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UNGRUND v. CUNNINGHAM BROTHERS

June 16, 1969

EDWARD R. UNGRUND, PLAINTIFF,
v.
CUNNINGHAM BROTHERS, INC., A CORPORATION, AND MOORE BUSINESS FORMS, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Robert D. Morgan, District Judge.

OPINION AND ORDER

This cause comes before the Court on defendant's motion for change of venue under Section 1404(a) of Title 28 of the United States Code.

Section 1404(a) provides:

  "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."

This litigation began in the Circuit Court of Peoria County, Illinois, and was removed, based upon diversity of citizenship, to this Court April 28, 1969. The plaintiff and five others were employed in a construction project at Charleston, Coles County, Illinois. The complaint alleges that in furtherance of the project the defendants, Cunningham Brothers, Inc. and Moore Business Forms, Inc., caused a steel roof to be erected on an addition to defendant Moore's building and placed planks thereon; that a scaffold was erected upon the steel set by defendant for the purpose of completing masonry work, and thereafter, on May 16, 1967, the scaffold collapsed, resulting in injuries to the plaintiff and five of his co-workers. It is further alleged that such injuries were the proximate result of the violation of the Structural Work Act of Illinois, Sections 60-69, Chapter 48, Illinois Revised Statutes of 1965. Four of the workmen involved filed separate actions in various jurisdictions against the two defendants named herein. Two of these actions, Katz v. Cunningham Bros. and Bail v. Cunningham Bros., have been consolidated for trial and are now pending in the United States District Court for the Eastern District of Illinois at Danville, Illinois.

The important issue of law on this motion is whether the facts establish that, for the convenience of the litigants and witnesses and in the interest of justice, another forum should be the place of trial, notwithstanding the plaintiff's choice of this forum for the resolution of his cause of action.

In reaching this determination, this Court first considered what standard was proper for the application of Section 1404(a).

It should be noted that the statutory motion under Section 1404(a) must be distinguished from the common law rule of forum non conveniens. Under that common law rule, a determination that another forum was more appropriate for trial resulted in dismissal. The prospects of defeating a plaintiff's claim by use of this procedural device caused a heavy burden to be placed upon the movant in that clear and impelling reasons for granting the motion were required. Contradistinctively, the granting of a change of venue under Section 1404(a) results only in a change in the place of further proceedings in the case. Because such transfer is a much less drastic step, courts may allow a motion under Section 1404(a) more freely and with less showing than was required to dismiss under forum non conveniens. Mobil Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611 (3d Cir. 1966); cert. denied, 385 U.S. 945, 87 S.Ct. 318, 17 L.Ed.2d 225 (1966).

Plaintiff argues that the right to choose the forum in which to litigate his cause of action should not be lightly disturbed. This Court is fully in accord. In Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), the Supreme Court stated at page 635, 84 S.Ct. at page 819 that:

  "* * * § 1404(a) was not designed to narrow the
  plaintiff's venue privilege or to defeat the
  state-law advantages * * * rather the provision was
  simply to counteract the inconveniences that flowed
  from the venue statutes by permitting transfer to a
  convenient federal court."

The Supreme Court in Van Dusen, however, recognized a liberalized policy for granting transfer when it stated (376 U.S. at 616, 84 S.Ct. at 809) that:

  "Section 1404(a) reflects an increased desire to
  have federal civil suits tried in the federal
  system at the place called for in the particular
  case by considerations of convenience and
  justice. Thus, as the Court recognized in
  Continental Grain Co. v. Barge FBL-585,
  364 U.S. 19, 26, 27, 80 S.Ct. 1470, 1474, 4 L.Ed.2d 1540,
  the purpose of the section is to prevent the
  waste `of time, energy and money' and `to protect
  litigants, witnesses and the public against
  unnecessary inconvenience and expense.'"

What then are the criteria to be used to determine whether this cause should be transferred? Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) was decided prior to the passage of Section 1404(a), but the criteria established in that case have been cited with approval after the passage of the Judicial Code of 1948 by the Court of Appeals for the Seventh Circuit. Chicago, R.I. & P.R. Co. v. Igoe, 212 F.2d 378 (7th Cir. 1954); cert. denied, 350 U.S. 822, ...


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