IN RE: Multidistrict Commodity Credit Corporation Litigation Involving Grain Shipments

C .
Ce ase MPL No. 22 Document 3 Filed 04/30/15 Page 1 of 34
3 ou Pe 2 JUDICIAL PANEL ON |1 5 | EL JULES	CT LITIGATION _—
| | ar FILED FoiTHE JUDICIAL PANEL CIuN	A 51968 gsON gis
MULTIDISTRICT LITIGATION | PATRICIA D. WAL Seo
IN RE MULTIDISTRICT COMMODITY )
CREDIT CORPORATION LITIGATION ) DOCKET NO. 22
INVOLVING GRAIN SHIPMENTS )
OPINION AND ORDER BE
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOI! MINOR WISDOM¥*,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. SECKER, JOSEPH S.
LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THEE PANEL
PER CURIAM -
The cases listed on the attached Schecul: A were brought
by the United States of America on behalf ol tn: Commodity
Credit Corporation to recover damages for alleged losses
of eraint’ during shipment. Discrepancies between the welchts
recorded at the origin and the weights recorded ot the destine-
tion form the basis for the Government claims. The grain was :
transported by the defendants in clear-record, ~overed howper
: cars. 2/ ;
* Although he was unable to be present at the Denver hearing,
Judge Wisdom has, with the consent of the parties, participatedin this decision.
: 1/ The majority of claims arise from shipments of wheat butshipments of corn and milo are also involved.
2/ A covered hopper car is defined as "an all-metal car soconstructed so that commodities cannot escape from it during the
course of transportaticn provided the car is locked and sealed
by the shipper." The term clear record is used to mean "thatthe car was without any defect and that the seals were intact
(at the destination)". Union Pacific Response to Show Cause
Order, p. 1

Case MDL No. 22 Document3 Filed 04/30/15 Page	2 of 34
® oCOn 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.
s1407.2 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 ior weighing
hopper cars, the integrity of the hopper cars by design and
manufacture and the amount of shrinkage or loss of molsture
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 parties?!
that there are sufficient common questions of fact and that
37 This section authorizes transfer of cases for consolidated orcoordinated pretrial proceedings on motion of a party or on theinitiative of the Panel.
4/ The common palintiff and nineteen of the twenty-three res-ponding defendants favor coordinated or consolidated pretrialproceedings.
®

Case MDL No. 22 Document3 Filed 04/30/15 Page	3 of 34
® 3 -
transfer of these cases for coordinated or consolidated pretrial
proceedings will be for the convenience of the parties and
their witnesses.
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. Therefore, every effort should be made
by the parties and the courts to process these actions as
efficiently, expeditiously and economically as possible. The
~pansfer of these Cases for coordinated or congolidated pretrial
C proceedings under gJection 1407 is but the first step in
realizing such a goal. Section 1407 1s not the exclusive
vehicle for insuring the just and efficient conduct of cases
having common questions of fact and law. In re Falls City,
Nebraska Cases, F.Supp __(Jua. Pan. Mult. Lit. 1969).
Sections 1404(a), and 1406 (a) when applicable, may pe used in
conjunction with or in place of Section 1407 to transfer related
cases to a single court. In re Hendersonville, North Carolina
Cases, F. Supp. (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 con-
5/ This is said to be particularly true of discovery relatingto Government records in Kansas city and Washington, D. C.
® 6/ For example, the four cases pending in the District of Kansas	involve claims for damages in the following amounts:
$546.64; $729.52; $809.13; and $4,692.51

Case MDL No. 22 Document3 Filed 04/30/15 Page	4 of 34
® asidering 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 approxi-
mately half of them have requested that the cases be transferrc:
to either the Districts of Colorado, Kansas oT Nebraska.
Selection of one of these courts 1s urged because most of the
grain jpvolved 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 1s 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 proceedings’
7/ Both the transferee judge and the transferee court, as evidenced |by the consent signed by Chief Judge Arthur J. Stanley and filedwith the Clerk of the Panel, have consented to the assignment ofthese cases to Judge Templar under Section 1407.
®

Case MDL No. 22 Document3 Filed 04/30/15 Page	5 of 34
- 5 =
® 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).
C IT IS THEREFORE ORDERED that the cases on the attachedSchedule 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.
Attachment
@

Case MDL No. 22 Document 3 Filed 04/30/15 Page 6 of 34
® SCHEDULE A
DISTRICT OF KANSAS
1. United States of America v. The Atchison, Topeka Civil Action
and Santa Fe Railway Company No. T-4314
5. United States of America v. Atchison, Topeka civil Action
and Santa Fe Railway Company No. T-L46L
3. United States of America Vv. Chicago, Rock Civil ActionIsland & Pacific Railroad Company No. T-4323
I, United States of America V. Missouri Pacific Civil Acti
Railroad Company No. T-4317
DISTRICT OF MARYLAND
5. United States of America v. Pennsylvania civil ActionRailroad Company No. 19013
6. United States of America v. Western Maryland Civil Action
Railway Company No. 19575
® 7. United States of America v. Baltimore & Ohio Civil ActionRailroad Company No. 19520
8. United States of America V. Pennsylvania Civil Action
New York Central Transportation Company No. 19797
EASTERN DISTRICT OF VIRGINIA
9. United States of America v. Chesapeake and civil ActionOhio Railway Company No. 6541-N
10. United States of America v. Norfolk & Western civil Action
Railway Company No. 6404
11. United States of America Vv. Norfolk & Western Civil Action
Railway Company No. 6895

Case MDL No. 22 Document 3 Filed 04/30/15 Page 7 of 34
® 2 -
DISTRICT OF MINNESOTA
12. United States of America v. Chicago, Burlington Civil Action
& Quincy Railroad Company No. 298
13. United States of America v. Chicago North Civil Action
Western Railway Company No. 273
14. United States of America v. Chicago North Civil Action
Western Railway Company No. 315
15. United States of America v. Chicago, Milwaukee, Civil Action
St. Paul & Pacific Railroad Company ‘No. 348
16. United States of America v. Soo Line Railroad Civil Action
Company No. 297
NORTHERN DISTRICT OF TEXAS
17. United States of America v. Fort Worth Civil Action
® %& Denver Railway Company No. 10524
WESTERN DISTRICT OF MISSOURI
18. United States of America v. Kansas City Civil Action
Southern Railway Company No. 17018-3
WESTERN DISTRICT OF WASHINGTON
19. United States of America v. Northern Pacific Civil Action
Railway Company No. 3610
20. United States of America v. Spokane Portland Civil Action
& Seattle Railway Company No. 8057
WESTERN DISTRICT OF NEW YORK
21. United States of America v. New York Central Civil Action
Railroad Company No. 1967-424

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® "OC
EASTERN DISTRICT OF PENNSYLVANIA
22. United States of America v. Reading Civil Action
Company No. 68-4}
23. United States of America v. Reading Civil Action
Company No. 68-1611
24, United States of America v. Pennsylvania Civil Action
New York Central Transportation Company No. 69-203
DISTRICT OF SOUTH CAROLINA
25. United States of America v. Southern "Civil Action
Railway Company No. 67-843
26. United States of America v. Southern Civil Action
Railway Company No. 68-635
DISTRICT OF NEBRASKA
@-. United States of America v. Union Pacific Civil Action
Railroad Co. No. 02839
DISTRICT OF COLORADO
28. United States of America v. Union Pacific Civil Action
Railroad Company No. C-1188
DISTRICT OF OREGON
29. United States of America v. Southern Pacific Civil Action
Company No. 68-23
20. United States of America v. Southern Pacific Civil Action
Company No. 68-542

Case MDL No. 22 Document 3 Filed 04/30/15 Page 9 of 34
[J
»
° i.
WESTERN DISTRICT OF WISCONSIN
31 United States of America v. Great Civil Action
Northern Railway Company No. 67-C-160
32 United States of America v. Great Civil Action
Northern Railway Company No. 68-C-210

Case MDL No. 22 Document 3 Filed 04/30/15 Page 10 of 34
mT T ee 4% / 7”~/ 2 S34 ;THE JUDICIAL PANEL poral PANEL ON :. ON WLTIDISTRICT LITIGATION Lo
MULTIDISTRICT LITIGATION FILED E
| EP 30 1569 o
IN RE MULTIDISTRICT COMMODITY ) SATRICIADB. Wil oo
CREDIT CORPORATION LITIGATION ) TER wi srs
INVOLVING GRAIN SHIPMENTS ) HERE Ry
) DOCKET NO. 22 Bea
THE UNITED STATES OF AMERICA V. ) ENE
MISSOURI-KANSAS-TEXAS RAILROAD ) ge
COMPANY, S.D. TEXAS, NO. 69-H-651 ) NE
| OPINION AND ORDER Ch
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, EDWARD a
WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, AND JOSEPH S.
LORD, III, JUDGES OF THE PANEL
PER CURIAM 8
On June 23, 1969, the Panel transferred 26 grain shipment .
cases to the District of Kansas pursuant to 28 U.S.C. §1407 and -
assigned them to Judge George C. Templar for coordinated or
consolidated pretrial proceedings with four similar actions
initially filed in that court. In re Grain Shipment Litigation,
F. Supp. (Jud. Pan. Mult. Lit. 1969). Three other similar
actions were later transferred without opposition to the District Co
of Kansas and assigned to Judge Templar. The action was B
commenced after the initial Panel hearing held in Denver, Colorado so
on May 23, 1969 and it was therefore not included in the June
23rd transfer order.
On August 13, 1969, a conditional transfer order was entered a:
transferring the above case from the Southern District of Texas

Case MDL No. 22 Document3 Filed 04/30/15 Page 11 of 34
® “2
to the District of Kansas on the basis of the prior hearing
and for the reasons stated in the opinion and order of June 23,
1969. During the automatic ten-day stay of execution of this
order, the defendant filed a motion to vacate the transfer order
and the stay of execution was continued until further order of
the Panel. The Government then filed its opposition to the
defendant's motion and urged the transfer of this case to the
District of Kansas for coordinated or consolidated pretrial
proceedings with the other 33 cases. The defendant waived its
right to a hearing before the Panel and none of the other parties
have requested one.
This action, like the others comprising this multi-
® district litigation, involves claims for damages due to
alleged losses	of grain shipped by one of the defendant rail-
roads at the direction of the Commodity Credit Corporation.
In the case at bar, the total sum in controversy is $365.30.
The defendant contends that because the claim for damages is
so small it "ought not to be required to incur the expense
associated with consolidated pretrial proceedings. "l/ All
of the cases involved in this litigation involve relatively
small damage claims and we suggested that "every effort
should be made by the parties and the courts to
1/ Counsel predicts that expenses far in excess of the damageclaim will be incurred by the defendant if this case is trans-
ferred to Kansas but it appears likely to us that the expense
of defending this action will exceed the claimed damages regard-
@ less of where pretrial proceedings are conducted.

Case MDL No. 22 Document3 Filed 04/30/15 Page 12 of 34
- 3 -
® process these actions as efficiently, expeditiously and
economically as possible." _F. Supp.__. We held that
the transfer of these civil actions for coordinated or con-
solidated pretrial proceedings under section 1407 was the first
step in realizing such a goal and we are satisfied that Judge
Templar is conducting pretrial proceedings in a manner designed
to minimize the cost of this litigation.
It may very well be that the transfer of this action to
the District of Kansas will, in the long run, reduce the defendant's
cost of defending it. But even if this is not so, the Panel
must weigh the interests of all parties and must consider
multiple litigation as a whole. In re Childrens' Book Litigation,
297 F. Supp. 385, 386 (Jud. Pan. Mult. Lit. 1968). We are
@ confident that the transfer of this action to the District of
Kansas and the concomitant coordinated or consolidated pretrial
proceedings in these many actions will serve the overall con-
venience of the majority of the parties and will clearly promote
the just and efficient conduct of this litigation as a whole.
We are also satisfied that there are sufficient common
questions of fact to justify the transfer of this action under
section 1407. The grain involved in this action was shipped
to Houston or Galveston, Texas, the terminal point for many of
the shipments involved in the other actions comprising this multi-
district litigation. Thus loading and weighing procedures and
@

Case MDL No. 22 Document3 Filed 04/30/15 Page 13 of 34
® scale accuracies at the points	of origin and destination for the
shipments involved in this action are equally relevant to numerous
other previously transferred cases. Questions of fact common to
all cases include "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." ______F. Supp. at .
All statutory requisites for transfer of cases under
section 1407 having been met, the motion to vacate the order of
August 13, 1969 is denied. The stay of that order is hereby
lifted and the Clerk of the Panel is directed to transmit it
® forthwith to the Clerk of the District of Kansas for filing and
distribution pursuant to section 1407.
@

Case MDL No. 22 Document 3 Filed 04/30/15 Page 14 of 34
EE ZS BE 4 - 2. A Te.- tT TEA YA0 : Ladi (0 5H Re : |
EN GURRL :{ JUDICIAL PANZL ON vo
THE JUDICIAL PANEL MULTIDISTRICT LITIGATION
ON - i - (i
MULTIDISTRICT LITIGATION : IE
| OCT 271969 Co
IN RE MULTIDISTRICT COMMODITY CREDIT ) PATRICIA D. WILE BN
CORPORATION LITIGATION INVOLVING ) CLERK
GRAIN SHIPMENTS ) DOCKET NO. 22
)
UNITED STATES OF AMERICA V. UNION )
PACIFIC RAILROAD COMPANY, NO. T-461¢ ) Co
. Ser ONG
OPINION AND ORDER Se
Ne2	bias Rai
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, a
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH :
S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM cL
Following a hearing in Denver, Colorado on May 23, 1969 :
the Panel found that the civil actions comprising this litigation ;
involved substantial common questions of fact and concluded :
that their transfer to a single district for coordinated or
consolidated pretrial proceedings would be for the convenience .
of parties and witnesses and would promote the just and efficient po
conduct of these actions. On June 23, 1969 the Panel trans- oo
1 . . . . Lo
ferred twenty-six related actions’ from the districts in which
they were filed to the District of Kansas and, with the consent ;
of the Chief Judge of that Court, assigned them to Judge George
Templar for coordinated or consolidated pretrial proceedings
1/ Two actions brought against the Southern Railway Company
in the District of South Carolina were not transferred as they o
: were nearly ready for trial. .

Case MDL i	No. 22 Document3 Filed 04/30/15 Page 15 of 34
- Cw. -— 2 —
eo In re Grain Shipment Litigation, 300 Fed. Supp. 1402. Four
other related actions were already pending in the District
of Kansas and were therefore not included in the transfer
order.
The above-captioned action was originally filed in the
District of Kansas and the defendant has filed a motion with
the Panel to add this action "to those already included in
Docket No. 22." We think it manifest that this action shares
common questions of fact with the other actions included in this
multidistrict litigation and have no doubt that it should be
included in coordinated or consolidated pretrial proceedings
being conducted by Judge Templar. Had this action been commenced
outside of the District of Kansas, we would have undoubtedly
| used a conditional transfer order?/ to transfer it to the District
of Kansas. We have not used conditional transfer orders to
assign other cases commenced in transferee courts to the
judge assigned by the Panel to conduct coordinated or con-
solidated pretrial proceedings3/ and we are disinclined to
2/ A sondiiional transfer order is used to transfer actionscommenced (or brought to the attention of the Panel) after the
initial group of actions have been transferred for coordinated
or consolidated pretrial proceedings. The new action is
transferred to the previously designated transferee court
on the basis of the prior hearing and for the reasons stated in
the Panel's initial opinion and order. The conditional transfer
order is stayed ten days to allow any party to file its opposi-
tion to the proposed transfer. A hearing will be held if re-
quested by any party. More than 150 tag-along cases, includ-
ing five actions which are part of this litigation, have beentransferred using this procedure.
@ 3/ More than forty tag-along cases originally filed in trans-	feree courts have been assigned.	to the Panel-designated judge
by the transferee court itself.

Case MDL No. 22 Document3 Filed 04/30/15 Page 16 of 34
® | a -
: do so here. We think it unseemly for this Panel to inter-
fere with the internal affairs of any district court with
respect to assignment of actions filed in it before a motion
| to transfer has been submitted to the district court in which
the affected actions are pending. We have no doubt that the
transferee court, on proper application of a party or sua
sponte, will take whatever steps are necessary to insure that
this action is included in coordinated or consolidated pre-
trial proceedings being conducted by Judge Templar .2/
IT IS THEREFORE ORDERED that the instant motion is
hereby denied without prejudice to the right of any party
e to request the transferee court to assign this action to
Judge Templar for inclusion in coordinated or consolidated
pretrial proceedings.
4] See Manual forComplex and Multidistrict Litigation, $5.1,
Clark Boardman Edition, p. 81-83; 1 (Pt.2) Moore's Federal
Practice, p. 87-89; for discussion of assignment of related cases
@ pending in a single district.

Case MDL No. 22 Document 3 Filed 04/30/15 Page 17 of 34
} PARE EY |(0 THE JUDICIAL PANEL HULTICHS | FT LITIGATION
- ON - LED -
Mi 0 [SI i
ULTIDISTRICT LITIGATION | Net 1873 3
PATHICID. HOWARD pe —— yo |
CLERA LF THEPAIEL BEN
MULTIDISTRICT COMMODITY CREDIT ) | NNCORPORATION LITIGATION INVOLVING) =
GRAIN SHIPMENTS ) od) DOCKET NO. 22 NN
THE UNITED STATES OF AMERICA V. ) ENPENN CENTRAL TRANSPORTATION ) FE |
: COMPANY Maryland, C.A. 70-722-N) BE
: OPINION AND ORDER C
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
PER CURIAM :
On June 23, 1969 following a hearing held on its own )
: initiative, the Panel transferred twenty-six related actions
: to the District of Kansas and assigned them to Judge George k
C. Templar for coordinated or consolidated pretrial proceedings
with four related actions originally filed in that court. .
In re Grain Cases, 300 F. Supp. 1402 (J.P.M.L. 1969). Since .
then, nine tag-along cases filed in other districts have :
been transferred to the District of Kansas, see, e.g., In re
Grain Cases, 304 F. Supp. 457 (J.P.M.L. 1969), and at least 5
three other related actions have been filed in that
District.
When the complaint and docket sheet in the above-captioned
case came to the attention to the Clerk of the Panel, she i

Case MDL i	No. 22 Document3 Filed 04/30/15 Page 18 of 34
Q ET= concluded that it was a "tag-along case" and pursuant to Rule
12 of the Rules of Procedure of the Judicial Panel on Multi~
district Litigation,’ a Conditional Transfer Order was entered :
transferring it to the District of Kansas and assigning it to
Judge Templar for coordinated or consolidated pretrial proce-
edings under Section 1407. During the ten-day stay3/ the
Atchison, Topeka and Santa Fe Railroad Company (hereinafter
santa Fe), a defendant in several other actions included in the
multidistrict litigation but not a party to this action, filed a
Notice of Opposition to the transfer of this action. The “Condi-
tional Transfer Order was stayed indefinitely and a hearing held
in New York City on September 23, 1970 to consider the proposed
® transfer of this case.
T7 Rule 1 of The Rules of Procedure of the Judicial Panelon Multidistrict Litigation defines a tag-along case as "a
civil action apparently sharing common questions of fact with
actions previously transferred under Section 1407,..."
2/ RULE 12
Conditional Transfer Order
(a) Upon learning of the pendency of a tag-along case the
Clerk of the Panel shall as soon as practical enter a conditional
order transferring it to the previously designated transferee
court on the basis of the prior hearing or hearings and for the
reasons expressed in previous opinions and orders in the litiga-
tion. The effective date of this order shall be stayed ten
days from the entry thereof to afford all parties the opportunity
to oppose the transfer, unless the stay is further extended by thePanel.
3/ At the time this Conditional Transfer Order was entered,Rule 12(a) provided for a ten-day stay. This period was extended
to fifteen days in the amended Rules adopted on August 21, 1970.
|

Case MDL No. 22 Document3 Filed 04/30/15 Page 19 of 34
Qo = 3-
At the outset it should be pointed out that the "Con-
ditional Transfer Order" is an administrative device used to
expeditiously transfer apparently related cases where there
is no opposition to such a transfer. It should not be considered
by counsel as a decision or judgment by the Panel which must be
reversed before such an order can be vacated. It is simply an
administrative act of the Clerk which can be and will be vacated
upon the showing of good cause by any party. In re IBM Anti-
trust Litigation, __F. Supp. __ (J.P.M.L. August 13, 1970).
Although the Santa Fe is not a party to this action it
does have standing to attack this transfer. In re IBM Anti-
trust Litigation, supra. In addition to seeking the vacation
@ of the Conditional Transfer Order in the instant action, the
Santa Fe	3/ seeks to remand to the court of origin: "All cases
which contain a substantial number of boxcar claims, whether
the same be tag-along cases Or cases originally involved in the
transfer proceedings...."
The facts germane to Santa Fe's motion are neither compli-
cated nor disputed. It is agreed that this litigation now includes
claims resulting from shortages in grain shipped in covered hopper
cars and bozecars. It is also true that the Panel was not aware
that claims arising from boxcar shipments were involved in any
_—
4/ See, A Survey of Federal Multidistrict Litigation, 15 vill. L.Rev. 916, 940-942 (1970).
o 5/ Two other defendants in other actions, the Kansas City SouthernRailway Company and the Missouri Kansas Texas Railway Company,
support the Santa Fe motion.

Case MDL No. 22 Document3 Filed 04/30/15 Page 20 of 34
® ~4- |
of the cases transferred under Section 1407. However, the fact
that the boxcar cases were unwittingly included in this multi-
district litigation does not mean that they were improperly
included.
It is true that one of the central issues thought to be
common to all actions was the integrity of the hopper car.
But the integrity of the hopper car was only one of several
common facts, “including those relating to general standards
for loading and unloading hopper cars, general standards for
weighing hopper cars, ... and the amount of shrinkage or loss
of moisture which normally occurs in these grains." In re
Grain Cases, 300 F. Supp. 1402, 1404 (J.P.M.L. 1969). Questions
® relating to the"shrinkage factor" remain common to all cases and
to the extent that the same equipment and procedures are used
for loading and weighing both hopper cars ad boxcars, questions
relating to them are common to both types of cases. Where
multidigtrict litigation involves two or more categories of
cases with some overlapping questions of fact and some unique
questions of fact it has generally been thought desirable to
transfer them to a single district and to assign them to a
single judge. The extent to which the two groups should be
consolidated for pretrial purposes is a guestion properly left
to the discretion of the transferee judge. Cf. In re Revenue
Properties Litigation, 309 F. Supp. 1002 (J.P.M.L. 1970) and
® Seeburg Commonwealth Litigation, 312 F. Supp. 909 (J.P.M.L. 1970).

Case MDL No. 22 Document3 Filed 04/30/15 Page 21 of 34
® _5- |
Since it is clear that there are some common questions of
fact between the two classes of cases, the question becomes
whether or not the inclusion of the boxcar claims would serve |
the convenience of the parties and their witnesses and would
promote the just and efficient conduct of this entire litiga-
tion. We do not see how any party could be inconvenienced by
the transfer of all Boxcar Cases to a single district for
coordinated or consolidated pretrial proceedings, since they
are all presently involved in related litigation in the same
district. It is possible that some separate discovery will be
necessary but it can be conducted in conjunction with the on-
going discovery program in the Hopper Car (Cases without causing
@® any substantial delay in the processing of those cases. The
claims in both types of cases are small and, as we suggested
previously, the transfer of these cases to a single court is
essential if these related actions are to be processed as
efficiently, expeditiously, and economically as possible.
Santa Fe fears that the inclusion of the Boxcar Cases
will make this litigation so bulky that proceedings will be
slowed down even further. The extent to which this is true
will depend in large part on whether the parties choose to
expedite this litigation or to delay it.8/ It goes without
6/ We think the refusal of some defendants to stipulate to theadmission of weight certificates and bills of lading as "records
made in the regular course of business" is inconsistent with the
goal of efficient pretrial proceedings. We are also distressed by
® what would appear to be unnecessary discovery skirmishes and other	___ actions which serve to prolong this litigation and make it moreexpensive. See, Manual for Complex and Multidistrict Litigation,§1.10.

Case MDL No. 22 Document3 Filed 04/30/15 Page 22 of 34
Cy
® .
saying that the transferee judge has wide discretion in this
matter. He can, for example, proceed with that discovery
which is common to both groups of cases and if additional
Boxcar (Cases begin to slow down pretrial proceedings they
can be stayed pending completion of discovery in the original
cases.
IT IS THEREFORE ORDERED that the motion to vacate the
Conditional Transfer Order entered in the instant case and
the motion to remand all actions involving boxcar claims are
hereby denied. The stay of said Conditional Transfer Order
is hereby lifted and the Clerk is directed to transmit said
® order to the Clerk of the District of Kansas for filing anddistribution pursuant to 28 U.S.C. §1407.
®

Case MDL No. 22 Document 3 Filed 04/30/15 Page 23 of 34
TTT TTT ET RR §. |
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BEFORE THE JUDICIAL PANEL fii. = %ON A OE ISE t.
MULTIDISTRICT LITIGATION
IN RE MULTIDISTRICT COMMODITY CREDIT )
CORPORATION LITIGATION INVOLVING )
GRAIN SHIPMENTS ) SE
) DOCKET NO. 22 SE
ited States of America v. Western ) Lo
Pacific Railroad Company, N.D. ) Ce
California, Civil Action No. 70-2450GSI) Co
OPINION AND CRDER
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, Lo
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH :
S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL :
: PER CURIAM a
This tag-along case was the subject of a "conditional oo
transfer order" entered on December 14, 1970, transferring it
to the District of Kansas for coordinated or consolidated pre- }
trial proceedings with the other related actions transferred
to or originally filed in that court. This order has not be- R
come effective because the defendant filed its notice of BN Co
opposition prior to the time the Clerk of the Panel was to | 8
transmit the order to the Clerk of the transferee court for f=filing as required by §1407(c)	.X/ This matter was then set for a
1/ Rule 12 of the Rules of Procedure of the Judicial Panel on Saas
Multidistrict Litigation give the parties 15 days to file their
notice of opposition to the transfer of any action which is the -
subject of a conditional transfer order. .

Case MDL No. 22 Document3 Filed 04/30/15 Page 24 of 34
« a,
Q hearing at the next regularly scheduled session of the Panel which
was held in Washington, D.C. on February 26, 1971. Counsel for
the defendant was unable to attend the hearing and although
counsel for the Government did appear, the case was submitted
on the pleadings.2/
The defendant urges that this case should not be included
in these coordinated or consolidated pretrial proceedings
because it involves a different carrier, different points of
origin and destination, and a different type of grain than
are involved in the other cases. We have never said that all
of the factual issues involved in this litigation are common
to each and every case but have stressed that many of the
issues are common to all of these cases. In re Grain Shipments,
® 319 F. Supp. 533 (J.P.M.L. 1970) One of the most important issues
in this litigation concerns the integrity of a "clear record cov-
ered hopper car" and the Government asserts that this case
involves losses of grain from covered hopper cars only. In
addition, questions involving the general standards for loading,
unloading and weighing hopper cars are also common to this case.
In re Grain Shipment, 300 F. Supp. 1402 (J.P.M.L. 1969)
The presence of complex and important questions of fact
common to this case and to many of the cases previously trans-
ferred to or originally filed in the District of Kansas having
2/ Counsel for the Government did make a brief statement concern-
ing the general status of the cases now pending in the District of
Kansas and pointed out that his brief was no longer correct (due to
Q the settlement of certain other actions) in stating that the points6f origin and destination for these shipments were the same as those
involved in other cases.

Case MDL No. 22 Document3 Filed 04/30/15 Page 25 of 34
.
PY . ,
been clearly established, we have no doubt that the overall
convenience of the parties and their witnesses and the just
and efficient conduct of this entire litigation will be served
by a transfer of this case to the District of Kansas for coordin-
ated or consolidated pretrial proceedings under Section 1407.
IT IS THEREFORE ORDERED that the motion to vacate the
conditional transfer order be and the same is hereby denied.
The Clerk of the Panel is directed to transmit said order forth-
with to the Clerk of the United States District Court for the
District of Kansas for filing and distribution pursuant to 28
U.S.C., §1407.
®
Qe

i 26 of 34
Case MDL No. 22 Document3 Filed 04/30/15 Page . |208 SY pL S/ 8
Co EE | | Co RRtge
PATE bo ob
oo BEFORE THE JUDICIAL PANEL. CLE... BREA 3: ON - :	MULTIDISTRICT LITIGATION
- IN RE MULTIDISTRICT COMMODITY CREDIT )
CORPORATION LITIGATION INVOLVING ) : :
GRAIN SHIPMENTS i ) Co: ) -UNITED STATES OF AMERICA v. SOUTHERN .) DOCKET NO. 22 E
RAILWAY COMPANY, District of South Carolina, ) : ECivil Action No. 67-843 )
) )
"UNITED STATES OF AMERICA V. SOUTHERN )
RAILWAY COMPANY, District of South Carolina, ) .Civil Action No. 68-635 ) SlOPINION AND ORDER
:
BEFORE ALFRED Pp. MURRAH, CHAIRMAN AND JOHN MINOR WISDOM, oEDWARD WEINFELD*, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH ES. LORD, III, AND STANLEY A. WEIGEL*, JUDGES OF THE PANEL Ll
} .
- PER CURIAM :
When the first of these actions was transferred to the } 3
: District of Kansas for coordinated or consolidated pretrial pro- LNceedings under 28 U.S.C. §1407, the two actions involving the LN)
Southern Railway Company were not transferreg because we had ibeen advised that discovery was virtually complete and that Ri
. these actions would be tried in the very near futurel/. In pe
Grain Shipments, 300 F. Supp. 1402, 1405 (J.P.M.L. 1969).
_—
* Although Judges Weinfeld and Weigel were not Present at the
hearing they have, with the consent of a11 parties, participated. >in this decision. . .: 1/ In its brief filed on May 14, 1969, Southern's counsel statedthat these two cases would "be ready for trial at the next term of
- court." Almost two years have now Passed without these cases having ibeen tried although the defendant continues to maintain that it is 15ready for trial even if the government is not. L

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On November 3, 1970, a pretrial conference was held in .
the District of South Carolina in these two cases during which
the government moved for a continuance beyond the present term
of court to permit it to take additional discovery.
southern opposed the continuance and the additional discovery.
In its order of November 13, 1970 the district court found that
the cases were not ready for trial and that there was consider-
able discovery remaining.
The government then filed a motion with the Panel to	!
® transfer these two cases to the District of Kansas for coordinatedor consolidated pretrial proceedings with the other cases trans-
ferred to that court under §1407. The Southern opposed the trans-—
fer and a hearing was held in Washington, D.C. on February 26,
1971 to consider this matter.
The sole reason for excluding these two cases from the
original transfer was the belief that there was little,	if any.
discovery remaining and that no benefit would therefore accrue
to either party from coordinated or consolidated pretrial proceed-
ing. Although the Southern maintains that it is ready for trial
and suggests that the government really has no further need for
discovery, the district court found that there was "con-
siderable discovery to be done." We must therefore conclude that
® the premise which underlay ©Ur original decision to exclude these
: cases from the transfer to Kansas was factually incorrect.

Case MDL No. 22 Document3 Filed 04/30/15 Page 28 of 34
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The defendant nowcontends that there are few if any
important questions of fact in these two cases common to }
those in actions transferred to Kansas. We do not fully under-
stand the Southern's position with regard to its principal
defense for it seems to contend that the weight certificates
are "self impeaching" and conclusively show that there was no
actual loss2/ of grain during shipment of the grain in question
even though it intends to use expert witnesses to establish the
integrity of the covered hopper car, and to point out possible
defects in the design and use of its closing and sealing mechan-3
® isms (and other factors) which could have caused the discrepancyin origin: and destination weight certificates.3/ Many of these
"factors" have previously been found to be common to all of the
cases. In re Grain Shipments, supra, see also 319 F. Supp. 533
: (J.P.M.L. 1970) and 304 F. Supp. 457 (J.P.M.L. 1969). In addition,
2/ For example, the defendant points out in its brief, that the Co
records for one car which made nine consecutive trips showed an
apparent loss of grain on six of the trips and an apparent gain
of weight on the other three, with an apparent net gain of 1,320
pounds of grain for the nine trips.
3/ Defendants' expert witnesses will describe to the court at
least eleven factors that can cause a discrepancy between the weight
~~ certificate at origin and the weight certificate at destination: (1)
malfunction of scale at origin; (2) error by weighmaster at origin;
(3) dust and chaff blowing away during loading; (4) spillage during
loading; (5) failure to put all of the grain into the right car; (6)
loss of moisture and "natural" weight loss during loading, enroute,
and during unloading; (7) failure to completely unload car at destin-
ation; (8) spillage during unloading; (9) dust and chaff blowing away
during unloading; (10) malfunction of scale at destination, and (11)
® error by weighmaster at destination." Southern's Brief in Opposition	3 to Motion to Transfer, page 13 (December 22, 1970)

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we must give great weight to the district court's finding
"that the considerable discovery remaining to be done in (these
two cases) is the same in many instances as the discovery in
the Multidistrict cases.” (order of November 13, 1970)
We are satisfied from the facts now presented to us
that these two cases are not ready for trial, that they involve
many complex questions of fact common to those in actions pre-
viously transferred to the District of Kansas, that substantial
~ discovery as to these common questions of fact remains to be
done and that the convenience of parties and witnesses and the
just and efficient conduct of this litigation will be served
® by the transfer of these cases to the District of Kansas for
coordinated or consolidated pretrial proceedings under §1407.
We note that the question of the integrity of a clear
record hopper car —-- that is whether one can lose grain during
shipment is still unresolved. We understood that this was a
"threshold question® which could conceivably dispose of the
entire litigation. If this matter cannot properly be resolved by
partial summary judgment under Rule 56 then it certainly can be
. the subject of a separate trial under Rule 42) Y/. Counsel for
%] A separate trial could be held on this issue in one or more
of the actions originally commenced in the District of Kansas and,
by stipulation, the result of that trial could be made binding on
the parties in the other cases. Such a procedure has been used with
great success in the Butterfield Patent Cases. In an effort to
resolve this question, it might be appropriate for the court to
consider appointing its own expert witness. Manual for Complex
® and Multidistrict Litigation, §3.51 (Part 2).

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the defendant advises us that he has been informed that deposi-
tion program in these cases could cost between $200,000 and .
$500,000, a sum far in excess of the damages in these cases.
We can only reemphasize that "every effort should be made by the
parties and the courts to process these actions as efficiently,
expeditiously and economically as possible." In re Grain Shipments
supra at 1404.
IT IS THEREFORE ORDERED that the above actions be and the
same are hereby transferred to the District of Kansas for co-
ordinated or consolidated pretrial proceedings and with the prior
® consent of that courtthey are hereby assigned to the Honorable
George C. Templer.
9

Case MDL No. 22 Document 3 Filed 04/30/15 Page 31 of 34
oo THE JUDICIAL PANEL Re pe SE
MULTIDISTRICT LITIGATION APR	1S 137 SE
: PATIL nn ARD a [a
In re Multidistrict Commodity Credit Corporation - = oronch Ce
‘Litigation Involving Grain Shipments 9)
United States.	v. Norfolk Southern Railway Co., ) DOCKET NO. 22
E.D. Virginia, Civil Action No. 860-70-N )
United States v. Norfolk & Western Railway Co., ) A
E.D. Virginia, Civil Action No. 68-71-N ) RE
OPINION AND ORDER | ER
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
EDWARD WEINFELD, WILLIAM H. BECKER, JOSEPH S. LORD, III,
AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM co
These two cases were filed by the United States to recover a. oo
for alleged losses of grain of the Commodity Credit Corporation
occurring during shipment on the defendant lines. Because of i :
their apparent relation to grain shipment ‘litigaticn now pending NYin the District of Kansas, conditional transfer orders were LN :
entered in both cases. The two defendants now move to vacate =}
the conditional transfer orders and the United States opposes > :
their motions. After a hearing attended by counsel for all |
parties, we have concluded that these cases are appropriate Le
for coordinated or consolidated pretrial proceedings with the ol
previously-transferred cases and order them transferred to the
District of Kansas.
The defendants both argue that their cases raise few :
questions of fact common to the Kansas cases. The Norfolk & B - |
Western says that its case involves a single point of origin oo

Case MDL No. 22 Document3 Filed 04/30/15 Page 32 of 34
/
® Cae
N and a single point of destination for the majority of shipments.
It is asserted that the elevators involved in this case are not
involved in the other cases. In addition, many of the relevant
weighings were made by use of track scales rather than hopper
scales, a procedure said to be different from that used in the
typical transferred case,
The Norfolk Southern stresses that the amount claimed is
only $548.00 and that no other suits are pending against it.
The majority of hopper cars relevant to this action are owned
by the defendant and both elevators and the relevant weighing
bureau are said to be in the defendant's own area, far from Kansas,
The United States persuasivély argues against differentiating
® these cases from the prior cases transferred. As to the Norfolk
& Western, the United States points out that the carriers in
the consolidated cases are presently scheduling depositions at
many of the elevators and weighing agencies involved in this
suit and that failure to include this defendant in that
discovery program will lead to repetitive discovery and duplica-
tion of effort. The United States also suggests that this
carrier refused, in actions previously transferred to Kansas SE
but since settled, to make admissions concerning the claims
documents on which the Government premises liability and that a
refusal to make those admissions in this case will necessitate
discovery at each elevator to supply the foundation for their
admissibility, thus duplicating discovery required in the conso-
® ‘lidated cases. Finally, it is submitted that the use of track

Case MDL No. 22 Document3 Filed 04/30/15 Page 33 of 34
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- scales is not unique to this suit but is involved in several
suits already consolidated,
As to the Norfolk Southern,sthe United States contends
that one of the two elevators and the weighing agency will be
the subject of depositions now being scheduled in Kansas. In
addition, several of the cagss involved in this suit are
involved in suits in Kansas, where their records will have to
be produced. Finally, the Government suggests that the
defendant will not be at a disadvantage in participating in the
Kansas prodeedings since it is represented by counsel who has
participated in them on behalf of cther carriers.
Both defendants assert a more basic reason for opposing
C transfer. The Norfolk & Western states that it has concluded that
diverse railroads located across the nation cannot coordinate
their efforts in support of their defenses concerning
industry-wide practices and the fallibility of grain elevator
weight records. Both defendants apparently feel that they have
a better chance of defending their claims if they are not sent
to Kansas and suggest that transfer would increase the nuisance
value of the suits and lead to possible settlements without a
conclusive determination of the central issues involved.
We cannot accept these arguments of the defendants. As
the United States notes, these actions were filed pursuant to
a plan agreed on in the Kansas proceedings. The United States
there agreed to file all outstanding claims against all carriers
®

Case MDL No. 22 Document3 Filed 04/30/15 Page 34 of 34
° e-	W
oo arising	from grain shipments inorder to postpone the need
| for filing and transfer of additional cases for at least the
two year statute of limitations period applicable to these actions.
7 The parties and the Court then set up a discovery sthedule	to oo
commence upon the completion of the transfer of all of these
cases. If these two cases, which so clearly share the common
questions of fact with the Kansas cases, are not transferred
expeditiously, that schedule will be undermined and the effective-
ness of pretrial proceedings diminished. As to the defendants’
dissatisfaction with the concept of coordinated or consolidated
pretrial proceedings in this litigation, the United States has
satisfied us that the convenience of the parties and witnesses
® and the just and efficient conduct of the litigation require
section 1407 pretrial proceedings. Duplication of discovery
efforts will inevitably result unless transfer is ordered.
And Judge Templar has become well acquainted with the facts and
issues in these cases and is expediting their pretrial processing.
IT IS THEREFORE ORDERED that motions of the defendants,
Norfolk & Western Railway Company and Norfolk Southern Railway
Company, to vacate the conditional transfer orders be and the
same are denied. The stay of the conditional transfer orders
entered in these two actions is lifted and the Clerk is directed
to transmit those orders to the Clerk of the United States
District Court for the District of Kansas for filing and
distribution pursuant to 28 U.S.C. §1407.
o