Opinion
No. 229.
January 26, 1974.
TRANSFER ORDER
While en route from Athens, Greece, to Rome, Italy, Trans World Airlines, Inc. Flight No. 841, a Boeing 707 aircraft, crashed on the high seas. Included among the passengers who died as a result of the crash were 36 Americans and 43 foreign nationals.
There are 14 actions arising from this disaster presently pending in four federal districts: nine in the Southern District of New York, two in the Eastern District of Pennsylvania, two in the District of Maryland and one in the Northern District of California. One of the New York actions had originally been instituted in the District of New Jersey but was transferred to the Southern District of New York pursuant to 28 U.S.C. § 1404(a). An additional action had been removed to the Southern District of New York but was subsequently remanded to New York state court.
The various defendants named in the actions include TWA, The Boeing Company and four TWA officers and/or employees being sued for acts or omissions allegedly occurring in the course of their employment.
This matter is before the Panel on the motion of TWA and the four individual defendants to transfer all actions in the litigation to the Southern District of New York for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. Boeing supports the motion as do plaintiffs in all of the actions pending in the Southern District of New York. Plaintiffs in the actions pending in the Eastern District of Pennsylvania have responded to the motion but have taken no position either in support of or in opposition to the requested transfer. Plaintiff in the California action does not oppose transfer but requests that the Panel remand that action to the Northern District of California at the conclusion of the common discovery. Plaintiffs in the Maryland actions did not respond to the motion.
We find that these actions involve common questions of fact and that their transfer to the Southern District of New York for coordinated or consolidated pretrial proceedings under Section 1407 will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
The existence of common questions of fact among these actions, as is usually the case in multidistrict air disaster litigation, is readily apparent. This commonality and the corresponding need for centralized pretrial proceedings in this litigation is not undermined by the presence of differing legal theories in some of these actions with regard to the respective liabilities of Boeing, TWA and the four individual defendants. See, e.g., In re Air Crash Disaster at Cincinnati Airport, 295 F. Supp. 51 (Jud.Pan.Mult.Lit. 1968); In re Duarte, California, Air Crash Disaster on June 6, 1971, 354 F. Supp. 278, 289 (Jud.Pan.Mult.Lit. 1973). Moreover, the absence of any opposition to the requested transfer highlights the obvious factual commonality among these actions.
The failure of the Maryland plaintiffs to respond to the motion is deemed as their acquiescence to the action requested therein. Rule 7, R.P.J.P.M.L., 65 F.R.D. 253, 256 (1975).
We agree that the Southern District of New York is the appropriate transferee forum for this litigation. There are more actions pending in that district than in any other and discovery has already advanced in several of the actions there. Since TWA maintains its principal place of business in the Southern District of New York and the four individual defendants reside in or near there, a substantial amount of the relevant discovery will occur in that district
Plaintiff in the California action has requested that we presently determine the propriety of remand of that action once the coordinated or consolidated pretrial proceedings have been concluded. Such a request is, in our view, fatally premature and, further, would infringe on the transferee judge's discretion in making orders he deems appropriate to effectuate the expeditious and harmonious conduct of the litigation.
It is therefore ordered that the actions listed on the attached Schedule A and pending in districts other than the Southern District of New York be, and the same hereby are, transferred to the Southern District of New York and, with the consent of that court, assigned to the Honorable Marvin E. Frankel for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district and listed on Schedule A.
SCHEDULE A
Southern District of New York
Theodore Pallas, etc., et al. Civil Action v. Trans World Airways, Inc., No. 75 Civ. 209 (MEF) et al.
Ruth Ann Reed, Adm., et al. Civil Action v. Forwood Cloud Wiser, Jr., No. 75 Civ. 4015 (MEF) et al.
Gily Epstein Bard, et al. v. Civil Action Trans World Airlines, Inc. No. 75 Civ. 3136 (MEF)
Avrum Peter Katzman, etc., Civil Action et al. v. Trans World Airlines, No. 75 Civ. 4537 (MEL) Inc., et al.
George Argyropoulos, et al. v. Civil Action Trans World Airlines, Inc., et No. 75 Civ. 4561 (EW) al.
Ann P. Giorgi, etc. v. Trans Civil Action World Airlines, Inc., et al. No. 75 Civ. 4586 (HFW)
Louis L'Esperance, etc. v. Civil Action Trans World Airlines, Inc. No. 75 Civ. 4383 (CHT)
Louise L'Esperance, etc. v. Civil Action Forwood Cloud Wiser, Jr., No. 75 Civ. 4384 (MEF) et al.
Riccardo Masera, etc. v. Civil Action Trans World Airlines, Inc., No. 75 Civ. 4842 (CBM) et al.
Eastern District of Pennsylvania
Estate of Tej Shah, etc., et Civil Action al. v. Trans World Airlines, No. 75-149 (CCN) Inc.
Hermant Shah, Adm. v. Trans Civil Action World Airlines, Inc. No. 75-2408 (CCN)
District of Maryland
Pete Gus Chakalakis, etc. v. Civil Action Trans World Airlines, Inc. No. HM-75-1262
Florentia Chakalakis, Adm. v. Civil Action Trans World Airlines, Inc. No. HM-75-1263
Northern District of California
Lee H. Benedict, etc. v. Civil Action Trans World Airlines, Inc. et No. C75-1802-AJZ al.