The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This motion comes on defendant's motion to transfer pursuant to
28 U.S.C. § 1404(a). The action, arising under the Federal
Employers' Liability Act, 45 U.S.C. § 51-60, involves a claim
for personal injury allegedly suffered by plaintiff while working
in defendant's railroad yard.
In support of its motion defendant asserts that litigation of
the cause would be more convenient if conducted in the Eastern
District of Kentucky at Catlettsburg, Kentucky, which is a
District wherein the suit originally could have been brought,
pursuant to 45 U.S.C. § 56, since the cause of action arose
therein. Plaintiff responds by contending that his choice of
forum should be upheld, especially since it is centrally located
with respect to the various witnesses.
Although plaintiff asserts (1) that all occurrence witnesses
reside in or near Peru, Indiana, which is considerably closer to
Chicago than to Catlettsburg, (2) that neither plaintiff's nor
defendant's medical witnesses are located within the Eastern
District of Kentucky, (3) that travel to Kentucky would present
substantial inconvenience to plaintiff's physicians in
Minneapolis, Minnesota, and (4) that defendant's medical
witnesses examined plaintiff in only a perfunctory manner, the
Court does not consider these factors to be controlling.
The Court notes that 28 U.S.C. § 1404(a) provides that
"[f]or 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."
Since convenience is given primary consideration in the statute,
this Court is of the opinion that upon a showing of substantial
inconvenience, absent persuasive reasons to retain the action, a
transfer should be granted.
While the Court agrees with plaintiff that its choice of forum
should be given great weight, Swanson v. Badger Mutual Insurance
Co., 275 F. Supp. 544 (N.D.Ill. 1967), nevertheless, the Seventh
Circuit in Chicago, Rock Island & Pacific Ry. Co. v. Igoe,
220 F.2d 299, 304 (7th Cir. 1955), quoted from Josephson v. McGuire,
121 F. Supp. 83, 84 (D.Mass. 1954), as follows:
"A large measure of deference is due to the
plaintiff's freedom to select his own forum. Yet this
factor has minimal value where none of the conduct
complained of occurred in the forum selected by the
In the instant case the conduct complained of did not occur in
this District. Furthermore, none of the witnesses is subject to
the subpoena power of this Court. Consequently, the inconvenience
of a trial in this Court, both to defendant and to the majority
of witnesses, is substantial by comparison with the asserted
inconvenience to the two physicians residing in Minneapolis.
Furthermore, the timeliness of defendant's motion and the
comparative congestion of dockets in the Northern District of
Illinois and in the Eastern District of Kentucky are not
determinative elements of the instant motion. Sypert v. Bendix
Aviation Corp., 172 F. Supp. 480 (N.D. Ill. 1958), mandamus denied
sub nom., 266 F.2d 196 (7th Cir. 1959), cert. denied,
361 U.S. 832, 80 S.Ct. 82, 4 L.Ed.2d 74 (1959); Peyser v. General Motors
Corp., 158 F. Supp. 526 (S.D.N.Y. 1958).
Accordingly, it is hereby ordered that for the convenience of
the parties and witnesses, and in the interests of justice, this
cause be transferred to the United States District Court for the
Eastern District of Kentucky at Catlettsburg, Kentucky, where it
might have been brought.
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