IN RE: Multidistrict Private Civil Treble Damage Litigation Involving Western Liquid Asphalt

Case MDL No. 24 Document 2 Filed 04/29/15 Page 1 of 15
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MULTIDISTRICT LITIGATION He]
PATRICIA D. WILL SN i "
IN RE MULTIDISTRICT PRIVATE CIVIL TREBLE )
DAMAGE LITIGATION INVOLVING WESTERN LIQUID ) DOCKET NO. 24
ASPHALT )
OPINION AND ORDER
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 May 29, 1969 the plaintiffs in six liquid asphalt
antitrust actions pending in the United States District Court
for the Northern District of california’ filed a joint motion
with the Panel to transfer all such actions to the Northern
District of California for coordinated pretrial proceedings
under 28 U.S.C. §1407. At that time there were four other
* Judges Wisdom and Lord were unable to attend the hearing Co
in Denver, Colorado but with the consent of all parties
represented at the hearing, they have participated in this
decision.
1/ Dean Miller v. Union 0il Company of California, et al.,
No. 48391; Cascade Construction Co., Inc. V. Standard 011
Company of California, et al., No. 49638; Pioneer Con- ]
struction Company, Inc. v. Standard 0il Company of California,
et al., No. 49808; Page Paring Company v. Standard 0il Company
of California, et al., No. 50307; State of New Mexico V.
American Petrofina, Inc., et al., No. 50709; and Klamath
County, Oregon v. Standard 0i1 Company of California, et al.,
No. 51258.

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similar cases pending in the Northern District of california2/
and single cases pending in the Western District of Washington3/
and the District of New Mexico.%/ All parties apparently now
concede that the government action filed in the District of
New Mexico is statutorily excluded from transfer under Section
1407(g). In essence then, the motion was to transfer a single
case - the State of Washington Case - from the Western District
of Washington to the Northern District of California for coordi-
nation or consolidation with the ten cases originally filed
there. In our order setting this matter for hearing in Denver,
Colorado on July 25, 1969, we added, on our own initiative,
the three cases listed on Schedule B.
® At the hearing and in their prior response to the motion,
the defendants contended, inter alia, that the moving plaintiffs
lacked standing to make such a motion because they are not
parties in any of the actions which will be transferred if the
motion is granted. Section 1407 (c) (ii) provides that an action
can be transferred by "motion filed with the Panel by a party
in any action in which transfer for coordinated or consolidated
2] State of California, et al. v. Standard 0il Company of
California, et al., No. 51107; State of Oregon v. Standard Oil
Company of California, et al., No. 50173; State of Arizona v.
American Petrofina, Inc., et al., No. 51092; and City & County
of San Francisco v. Union Oil Company of California, et al.,
No. 51331.
3/ State of Washington v. Chevron Asphalt Company, et al.,
® i ons toa States of America v. Continental 0il Company, et al.,

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pretrial proceedings under this section may be appropriate.”
[Emphasis added.] Since the moving plaintiffs are not parties
in any action in which transfer is contemplated, we believe
they lack standing to file such a motion. Their motion will
therefore be denied.
In their response to the foregoing motion, the plaintiffs
in the State of Washington Case requested the Panel to transfer
certain of the cases pending in the Northern District of
California to the Western District of Washington for coordi-
| nated or consolidated pretrial proceedings under Section 1407.
As the State of Washington is not a party to any of the cases
® pending in the Northern District of California, it likewise
lacks standing to make such a motion. This motion will also
be denied.
At the hearing, several conditional, alternative and
somewhat ambiguous motions were made by the parties including:
a motion by the plaintiffs in the State of Washington Case to
transfer that action to the Northern District of California;
a motion by the original moving plaintiffs to transfer all
such cases to the Western District of Washington; and a
suggestion that the State of New Mexico Case be transferred to
the District of New Mexico under Section 1407. These motions
will all be denied because of their ambiguity and complete
lack of factual or legal support.’ :
® :
5/ We of course express no opinion as to the merits of the
pending motion to transfer the State of New Mexico Case under
section 1404 (a).

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None of the parties in the three cases added by the Panel
on its own initiative (see Schedule B) favor the transfer of
any of these cases for coordinated or consolidated pretrial
proceeding. We are convinced that transfer of the State of
Kansas or the State of Hawaii Cases would not promote their
just and efficient conduct and decline to order such a
transfer. At the request of the parties, the decision on the
question of whether the Master-Krete Case should be trans-
~ ferred will be deferred for sixty days.
IT IS THEREFORE ORDERED that all pending motions to
transfer any of the cases under Section 1407 are hereby denied.
@® IT IS FURTHER ORDERED that on September 26, 1969, a hearing
shall be held on the initiative of the Panel to consider the
transfer of the cases listed on Schedule A to the United States
District Court for the Northern District of California for
coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. §1407. All parties are invited to file supplemental
memoranda in support of or in opposition to the proposed transfer
on or before September 2, 1969. Counsel for all parties sup-
porting transfer and munsel for all parties opposing transfer
of the cases on Schedule A should meet separately prior to the
hearing for the purpose of organizing their arguments and
selecting spokesmen to present all views without duplication.
The setting of this matter for hearing does not affect or
®

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suspend orders and discovery proceedings in the district
courts in which this litigation is now pending.
IT IS FURTHER ORDERED that the Clerk of the Judicial
Panel on Multidistrict Litigation shall forward a copy of
this opinion and order to all counsel for all parties in this
litigation.
Attachments

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DOCKET NO. 24 SCHEDULE A
SOUTHERN DISTRICT OF CALIFORNIA
1. city of San Diego v. Union Oil Company Civil Action
of California, et al. No. 69-176-K
WESTERN DISTRICT OF WASHINGTON
2. State of Washington, et al. v. Chevron Civil Action
Asphalt Company, et al. No. 3846
DISTRICT OF ALASKA
3. The State of Alaska v. Chevron Asphalt Civil Action
Co., et al. No. A-92-69 CIV
DISTRICT OF ARIZONA
C 4. Maricopa County v. American Petrofina Inc., Civil Action	et al. No. 69-355-Phx

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DOCKET NO. 24 SCHEDULE B
WESTERN DISTRICT OF MISSOURI
l. Master-Krete, Inc., et al. v. Chevron Civil Action
Asphalt Company, et al. No. 16060
DISTRICT OF HAWAII
2. State of Hawaii v. Standard 0il Company of Civil Action
California, et al. No. 2826
" DISTRICT OF KANSAS
3. State of Kansas v. Phillips Petroleum, Civil Action
© et al. No. T-4363

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DOCKET NO. 24 SCHEDULE C
NORTHERN DISTRICT OF CALIFORNIA
1. Dean Miller v. Union Oil Company of Civil Action
California, et al. No. 48391
2. Cascade Construction Co., Inc. v. Standard Civil Action
Oil Company of California, et al. No. 49638
3. Pioneer Construction Co., Inc. v. Standard Civil Action
0il Company of California, et al. No. 49808
4. Page Paving Company v. Standard Oil Company Civil Action
Company of California, et al. No. 50307
5. State of New Mexico, etc. Vv. American Civil Action
Petrofina, Inc., et al. No. 50709
6. Klamath County, Oregon v. Standard Oil Civil Action
Company of California, et al. No. 51258
7. State of California, etc. v. Standard Oil Civil Action
® Company of California, et al. No. 511078. State of Oregon v. Standard Oil Company Civil Action
of california, et al. No. 50173
9. State of Arizona, etc. v. American Civil Action
Petrofina, Inc., et al. No. 51092
10. City and County of San Francisco v. Union Civil Action
0il Company of California, et al. No. 51331
11. Sonoma County, California v. Standard Civil Action
0il Company of California, et al. No. 51701

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N | ED
THE JUDICIAL PANEL JAN 23 1970ON
MULTIDISTRICT LITIGATION ASL PANEL FOR |
pr eT HTiGATION ea RB
FEE IMSRAL CesT ENN|
IN RE MULTIDISTRICT PRIVATE CIVIL ) TEEN
TREBLE DAMAGE LITIGATION INVOLVING ) DOCKET NO. 24 TS
WESTERN LIQUID ASPHALT ) Ny	Cr NCHS
eae
OPINION AND ORDER
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
A hearing was held in Denver, Colorado on July 25, 1969
on the motion of the plaintiffs in several actions listed on
Schedule B to transfer certain actions pending in other
districts to the Northern District of California under 28
U.S.C. §1407. This motion was denied and a second hearing
was held in Washington, D. C. on September 26, 1969 on the
initiative of the Panel to consider the transfer of the four
actions listed on Schedule A to the Northern District of oo
California. In re Western Liquid Asphalt Litigation, 303 Co
F. Supp. 1053 (J.P.M.L. 1969). After considering the
arguments presented at both hearings and the pleadings filed
by all parties we have concluded that these four actions
* Judges Murrah, Wisdom, Lord and Weigel were unable to
attend both hearings but, with the consent of all parties
. have participated in this decision.

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should be transferred to the Northern District of California
for coordinated or consolidated pretrial proceedings with
related actions pending there.l/
The positions of the parties involved in the proposed
transfer can be readily summarized. There is no disagreement
as to action under section 1407 -- all parties favor coordi-
nated or consolidated pretrial proceedings. The only question
is whether any or all of the consolidated cases should be
transferred to the Western District of Washington rather than
to the Northern District of California, where the other related
cases have been transferred. The common defendants prefer that
( the Washington and Alaska cases be split off from the rest and
consolidated in Washington, and the States of Washington and
Alaska prefer that all cases be consolidated in Washington.
In opposing transfer of the Alaska and Washington actions
to the Northern District of California, the defendants emphasize
that only three of them are involved	in the Alaska Case and only
four in the Washington Case. Accordingly, so the argument
1/ On December 11, 1969, the City of San Diego Case was
transferred from the Southern District of California to the
Northern District of California for all further proceedings,
including trial. Although that action will therefore not be
affected by this order, the prior position of the plaintiff
with regard to the proposed section 1407 transfer and the sub-
sequent action of Judge Schwartz support the selection of the
Northern District of California as the most propitious trans-
o feree court.

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goes, the other eight defendants in the actions now pending
in San Francisco have no interest in the Alaska and Washington
Cases and should not be required to participate in discovery
in those actions.
Section 1407 is not operative only where there is multi-
district litigation involving common plaintiffs or defendants.
In re Cincinnati Air Disaster Cases, 298 F. Supp. 353, 354
(J.P.M.L. 1968). See also, In re Gypsum Wallboard Antitrust
Litigation, 303 F. Supp. 510 (J.P.M.L. 1969). If the thrust |
of the defendants' argument is that the Alaska and Washington
. Cases do not share common questions of fact with the other
® actions pending in the Northern District of California we are
unpersuaded. The plaintiffs in these actions do not so contend.
Indeed they join with the State of california?/ in urging that
] all these actions possess substantial common questions of fact.
The Alaska and Washington Cases clearly possess questions of
fact which are common not only to the other actions to be
transferred to the Northern District of California but also
to the actions originally filed in that district.3/ We are
2/ The plaintiff in an action originally filed in the Northern
District of California.
3/ For example, in its complaint the State of Washington charges
the named defendants and other unnamed co-conspirators with fixing
the mice of asphalt and allocating customers throughout a market
area which includes the States of Oregon, Washington and California.
An identical charge is made in seven of the actions commenced in _
the Northern District of California. The State of Alaska's com-
plaint adds that state to this trio while the State of California
® also includes the States of Arizona, Hawaii, Idaho, Montana andNevada in its definition of the relevant market area, Thus facts
relating to the existence, scope and effect of a regional con-
spiracy are common to virtually all of these actions.

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satisfied that these common questions of fact are of sufficient
magnitude and complexity to insure that the just and efficient
conduct of these actions will be promoted by coordinated or
consolidated pretrial proceedings conducted in a single district,
The defendants further contend that transfer of these two
actions to the Northern District of California would not serve
the convenience of parties and witnesses. Such a transfer
clearly cannot inconvenience the defendants as they are parties
to actions now pending in the Northern District of California
and none of the plaintiffs oppose the transfer of their actions
: to the Northern District of California.
® In sum, we think this litigation is fairly typical multi-
district antitrust litigation’ and that coordinated or con-
solidated pretrial proceedings are clearly mandated.
- At our first hearing we considered the possibility of
transferring an action now pending in the Western District of
Missouri, Master-Krete, Ine., et al. v. Chevron Asphalt Co.,
et al., (No. 16060) but reserved decision in our prior opinion
and order. In re Western Liquid Asphalt Litigation, supra.
We are now satisfied that the product involved in this action
4/ The following groups of antitrust litigation have been trans-
ferred under section 1407: Water Meter, 304 F. Supp. 873 (J.P.M.L.
October 10, 1969), Concrete Pipe (West), 303 F. Supp. 507 (J.P.M.L.
August 28, 1969), Admission Tickets, 302 F. Supp. 1339 (J.P.M.L.
August 15, 1969), Concrete Pipe (East), 302 F, Supp. 244 (J.P.M.L.
May 23, 1969), Gypsum Wallboard, 294 F. Supp. 1350 (J.P.M.L. 1969),
® Antibiotic Drugs, 295 F. Supp. 1402 (J.P.M.L. 1968), Plumbing	\ Fixtures, 295 F. Supp. 33 (J.P.M.L. 1968), Protection Devices,
295 F. Supp. 39 (J.P.M.L. 1968), Children's Books, 297 F. Supp.
- 385 (J.P.M.L. 1968).

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is so unrelated to the product involved in the other actions :
as to preclude the transfer of this action to the Northern
District of california.’
IT IS THEREFORE ORDERED that the actions listed on
Schedule A still pending in other districts be and the same
are hereby transferred to the United States District Court
for the Northern District	- of California for coordinated or
consolidated pretrial proceedings and with the written consent
of that court these actions are hereby assigned to the
Honorable Russell E. Smith of the District of Montana.®/
em
2/ The Master-Krete Case basically involves a composition
used for. tennis courts while other actions involve liquid
asphalt used in highway construction.
6/ Chief Judge Chambers has temporarily assigned Judge
Russell Smith to the Northern District of California and
Chief Judge Harris has consented to the assignment of these
actions to Judge Smith.

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DOCKET NO. 24 SCHEDULE A
SOUTHERN DISTRICT OF CALIFORNIA
1. City of San Diego v. Union Qil Company Civil Action (*)
of California, et al. No. 69-176-K
WESTERN DISTRICT OF WASHINGTON
2. State of Washington, et al. v. Chevron | Civil Action
Asphalt Company, et al. No. 3846
DISTRICT OF ALASK2
3. The State of Alaska v. Chevron Asphalt Civil Action
Co. of California, et al. Ho. A-92-69 Civ
DISTRICT OF ARIZONA
4. Maricopa County v. American Petrofina Civil Action
® Inc., et al, No. 69-355-Phx
(*) Transferred to the United States District Court for the
Northern District of California by order of Chief Judge Schwartz
on December 11, 1969,

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“
DOCKET NO. 24 SCHEDULE B
NORTHERN DISTRICT OF CALIFORNIA
1. Dean Miller v. Union Oil Company of Civil Action
California, et al. No. 48391
2, Cascade Construction Co., Inc. v. Standard Civil Action
Oil Company of California, et al. No. 49638
3. Pioneer Construction Co., Inc. v. Standard Civil Action
0il Company of California, et al. No. 49808
4. Page Paving Company v. Standard 0il Company Civil Action
of California, et al. No. 50307
5. State of New Mexico, ete. v. American Civil Action
Petrofina, Inc., et al. No. 50709
6. Klamath County, Oregon v. Standard Oil Civil Action
Company of California, et al. No. 51258
7. State of California, etc, v. Standard Civil Action
® 0il Company of California, et al. No. 51107
8. State of Oregon v. Standard 0il Company Civil Action
of California, et al. No. 50173
9. State of Arizona, etc. v. American Civil Action
Petrofina, Inc., et al. No. 51092
10. City and County of San Francisco v. Union Civil Action
0il Company of California, et al. No. 51331
11. Sonoma County, California v. Standard Oil Civil Action
Company of California, et al. Neo. 51701