United States District Court, Northern District of Illinois, E.D
September 22, 1958
JOHNNY SYPERT, PLAINTIFF,
BENDIX AVIATION CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Miner, District Judge.
Plaintiff filed suit in this Court on August 3, 1954, to
recover for personal injuries arising out of the explosion of an
airplane oxygen regulator in Texas. At the time and place of the
occurrence, plaintiff was employed by an airplane builder, and
was engaged in testing the oxygen regulator as part of his
duties. The complaint alleges that his injuries were caused by
the negligence of the defendant, manufacturer of the regulator.
On October 26, 1954, defendant filed a motion asking that the
action be transferred to the United States District Court for the
Northern District of Texas, Dallas Division. After hearing on
affidavits, counter-affidavits and briefs, the motion was denied
by District Judge Julius J. Hoffman of this Court on October 31,
1955. The case was subsequently tried before District Judge
Hoffman and a mistrial declared for failure of the jury to agree
on a verdict. Several days later, in another proceeding, Judge
Hoffman adversely commented upon his ruling on the motion to
transfer, clearly indicating a reversal of his prior opinion.
On March 5, 1958, the defendant filed another motion to
transfer to the United
States District Court for the Northern District of Texas, Dallas
Division. The affidavit of defendant's attorney, submitted in
support of the renewed motion, states the following facts
concerning the convenience of the parties and witnesses:
(1) That plaintiff alleges in his complaint that
his injuries were sustained in Dallas, Texas;
(2) That plaintiff now resides, and did at the time
of the occurrence reside, in Dallas, Texas;
(3) That the trial of the case held from January
13, 1958, to February 4, 1958, before District Judge
Hoffman, resulted in disagreement of the jury;
(4) That seven witnesses testified for the
plaintiff, five having been brought to Chicago from
Dallas; that the remaining two were, respectively, a
Chicago doctor who examined the plaintiff after
commencement of the trial only for the purpose of
testifying, and a Glenview naval officer who
described the workings of an oxygen regulator;
(5) That four witnesses testified for the
defendant, three having been brought to Chicago from
Dallas and one, defendant's mechanical engineer, from
(6) That the testimony of several witnesses had to
be, and was, offered by deposition, since they live
(7) That the testimony of prospective witnesses
(not identified) was not presented because their
presence at the trial could not be obtained since
they live in Dallas;
(8) That certain documents, reports and exhibits
(not identified), which are available and subject to
subpoena in the Dallas court, were not available in
this district and could not be presented at the
(9) That since the trial, in treating with a
similar motion in another case, District Judge
Hoffman has stated on record that the trial of this
case convinced him that he had been mistaken in
denying the prior motion to transfer. Counsel has
attached to his affidavit a copy of the transcript
which quotes Judge Hoffman;
(10) That the substantive law applicable to the
motion is the law of Texas.
Plaintiff objects to the motion and has countered with
affidavits of his counsel affirming facts set forth in his
written "Objections" and "Reply to Suggestions of Defendant." The
facts so affirmed, which plaintiff deems material, may be
summarized as follows:
(1) That on December 3, 1953, prior to the filing
of the instant suit, plaintiff filed an identical
suit to recover damages in the United States District
Court for the Northern District, Southern Division,
of California, in response to which defendant filed a
motion to dismiss, based upon the one-year California
statute of limitations. Plaintiff thereupon
voluntarily dismissed the cause.
(2) That defendant's principal witness at the trial
before Judge Hoffman aforesaid was the engineer from
Davenport, Iowa, which is approximately 165 miles
from Chicago, and 635 miles from Dallas.
(3) That in the event of a transfer, plaintiff
would have to engage a Texas attorney "who would be
without the benefit of the technical knowledge
necessary to present the case, and who would likewise
be without firsthand knowledge of what had occurred
at the first trial. He would be compelled to seek
expert testimony in a new section of the country. * *
(4) That affiant has spent one week in becoming
conversant with the oxygen regulator in question, and
the problem involved in the case.
(5) That certain matters (not specified) occurred
during the trial which can be forestalled at another
trial if handled by the same counsel.
(6) That plaintiff has spent several hundreds of
dollars in trying the case in this jurisdiction.
(7) That affiant is informed that "to seek to
obtain an expert in Texas, as well as real evidence
concerning the oxygen regulator, would well nigh be
impossible. * * *"
(8) That affiant could not try the case in Texas.
In substance, the averments of the respective affidavits of
counsel are uncontroverted. Were there no other issues presented,
the Court would immediately proceed to evaluate the affidavits
and arguments in the light of the requirements of Title
28 U.S.C. § 1404(a), and the criteria declared in the cases construing that
statute. But plaintiff contends that the Court may not transfer
the cause to Dallas under the provisions of 28 U.S.C. § 1404(a),
because at the time of the occurrence, August 18, 1952, defendant
could not be sued in Texas. Those provisions read:
"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."
In support of this contention, plaintiff refers to cases which
hold that a case may not be transferred to a district in which
the defendant is not amenable to process. Foster-Milburn Co. v.
Knight, 2 Cir., 1950, 181 F.2d 949; Rogers v. Halford,
D.C.E.D.Wis. 1952, 107 F. Supp. 295; Petroleum Financial Corp. v.
Stone, D.C.S.D.N.Y. 1953, 116 F. Supp. 426. Cf. Gulf Oil Corp. v.
Gilbert, 1947, 330 U.S. 501
, 67 S.Ct. 839, 91 L.Ed. 1055; Shapiro
v. Bonanza Hotel Co., Inc., 9 Cir., 1950, 185 F.2d 777; Blackmar
v. Guerre, 5 Cir., 1951, 190 F.2d 427
, affirmed on other grounds
342 U.S. 512
, 72 S.Ct. 410, 96 L.Ed. 534; Blackwell v. Vance
Trucking Co., Inc., D.C.E.D.S.C. 1956, 139 F. Supp. 103.
No case is cited to sustain the proposition that an action may
not be transferred to a district in which the defendant becomes
amenable to process subsequent to accrual of the cause of action,
but before institution of suit in the district from which
transfer is sought. At page 17 of the transcript of hearing on
the 1955 motion before Judge Hoffman, the Court stated:
"I think the plaintiff acknowledges that Bendix
received a permit to transact business, and appointed
a registered agent in Texas on January 29, 1954. The
[Illinois] suit was not filed until August 3, 1954."
Defendant has responded to plaintiff's brief on this point with
cases which declare that a district to which transfer is sought
is appropriate so long as the defendant is amenable to process
there at the time the petition for transfer is made, since the
application for transfer is considered a voluntary submission to
the jurisdiction of that court. Paramount Pictures, Inc. v.
Rodney, 3 Cir., 1950, 186 F.2d 111
, certiorari denied
340 U.S. 953
, 71 S.Ct. 572
, 95 L.Ed. 687; Andino v. The SS Claiborne,
D.C.S.D.N.Y. 1957, 148 F. Supp. 701; Cain v. Bowater's
Newfoundland Pulp & Paper Mills, Ltd., D.C.E.D.Pa. 1954,
127 F. Supp. 949.
The legal issue thus presented is whether the statute permits a
transfer when, at the time suit was brought in Illinois, suit
might have been brought in Texas. To state the issue is, thus, to
answer it. The statute does not require that a defendant be
amenable to process in two forums at the time of the occurrence
out of which the action arose. The Court need not decide whether
the statute authorizes transfer where a defendant is amenable to
process in but one forum when suit is instituted, and in both
only when the application to transfer is made. Nor need the Court
decide whether the application constitutes the movant's
submission to jurisdiction in the district to which transfer is
sought. It is clear that "suit might have been brought" in Texas,
both when the Illinois suit was brought and when the original
motion to transfer was made, and that defendant continues to be
to service in that jurisdiction. See General Portland Cement Co.
v. Perry, 7 Cir., 1953, 204 F.2d 316, 318.
Examination of the transcript of hearing on the original motion
reveals that Judge Hoffman's denial was predicated on the ground
that defendant's affidavits then before him did not clearly
demonstrate that the convenience of the parties and witnesses
would be served by a transfer. His denial of the motion was not
based on a belief that the transfer was precluded as a matter of
law. He indicated that the transfer order would be signed if
defendant were to make the necessary showing as to convenience.
Plaintiff argues that, once decided, the questions raised by
defendant's motion may not be reconsidered by the Court,
especially in view of the parties' reliance on the decision in
preparing for and trial of the cause. This Court is not bound by
a prior disposition of an interlocutory matter (see Clayton v.
Warlick, 4 Cir., 1956, 232 F.2d 699, 702; Howes Leather Co. v. La
Buy, 7 Cir., 1955, 226 F.2d 703, 704, certiorari granted
350 U.S. 964, 76 S.Ct. 439, 100 L.Ed. 837, affirmed 352 U.S. 249, 77 S.Ct.
309, 1 L.Ed.2d 290; Chicago, R.I. & P.R. Co. v. Igoe, 7 Cir.,
1954, 212 F.2d 378, 381), when it appears from later developments
that reconsideration of its action is warranted. Bowles v. Wilke,
7 Cir., 1949, 175 F.2d 35, 37, certiorari denied 338 U.S. 861, 70
S.Ct. 104, 94 L.Ed. 528; Salvant v. Louisville & N.R. Co., D.C.
W.D.Ky. 1949, 83 F. Supp. 391, 395. See, also, Trust Co. of
Chicago v. Pennsylvania R. Co., 7 Cir., 1950, 183 F.2d 640, 647,
21 A.L.R.2d 238. Cf. Atlantic Coast Line R. Co. v. Davis, 5 Cir.,
1950, 185 F.2d 766 (mistrial is no justification for retransfer
to original forum); Continental Oil Co. v. Osage Oil & Refining
Co., 10 Cir., 1934, 69 F.2d 19, 25; Basevi v. Edward O'Toole Co.,
D.C.S.D.N.Y. 1939, 26 F. Supp. 41, 43; Root v. Samuel Cupples
Envelope Co., D.C.S.D.N.Y. 1929, 36 F.2d 405, 407. And the usual
practice of a judge to adhere to the rulings of his colleague as
expressions of the law of the case must, in the interest of
justice, be subject to at least this much variation. Particularly
must this be true when the "later developments" include a clear
expression by the trial judge that the revelations at the trial
over which he presided convinced him that his original opinion
had been erroneous. We have here cogent and compelling reasons to
reconsider the action of District Judge Hoffman on the prior
motion to transfer. Mutual Life Ins. Co. of New York v. Ginsburg,
D.C.W.D.Pa. 1957, 150 F. Supp. 344; Kellogg Switchboard & Supply
Co. v. Michigan Bell Telephone Co., D.C.E.D. Mich. 1947,
71 F. Supp. 365; Basevi v. Edward O'Toole Co., Inc., supra; Bradford
v. Chase National Bank of City of New York, D.C.S.D.N.Y. 1938,
24 F. Supp. 28, affirmed sub nom. Berger v. Chase National Bank of
City of New York, 2 Cir., 1939, 105 F.2d 1001, affirmed
309 U.S. 632, 60 S.Ct. 707, 84 L.Ed. 990, rehearing denied 309 U.S. 698,
60 S.Ct. 885, 84 L.Ed. 1037; Universal Oil Products Co. v.
Standard Oil Co. of Indiana, D.C.W.D.Mo. 1934, 6 F. Supp. 37,
affirmed sub nom. German v. Universal Oil Products Co., 8 Cir.,
1935, 77 F.2d 70; Continental Baking Co. v. Woodring, D.C.D. Kan.
1931, 55 F.2d 347, affirmed 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed.
1155. Cf. Root v. Samuel Cupples Envelope Co., supra.
Since enactment of Title 28 U.S.C. § 1404(a), the United States
Supreme Court has considered a number of cases involving its
application. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93
L.Ed. 1207; Kilpatrick v. Texas & Pacific Railway Co.,
337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223; United States v. National City
Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226; Pope v.
Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed.
1094; Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed.
789. During the same period, our own Court of Appeals has stated
the criteria to be applied by district judges in exercising the
discretion conferred by the section. B. Heller & Co. v. Perry, 7
Cir., 1953, 201 F.2d 525; General Portland Cement Co. v. Perry,
supra; Dairy Industries Supply Ass'n v. La Buy, 7 Cir., 1953,
207 F.2d 554; Chicago, R.I. & P.R. Co. v. Igoe, 7 Cir., 212 F.2d 378,
supra; Chicago, R.I. & P.R. Co. v. Igoe, 7 Cir., 1955,
220 F.2d 299, certiorari denied 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735.
This Court is satisfied that there is before it "all relevant
evidence bearing upon the decisive questions of the convenience
of the parties and the witnesses"; that the circumstances of the
occurrence out of which this action arises are known only to
witnesses who reside in Texas; that "[n]o controverted questions
depend upon any event occurring in the Northern District of
Illinois"; and that "both parties must rely upon evidence of
events wholly removed from that district." B. Heller & Co. v.
Perry, supra, 201 F.2d at page 527.
The Court is also satisfied that the defendant has shown "the
necessity for the testimony of his witnesses" (General Portland
Cement Co. v. Perry, supra, 204 F.2d at page 319), most of whom
reside in Texas and none in Illinois. This finding is confirmed
by the comments of District Judge Hoffman concerning the events
at the first trial, which have been incorporated by reference in
the affidavit of defendant's counsel. The record of that trial
identifies the witnesses whom it is reasonable to conclude will
be presented in the second trial, and contains the testimony
which forms the basis for the respective positions of the parties
on questions of liability and damage.
In determining what action to take on this motion, the Court
can consider only three factors: "the convenience of the parties,
the convenience of the witnesses and the interest of justice."
The Court is also mindful of the principle that a plaintiff is
permitted the original choice of "proper forum and that the
plaintiff's choice should not lightly be set aside. Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed.
1055." Dairy Industries Supply Ass'n v. La Buy, supra, 207 F.2d
at pages 557-558. See Chicago, R.I. & P.R. Co. v. Igoe,
212 F.2d 378, at page 382, supra; 220 F.2d 299, at page 302, supra. We may
not include in the total balance the admittedly net inconvenience
which any transfer might cause to plaintiff's counsel. Chicago,
R.I. & P.R. Co. v. Igoe, 220 F.2d 299, at page 304, supra. Cf.
Scott v. New York Central R. Co., D.C.N.D.Ill. 1948, 81 F. Supp. 815,
817. In acting on the motion, the Court recognizes the
presumption existing in favor of the plaintiff, and the
correlative burden on the defendant to demonstrate that it is
entitled to the transfer. But this presumption is substantially
overcome where, as here, no event occurring in the Northern
District of Illinois is involved in the action, and plaintiff's
desire to try his cause in this forum is essentially based on
considerations which, under the statute, are irrelevant.
The Seventh Circuit, in deciding what criteria are "correct
guides" to the application of the "governing tests * * * stated
in the Act," has quoted with approval a pre-enactment Supreme
Court opinion declaring the factors to be considered in applying
the forum non conveniens doctrine:
"`[T]he relative ease of access to sources of
proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of a
view of the premises, if view would be appropriate to
the action; and all other practical problems that
make a trial of a case easy, expeditious and
inexpensive. * * * The court will weigh relative
advantages and obstacles to fair trial.' Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91
L.Ed. 1055." Chicago, R.I. & P.R. Co. v. Igoe,
212 F.2d 378, at page 382, supra.
Plaintiff asserts that it would be difficult for him to obtain a
fair trial in Texas because employees of the Chance Vought
Corporation, his employer, are there eligible for jury service.
Also, that experts on oxygen regulators in that locale are
employees of aircraft companies
and reluctant to testify. The Court is not inclined to agree that
unbiased jurors and truthful experts cannot be secured in Texas.
In its evaluation of "the convenience of parties and witnesses,
in the interest of justice," the Court has not discounted the
personal inconvenience to the plaintiff which trial in this forum
involves. By opposing the motion, plaintiff asserts that his
convenience would best be served by its denial. But an argument
of this sort does not affect the plain truth that the balance of
convenience to this plaintiff lies in favor of the district in
which he resides. General Portland Cement Co. v. Perry, supra,
204 F.2d at page 320; Chicago, R.I. & P.R. Co. v. Igoe,
220 F.2d 299, at page 303, supra. Cf. dissenting opinion of Mr. Justice
Clark in Norwood v. Kirkpatrick, supra. Both parties will find
their burdens substantially eased by trial in Texas. Certainly
the parties will be freed from the financial drain, and their
counsel from the emotional strain, necessarily involved in
securing the consent, arranging the transportation, quartering
and mediating the exigencies of their witnesses. To present one's
case on trial is difficult enough without the added worry of
conforming effective trial strategy to the desires of willing
witnesses to be heard and gone.
It is clear that, with the exception of technical experts, all
witnesses who have personal knowledge of the occurrence and the
injury are residents of Texas, subject to compulsory process
issuing from the proposed transferee court. The statute speaks of
the "interest of justice" and not the sole interest of the
litigant opposing the motion. The Court may not disregard the
inconvenience which would accrue to plaintiff's witnesses by
trial in this forum. We may not balance the inconvenience to
defendant's witnesses against an asserted but improbable
convenience to plaintiff's. See Chicago, R.I. & P.R. Co. v. Igoe,
220 F.2d 299, at page 303, supra.
The post-trial comments by District Judge Hoffman appear to
constitute convincing support for defendant's contention that the
convenience of the parties and witnesses requires a transfer.
Judge Hoffman there states, inter alia, that "[E]very witness
of importance" was from Texas (Tr. 3), that the trial took "three
and a half weeks" (Tr. 11), that the plaintiff, his wife and
their witnesses were put to large expense "to stay in a hotel for
about a month" (Tr. 7), and that the plaintiff was "done an
injustice * * * by submitting the treating surgeon's testimony in
deposition" (Tr. 7).
In its most recent opinion construing the statute, the Seventh
Circuit has considered factors which assist a determination as to
the third test, "in the interest of justice." Included is "the
state of the court calendar both in the District where the case
is pending, and in the District to which it is sought to have the
case transferred." Chicago, R.I. & P.R. Co. v. Igoe,
220 F.2d 299, at pages 303, 304, supra. Therefore, in deciding what action
to take on defendant's motion, this Court must take judicial
notice of the congested condition of its calendar, a fact which
will necessarily prevent an early trial of the cause, contrary to
the interest of justice.
The Court has examined the affidavits and briefs filed by both
parties in support of their respective contentions, and has
considered all arguments presented. It is the conclusion of this
Court that defendant has sustained its burden and has shown that
the balance of convenience to the parties and witnesses in the
interest of justice is overwhelmingly in favor of the transfer.
Unlike the circumstances in United States v. E.I. duPont
deNemours & Co., D.C.N.D.Ill. 1950, 87 F. Supp. 962, at page 965,
we are not presented with the task of resolving "niceties" for
which "resort must be had to an apothecary's scale and a crystal
ball; neither of which implements are available in this court."
We have here a case which calls for recourse to canons of
qualitative analysis and judicial construction, in the
utilization of which our courts are adept. Application
of the statutory tests in conformity with the guidance provided
by the controlling decisions requires that the motion to transfer
the cause to the United States District Court for the Northern
District of Texas, Dallas Division, be, and the same is hereby,
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