Lord, Bissel & Brook, Chicago, Ill., and Shield & Smith, Los Angeles, Cal., for Hughes Air Corp.

Robert L. Meyer, U. S. Atty., and James Stotter, II, Asst. U. S. Atty., Los Angeles, Cal., for United States.

Vincent H. D. Abbey, Seattle, Wash., Belcher, Henzie & Biegenzahn, Los Angeles, Cal., Bronson, Bronson & McKinnon, Lawrason Driscoll, San Francisco, Cal., Butler, Jefferson & Fry, Hart & Mieras, Lawler, Felix & Hall, Loeb & Loeb, Los Angeles, Cal., Vincent Pettit, Inglewood, Cal., Garth S. Pincock, Pocatello, Idaho, Prince, Mangum, Yeates & Miller, Ray, Quinney & Nebeker, Salt Lake City, Utah, Eugene J. Craig, Seattle, Wash., Jay H. Davison, Covina, Cal., Demanes & Sanders, Burlingame, Cal., Irving S. Feffer, Los Angeles, Cal., Feist, Vetter, Knauf & Loy, Oceanside, Cal., Offices of Ned Good, Goodman Hirschberg & King, Magana & Cathcart, Margolis, McTernan, Smith, Scope & Sacks, John T. McTernan, Los Angeles, Cal., Miller, Bronn, Brummett & Porter, Long Beach, Cal., Aaron P. Moss, Van Nuys, Cal., Arthur H. Nielsen, Salt Lake City, Utah, Oliver, Sloan, Vargas, Shaffer & Lindvig, Richard L. Oliver, Los Angeles, Cal., Ben Peterson, Pocatello, Idaho, Roberts, Poole & Robson, Theron E. Roberts, Boise, Idaho, Jerry N. Roth, Beverly Hills, Cal., Lloyd E. Somogyi, San Luis Obispo, Cal., Sonenshine & Armstrong, Newport Beach, Cal., Walkup, Downing, Sterns & Poore, Terence J. O'Reilly, San Francisco, Cal., for plaintiffs.

PEIRSON M. HALL, District Judge.

The Court has concluded, sua sponte, that all of the cases not originating in this District and originally filed in other Districts which are covered by the above MDL No. 106 should be transferred to this District on all issues and for all purposes. [1]

Seventy-two actions were filed in various United States District Courts for the wrongful deaths of the entire forty-nine occupants of an Air West passenger plane which crashed upon collision with a Marine jet on June 6, 1971. Most of the actions were originally filed in this District. A number were filed in other Districts, the titles and numbers of which are hereinafter indicated. They have been transferred by the Judicial Panel on Multidistrict Litigation to this District under 28 U.S.C. § 1407 , under MDL Docket No. 106, see 346 F. Supp. 529 .

On the hearing of the motion to transfer under 28 U.S.C. § 1407 various plaintiffs in other Districts than this one urged that any transfer under § 1407 should be limited to discovery on the issue of liability only. The Court specifically held that it could not sever and transfer a single issue but that the whole action must be transferred, and stated, inter alia :

The Judicial Panel on Multidistrict Litigation then ordered all the cases then pending in this District, as well as the cases pending in the District of Utah and then pending in the District of Washington, transferred to this District and to the undersigned Judge for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 . Additional cases have since been filed and transferred. [2]

The Kalbfleisch case, No. 71-2878, was filed in the Northern District of California and transferred here under 1404. The Judith Wilkerson case was filed in the Northern District of California and was later filed or transferred here.

Rule 15(b) of the Rules on Multidistrict Litigation, 28 U.S.C. § 140715 (b), [formerly 15(e)] provides as follows:

Section 1407(a) provides, among other things, that "each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated : . . ."

It is settled that when an action is transferred by the Panel, until the time it is remanded, the transferor court is without authority to issue any orders or to entertain a Sec. 1404(a) motion or any other motion. In the Plumbing Fixture case, 298 F.Supp. 484 , Jud.Pan. Mult.Lit., 1968, the Court held that a transfer under Sec. 1407 was a change of venue for pretrial purposes, and that in such instance,

Other cases giving consideration to the matter of transfer of Multidistrict Litigation by the transferee court are as follows:

Sec. 1404(a) of Title 28 sets forth certain criteria for transfer of cases from one district to another. It reads:

There is only one operative set of facts for the determination of liability. To remand the cases to the various courts for trial after the completion of discovery would require trials on the merits in three different districts. No matter how much some counsel may puff their own claims of ability to secure swift judgments on liability in such cases and demean all other counsel's ability, the raw, hard, and inescapable fact is that such trials, at best, require extensive and intensive preparation and skill and are usually prolonged, and may produce different results in different districts. Such a result in this case is certainly not "in the interest of justice" nor "for the convenience of witnesses." Moreover, each of the cases transferred here "might have been brought" in this district.

Federal Rules of Civil Procedure, Rule 23(e), provides:

The Court has held that the Gable actions were filed and should be maintained (i. e., that they were class actions from the beginning) as class actions on the question of liability, including the within class of passengers of Air West. Thus in addition to the loss of power of any originating court other than this one to make any orders, F.R. C.P. 23(e) does not permit any other court to make any orders approving dismissals or compromises of any claim of any member of the class.

In view of all the foregoing, and in view of the fact that the courts in which the cases were originally pending now have no jurisdiction to enter any kind of an order, and in view of the fact that the Court is constantly called upon to make orders which directly or indirectly affect all such cases, [3] the Court concludes that it is in the interest of justice that all of the cases not originating in this District which are covered under the above-numbered Multidistrict Litigation be and

It is hereby ordered that they are transferred to the Central District of California on all issues for all purposes.

The cases are as set forth in Exhibit "A" appended hereto. This Order is effective immediately.

COY M. MORRIS and BRADLEY MAJOR MORRIS and BRYAN DINWOODEY MORRIS, minors, by and through COY M. MORRIS, their Guardian, LISA DIANE MORRIS, Plaintiffs,

MARIAN C. DUNN and JEFFREY CRAIG DUNN, CARY CLARK DUNN and SCOTT ELLISON DUNN, minors, by and through MARIAN C. DUNN, their Guardian, Plaintiffs,

ALICE W. MANGUM and JOHN K. MANGUM, JR., GEOFFREY W. MANGUM, MICHAEL P. MANGUM and MELLISSA MANGUM, minors by and through ALICE W. MANGUM, their Guardian, Plaintiffs,

JEANNE PYKE, DIANNE PYKE, GAYLE PYKE, and ROBERT PYKE, and SCOTT PYKE, minors, by and through JEANNE PYKE, their Guardian ad Litem, and LYALL S. PYKE, Plaintiffs,

JEANNE M. PYKE and F. GREGORY PYKE and STEPHANIE PYKE, minors by and through JEANNE M. PYKE, their Guardian ad Litem, and LYALL S. PYKE, Plaintiffs,

AFTON G. ALLEN, CARL P. ALLEN, BECKY A. SARGENT and LESLIE ALLEN, a minor by and through her guardian ad Litem AFTON G. ALLEN, and HANNAH B. ALLEN, Plaintiffs,

VIRGINIA H. PYKE and CATHERINE ANNE PYKE and STEVEN NELSON PYKE, minors, by and through their Guardian ad Litem VIRGINIA H. PYKE, Plaintiffs,

JANET T. SCHOENHALS and ROBERT E. SCHOENHALS, JR., SUSAN SCHOENHALS and MARY LYNN SCHOENHALS, minors, by and through their guardian ad Litem, JANET T. SCHOENHALS, Plaintiffs,

JOHN JAY GARCIA, SEAN JAY GARCIA and BRET MICHAEL GARCIA, minors, by and through JOHN JAY GARCIA, their Guardian ad Litem and WILLIAM E. HATHAWAY and IZOLA W. HATHAWAY, Plaintiffs,

[1] 28 U.S.C. Sec. 1404 (a) has been construed to permit transfer by the court sua sponte.

Kansas City Power & Light Co. v. I-T-E Circuit Breaker Co. (W.D.Mo. 1965), 240 F.Supp. 121 , aff'd. sub nom. I-T-E Circuit Breaker v. Becker (8 Cir. 1965), 343 F.2d 361 -363.

[2] See supplemental Orders of February 1, 1973, 354 F.Supp. 278 (Jud.Pan.Mult. Lit.); September 25, 1971; December 12, 1972; August 28, 1972.

[3] About 30 of such orders have heretofore been made.