IN RE: Highway Accident Near Rockville, Connecticut, on December 30, 1972

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Lf NUBICIAL A Mey
BEFORE THE JUDICIAL PANEL HUGHES,Fic fick ON
ON FH ERAN
MULTIDISTRICT LITIGATION Jn 4ue ii=g 11975
PA TRI + 0 is
IN RE HIGHWAY ACCIDENT NEAR ROCKVILLE, GLERK	p22 HOWARD
CONNECTICUT, ON DECEMBER 30, 1972 DOCKET	NO. EGENEL
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
While traveling through Connecticut en route to Boston,
Massachusetts, the automobile driven by Paul Franklin and
occupied by his wife and two daughters crashed into a truck.
The driver of the truck allegedly stopped in the travelled
portion of the highway after a third vehicle, which had
previously gone out of control, came across the highway.
Paul Franklin and his wife died as a result of the collision
and his two daughters suffered serious injuries.
Two actions were thereafter instituted by one of the
surviving daughters on her own behalf and in her representative
capacities: one in the Eastern District of New York against
the lessee of the truck involved in the collision and one
in the District of Connecticut against the owner of the truck,

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its driver and the driver of the third vehicle. Plaintiff
moves the Panel for an order transferring the Connecticut
action to the Eastern District of New York for coordinated or
consolidated pretrial proceedings with the action pending there.
No opposition to the motion has been received from any of the
defendants. Notwithstanding the lack of opposition, we find
insufficient basis for transfer under Section 1407 and
accordingly, deny the motion.
Movant contends that in order to spare the parties the
burden of litigating the same facts twice and to promote
judicial economy, the interests of justice require transfer of
the Connecticut action to the Eastern District of New York for
coordinated or consolidated pretrial proceedings with the
action pending before the Honorable Orrin G. Judd in that
district. She notes that Judge Judd has in depth knowledge
of the facts involved since he has already conducted three
pretrial conferences in the action before him.
The fact that these two actions arise from the same
disaster does not ipso facto mean that their coordination
or consolidation under Section 1407 is appropriate. Before
transfer will be ordered, the Panel must be satisfied that
all of the statutory criteria have been met. We are not
persuaded that the requested transfer will serve the
convenience of the parties and their witnesses or necessarily
1/ Movant informed the Panel of her desire to waive oral
argument and, without opposition, the question of transfer
of these actions under 28 U.S.C. §1407 was submitted for
decision.

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promote the just and efficient conduct of this litigation.
We recognize that some common questions of fact exist between
these actions, but find that the possibility of duplicative
discovery in this litigation is more illusory than real.
The only defendant in the New York action is the lessee
of the truck and its liability is predicated on a respondeat-
superior theory. Hence, its liability primarily depends upon
proof of whether the driver of the truck, a defendant in the
Connecticut action, was negligent in stopping his vehicle on
~~ the highway. And plaintiff's discovery concerning the truck
driver's alleged negligence will, necessarily, be elicited
| from the driver himself. Although this same discovery will
be vital to plaintiff in her Connecticut action against the
truck driver, there appears no reason why the discovery
need take place twice and plaintiff has offered none.
Cf. Manual for Complex Litigation, Part 1, §3.11 (rev.ed. 1973).
Moreover, since the plaintiff in the two actions, in her
individual and representative capacities, is the same, there
is no reason why defendants cannot cooperate to avoid duplication
of the discovery sought of her. Thus, suitable alternatives to
a Section 1407 transfer are available to the parties in this
litigation.
There is an additional and equally compelling reason
for denying the requested transfer. In our view, plaintiff's
request for transfer is not motivated by a desire to achieve

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the purposes for which Section 1407 was designed, but rather,
by a desire to circumvent obstacles of personal jurisdiction
which necessitated her institution of two separate actions.
Although the propriety of in personam jurisdiction in a
proposed transferee district is not a criterion in
considering transfer of actions to that district under
Section 1407, it appears that in this particular litigation
plaintiff's ulterior motive for seeking transfer amounts to
an attempted misuse of the statute. See In re "East of
the Rockies" Concrete Pipe Antitrust Cases, 302 F. Supp.
244, 255-256 (J.P.M.L. 1969) (Weigel, J., concurring) ;
In re Truck Accident Near Alamagordo, New Mexico, on
June 18, 1969, _	F. Supp. _	(J.P.M.L., filed JAN 8.W75
IT IS THEREFORE ORDERED that the motion pursuant to
28 U.S.C. §1407 to transfer the actions listed on the
attached Schedule A be, and the same hereby is, DENIED.
AY

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SCHEDULE A " DOCKET NO. 191
EASTERN DISTRICT QF NEW YORK
Helene T. Franklin, etc. v. Nelson Civil Action
Freightways, Inc. v. Marilyn C. Shieber No. 73 Civ. 762
DISTRICT OF CONNECTICUT
Helene T. Franklin, etc. v. Olsen W. Civil Action
Lewis d/b/a Lewis & Son Leasing Na. H<74<174
J 5