IN RE: 21st Century Productions, Inc., "Thrillsphere" Contract Litigation

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: PANEL ON Le
BEFORE THE JUDICIALyPANGRICT LITIGATION Cob
oF FILED &3330	MULTIDISTRICT LITIGATION J |	HAR 27 1978 RYIN RE 21ST CENTURY PRODUCTIONS, INC. ) - oo
"THRILSPHERE" CONTRACT LITIGATION ) PATRICIA D. HOW SBIEKET Lo. 332 Co oo
CLERK OF THE PANEL
OPINION AND ORDER
BEFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, EDWIN
A. ROBSON, JOSEPH S. LORD, III*, STANLEY A. WEIGEL, ANDREW A.
CAFFREY*, AND ROY W. HARPER, JUDGES OF THE PANEL i.
PER CURIAM
This litigation consists of two actions, each of which is
pending in a different district: one in the District of New :
Jersey and one in the Southern District of Florida. Plaintiff Ch
in each action is Twenty-First Century Productions, Inc. (21st :
Century), a company that markets a movie presentation known as
"Thrilsphere." The presentation's action scenes are reproduced :
on a special film that is projected onto an inflated dome co
through a lens designed and made for that particular purpose. tE
Two defendants are common to both actions--Richard Marchant, a
former business associate of 2lst Century, and Omni Vision, Inc.
(Omni), a company that allegedly markets a film presentation : oo
similar to "Thrilsphere." The Florida action is also brought
against two other individuals who, along with Marchant, are
alleged to have financial interests in Omni. Additional defendants
in the New Jersey action include three 21st Century business
* Judges Lord and Caffrey took no part in the decision of this
© matter.

Case MDL No. 332 Document 2 Filed 05/05/15 Page 2 of 6 oo
| associates, the company that allegedly was formed by these three- Co : } :] individuals,” and two New Jersey amusement park companies. |
The complaint in the Florida action includes allegations that: oo ER
1) defendant Marchant breached a lease agreement between 21st Century.
and himself by failing to make payments for certain "Thrilsphere’
films and lenses; 2) Marchant and Omni have been unjustly enriched
by showing 21st Century's "Thrilsphere" at locations other than the Lo
three locations agreed to in the lease agreement; 3) defendants NR
have engaged in unfair competition and have palmed off Omni's |
product as "Thrilsphere"; 4) defendant Marchant committed deceit by
revealing to the other defendants confidential information to which
‘Marchant was privy while a 21st Century sales representative; . Co
5) defendants have tortiously interfered with business relation-
ships between 21st Century and fairs and amusement centers; 6) :
defendants other than Marchant have tortiously interfered with
the business relationship between 2lst Century and Marchant; and Co
7) one individual defendant violated the federal antitrust laws |
by tying leases of Omni's film with leases of his "Enterprise"
ride.
In the New Jersey action, defendants Marchant and Cmni are :
charged with: 1) tortious interference with contractual relation- : -
ships between 21st Century and other defendants in the New Jersey
I/ The complaint in the New Jersey action alleges that this
defendant "is a New Jersey corporation that was to be formed
under the laws of the State of New Jersey by [three of the in-
dividual defendants in this action], but which is acting as a
de facto corporation despite never having been incorporated.” :

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action; 2) exhibiting "Thrilsphere" at unauthorized locations; and
® 3) unlawfully revealing trade secrets. All defendants are charged
with unfair competition, palming off, and misappropriation of 21st
Century's trademark. Plaintiff alleges that the three individual
defendants other than Marchant, and the company they allegedly
formed, breached a contract to loan money to 2lst Century in con-
nection with the financing of three “"Thrilsphere" installations.
One of the amusement company defendants also allegedly owes
money to 21st Century under a "Thrilsphere" lease agreement.
Marchant and Omni move the Panel for an order pursuant to
28 U.S.C. §1407 transferring the New Jersey action to the
Southern District of Florida for coordinated or consolidated pre-
trial proceedings with the action pending there. Twenty-First
® Century opposes 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.
Movants urge that centralization of these two actions under
Section 1407 is necessary because: 1) the actions involve a
common plaintiff and some common defendants; 2) the actions share
questions of fact arising from identical allegations against the
common defendants and related allegations against the non-common
defendants; and 3) duplicative discovery will be prevented.
We find these arguments unpersuasive. Only two actions are
involved here. Therefore, while we recognize the existence of some
eo common questions of fact between the actions, we note that the

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oo -
movants are under a heavy burden to show that those common gues- @®
tions of fact are sufficiently complex and that the accompanying
discovery will be so time-consuming as to justify transfer under
Section 1407. See In re Scotch Whiskey Antitrust Litigation,
299 F. Supp. 543, 544 (J.P.M.L. 1969). We rule that movants have
not met that burden.
Additionally, we observe that suitable alternatives to Section
1407 transfer are available in order to minimize the possibility
of duplicative discovery. For example, notices for a particular
deposition could be filed in both actions, thereby making the
deposition applicable in each action; the parties could seek to
agree upon a stipulaticn that any discovery relevant to both
actions may be used in each action; and any party could seek @
orders from the two courts directing the parties to coordinate
their pretrial efforts. See In re Commercial Lighting Products,
Inc. Contract Litigation, 415 F. Supp. 392, 393 (J.P.M.L. 1976).
See also Manual for Complex Litigation, Parts I and II, §§3.11
(rev. ed. 1977).
Also, consultation 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 mini-
mize the possibility of conflicting pretrial rulings. See In re
Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litigation, __
F. Supp. __, ___ (J.P.M.L., filed February 28, 1978) (slip
opinion at 4). |
®

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® oT
IT IS THEREFORE ORDERED that the motion for transfer pursuant
to 28 U.S.C. §1407 pertaining to the actions listed on the following
Schedule A be, and the same hereby is, DENIED.

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SCHEDULE A ®
DISTRICT OF NEW JERSEY
21st Century Productions, Inc. v. Civil Action
Richard U. Neely, et al. Ne. 77-1598
SOUTHERN DISTRICT OF FLORIDA
Twenty-First Century Productions, Inc., Civil Action
et al. v. Omni-Vision, Inc., et al. No. 77-6180