433 F.Supp. 1125, Fed. Sec. L. Rep. P 96,116, 1977-2 Trade Cases P 61,630
Judicial Panel on Multidistrict Litigation. In re HOLIDAY MAGIC SECURITIES AND ANTITRUST LITIGATION. James J. Ward, et al. v. Holiday Magic, Inc., et al., N.D. California, Civil Action No. C-74-1067-LHB. No. 124. July 6, 1977.
Plaintiffs in an action which had been consolidated with others under rules relating to multidistrict litigation moved for remand to the transferor court. The Judicial Panel on Multidistrict Litigation held that remand was not indicated. Motion denied.
Plaintiffs in action which had been consolidated with others under rules relating to multidistrict litigation failed to provide adequate support for their motion to have the case remanded to transferor court.
Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER [FN*], JOSEPH S. LORD, III *, STANLEY A. WEIGEL, and ANDREW A. CAFFREY, Judges of the Panel.
FN* Judges Becker and Lord took no part in the consideration or decision of this matter.
OPINION AND ORDER
PER CURIAM.
The Panel previously transferred all actions in this litigation to the Northern District of California and, with the consent of that court, assigned them to the Honorable Lloyd H. Burke for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. s 1407. In re Holiday Magic Securities and Antitrust Litigation, 368 F.Supp. 806 (Jud.Pan.Mult.Lit.1973); 372 F.Supp. 1167 (Jud.Pan.Mult.Lit.1974); 375 F.Supp. 1400 (Jud.Pan.Mult.Lit.1974); 384 F.Supp. 1403 (Jud.Pan.Mult.Lit.1974). Plaintiffs in the Ward action have moved the Panel for an order remanding Ward to its transferor court, the Northern District of Illinois. Several defendants in Ward oppose remand.
In March 1974, Judge Burke established a class composed of all persons who had purchased Holiday Magic distributorships or securities of any of the Holiday Magic companies. Two months later, Judge Burke approved a settlement between certain corporate, estate, trust and individual defendants and all members of that class. [FN1] The Ward plaintiffs had opted out of the settling class and currently are prosecuting their action solely against defendants not included in the settlement.
FN1. Plaintiffs in Ward, as well as the defendants in one other action, appealed the court-approved class action settlement to the United States Court of Appeals for the Ninth Circuit. The Ward plaintiffs subsequently withdrew their appeal, and in the other appeal the Court of Appeals for the Ninth Circuit recently affirmed the settlement. Marshall v. Holiday Magic, Inc., 550 F.2d 1173 (9th Cir. 1977).
Although in actions other than Ward several non-settling claims are still pending before Judge Burke, according to the parties' statements in the record before us there has been little or no activity regarding these claims because of, inter alia, the appeal of the class settlement. In addition, the Holiday Magic companies are involved in bankruptcy proceedings in the Northern District of California, and all actions against those companies have been stayed by order of the bankruptcy court. Plaintiffs in Ward concede that there has been only limited discovery in Ward and that pretrial proceedings are not complete in that action. Nevertheless, they argue, remand is appropriate at this time because Ward is the only action in this litigation actively being prosecuted in the transferee district. These plaintiffs also maintain that they will be prejudiced by continued participation in pretrial proceedings in the transferee district because of certain pretrial rulings made by Judge Burke. [FN2]
FN2. Judge Burke has ruled that some named plaintiffs in Ward, residents of Illinois, must give their depositions in the Northern District of California. In addition, Judge Burke denied without prejudice the Ward plaintiffs' motion for leave to file a second amended complaint which sought to change certain allegations to conform to discovery and to narrow the class on whose behalf Ward is brought.