The opinion of the court was delivered by: KRAFT
On August 1 counsel entered an appearance for Kraft and filed a motion to transfer this action to the Northern District of Illinois, Eastern Division, as well as a motion for temporary stay of proceeding pending disposition of the motion to transfer.
On the same day counsel for Heinz entered an appearance and filed a motion to transfer that action to the Western District of Wisconsin or, otherwise, to stay the proceeding. Heinz also filed a motion for temporary stay pending disposition of its alternative motion. Pending argument upon and disposition of the motions then pending a temporary stay was ordered on August 1.
Despite the temporary stay, the plaintiff filed motions, on October 15, to transfer both suits to the Western District of Pennsylvania. After briefs and sundry affidavits were filed, argument was heard on all motions on October 29, when Kraft, upon application, was granted leave to and did file a motion to stay the proceeding in the event of denial of its motion for transfer.
From the respective records, affidavits and admissions of counsel at argument the following additional facts appear undisputed:
On April 27, 1956 the Department of Justice made written demand on Heinz for repayment, threatening suit upon non-compliance. Like demand was made on Kraft on May 8. The plaintiff began three suits in May in the United States District Court for the District of Maryland against Swift & Co., The Great A. & P. Tea Company and National Biscuit Co. for recovery of similar C.C.C. payments.
Kraft filed suit on June 7 against C.C.C. in the United States District Court for the Northern District of Illinois for declaratory judgment, involving issues identical with those in this suit. C.C.C., on June 8, moved for dismissal or stay of Kraft's suit. This motion was denied on October 8, and that case is now at issue.
Heinz, on June 11, also began an action for declaratory judgment in the United States District Court for the Western District of Wisconsin, involving issues identical with those in this suit. Six other companies (including Kraft Foods Company of Wisconsin, a subsidiary of Kraft) instituted like suits at the same time in the same district. Motions to dismiss those suits or to stay proceedings therein were denied on September 19. The seven suits were consolidated for trial and are now at issue.
The plaintiff desires to obtain promptly, in two different circuits, decisions which, if in agreement, might be accepted by the plaintiff as determinative of its rights against all recipients of the controversial payments, or which, if in conflict, might afford basis for consideration by the Supreme Court.
The plaintiff also desires to have, in each of two circuits, defendants who are typical of (1) cheese manufacturers and handlers, and (2) others who acquired cheese for use in preparation of other products. The plaintiff's suits in the District of Maryland involve defendants typical of a (1) manufacturer, (2) non-manufacturer, (3) retailer. The suits in the Western District of Wisconsin involve parties typical of each class. The aggregate of plaintiff's claims against approximately 130 companies involved is about $ 2,500,000. The eleven litigants outside this district are representative of every category involved and affect approximately half of the plaintiff's total claims.
A very substantial part of the evidence will be documentary, of such character that authenticity may be readily stipulated by counsel in most instances.
None of the transactions involving Kraft occurred in Pennsylvania where it maintains only sales branches concerned with the sale of its products. Kraft's principal office is in Chicago, Ill. where its principal executive officers have their offices and residences. Its consolidated books and records are also kept there. The 57 contracts between C.C.C. and Kraft resulted from offers and acceptances interchanged among five Kraft and four C.C.C. division offices, none of which were in Pennsylvania. All Kraft's records and papers relating to the 57 contracts have been at its Chicago headquarters since its suit there was instituted. Many of Kraft's witnesses reside in or close to Chicago; others reside in California, Texas and Georgia. None of Kraft's prospective witnesses and none of its books and papers are in Pennsylvania.
Heinz purchased from Kraft the cheese, the contract for the sale and repurchase of which gave rise to the present controversy, and Kraft's records, now in Chicago, are ...