IN RE: Truck Accident Near Alamagordo, New Mexico, on June 18, 1969

Case MDL No. 185 Document 2 Filed 05/01/15 Page lof5
BEFORE THE JUDICIAL ETE OL
. ON Fil-ED
MULTIDISTRICT LITIGATION J =9 1975
Re
IN RE TRUCK ACCIDENT NEAR ALAMAGORDO, )
NEW MEXICO, ON JUNE 18, 1969 ) DOCKET NO. 185
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 June 18, 1969, a truck pulling a trailer crashed
into an embankment near Alamagordo, New Mexico. As a result
of the crash, one of the occupants was killed and the other
severely injured. The survivor and the wife of the deceased
occupant each filed a separate lawsuit in the Western District
of Oklahoma in June of 1972 against Freightliner Corporation,
the manufacturer of the truck; White Motor Corporation, the
seller of the truck; and Strick Corporation, the manufacturer
and seller of the trailer. The complaints in both actions
are substantially similar and contain allegations that the
accident was caused by defects in the fuel and braking systems
of the vehicles involved. Plaintiffs charge the defendants
with negligence, strict liability and breach of warranty.

Case MDL No. 185 Document 2 Filed 05/01/15 Page 2 of 5
- 2 -
] i Shortly after the commencement of the two actions
in Oklahoma, the Oklahoma district court dismissed the claims
against defendant Strick on the basis of lack of in personam
jurisdiction. The Court of Appeals for the Tenth Circuit
affirmed the dismissal in April of 1974. George v. Strick
Corporation, 496 F.2d 10 (10th Cir. 1974). Shortly there-
after, plaintiffs instituted two actions identical to the
Oklahoma actions against the same three defendants in the
Northern District of Texas. Defendants Freightliner and
White Motor subsequently moved the Texas court to transfer
the claims against them in the actions pending there to the
Western District of Oklahoma pursuant to 28 U.S.C. §l404(a).
The two plaintiffs now move the Panel for an order
pursuant to 28 U.S.C. §1407 transferring the Texas actions
to the Western District of Oklahoma for coordinated or con-
solidated pretrial proceedings with the actions pending there.
Only defendant Strick opposes transfer. We find insufficient
basis for transfer under Section 1407 and, accordingly, deny
the motion.L/
1/ The parties waived their right to oral argument and, at
their request, the question of transfer of these actions
under 28 U.S.C. §1407 was submitted on the briefs.
J

Case MDL No. 185 Document 2 Filed 05/01/15 Page 3 of 5
- 3 =
- = Movants contend that these actions arise from the
same accident and that Section 1407 treatment is necessary
in order to avoid duplication of discovery. Indeed, we
recognize the existence of common, if not identical, questions
of fact among these actions. Nevertheless, a mere showing
that common questions of fact exist amongst the actions for
which Section 1407 treatment is proposed is not sufficient,
in and of itself, to warrant transfer by the Panel. The Other
criteria of the statute must also be satisfied. And we are
not persuaded that with respect to this particular litigation
the overall convenience of the parties and witnesses and the
just and efficient conduct of the litigation will be enhanced
by a Section 1407 transfer.
The claims assertéd in the Oklahoma actions are cur-
rently completely subsumed in the Texas actions and will remain
— so if the Texas court denies the Section 1404(a) motion. If —
that motion is denied, any possibility of duplicative discovery
© can easily be avoided through cooperative efforts among the
common parties in the Oklahoma and Texas actions or by these
parties requesting a stay of the Oklahoma actions and pro-
ceeding with the Texas actions. If the Texas court grants
the Section 1404(a) motion, Strick will be the only défendant
in the Texas actions and Freightliner and White Motor will
continue to be the only defendants in the Oklahoma actions.

Case MDL No. 185 Document 2 Filed 05/01/15 Page 4 of 5
~ _ Even in this circumstance, however, plaintiffs can
avoid any duplication of discovery concerning the common issues
by coordinating their efforts in the two jurisdictions; for
example, plaintiffs could file notices for a particular depos-
ition in both the Oklahoma and Texas district courts, thereby
making the deposition applicable in each jurisdiction. Plaintiffs
could also seek a stipulation that all discovery may be used
in all actions. Thus, we believe that suitable alternatives
to a Section 1407 transfer are available to the parties in this
litigation.
Furthermore, in light of the history of this liti-
gation we suspect that plaintiffs' dominant reason for seeking
transfer of the Texas actions under Section 1407 is to accom-
plish, at least for pretrial purposes, what is not otherwise
possible in the Oklahoma federal courts because of lack of
in personam jurisdiction over defendant Strick. 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 plaintiffs' 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).
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.

Case MDL No. 185 Document 2 Filed 05/01/15 Page 5 of 5
- SCHEDULE A DOCKET NO. 185
WESTERN DISTRICT OF OKLAHOMA
George v. Strick Corporation, et al. Civil Action
No. CIV-72-409
Synco, et al. v. Strick Corporation, et al. Civil Action
No. CIV-72-408
NORTHERN DISTRICT OF TEXAS
George v. Strick Corporation, et al. Civil Action
No. CA-3~658-D
Synco, et al. v. Strick Corporation, et al. Civil Action
No. CA-3-657-D
J.