Free Letter - District Court of Delaware - Delaware

Case 1 :05-cv—00242-SLR Document 33-2 Filed 11/07/2005 Page 1 of 4
JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION
RELEASED FOR PUBLICATION NUV " ’i 2005
FILED
DOCKETNO. 1 705 CLEFlK'S orrsce
BEFORE THE JUDICIAL PANEL ON M UL T IDIS TRI C T LI TI GA T I ON
INREXYBERNAUT CORP. SECURITIES LITIGATION
BEFORE WM T ERRELL HOD GES, CHAIR/WAM JOHN FZ KEENAM D.
LOWELL JENSEM J FREDERICK M OT Z, ROBERT L. MILLER, JR.,
KA THR YN H VRA TIL AND DA VID R. HANSEM J UD GES OF THE PANEL
TRANSFER ORDER .
This litigation currently consists of nine actions listed on the attached Schedule A and pending
in two districts as follows: six actions in the District of Delaware and three actions in the Eastern
District of Virginia.] Before the Panel is a motion by plaintiffs in the three Eastern District of Virginia
actions for centralization, pursuant to 28 U.S.C. § 1407, of all nine actions in the Eastern District of
Virginia. No party opposes centralization.
On the basis ofthe papers filed and hearing session held, the Panel finds that these nine actions
involve common questions of fact, and that centralization under Section 1407 in the Eastern District
of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient
conduct ofthe litigation. These actions share factual questions arising from alleged misrepresentations
or omissions concerning the financial condition and accounting practices of Xybernaut Corp.
(Xybernaut). Centralization under Section 1407 is necessary in order to eliminate duplicative discovery,
prevent inconsistent pretrial rulings (especially with respect to questions of class certification), and
conserve the resources of the parties, their counsel and the judiciary.
We are persuaded that the Eastern District of Virginia is an appropriate transferee forum for this
litigation. The Eastem District of Virginia i) is a likely source of relevant documents and witnesses
inasmuch as Xybernaut’s headquarters are located there; ii) contains Xybernaut’s pending bankruptcy
proceedings; and iii) has relatively favorable caseload statistics.
I The Panel has been notified that an additional action is pending in the District of Delaware. This
action and any other related actions will be treated as potential tag-along actions.....Saa.R.ules,3.4.aud.Z,5,.-c-r.,
R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001). ` " 'L [ pa tg i-
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’ Case 1 :05-cv—00242-SLR Document 33-2 Filed 11/07/2005 Page 2 of 4
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IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the
attached Schedule A and pending in the District of Delaware are transferred to the Eastern District of
Virginia and, with the consent of that court, assigned to the Honorable Leonie M. Brinkema for
coordinated or consolidated pretrial proceedings with the actions pending in that district and listed on
Schedule A. 1
FOR THE PANEL:
Wm. Terrell Hodges
A Chairman

Case 1 :05-cv—00242-SLR Document 33-2 Filed 11/07/2005 Page 3 of 4
SCHEDULE A
MDL-1705 —- In re Xybemaut Cog. Securities Litigation
District of Delaware
Robert H. Aylor, Jr. v. Xybernaat Corp., et al., C.A. No. 1:05-222
Moshe Tal v. Xybernaut Corp., et al., C.A. No. 1:05-242
Michael Fehrenbacher v. Xybernaut Corp., et al., C.A. No. 1:05-256
Je]j’reyM Jaskol, et al. v. Xybernaut Corp., et al., C.A. No. 1:05-268
Joseph Daniel Wauhop v. Xybernaut Corp., et al., C.A. No. 1:05-310
Christina W Donnelly, et al. v. Xybernaut Corp., etal., C.A. No. 1:05-334
Eastern District of Virginia
Don R. Heilman v. Xybernaut Corp., etal., C.A. No. 1:05-525
Sirnona Zuccarelli v. Xybernaut Corp., etal., C.A. No. 1:05-610
Dean Lawthers v. Xybernaut Corp., et al., C.A. No. 1:05-617

Case 1 :05-cv—00242-SLR Document 33-2 Filed 11/07/2005 Page 4 of 4
RULE 1.6: TRANSFER OF FILES _ ‘
(a) Upon receipt of a certified copy of a transfer order from the clerk of the transferee
district court, the clerk of the transferor district court shall forward to the clerk of the transferee
district court the complete original file and a certified copy of the docket sheet for each
transferred action. H
(b) lf an appeal is pending, or a notice of appeal has been filed, or leave to appeal has
been sought under 28 U.S.C. §l292(b) or a petition for an extraordinary writ is pending, in any
action included in an order of transfer under 28 U.S.C. §l407, and the original file or parts
thereof have been forwarded to the court of appeals, the clerk of the transferor district court shall
notify the clerk of the court of appeals of the order of transfer and secure the original file long
enough to prepare and transmit to the clerk of the transferee district court a certified copy of all
papers contained in the original file and a certified copy of the docket sheet. _
(c) If the transfer order provides for the separation and simultaneous remand of any
claim, cross-claim, counterclaim, or third—party claim, the clerk of the transferor district court
shall retain the original file and shall prepare and transmit to the clerk of the transferee district
court a certified copy of the docket sheet and copies of all papers except those relating
exclusively to separated and remanded claims.
(d) Upon receipt of an order to remand from the Clerk of the Panel, the transferee
district court shall prepare and send to the clerk of the transferor district court the following:
(i) a certified copy of the individual docket sheet for each action being
remanded;
(ii) a certified copy of the master docket sheet, if applicable;
(iii) the entire file for each action being remanded, as originally received from
the transferor district court and augmented as set out in this rule;
(iv) a certified copy of the final pretrial order, if applicable; and
(v) a "record on remand" to be composed of those parts of the files and
records produced during coordinated or consolidated pretrial proceedings
which have been stipulated to or designated by counsel as being necessary
for any or all proceedings to be conducted following remand. It shall be
the responsibility of counsel originally preparing or filing any document to
be included in the "record on remand" to furnish on request sufficient
copies to the clerk of the transferee district court.
(e) The Clerk of the Panel shall be notified when any files have been transmitted
pursuant to this Rule.