IN RE: Multidistrict Private Civil Treble Damage Litigation Involving Gypsum Wallboard

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A497 7sho FILED ER} EAE’ — GN A
FED oe 1 SEN
THE JUDICIAL PANEL Pee BURN
ON STIL ET wr
MULTIDISTRICT LITIGATION BLT B oh
IN RE MULTIDISTRICT PRIVATE CIVIL )
TREBLE DAMAGE LITIGATION INVOLVING ) DOCKET NO. 14
GYPSUM WALLBOARD )
OPINION AND ORDER TRANSFERRING MULTIDISTRICT Co
CIVIL ACTIONS UNDER SECTION 1407, TITLE 28, SE
UNITED STATES CODE, TO THE NORTHERN DISTRICT Lo
OF CALIFORNIA oo
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 ;
When the defendants filed their motion seeking coordinated i
or consolidated pretrial proceedings there were 49 cases pending oo
in the above-captioned litigation, all but two of which had
been filed in the Northern District of California and had been :
consolidated and assigned to the Honorable Alfonso J. Zirpoli. |
The other two cases had been filed in the Eastern District of
Pennsylvania and had not been assigned to a specific judge.’ .
After we had ordered a hearing on the motion, the State of :
1/ The cases were subsequently assigned to the Honorable E.
Mac Troutman and although a motion to dismiss the class
action was filed it has not been argued or briefed. There 1s
no reason why the class action determination cannot be as
readily be made by the transferee court. Cf. In re Plumbing i
Fixture Cases, F. Supp. (Jud. Pan. Mult. Lit. 1968).

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e
Indiana commenced a similar action in the Northern District
of Illinois. The hearing order was amended on our own
initiative to include this new case.
All parties were represented at the hearing which was
held in San Francisco.2/ Counsel for the California
plaintiffs favor transfer of the three remaining cases to
the Northern District of California for coordinated or con-
solidated pretrial proceedings. Counsel for the plaintiffs
in these three cases do not oppose the proposed transfer of
their cases to the Northern District of California. In
® substantially identical language all complaints charge anationwide price and credit conspiracy in violation of
Section 1 of the Sherman Act, 15 U.S.C. §1. It is thus
undeniable that common questions of fact are present.
In selecting the Southern District of New York as the most
appropriate transferee court in the protection device
litigation, we thought it significant that 79 percent
2/ TheGeorgia Pacific Corporation, a defendant in some of
the cases, did not join with the other defendants in the
original motion nor was it represented at our hearing. We
were advised that this defendant does not oppose the proposed
transfer.
®

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of the cases were pending in that court and had been assigned
to a single judge. In re Protection Devices and Equipment,
Ete., _____F. Supp. _____ (Jud. Pan. Mult. Lit. 1968). Here,
94 percent of the cases are pending in the Northern District
of California and have been assigned to Judge Zirpoli who has
been expertly supervising massive pretrial discovery. We
think it manifest that the convenience of parties and witnesses
and the just and efficient conduct of all these actions will
be furthered by a transfer of the three remaining cases to
the Northern District of California.
IT IS THEREFORE ORDERED that the three cases listed
C below be and the same are hereby transferred pursuant to
28 U.S.C. §1407 for coordinated or consolidated pretrial
proceedings to the Northern District of California and with
the consent of that court, heretofore filed with the Clerk
of the Panel, assigned to the Honorable Alfonso J. Zirpolil:
Philadelphia Housing Authority v. Fibreboard Corp.,
et al., Pa., No. 68-2033
City of Philadelphia and Board of Public Institution
for Dade County, Florida v. Fibreboard Corp., et al.,
Pa., E., No. 68-2400
: The State of Indiana, ete. v. Fibreboard Corp., et al.,
I1i., N., No. 69C 22.
®

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N Jo(} 4 GF So . I/& JUDICIAL PANEL ONMATIDISTRICT LITIGATION
FILED ERE
iQ THE JUDICIAL PANEL
oN MAY 221969
MULTIDISTRICT LITIGATION £3PATRICIA D. WALT, a TR
IN RE MULTIDISTRICT PRIVATE CIVIL ) , CLERK - CeTREBLE DAMAGE LITIGATION INVOLVING ) ~ DOCKET NO. 14 ETGYPSUM WALLBOARD ) : ~
OPINION AND ORDER TRANSFERRING MULTIDISTRICT
CIVIL ACTIONS UNDER SECTION 1407, TITLE 28,
UNITED STATES CODE, TO THE NORTHERN DISTRICT oo
OF CALIFORNIA So
-_— oo
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, ooEDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH
S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
_—
PER CURIAM
Following a hearing in San Francisco, the Panel ordered -
three cases pending in different districts transferrred to h
the Northern District of California for coordinated or con-
solidated pretrial proceedings. In re Gupsur Wallboard cases, oo
Fed. Supp. (Jud. Pan. Mult. Lit. 1969). At the hearing,
the Panel was informed that a related case, Fred Roundy v.
| Kaiser Gypsum co., Ine., et al., had been filed in the Western
District of Washington, but since counsel for all parties
in that case had not been notified of the hearing and were not co
present, the Roundy case was not included in the February 27, 3
1969 order
Cr © one of the defendants subsequently provided
thr nel with a copy of the complaint filed in :
2f Washington. Due to the similarities

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between this complaint and others in this litigation a
conditional transfer order was issued transferring this case
to the Northern District of California for coordinated or
consolidated pre-trial proceedings on the basis of the
Januray 24, 1969 hearing and for the reasons stated in the
February 27, 1969 Opinion and Order. The execution of this
order was stayed ten days to allow any party opposing the
transfer to file notice thereof with the Clerk of the Panel.
This procedure expedites the transfer of those tag-along cases
which are unopposed without depriving any party of its right
to oppose the transfer, and if requested, to have a hearing
® with respect to its opposition. Before the expiration of
the ten day stay, counsel for United States Gypsum filed its
opposition to the proposed transfer and the stay was continued
"until further order of this Panel." The plaintiff subsequently
filed its opposition to the proposed transfer and two other
defendants - Kaiser Gypsum and National Gypsum - have filed a
joint reply supporting the proposed transfer. All parties have
indicated that they wish this matter to be decided without
oral argument and we will do so.
Counsel for plaintiff and the counsel for defendants U.S.
Gypsum present substantially similar arguments in opposition
to the proposed transfer. They contend the transfer of this
® case to the Northern District of California is inappropriate

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because (1) the status of discovery in this case is far dif-
ferent from that in the other cases; (2) there are legal and
factual differences between this case and the other cases;
and (3) this case involves different defendants than do the
other cases.
Both Roundy and U.S. Gypsum contend that there are fac-
tual and legal dissimilarties between this case and the
others orginally filed in or transferred to the Northern
District of California. Roundy brings its action as an
1/
excluded distributor and it may be that this case is not
identical to the cases brought either by end-users, or by
® purchasing wholesalers. But neither the status of the
plaintiff nor the legal basis for its action is conclusive
on the transfer question. "The initial criteria is whether
the litigation involves one or more common questions of fact."
In re Cincinnati Air Disaster cases, Fed. Supp. ’ ’
(Jud. Pan. Mult. Lit., 1968). In at least two other cases
1/ The complaint charges, inter alia, a conspiracy:
7. (b) To refuse to sell gypsum wallboard to and
in other ways to refuse to deal with distribu-
tors, wholesalers, and others whose activities
would tend to introduce or increase price
competition.
(c¢) To deal exclusively with and through a small
number of established wholesalers, thereby
foreclosing competition in a substantial
share of the line of commerce of gypsum wall-
board and related products.
C (f) To refuse to sell gypsum wallboard except on	condition that the buyer also purchase other
types of building materials from the seller.

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the plaintiffs charge the defendants with excluding certain
2/
distributors in the furtherance of the alleged conspiracy.
In addition to the exclusion question which is thus common to
at least three cases, questions of fact relating to the con-
spiracy, economic conditions, and prices are common to all
these cases. Cf. In re Antibiotic Drug cases, 295Fed. Supp.
1402 (Jud. Pan. Mult. Lit., 1968).
The fact that two of the defendants in this case were
not named in any other cases does not preclude transfer for
"Section 1407 is not operative only where there is multidis-
trict litigation involving common plaintiffs or defendants."
® In re Cincinnati Air Disaster cases, supra. See also In re
Childrens Book cases, Fed. Supp. (Jud. Pan. Mult. Lit.
1969).
Discovery in the San Francisco cases was well underway
when the original three cases were transferred to the Northern
District of California and assigned to Judge Alfonso J. Zirpoli.
The transferred cases had only recently been filed and little
2] The complaint in Di-Wal Ine., et al. v. Kaiser Gypsum
charges a conspiracy to "Eliminate Plaintiffs as distribu-~-
tors of Gypsum Wallboard and related products . . . " while
the complaint in Alta Building Material, Inc. et al., v.
Fibreboard Corporation et al. alleges a conspiracy "To
exclude gypsum wallboard distributors from substantial
access to market and eliminate competition from and between
said distributors by selling directly to contractors and
applicators . . .."

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®
if any, discovery had occurred in the transferor courts. This
factor played an important part in our selection of the trans-
feree court and the assignee judge. In re Gypsum Wallboard
cases, supra. See also In re Plumbing Fixture cases, 295Fed.
Supp.	33, (Jud. Pan. Mult. Lit., 1968) and In re Postage
Regulation cases,	__ Fed. Supp.__	, (Jud. Pan. Mult. Lit, 1969).
Nor is the fact that no discovery has taken place in this case
a bar to the inclusion of this case in the San Francisco
pretrial program for the transferee court can insure that all
previous discovery is made available to new parties and can,
if necessary, allow the new parties to supplement the discovery
C which has already taken places Roundy's counsel candidly
admits he intends to use much of the discovery emanating from the
consolidated and coordinated pretrial proceedings in the
Northern District of California. Such use might enable
Roundy to get an earlier trial in Washington, but not with-
out additional discovery there which would duplicate further
discovery in the consolidated pretrial proceedings.
In sum, the statutory criteria for transfer of this
case to the Northern District of California have been satis-
fied: substantial common questions of fact exists, transfer will
3/ An even more recent case, Chicago Housing Authority v.
Fibreboard, was transferred, without objection, from the
Northern District of Illinois to the Northern District of
California on April 1, 1969 and a case was filed on April 11,
( 1969, in that court by the State of Oregon. None of the parties,	to our knowledge, suggested that they will be prejudiced by
inclusion in the discovery program.

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generally benefit the parties and witnesses, and the just
and efficient conduct of this litigation will be furthered
by the transfer.
The motion to vacate the conditional transfer order
of March 20, 1969 is denied; the stay of that order is
hereby lifted and the Clerk of the Panel is directed to
transmit that order forthwith to the Clerk of the Northern
District of California for filing and distribution pursuant
to Section 1407.
®
@

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J 7 7 A. JUDICIAL PANEL ON :E . FAULT OLTRICT LITIGATION no
ol FILED oo
JUL © 11969 ne
THE JUDICTAL PANEL RE
ON : . PATRICIA 0. WILT, I
MULTIDISTRICT LITIGATION CLERK "a
IN RE MULTIDISTRICT PRIVATE CIVIL TREBLE )
DAMAGE ANTITRUST LITIGATION INVOLVING ) DOCKET NO, 14 Femme:
GYPSUM WALLBOARD ) Jl EE
peIDic	EON
OPINION AND ORDER VACATING RTs
STAY OF EXECUTION OF TRANSFER fies
ORDER OF MAY 22, 1969 Tree
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
WILLIAM H. BECKER, JOSEPH S. LORD, III, EDWIN A. ROBSON,
STANLEY A. WEIGEL, AND EDWARD WEINFELD, JUDGES OF THE PANEL.
PER CURIAM Co
On May 22, 1969 a conditional transfer order was entered
transfering the case of Ev Lutheran Good Samaritan Society et al.
v. Fibreboard from the District of Kansas to the Northern
District of California for coordinated or consolidated pretrial .
proceedings pursuant to 28 U.S.C. §1407. One of the defendants,
Johns-Manville Corp., has filed an affidavit in opposition to
the proposed transfer of that case insofar as it relates to .
that defendant. The effective cate of the order of May 22, 1969 E
was stayed until further order of the Panel. Johns-Manville
has waived a hearing and no other party has requested a hearing
in connection with the opposition to the transfer of this case
to the Northern District of California. :
Johns~Manville opposes the transfer "on the ground that =
no jurisdiction has been obtained over the person of Johns-

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«3
J We remand an action or separable claim prior to completed
pretrial proceedings only upon a showing of good cause. Arizona
has not demonstrated to us that remand at this time would promote
the just and efficient conduct	of this litigation. We think the
most efficacious course to follow is to allow Judge Zirpoli to rule
on the summary judgment motion. ~-. Indeed, Judge Zirpoli's familiarity
with this litigation affords the parties the opportunity	of an
expeditious resolution of USG's motian.
~ IT IS THEREFQRE ORDERED that Arizona's motion for remand of
its action against the United States Gypsum Company be, and the
same hereby is, DENIED. 3
I
|I
I
. {
|
37 No party questions the transferee A ;= : Judge's authority to rul
on summary judgment motions. See H.R. Rep. No. 1130 90th Cong. ©@:: Sess. 3 (1968); In re Antibiatic DRLLLYSSY Bel tons, 333 5. Sue
299, 303 (S.D.N.Y. Iggy mr — n kA fra testo eer ~ - Il HL. ] |
i

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[ n2-
Manville Corp. [in the District of Kansas]." Questions involving
jurisdiction, venue, and service of process are for the court
before which the litigation is pending but we will assume,
arguendo, that service was ineffective and personal jurisdiction
over the defendant Johns-Manville Corp. is lacking. However
the power of the Panel to "effectuate a transfer under §1407
is not vitiated by the transferor court's lack of personal
jurisdiction over a defendant." In re Childrens's Book Cusec
pea. Supp.__ (Jud. Pan. Mult. Lit. 1969). The transfer
of this action under §1407 will not deprive Johns-Manville of
any right which is entitled to judicial protection. Motions
to quash service or dismiss for lack of jurisdiction are being
® routinely considered by courts to which multidistrict litigation
has previously been transferred and we see no good reason why
Johns-Manville can not pursue its remedies following transfer.
None of the parties to this litigation have suggested that
any of the statutory requirements for transfer under §1407 have
not been met and we are satisfied that this case should be
transferred to the Northern District of California on tle basis
of the original hearing and for the reasons stated in the initial
transfer order. In re Gypsum Wallboard 297 Fed. Supp. 1350 (Jud.
Pan. Mult, Lit. 1969) The stay of the order of May 22, is hereby
lifted and the Clerk of the Panel is directed to transmit that
order forthwith to the Clerk of the Northern District of California
PY for filing and distribution pursuant to §1407.

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® FOOTNOTES
1l/ For example Chief Judge Mac Swinford of the Eastern
District of Kentucky ~ the assigned judge in
the Cincinnatti air disaster cases =~ has ruled on
several motions attacking the jurisdiction and
venue of one of the transferor courts - the Western
District of Pennsylvania. Monkelis v. Trans World
Airlines Fed. Supp. (June 16, 1969).

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iad TT TT SA A ) ES ] i /LT : per SUBICIAL Pane oop bo	: Co RC TDIS TRI T LL
BEFORE THE JUDICIAL PANEL “EAT 3ON NRE iy BE
- - MULTIDISTRICT LITIGATION | APR-7 197;
| IN RE MULTIDISTRICT PRIVATE CIVIL TREBLE ) DOCKET N@ATLA	0 yon, 0DAMAGE LITIGATION INVOLVING GYPSUM WALLBOARD ) LERRG Theres oe
State of Arizona, etc. v. United States | | |
E Gypsum Company, et al., (D. Arizona, Civil >=
Action No. Civ-70-169-PHX.) N.D. California, | 24Civil Action No. C-70 865 AJZ oo ] oo =
| OPINION AND ORDER |
BEFORE ALFRED	P. MURRAE; CERIRMENT; END SOIR MINOR WISDOM ol
EDWARD WEINFELD, EDWIN A. ROBSON*, WILLIAM H. BECKER, JOSEPH S.
LORD, III*®*, AND STANLEY A WEIGEL, JUDGES OF THE PANEL
: XS : :
PER CURIAM a. LL
The State of Arizona brought an action against United States oo
Gypsum and other producers of gypsum wallboard and was trans- 2.
ferred, pursuant to 28 U.S.C.Ҥ1407(a),	to the Northern District oo
of California for coordinated or consolidated pretrial proceedings
before the Honorable Alfonso J. Zirpoli. Arizona moves the Panel .
for severance of the second cause of action in its complaint and oo
for remand of same to the District of Arizona for separate pro- ”
ceedings. United States Gypsum Company, the only named defendant Co
Y/
in Arizona's second cause of action, opposes remand. We deny Co
Arizona's motion because a proper showing has not been made for oo
remand. : Co :
* Although Judges Robson and Lord were not present at the
hearing, they have, with the consent of all parties, participated
in this decision: :
1/ Neither party appeared at the hearing held and each informed
the Panel that the motion could be decided on the basis of the
briefs submitted. So

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, :
PA oo -2- |
Arizona's complaint asserts two causes of action. The first
,
| alleges violations of the federal antitrust laws Y United States
Gypsum Company (hereinafter "USG") and six other gypsum companies.
In its second cause of action Arizona. alleges. that USG has. trans-
acted business in Arizona since 1942 without having qualified as
a foreign corporation as allegedly required by Arizona statutes.
| Federal jurisdiction over the second cause ofaction is asserted
on the theory	of pendent jurisdiction.
USG has filed a motion for summary . judgment in the transferee
court asserting that Arizona's second cause of action fails to
oo state a claim upon which relief can be granted. Judge Zirpoli
- PS declined to hear that motion until Arizona had an opportunity to: file a motion for remand with the Panel, with the understanding
that if the Panel denied Arizona's motion he would hear UsG's
motion for judgment on the pleadings	-at the next pretrial confer
ence.
iE © In support of its motion for remand, Arizona argues that
| discovery underlying	its second cause of action will be centered
in Arizona, that only issues involving Arizona statutory and
- + case lav are raised and that those issues are best resolved by.	. .
the United States District Court in Arizona. In light of _—
motion for summary judgment, however, the motion for remand is
: premature.
® 2/ Sections 1 and 2 of the Sherman Act (15 U.S.C. §§1 and 2)