UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
May 16, 1980
UNION TANK LEASEHOLD BUILDING CO. et al., Plaintiffs,
DuPONT GLORE FORGAN, INC., et al., Defendants
The opinion of the court was delivered by: KNAPP
ON MOTION TO RETRANSFER
In our memorandum of March 11, 1980 we indicated that, upon appropriate motion, we would retransfer the case to the Northern District of Illinois should the plaintiff file a fifth amended complaint eliminating the issues raised in the Allegaert v. Perot litigation (hereinafter "the Allegaert issues") which, as we viewed the situation, caused Judge McMillen to send the case to us.
On April 9, 1980 plaintiffs submitted a proposed fifth amended complaint purporting to comply with our suggestion, moved for leave to file that complaint, and renewed their motion for retransfer. Defendants now oppose these motions. Conceding that all direct references to the Allegaert issues have been eliminated from the proposed amended complaint, they contend that the relief requested could be supported by the same proof involved in the Allegaert issues. Annexed as Exhibit A to the opposing papers submitted by defendants is a first amended third-party complaint (hereinafter "the Illinois complaint") to which they point as an appropriate model for the pleading of the purely Illinois action which the plaintiffs contend they are now seeking to pursue and have asked us to retransfer to the Northern District of Illinois.
In light of the broad elasticity now permissible under the doctrine of notice pleading, it is impossible to determine by a mere reading of the fifth amended complaint whether the plaintiffs' or the defendants' characterization of it is correct. Therefore we cannot tell from such a reading whether if we granted the motion to retransfer we would have accomplished our purpose of protecting the district court for the Northern District of Illinois and the litigants before it from the burden of litigating some or all of the Allegaert issues. To meet this problem, we suggested that the plaintiffs stipulate that as a condition to retransfer they would consent that the district court in the Northern District of Illinois could, in its discretion, limit all discovery proceedings and all proof at trial to matters which would be germane to and provable under the Illinois complaint. The plaintiffs so stipulated on the record before us. On the basis of such stipulation we grant the plaintiffs' motions for leave to file the fifth amended complaint and to retransfer the action to the Northern District of Illinois.
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