Before SCHNACKENBERG, CASTLE and MAJOR, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
On June 27, 1962 we filed an opinion and entered an order denying the petition of The Chesapeake & Ohio Railway Company, a Virginia corporation, praying for a writ of mandamus to compel the Honorable James B. Parsons, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, named as respondent, to transfer, pursuant to the provisions of 28 U.S.C.A. § 1404(a),*fn1 a cause entitled Jack J. Fibrun*fn2 v. The Chesapeake & Ohio Railway Company, Civil No. 61 C 1174, from that court to the United States District Court for the Western District of Michigan, Southern Division, sitting at Grand Rapids, Michigan.
Upon petition for rehearing, we have ordered said opinion withdrawn and all orders entered pursuant thereto vacated and set aside.
A rule having been issued directing the respondent to show cause why a writ should not issue, the matter is now before us for consideration on the petition for a writ of mandamus, the respondent's answer thereto, including the exhibits attached to each, and the briefs and arguments of the respective parties, as well as the petition for rehearing and respondent's answer thereto, from all of which the following controlling facts appear:
Filbrun's action against the petitioner railroad is a Federal Employers' Liability Act action for injuries alleged to have been received in a fall from a box car caused by a sudden release of a handbrake he was operating. Prior to its commencement in the District Court a substantially identical action filed by Filbrun against the petitioner in the Circuit Court of Cook County, Illinois was dismissed on the railroad's motion on the ground that the Circuit Court of Cook County "is an inconvenient and inappropriate forum". Filbrun did not appeal that determination. Instead he filed the United States District Court action and petitioner's motion for its transfer to the Western District of Michigan, Southern Division, pursuant to 28 U.S.C.A. § 1404(a) was denied by respondent.
Plaintiff selected the Circuit Court of Cook County, Illinois, in which to first file his personal injury suit against petitioner railroad, based on alleged injuries sustained by him at Ludington, Mason County, Michigan, which is about 60 miles from Grand Rapids, where a United States District Court sits. Respondent is a judge of the United States District Court which sits in Chicago, in Cook County, Illinois.
The jurisdiction of the district courts in federal employers' liability cases is concurrent with that of the state courts. 45 U.S.C.A. § 56.
On motion of defendant (petitioner here), the state court dismissed plaintiff's action on the ground that the Circuit Court of Cook County, Illinois, is an inconvenient and inappropriate forum. It also denied plaintiff's motion for reconsideration of its action. Plaintiff took no appeal from either order. Instead, plaintiff's suit on the same cause of action was filed in the same city and county of Illinois but in the United States District Court.
The dismissal in the Illinois state court was based upon the doctrine of forum non conveniens. Respondent was required by 28 U.S.C.A. § 1738 to give full faith and credit to the order entered by the state court. Wayside Transportation Co. v. Marcell's Motor Express, Inc; 1 Cir., 284 F.2d 868, 870. This is especially true because it is a court of concurrent jurisdiction in administering the Federal Employers' Liability Act, as provided in that act, supra. Certainly if plaintiff had refiled his action in any state court in Cook County, it would have been dismissed on the basis of the Circuit Court's dismissal.
In applying the doctrine of forum non conveniens, the state court, pursuant to Illinois law, applied all of the tests set forth in 28 U.S.C.A. § 1404(a), which are (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interest of justice. In applying that doctrine the state court was required additionally to determine whether plaintiff's selection of that court was dictated by a desire to vex and harass the petitioner. Cotton v. L. & N. R.R. Co., 14 Ill.2d 144, 166, 152 N.E.2d 385, 396. While it made that additional finding, that fact is immaterial here because the district court did not have to wrestle with that question. Plaintiff was, however, bound by the doctrine of estoppel by verdict,*fn3 because, on all of the other tests applied by the state court, its decision was adverse to plaintiff. These matters were again raised before the district court under § 1404(a). Confronted by a final decision thereon by a court of concurrent jurisdiction, the district court had no discretion but to recognize the authoritative value of the state court's ruling, made in a case commenced there by plaintiff.
These reasons are sufficient upon which to grant the issuance of the writ requested. The transfer of this case to the federal district court 60 miles from plaintiff's home and the scene of his accident, and where many of the witnesses are available to both litigants, all combine to establish that justice would there be accomplished.
The writ of mandamus will issue ...