursuant to 28 U.S.C. §1404(a). Smith : | objected to transfer for all purposes because of alleged hardship to him and tc the relatives of the deceased passenger whose estate he represents. It appears that the father of the deceased passenger, a resident of Michigan, is unemployed by reason of poor health. It is asserted that his lack of funds as well as his physical disabilities would make travel to California impossible. The brother of the deceased passenger and Smith are said to be similarily situated. On the basis of this showing of hardship, the Illinois district court denied the motion for transfer under Section 1404 (a). Air Canada now moves for transfer of the Smith action to the Central District of California pursuant to 28 U.5.C. §1407. It urges that for the convenience of the parties and witnesses and for the just and efficient conduct of the liti- gation issues common to all cases should be pretried in a single district. And it urges that the Central District of California is the most appropriate transferee district because of the advanced status of proceedings before Judge Hall. We agree. Smith opposes transfer under Section 1407 on the same basis he opposed transfer under Section 1404 (a) --hardship to him and the relatives of the deceased in traveling to California. Smith acknowledges that transfer under Section 1407 is for pretrial purposes and that the necessity for his presence and 8 the presence of the relatives of the deceased in California is de minimis. He argues, however, that transfer by the Panel
Case MDL No. 103 Document2 Filed 05/01/15 Page 3 of 7
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8 would, as a practical matter, require him to go to trial in California. Courts assigned litigation pursuant to Section
1407 have, in some instances, transferred litigation to the
transferee district or another district for all purposes pur-
1/
suant to Section 1404 (a). Assuming arguendo that Smith's case
is inappropriate for transfer under Section 1404(a), we are
unwilling to assume, as Smith would have us do, that the trans-
2/
feree court will order such a transfer. Where an action is
otherwise appropriate for coordinated or consolidated pretrial
proceedings, the possibility of an abuse of discretion or
unfavorable ruling by the transferee court will not prevent
transfer. Cf. In re Plumbing Fixtures Litigation, F.
Supp. (J.P.M.L. 1972); See also, In reMotion Picture
8 Antitrust Litigation, F. Supp. _(J.P.M.L. 1972).IT IS THEREFORE ORDERED that the action pending in the
Northern District of Illinois and listed on the attached
Schedule A be, and the same hereby is, transferred to the
Central District of California and, with the consent of that
1l/ In re Antibiotic Antitrust Actions, 333 F. Supp. 299
S.D.N.Y. 1971), pet. for writ of mandamus denied sub nom.
Pfizer, Inc. v. Lord, 447 F.2d 122 (2d Cir. 1971); State of
Illinois v. Harper & Row Publishers, Inc. (N.D. Iil., No.
67C899, March 23, 1971); In re Hanover, New Hampshire Air
Disaster Litigation, F. supp. (D.N.H. 1971); Fox Vv.
Allegheny Airlines, Inc. (S.D. Ind., Nov. 4, 1971); Jack
Winter, Inc. v. Koratron Co., 326 ¥. Supp. 12% (N.D. Calif.
1971); IBM v. Greyhound Computer Corp., _ -F. Supp. __
(D. Minn., 1972).
2/ In addition, there is some doubt concerning the legality
of a second decision of a motion for transfer under Section
1404 (a) which is at variance with an initial determination
under Section 1404(a). Insurance Co. of North America Vv.
Ozean Stinnes-Linien, Inc. 374 F.2d 224 {5th Cir. 1966) wrCase MDL No. 103 Document2 Filed 05/01/15 Page 4 of 7 ~4- 8 court, assigned to the Honorable Peirson Hall for pretrialproceedings pursuant to 28 U.S.C. §1407 with the actions listed on Schedule A and pending in that district.
Case MDL No. 103 Document 2 Filed 05/01/15 Page 5 of 7 SCHEDULE A DOCKET 103 8 NORTHERN DISTRICT OF ILLINOISHenry Smith, etc. v. McDonnell Douglas Civil Action Corp., et al. No. 71-C-1719 CENTRAL DISTRICT OF CALIFORNIA Scott Herrmann, etc. v. Air Canada, Civil Action Inc., et al. No. 70-1635-PH John Bradley Witmer, etc. v. Ailr Civil Action Canada, Inc., et al. No. 70-2442-PH Joseph Vincent McKettrick, etc. wv. Civil Action Air Canada, et al. No. 70-2904-PH Bruce Sultan v. Air Canada, Inc., Civil Action et al. No. 71~-948-PH Nancy C. Moore, etc. v. Air Civil Action Canada, et al. No. 71-1097-PH Arthur J. Tielenes v. Air Canada, Civil Action et al. No. 71-1106-PH Gordon W. Houston, et al. v. Air Civil Action Canada, Inc., et al. No. 71-1179-PH Mark Simon, etc. v. Air Canada, Civil Action Inc., et al. No. 71-1367-PH Joseph S. Simone v. Air Canada, Civil Action Inc., et al. No. 71-1491-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-1537-PH Carman Mable Hamilton, etc. v. Civil Action McDonnell Douglas Corp. No. 71-1544-PH Jennette Rowland, etc. v. Civil Action McDonnell Douglas Corp. No. 71-1545-PH Air Canada, Inc. v. McDonnell Civil Action Douglas Corp. No. 71-1560-PH Georgina A. Woodard, etc. v. Civil Action McDonnell Douglas Corp. No. 71-1561-PH Susan Jane Hill, etc. wv. Civil Action Mcbonnell Douglas Corp. No. 71-1562-PH Helen Bailey, etc. v. Air Civil Action Canada No. 71-1947-PH
Case MDL No. 103 Document 2 Filed 05/01/15 Page 6 of 7 SCHEDULE A -2=- DOCKET NO. 103 CENTRAL DISTRICT OF CALIFORNIA 8 Irene Giannoulis, et al. v. Air Civil ActionCanada, et al. : No. 71-1972-PH McDonnell Douglas Corp. v. Air Civil Action Canada, Inc. No. 71-2161-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2219-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2220-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2221-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2222-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2223-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2224-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2225-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2226-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2227-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2228-PH Katherine Aanestad, etc. v. Civil Action McDonnell Douglas Corp. No. 71-2229-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2230-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2231-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2232-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2233-=PH
Case MDL No. 103 Document 2 Filed 05/01/15 Page 7 of 7 SCHEDULE A -3- DOCKET NO. 103 $ CENTRAL DISTRICT OF CALIFORNIAKatherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. : No. 71-2234-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2235-PH Katherine Aanestad, etc. v. Air Civil Action Canada, Inc., et al. No. 71-2242-PH
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