Opinion
DOCKET NO. 1421, C.A. No. 3:02-56
July 10, 2002
WILLIAM TERRELL HODGES, CHAIRMAN, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN AND J. FREDERICK MOTZ, JUDGES OF THE PANEL
TRANSFER ORDER
Presently before the Panel is a motion by plaintiffs in this action (Brower), pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), to vacate the Panel's order conditionally transferring the action to the District of Maryland for inclusion in the Section 1407 proceedings occurring there in this docket. All responding defendants oppose the motion and favor inclusion of Brower in the centralized pretrial proceedings.
On the basis of the papers filed and hearing session held, the Panel finds that Brower shares sufficient questions of fact with actions in this litigation previously transferred to the District of Maryland, and that transfer of this action to that district for inclusion in the coordinated or consolidated pretrial proceedings occurring there will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. We note that the pending motion to remand Brower to California state court can be presented to and decided by the transferee judge. See, e.g., In re Ivy, 901 F.2d 7 (2d Cir. 1990); In re Prudential Insurance Company of America Sales Practices Litigation, 170 F. Supp.2d 1346, 1347-48 (J.P.M.L. 2001). The Panel further finds that transfer of Brower is appropriate for reasons expressed by the Panel in its original order directing centralization in this docket. The Panel held that the District of Maryland was the proper Section 1407 forum for actions involving allegations that wireless telephone defendants misrepresented and concealed alleged adverse health risks of wireless telephone use. See In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation, 170 F. Supp.2d at 1358.
As we have ruled previously in this docket, all of the members of the Panel participated in the decision of this matter under the "rule of necessity" in order to provide the forum created by the governing statute, 28 U.S.C. § 1407. See In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation, 170 F. Supp.2d 1356, 1357-58 (J.P.M.L. 2001).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, Gibb Brower, et al. v. Motorola Inc., et al., S.D. California, C.A. No. 3:02-56, is transferred to the District of Maryland and, with the consent of that court, assigned to the Honorable Catherine C. Blake for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.