IN RE: Southern Railway Employment Practices Litigation

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: | SUDISIAL DANE; oy
BEFORE THE JUDICIAL PANEL MULTILSTRICT UTiaTioy 0 7 ho
ON ‘ SHED EEE Tu
: ’ MULTIDISTRICT LITIGATION : i
BEC-1 1977 SE
PATRCIAL Hwan SEE 5
IN RE SOUTHERN RAILWAY EMPLOYMENT ) DOCKET NO. SLERK CF Tus hanes : :
PRACTICES LITIGATION ) To hes Co a Co
OPINION AND ORDER : ’ .
S— C7BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, Lonel a
EDWIN A. ROBSON, JOSEPH S. LORD, III*, STANLEY A. WEIGEL, ET EI
ANDREW A.. CAFFREY AND ROY W. HARPER, JUDGES OF THE PANEL EE
PER CURIAM sv
This litigation consists of two actions pending in two :
federal districts -- one in the Southern District of Chio and NS Lo
one in the Eastern District of Kentucky. Named as defendants So a
in both actions are the Southern Railway Company (the Southern):
the Southern Railway System; the Cincinnati, New Orleans oo
and Taxas Pacific Railway (the CNO & TP): and the IRAE RT
United Transportation Union (UTU) and certain of its local :
unions. Additional defendants in the Kentucky action are Co SN
the Brotherhood of Locomotive Engineers, the UTU-Engineering, Ea
and certain	of the local unions of both. The two actions EE
have been brought under, inter alia, Title VII of the Civil So :
Rights Act and 42 U.S.C. §1981. Plaintiffs in both actions
allege that the defendant railroads have maintained hiring,
promotion, training, testing and seniority practices which :
* Judge Lord took no part in the decision of this matter.
1l/ The relationship between the CNO &. TP and the Southern
is, on the basis of the record before us, unclear.

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discriminate against Blacks. The defendant unions are al-
® leged to have failed to represent Blacks adequately in the	unions' collective bargaining units, and to have agreed to
and acquiesced in the discriminatory practices of the rail-
roads. Plaintiffs in both actions seek declaratory and
injunctive relief, damages and attorneys' fees.
The Ohio action was instituted by a single individual
who apparently is an employee of the CNO & TP. Two
classes, each of which is comprised of Black employees of
the CNO & TP who nave been members of the UTU and have
worked as trailnmen, switchmen, conductors, firemen OI
engineers, have been certified in that action -- one for
glosl claims covering employment since November 1963, and
— one for Title VII claims covering employment since late
C october 1970. | |	The Kentucky action was instituted by five individual
employees of the CNO & TP and/or the Southern on behalf of
a purported class consisting of all Black employees of the
CNO & TP and/or the Southern who allegedly have been adversely
affected by the discriminatory employment practices of those defend-
ants, and also consisting of all Blacks who allegedly have peen
denied employment OI have been deterred from seeking employ-
ment with the CNO & Tp and/or the southern because of the
discriminatory employment practices of those defendants.
plaintiffs in the wentucky action have moved, pursuant
| to 28 U.S.C. §1407, for transfer of the Kentucky action to
—~ the Southern District of Ohio for coordinated or consoli-
o dated pretrial proceedings with the Ohio action. The named

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a plaintiff in the Ohio action favors transfer. All defendants
o oppose transfer. | ~We conclude that transfer under Section 1407 would not nec-
essarily serve the convenience of the parties and witnesses or
promote the just and efficient conduct of this litigation, and,
accordingly, we deny the motion to transfer.
Plaintiffs in the Kentucky action contend that these actions
share numerous complex questions of fact relating to the
hiring, promotion, training, testing and seniority practices
of the CNO & TP and/or the Southern, and the acceptance
by the UTU of an inadequate and discriminatory hiring system
for minorities. These plaintiffs also assert that the classes
certified in the Ohio action and the class for which representa-
ie tion is sought in the Kentucky action overlap. Therefore, they
C maintain, transfer is necessary to avoid duplicative discovery
and to prevent inconsistent rulings on class action issues. |
We find these arguments unpersuasive. Only two actions are in-
volved here. Although we recognize that these actions involve common
questions of fact, we are not convinced that those common factual
questions are sufficiently complex or that the accompanying
discovery on those issues will be so time consuming as to justify
transfer under Section 1407. See In re Scotch Whiskey, 299 F.
Supp. 543, 544 (J.P.M.L. 1969). In addition, we recognize that
the classes certified in the Ohio action and the class for which
certification is sought in the Kentucky action overlap.
We are convinced, nevertheless, that the circumstances of
- this litigation do not warrant transfer and that communication
®

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and cooperation between the two concerned district
® courts, if deemed appropriate by those courts, coupled |with the cooperation of the parties, would be sufficient
to prevent any duplicative discovery and minimize the
possibility of conflicting class determinations or other
pretrial rulings. See In re Westinghouse Electric Corpora-
tion Employment Discrimination Litigation, ____ F. Supp. __,
_ (J.P.M.L., filed October 12, 1977) (slip opinion at
5-6); Manual For Complex Litigation, Part I, §5.40 (rev. ed.
1977). See also In re Pan American World Airways, Inc. |
Maternity Leave Policies Litigation, 414 F. Supp. 1232, 1234
(J.P.M.L. 1976). : :
Another factor weighing against transfer is the relative
NR pretrial status of the two actions. The Ohio action has been
® pending for over three years. and considerable pretrial pro- |
ceedings have occurred in that action. In contrast, the Kentucky
action has been filed recently and pretrial proceedings
are in the early stages. Therefore, the just and efficient
conduct of each action can best be furthered, and the con-
venience of the parties and witnesses can best be served,
by leaving the actions in their respective districts. See
In re Braniff Airways, Inc. Employment Practices Litigation,
411 F. Supp. 798, 800 (J.P.M.L. 1976).
IT IS THEREFORE ORDERED ‘that the motion to transfer
the actions listed on the following Schedule A be, and
— the same hereby is, DENIED.
)

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® SCHEDULE A : DOCKET NO. 311EASTERN DISTRICT OF KENTUCKY
James L. stallworth, et al. v. Southern Civil Action
Railway System, et al. No. 76-180
SOUTHERN DISTRICT OF OHIO
Mzell Williams v. Southern Railway Civil Action
Systems, et ail. No. C 1 74-442