IN RE: Homemakers Franchise Litigation

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| BEFORE THE JUDICIAL PANEL SRT re	ly
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MULTIDISTRICT LITIGATION FEp I] |
IN RE HOMEMAKERS FRANCHISE LITIGATION DOCKET	NO. 91.
Sa HALT
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
This motion for transfer involves two actions between
the same parties in two different districts -- the Northern . -
Distiict of California and the Southern District of Florida.
Marvin W. Meyer, the common defendant,	has moved for transfer
of the Florida action to California for pretrial proceedings.
Homemakers, Inc., the common plaintiff, opposes transfer. No :4 .
" basis for transfer under Section 1407 having been demonstrated,
we deny the motion.
Meyer, through several corporations owned by him, / was
a franchisee of Homemakers2/ at six different locations in
* Although Judges Murrah, Weinfeld and Robson were not present
at the hearing they have, with the consent of all parties, parti- |
cipated in this decision.
1/ Those corporations, which join in the motion, are Homemakers
. Services SF, Inc., Homemakers Redwood City, Inc., Homemakers
Services Florida, Inc. and Homemakers Miami, Inc.
2/ Homemakers is said to be in the business of acting as an
employment contractor for domestic and medically related services
and of franchising others to conduct similar businesses oo
under the service mark "Homemakers." Additional defendants, joining
in Homemakers' opposition to transfer, are its subsidiary, Home-
maker International, its parent, The Upjohn Co., and its president, .
Edward J. Wilsman. :

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® California, Missouri and Florida. A dispute between Meyer
and Homemakers concerning the franchise agreements arose
in 1970 and Homemakers commenced these actions immediately
3
thereafter.”/ Both complaints allege breaches of the fran-
chise contracts and infringements of the service mark and seek
damages and an injunction	to prevent Meyer from using the
service mark. In both jurisdictions Meyer has filed similar
counterclaims, alleging fraud in the sale of the franchises,
invalidity of the "Homemakers" mark, and violation of
4
the federal antitrust laws .~/
The litigation has apparently been marked by the parties’
inability to cooperate in pretrial proceedings. The California
court appointed a magistrate for the purpose of recommending
a discovery schedule, which is now in effect, although further
disagreements concerning discovery have occurred in that case.
At one point the parties entered into an agreement concerning
use in the Florida action of discovery taken in California.
They are now unable to agree on the scope of their agreement. :
3/ The California action names Meyer and the two California
franchisee corporations, Homemakers Services SF and Homemakers
Redwood City, as defendants. The Florida action names Meyer and
the two Florida franchisee corporations, Homemakers Services
Florida and Homemakers Miami, as defendants.
4/ Each counterclaim has certain counts not duplicated in the
other. For example, the Florida counterclaim alleges violations
of the federal securities laws in connection with the sale of
plaintiff's franchises. Similar allegations were dismissed with-
out prejudice in the California action. The Florida counterclaim
also alleges Homemakers' piracy of Meyer's Florida employees. No
similar allegations are made in California.

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® Meyer maintains that they intended all discovery to be taken
in California and usable in Florida. Homemakers asserts that |
they intended this only as to depositions.
The impetus for this motion came from the efforts of
the Florida court to move the action pending there toward trial.
~ Meyer moved to stay proceedings in that action or to transfer
it to California for trial. The Florida court denied the
motion, set a briefing schedule for outstanding motions and
indicated that a final pretrial conference would be held in
late 1971 with trial shortly thereafter. Meyer then filed
the motion for transfer with the Panel.
In support of his motion, Meyer states that complex
S common issues of fact are raised by his counterclaims concerningthe validity of the "Homemakers" mark, the existence of fraud
in Homemakers' inducement to Meyers to contract, and Homemakers'
alleged violations of the antitrust laws. He urges that unless
both actions are assigned to a single judge, duplication of
effort and possibly inconsistent results will follow. He |
explains the lateness of his motion by stating that he believed
that either his motion to transfer the Florida case or the
agreement concerning use of California discovery would eliminate
the problem of duplication.
Homemakers asserts that Meyer is attempting to appeal from
the decision of the Florida court denying transfer and setting
% the case for trial. It argues that the court's decision must |

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® be presumed to have a sound basis in fact and attempts to
demonstrate that the Florida action is, in fact, more advanced
: than the California action and ready for trial. Homemakers
also contends that the only common question of fact concerns
the enforceability of its franchising program and that neither
the complaints nor the counterclaims raise complex issues of
fact. Finally, it contends that transfer would delay trial
of the Florida action.
The existence of limited common questions of fact is
demonstrated by the similar allegations of the complaint and,
more significantly, the counterclaims. However, we are not
convinced that these few questions are sufficiently complex
S to require transfer under Section 1407 for the convenience |of the parties or the just and efficient conduct of the litiga-
tion. In re Scotch Whiskey Antitrust Litigation, 299 F. Supp.
543 (J.P.M.L. 1969). The Florida court has already concluded
that the action pending there is ready for trial and should not B
be transferred. As our past decisions indicate, see In re |
Master Key Antitrust Litigation, 320 F. Supp. 1404- (J.P. M.L.
1971), we show great deference to district court decisions of :
motions under 28 U.S.C. §1404 (a) in actions brought before us.
And we can find no basis for reaching a conclusion contrary to |
that of the Florida district court in the present case. -

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® IT IS THEREFORE ORDERED that the motion for transfer
of the actions listed on the attached Schedule A be, and hereby
is, DENIED.

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® oe SCHEDULE A
NORTHERN DISTRICT OF CALIFORNIA
Homemakers, Inc. v. Homemakers Services Civil Action
of SF Inc., et al. C-70-1176~AJ%Z
SOUTHERN DISTRICT OF FLORIDA
Homemakers, Inc. v. Homemakers Services Fla., .2ivil Action
Inc., et al. »70-791-Civ-CF |