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H.R. 2113 (ih) To amend title I of the Employee Retirement Income Security Act of 1974 [Introduced in House] ...


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                                                       Calendar No. 341
106th CONGRESS
  1st Session
                                H. R. 2112


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 14, 1999

  Received; read twice and referred to the Committee on the Judiciary

                            October 21, 1999

                Reported by Mr. Hatch, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
To amend title 28, United States Code, to allow a judge to whom a case 
   is transferred to retain jurisdiction over certain multidistrict 
litigation cases for trial, and to provide for Federal jurisdiction of 
             certain multiparty, multiforum civil actions.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Multidistrict, Multiparty, 
Multiforum Trial Jurisdiction Act of 1999''.</DELETED>

<DELETED>SEC. 2. MULTIDISTRICT LITIGATION.</DELETED>

<DELETED>    Section 1407 of title 28, United States Code, is amended--
</DELETED>
        <DELETED>    (1) in the third sentence of subsection (a), by 
        inserting ``or ordered transferred to the transferee or other 
        district under subsection (i)'' after ``terminated''; 
        and</DELETED>
        <DELETED>    (2) by adding at the end the following new 
        subsection:</DELETED>
<DELETED>    ``(i)(1) Subject to paragraph (2) and except as provided 
in subsection (j), any action transferred under this section by the 
panel may be transferred for trial purposes, by the judge or judges of 
the transferee district to whom the action was assigned, to the 
transferee or other district in the interest of justice and for the 
convenience of the parties and witnesses.</DELETED>
<DELETED>    ``(2) Any action transferred for trial purposes under 
paragraph (1) shall be remanded by the panel for the determination of 
compensatory damages to the district court from which it was 
transferred, unless the court to which the action has been transferred 
for trial purposes also finds, for the convenience of the parties and 
witnesses and in the interests of justice, that the action should be 
retained for the determination of compensatory damages.''.</DELETED>

<DELETED>SEC. 3. MULTIPARTY, MULTIFORUM JURISDICTION OF DISTRICT 
              COURTS.</DELETED>

<DELETED>    (a) Basis of Jurisdiction.--</DELETED>
        <DELETED>    (1) In general.--Chapter 85 of title 28, United 
        States Code, is amended by adding at the end the following new 
        section:</DELETED>
<DELETED>``Sec. 1369. Multiparty, multiforum jurisdiction</DELETED>
<DELETED>    ``(a) In General.--The district courts shall have original 
jurisdiction of any civil action involving minimal diversity between 
adverse parties that arises from a single accident, where at least 25 
natural persons have either died or incurred injury in the accident at 
a discrete location and, in the case of injury, the injury has resulted 
in damages which exceed $75,000 per person, exclusive of interest and 
costs, if--</DELETED>
        <DELETED>    ``(1) a defendant resides in a State and a 
        substantial part of the accident took place in another State or 
        other location, regardless of whether that defendant is also a 
        resident of the State where a substantial part of the accident 
        took place;</DELETED>
        <DELETED>    ``(2) any two defendants reside in different 
        States, regardless of whether such defendants are also 
        residents of the same State or States; or</DELETED>
        <DELETED>    ``(3) substantial parts of the accident took place 
        in different States.</DELETED>
<DELETED>    ``(b) Special Rules and Definitions.--For purposes of this 
section--</DELETED>
        <DELETED>    ``(1) minimal diversity exists between adverse 
        parties if any party is a citizen of a State and any adverse 
        party is a citizen of another State, a citizen or subject of a 
        foreign state, or a foreign state as defined in section 1603(a) 
        of this title;</DELETED>
        <DELETED>    ``(2) a corporation is deemed to be a citizen of 
        any State, and a citizen or subject of any foreign state, in 
        which it is incorporated or has its principal place of 
        business, and is deemed to be a resident of any State in which 
        it is incorporated or licensed to do business or is doing 
        business;</DELETED>
        <DELETED>    ``(3) the term `injury' means--</DELETED>
                <DELETED>    ``(A) physical harm to a natural person; 
                and</DELETED>
                <DELETED>    ``(B) physical damage to or destruction of 
                tangible property, but only if physical harm described 
                in subparagraph (A) exists;</DELETED>
        <DELETED>    ``(4) the term `accident' means a sudden accident, 
        or a natural event culminating in an accident, that results in 
        death or injury incurred at a discrete location by at least 25 
        natural persons; and</DELETED>
        <DELETED>    ``(5) the term `State' includes the District of 
        Columbia, the Commonwealth of Puerto Rico, and any territory or 
        possession of the United States.</DELETED>
<DELETED>    ``(c) Intervening Parties.--In any action in a district 
court which is or could have been brought, in whole or in part, under 
this section, any person with a claim arising from the accident 
described in subsection (a) shall be permitted to intervene as a party 
plaintiff in the action, even if that person could not have brought an 
action in a district court as an original matter.</DELETED>
<DELETED>    ``(d) Notification of Judicial Panel on Multidistrict 
Litigation.--A district court in which an action under this section is 
pending shall promptly notify the judicial panel on multidistrict 
litigation of the pendency of the action.''.</DELETED>
        <DELETED>    (2) Conforming amendment.--The table of sections 
        at the beginning of chapter 85 of title 28, United States Code, 
        is amended by adding at the end the following new 
        item:</DELETED>

<DELETED>``1369. Multiparty, multiforum jurisdiction.''.
<DELETED>    (b) Venue.--Section 1391 of title 28, United States Code, 
is amended by adding at the end the following:</DELETED>
<DELETED>    ``(g) A civil action in which jurisdiction of the district 
court is based upon section 1369 of this title may be brought in any 
district in which any defendant resides or in which a substantial part 
of the accident giving rise to the action took place.''.</DELETED>
<DELETED>    (c) Multidistrict Litigation.--Section 1407 of title 28, 
United States Code, as amended by section 2 of this Act, is further 
amended by adding at the end the following:</DELETED>
<DELETED>    ``(j)(1) In actions transferred under this section when 
jurisdiction is or could have been based, in whole or in part, on 
section 1369 of this title, the transferee district court may, 
notwithstanding any other provision of this section, retain actions so 
transferred for the determination of liability and punitive damages. An 
action retained for the determination of liability shall be remanded to 
the district court from which the action was transferred, or to the 
State court from which the action was removed, for the determination of 
damages, other than punitive damages, unless the court finds, for the 
convenience of parties and witnesses and in the interest of justice, 
that the action should be retained for the determination of 
damages.</DELETED>
<DELETED>    ``(2) Any remand under paragraph (1) shall not be 
effective until 60 days after the transferee court has issued an order 
determining liability and has certified its intention to remand some or 
all of the transferred actions for the determination of damages. An 
appeal with respect to the liability determination and the choice of 
law determination of the transferee court may be taken during that 60-
day period to the court of appeals with appellate jurisdiction over the 
transferee court. In the event a party files such an appeal, the remand 
shall not be effective until the appeal has been finally disposed of. 
Once the remand has become effective, the liability determination and 
the choice of law determination shall not be subject to further review 
by appeal or otherwise.</DELETED>
<DELETED>    ``(3) An appeal with respect to determination of punitive 
damages by the transferee court may be taken, during the 60-day period 
beginning on the date the order making the determination is issued, to 
the court of appeals with jurisdiction over the transferee 
court.</DELETED>
<DELETED>    ``(4) Any decision under this subsection concerning remand 
for the determination of damages shall not be reviewable by appeal or 
otherwise.</DELETED>
<DELETED>    ``(5) Nothing in this subsection shall restrict the 
authority of the transferee court to transfer or dismiss an action on 
the ground of inconvenient forum.''.</DELETED>
<DELETED>    (d) Removal of Actions.--Section 1441 of title 28, United 
States Code, is amended--</DELETED>
        <DELETED>    (1) in subsection (e) by striking ``(e) The court 
        to which such civil action is removed'' and inserting ``(f) The 
        court to which a civil action is removed under this section''; 
        and</DELETED>
        <DELETED>    (2) by inserting after subsection (d) the 
        following new subsection:</DELETED>
<DELETED>    ``(e)(1) Notwithstanding the provisions of subsection (b) 
of this section, a defendant in a civil action in a State court may 
remove the action to the district court of the United States for the 
district and division embracing the place where the action is pending 
if--</DELETED>
        <DELETED>    ``(A) the action could have been brought in a 
        United States district court under section 1369 of this title; 
        or</DELETED>
        <DELETED>    ``(B) the defendant is a party to an action which 
        is or could have been brought, in whole or in part, under 
        section 1369 in a United States district court and arises from 
        the same accident as the action in State court, even if the 
        action to be removed could not have been brought in a district 
        court as an original matter.</DELETED>
<DELETED>The removal of an action under this subsection shall be made 
in accordance with section 1446 of this title, except that a notice of 
removal may also be filed before trial of the action in State court 
within 30 days after the date on which the defendant first becomes a 
party to an action under section 1369 in a United States district court 
that arises from the same accident as the action in State court, or at 
a later time with leave of the district court.</DELETED>
<DELETED>    ``(2) Whenever an action is removed under this subsection 
and the district court to which it is removed or transferred under 
section 1407(j) has made a liability determination requiring further 
proceedings as to damages, the district court shall remand the action 
to the State court from which it had been removed for the determination 
of damages, unless the court finds that, for the convenience of parties 
and witnesses and in the interest of justice, the action should be 
retained for the determination of damages.</DELETED>
<DELETED>    ``(3) Any remand under paragraph (2) shall not be 
effective until 60 days after the district court has issued an order 
determining liability and has certified its intention to remand the 
removed action for the determination of damages. An appeal with respect 
to the liability determination and the choice of law determination of 
the district court may be taken during that 60-day period to the court 
of appeals with appellate jurisdiction over the district court. In the 
event a party files such an appeal, the remand shall not be effective 
until the appeal has been finally disposed of. Once the remand has 
become effective, the liability determination and the choice of law 
determination shall not be subject to further review by appeal or 
otherwise.</DELETED>
<DELETED>    ``(4) Any decision under this subsection concerning remand 
for the determination of damages shall not be reviewable by appeal or 
otherwise.</DELETED>
<DELETED>    ``(5) An action removed under this subsection shall be 
deemed to be an action under section 1369 and an action in which 
jurisdiction is based on section 1368 of this title for purposes of 
this section and sections 1407, 1660, 1697, and 1785 of this 
title.</DELETED>
<DELETED>    ``(6) Nothing in this subsection shall restrict the 
authority of the district court to transfer or dismiss an action on the 
ground of inconvenient forum.''.</DELETED>
<DELETED>    (e) Choice of Law.--</DELETED>
        <DELETED>    (1) Determination by the court.--Chapter 111 of 
        title 28, United States Code, is amended by adding at the end 
        the following new section:</DELETED>
<DELETED>``Sec. 1660. Choice of law in multiparty, multiforum 
              actions</DELETED>
<DELETED>    ``(a) Factors.--In an action which is or could have been 
brought, in whole or in part, under section 1369 of this title, the 
district court in which the action is brought or to which it is removed 
shall determine the source of the applicable substantive law, except 
that if an action is transferred to another district court, the 
transferee court shall determine the source of the applicable 
substantive law. In making this determination, a district court shall 
not be bound by the choice of law rules of any State, and the factors 
that the court may consider in choosing the applicable law include--
</DELETED>
        <DELETED>    ``(1) the place of the injury;</DELETED>
        <DELETED>    ``(2) the place of the conduct causing the 
        injury;</DELETED>
        <DELETED>    ``(3) the principal places of business or 
        domiciles of the parties;</DELETED>
        <DELETED>    ``(4) the danger of creating unnecessary 
        incentives for forum shopping; and</DELETED>
        <DELETED>    ``(5) whether the choice of law would be 
        reasonably foreseeable to the parties.</DELETED>
<DELETED>The factors set forth in paragraphs (1) through (5) shall be 
evaluated according to their relative importance with respect to the 
particular action. If good cause is shown in exceptional cases, 
including constitutional reasons, the court may allow the law of more 
than one State to be applied with respect to a party, claim, or other 
element of an action.</DELETED>
<DELETED>    ``(b) Order Designating Choice of Law.--The district court 
making the determination under subsection (a) shall enter an order 
designating the single jurisdiction whose substantive law is to be 
applied in all other actions under section 1369 arising from the same 
accident as that giving rise to the action in which the determination 
is made. The substantive law of the designated jurisdiction shall be 
applied to the parties and claims in all such actions before the court, 
and to all other elements of each action, except where Federal law 
applies or the order specifically provides for the application of the 
law of another jurisdiction with respect to a party, claim, or other 
element of an action.</DELETED>
<DELETED>    ``(c) Continuation of Choice of Law After Remand.--In an 
action remanded to another district court or a State court under 
section 1407(j)(1) or 1441(e)(2) of this title, the district court's 
choice of law under subsection (b) shall continue to 
apply.''.</DELETED>
        <DELETED>    (2) Conforming amendment.--The table of sections 
        at the beginning of chapter 111 of title 28, United States 
        Code, is amended by adding at the end the following new 
        item:</DELETED>

<DELETED>``1660. Choice of law in multiparty, multiforum actions.''.
<DELETED>    (f) Service of Process.--</DELETED>
        <DELETED>    (1) Other than subpoenas.--(A) Chapter 113 of 
        title 28, United States Code, is amended by adding at the end 
        the following new section:</DELETED>
<DELETED>``Sec. 1697. Service in multiparty, multiforum 
              actions</DELETED>

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