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General Portland Cement Co. v. Perry.

May 11, 1953

GENERAL PORTLAND CEMENT CO.
v.
PERRY.



Author: Swaim

Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

The petitioner, General Portland Cement Company, seeks in this court a writ of mandamus directing District Judge J. Sam Perry to vacate an order entered by him on December 5, 1952, in the case entitled John H. Stanford v. General Portland Cement Company, Civil Action No. 52-C-1235, now pending in the United States District Court for the Northern District of Illinois, Eastern Division, which order denied the motion by the defendant therein for an order transferring the cause to the United States District Court for the Northern District of Texas, Dallas Division. The petition also asked that Judge Perry be directed to grant said motion and to transfer said cause to the Texas court pursuant to section 1404(a) of Title 28, United States Code Annotated.

In its petition here the petitioner alleges that the action is one for damages for personal injuries which the plaintiff sustained in an accident which occurred at the plant of the Trinity Portland Cement Division of the defendant company in Dallas, Texas, on June 14, 1951; that the plaintiff originally filed the action in the United States District Court for the Northern District of Texas, Fort Worth Division; that the defendant, this petitioner, then filed a motion to have the cause transferred to the Dallas Division in the same District but that that motion was never heard; and that the cause was later dismissed for want of prosecution. The petitioner alleges that later the plaintiff refiled the case in the United States District Court for the Northern District of Illinois, Eastern Division, and that the defendant (petitioner) then filed its motion to transfer the case back down to the Northern District of Texas, Dallas Division.

A copy of the defendant's motion to transfer, a copy of the affidavit in support of that motion and a copy of the counter-affidavit of the plaintiff are attached, as exhibits, to the petition.

The affidavit of the petitioner's attorney states that the action is an action to recover damages for personal injuries sustained by the plaintiff at the defendant's plant in Dallas, Texas; that the plaintiff is a resident of Dallas; that the defendant is licensed to do business in the State of Texas and that its principal place of business in Texas is Dallas; that there are 19 lay witnesses, all having personal knowledge of the facts material to the issues in the law suit and each of whom has knowledge of facts not known by the others, whose presence and testimony are essential to the defense of this case; that 13 of these witnesses live in Dallas and the remainder in close proximity to Dallas; that the plaintiff was hospitalized in Dallas and was attended and treated by doctors residing there; that the testimony of many of the lay witnesses, the testimony of the doctors and the production of hospital and other medical records can be obtained only by subpoena; and that the legal process of the District Court in Illinois does not extend to Dallas, Texas. This affidavit further states that the distance between Chicago, Illinois, and Dallas, Texas, is approximately 986 miles; that the minimum loss of time for each witness attending a trial of this case in Chicago would be five days; that the necessary expense for transportation, maintenance and loss of time for witnesses attending the trial in Chicago would aggregate many thousands of dollars; that there will be no facts to be proved by either party by witnesses residing in Chicago; and that the defendant cannot adequately present its defense at a trial of this cause in Chicago because of the above facts.

The counter-affidavit made by the plaintiff on November 13, 1952, states that the plaintiff "is a citizen of the State of Illinois, residing at 2114 N. Cleveland Avenue, Chicago, Illinois, and has so resided for the past thirty days; having moved his residence permanently to Chicago, Illinois, at said time"; that the plaintiff is 60 years of age and has been engaged in manual labor for his entire working life; that from 1919 to 1936 he resided in various places in the States of New Jersey and New York where he was engaged in construction work and was compelled to move about from place to place according to his opportunities for work; that since 1936 and up until the time of the accident is work has required him to be, for periods of approximately one year or more, in the States of New Mexico, Nebraska, Oklahoma, Arkansas and Idaho; that at many times during the past 15 years he has resided in Chicago for brief periods of time during which times he became acquainted with Bruneau E. Heirich, whom plaintiff chose as his attorney to handle this case.

In his counter-affidavit the plaintiff stated further that the action which he formerly filed in Fort Worth was dismissed on plaintiff's instructions and with his consent because his attorney, Mr. Heirich, was unable to prosecute and try the case in the State of Texas, either in Fort Worth or in Dallas, because of the combined actions of the Bar Association of the State of Texas and the District Court Judges in refusing to permit attorneys from other states to try personal injury suits in the Texas courts. The affidavit of the plaintiff further alleges that the location of the principal office of the defendant and the homes of its officers are in Chicago; that the affiant is without funds, is destitute and has no employment; and that it would be a great hardship on him if the cause is removed from the Northern District of Illinois. The plaintiff further stated that at the time of the accident in question there were no eye witnesses in the immediate vicinity where the accident occurred, that there were no attendants or witnesses on the remotely controlled conveyor car which struck him and that it was a matter of some minutes before anyone came to his assistance after the accident happened.

District Judge Perry, on November 18, 1952, held a hearing on the defendant's motion to transfer the cause back to Texas. This hearing consisted only of arguments by counsel for the defendant and for the plaintiff. No evidence was introduced by either party but Judge Perry had before him the pleadings filed by the parties in the District Court, including the motion to transfer with the attached affidavit of the attorney for the defendant and the affidavit of the plaintiff. Judge Perry was also furnished briefs by counsel for the parties.

If this court has the power to mandate the District Judge in a case such as this, which some of the decisions seem to deny, such power may only be used after our determination, from a consideration of the matters which were presented to him and which he considered or should have considered, that the District Judge abused his discretion in failing to order the transfer.

The statute authorizing such a transfer provides that:

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C.A. ยง 1404(a).

Admittedly the action at the time it was brought could have been filed in the Northern District of Texas, Dallas Division, where at that time the plaintiff was a resident and the defendant had its principal place of business in Texas. The petitioner admits, ad indeed it must, that "the District Judge is unquestionably vested with a wide area of discretion in determining whether or not a case should be transferred under the provisions of Section 1404(a)." But the petitioner insists that in the instant case the action of Judge Perry in denying the transfer amounted to an abuse of his discretion.

In Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, a petition for a writ of mandamus to require a District Judge to grant a transfer pursuant to section 1404(a) was refused. The court there, after pointing out, 182 F.2d at page 330, that while "We recognize that the dividing line is by no means entirely clear between the power of this court and its lack of power to issue the writ", proceeded to consider the question of whether the District Judge abused his discretion. The court said that it considered these words, used in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055, to the effect that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed", as still having vitality. In that case Judge Frank thought that the Court of Appeals, recognizing that the District Judge must guess, "should accept his guess unless it is too wild." 182 F.2d at page 332, Judge Hand concurred solely on the grounds that he was "not persuaded that the balance of convenience is strong enough to declare 'clearly ...


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