IN RE: Fourth Class Postage Regulations

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THE JUDICIAL PANEL JUDICIAL PAMEL FOR Ra E
ON MULTIDISTRICT LITIGATION a sees
MULTIDISTRICT LITIGATION PR____ HaPROVIZISLIAL Coin ne
IN RE MULTIDISTRICT CIVIL ACTIONS )
INVOLVING FOURTH CLASS POSTAGE ) DOCKET NO. 16
REGULATIONS )
OPINION AND ORDER TRANSFERRING oo
: MULTIDISTRICT CIVIL ACTIONS UNDER SECTION 1407, Lo
TITLE 28, UNITED STATES CODE -
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM, _
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, AND ”
STANLEY A. WEIGEL, JUDGES OF THE PANEL
WEIGEL, J.: Fo
This proceeding involves seventeen actions brought in
diverse federal district courts seeking to enjoin the Post-
master General and local postmasters from enforcing certain )
postal regulations. The contested regulation, 39 C.F.R.
§135.2(a) (6), requires persons mailing 1,000 or more identical
pieces of special fourth class mail per day to separate the |
pieces according to the first three ZIP-Code digits. Ship-
ments of 1,000 or more non-identical pieces per day must be oo

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J _2- 1sorted according to state. These functions were formerly
the duty of the Post Office Department.’
The plaintiffs in these cases are book publishers,
book manufacturers and book trade associations. They con-
tend that the regulation is arbitrary and capricious, and
therefore, violative of the due process and equal protection
clauses of the Fifth Amendment. Plaintiffs in Regensteiner
Publishing Enterprises, Inc. v. Watson (N.D. Ill. No.
68-C=1945) have moved under 28 U.S.C. §1407 to transfer
similar cases pending elsewhere to the Northern District
of Illinois for coordinated and consolidated pretrial pro-
( ceedings. It is by virtue of that motion that the seventeen
cases are now before the Panel.
The defendants urge that there should be no transfer for
consolidated or coordinated pretrial proceedings because only
questions of law are raised by the complaints. Although the
constitutional issues presented by each complaint are, indeed,
questions of law, their resolution will require determination
of common underlying facts. Areas of relevant factual
determination may well include such matters as the historical
| development of postal sorting, the presence or absence of
1/ The regulation was promulgated pursuant to 39 U.S.C.
84554 (e) which provides:
Articles may be mailed under this section [special
C] fourth class rates] in quantities of one thousand	or more in a single mailing, as defined by the Post-
master General, only in the manner directed by him.

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studies supporting the regulation, the savings accruing
to the Post Office Department by virtue of the regulation,
the manner of computing any charges to mailers, the possibi-
lity that the enforcement of the regulation will have a
discriminating effect on some manufacturers and publishers,
and the public policy implications of applying these
regulations to educational materials. Many of the facts
bearing upon these questions may be obtained from Post Office
Department officials in Washington. Transfer for pretrial
proceedings will eliminate any need for repetitive depositions
and other discovery addressed to such officials.
There 1s a special reason why $§1407 transfers should be
® ordered in these cases. Many of the plaintiffs have sought
temporary restraining orders or preliminary injunctions
suspending the enforcement of the regulation during the
pendency of this litigation. In New Jersey, Pennsylvania and
Illinois, federal district Judges have granted such temporary
relief. Similar motions have been denied by federal district
judges in Massachusetts, Kentucky and Tennessee. These
inconsistent results appear to give a significant competitive
advantage to those publishers and manufacturers who, by
reason of preliminary relief, are not now burdened with the
cost of sorting bulk mail shipments.
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While there is nothing strikingly novel about incon-
sistent decisions in United States District Courts, the
interests of justice are not ordinarily served by such
disparities. This consideration has been recognized as a
basis for ordering cases to be transferred under 28 U.S.C.
§1404(a). See Schneider v. Sears, 265 F. Supp. 257, 267
(S.D.N.Y., 1967); Freiman v. Texas Gulf Sulphur Co., 38
F.R.D. 336 (N.D, Il11., 1965). Similarly, during the course
of multidistrict litigation, §1407 is an appropriate means
of avoiding injury to like parties caused by inconsistent
Judicial treatment.
Defendants contend that the most efficient way to
® dispose of this litigation is to allow them to press motions
for dismissal or summary Judgment in each of the courts where
these actions are now pending. This argument is not persuasive.
Apparently the same legal arguments will be urged in each case:
Lack of jurisdiction over the subject matter and failure to
state a claim for relief. Disposition of these motions by
a single judge, pursuant to §1407, will conserve judicial
time and energy and minimize the likelihood of inconsistent
results. |
The logical district in which to coordinate or consolidate
these cases is the District of New Jersey. Over half of these
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cases have their situs in that district.2’ A substantial
amount of discovery has been completed in American Book -
Stratford Press, Ine. v. Watson, et al., (D.N.J. Civil
No. 941-68), which is pending there. Chief Judge Anthony
T. Augelli of the District of New Jersey, to whom all New
Jersey cases have been assigned, is familiar with this
litigation. New Jersey is convenient to those other
districts where these suits have been brought and to
Washington, D. C., where much of the discovery will take
place. |
The ccordination and consolidation of those cases listed
© in Schedule A will serve the convenience of parties, and
witnesses, and will promote the just and efficient conduct
of these cases. The Chief Judge of the District of New
Jersey, Anthony T. Augelli, has consented to the assignment
by the Panel of the transferred cases to himself.
IT IS THEREFORE ORDERED that the actions listed on
Schedule A which are pending in districts other than the
District of New Jersey be and hereby are transferred under
28 U.S.C. §1407 to the District of New Jersey and assigned
to Chief Judge Anthony T. Augelli for coordinated or con-
solidated pretrial proceedings.
2] Two of the New Jersey cases are class actions; one involves
an association of book publishers, American Book Publishers
Council v. Watson (D.N.J. Civ. No. 1194-68) and-the other
C involves an association of book manufacturers, J.F. Tapley Co.	and Book Manufacturers Institute v. Watson (D.N.J. Civ. No.
1099-68).

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® SCHEDULE A
DISTRICT OF NEW JERSEY |
1. American Book-Stratford Press, Inc. v. Civil Action
W. Marvin Watson, et al. No. GU1-68
2. Montville Warehousing Co., Inc., etc. v. Civil Action
W. Marvin Watson, et al. No. 1120-68
3. J. F. Tapley Co., et al. v. W. Marvin Civil Action
Watson, et al. No. 1099-68
I, Economy Bookbinding Corp. v. W. Marvin Civil Action
Watson, et al. No. 1014-68
5. American Book Publishers Council, Inc., Civil Action
et al. v. W. Marvin Watson, et al. No. 1194-68
6. The MacMillan Company v. W. Marvin Civil Action
Watson, et al. No. 140-68
7. Scholastic Magazines, Inc. v. W. Civil Action
Marvin Watson, et al. No. 1407-68
( 8. Wayne Warehousing Corp. v. W. Marvin Civil Action
Watson, et al. No. 1358-68
9. American Bible Society v. W. Marvin Civil Action
Watson, et al. No. 46-69
MIDDLE DISTRICT OF PENNSYLVANTA
10. Haddon Craftsmen, Inc. v. W. Marvin Civil Action
Watson, et al. No. CIV 68-396
11. Harper & Row Publishers, Inc. v. Winton Civil Action
Blount, et al. No. 69-24 CIV.
EASTERN DISTRICT OF TENNESSEE
12. Kingsport Press, Inc. v. W. Marvin Civil Action
Watson, et al. No. Civ. 2282

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DISTRICT OF MASSACHUSETTS
13. The Colonial Press, Inc. v. W. Marvin Civil Action
Watson, et al. No. 68-915-J
14. Cuneo Press of New England, Inc. v. Civil Action
W. Marvin Watson, et al. No. 68-914-J
NORTHERN DISTRICT OF ILLINOIS
15. Regensteiner Publishing Enterprises, Civil Action
Inc., et al. v. W. Marvin Watson, et al. No. 68 C 1945
| EASTERN DISTRICT OF KENTUCKY
16. American Book Co. v. Winton M. Blount, Civil Action
et al. No. Civ. 1414
® EASTERN DISTRICT OF NEW YORK
17. Mercedes Book Distributors Corp. v. Civil Action
Winton M. Blount, et al. No. 69 Civ. 82