153 F.2d 883 (2nd Cir. 1946), 167, Gilbert v. Gulf Oil Corp.

Docket Nº:167.
Citation:153 F.2d 883
Case Date:February 04, 1946
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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153 F.2d 883 (2nd Cir. 1946)




No. 167.

United States Court of Appeals, Second Circuit.

February 4, 1946

Max J. Gwertzman, of New York City, for plaintiff-appellant.

Matthew S. Gibson, of New York City (Archie D. Gray, of Houston, Tex., and

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Fred J. Locker, of New York City, on the brief), for defendant-appellee.

Before, AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

In this action plaintiff, resident in Virginia, sued defendant, a Pennsylvania corporation doing business in New York, for damages for the destruction of his Lynchburg warehouse and contents through an explosion of gasoline and resulting fire claimed to have been occasioned through defendant's negligence. Defendant by motion raised issues as to the venue of the action and the convenience of the forum, asserting that the witnesses were located at or near the scene of the destructive fire. The District Court found the venue proper, but accepted the view that the court should refuse jurisdiction, citing and relying on New York state precedents. 62 F.Supp. 291. This appeal is prosecuted from the resulting dismissal of the action.

The District Court is clearly correct in holding venue proper. Since it appears that defendant had filed certificates for the doing of business with both the states of New York and Virginia, the combined operation of 28 U.S.C.A § 112 and Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, makes it clear that suit was proper in federal courts in either Virginia or Pennsylvania or New York. And while plaintiff questions whether defendant is carrying on business in the Western District of Virginia, wherein Lynchburg is located, it is clear that service runs throughout the state, and thus to the Secretary of the Commonwealth, defendant's statutory agent for service, in the Eastern District at Richmond. Federal Rules of Civil Procedure, rule 4(f), 28 U.S.C.A. following section 723c, upheld in Mississippi Pub. Corp. v. Murphree, 66 S.Ct. 242.

The question therefore turns upon the applicability of the doctrine of forum non conveniens under the circumstances here disclosed. That doctrine has a recognized ambit in both federal and local law to prevent the exercise abroad of supervision over the 'internal affairs' of a corporation. Rogers v. Guaranty Trust Co. of New York, 288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R. 720; Cohen v. American Window Glass Co., 2 Cir., 126 F.2d 111; Weiss v. Routh, 2 Cir., 149 F.2d 193, 159 A.L.R. 658, discussing New York cases; Langfelder v. Universal Laboratories, 293 N.Y. 200, 56 N.E.2d 550, 155 A.L.R. 1226. But even there the tendency is to limit it, and it has been confined to cases of relief which calls for 'such detailed and continuing supervision that the matter could be more efficiently handled nearer home.' Williams v. Green Bay & Western R. Co., 66 S.Ct. 284, 287, and See Frank, J., dissenting below, 2 Cir., 147 F.2d 777, 779. Here, however, we have the question of the application of the doctrine to an ordinary tort claim. The discussion in the Williams case appear to be directed to the single instance of supervision of a corporation; as we read the opinion, we See nothing in it authorizing the broad expansion of the doctrine throughout the field of torts. Certainly the whole tenor of the opinion is restrictive of the doctrine's application. Thus there is stressed its applicability only where maintenance of suit away from the defendant's domicile is 'vexations or oppressive, ' and it is said: 'But where in this type of litigation only a money judgment is sought, the case normally is different. The fact that the claim involves complicated affairs of a foreign corporation is not alone a sufficient reason for a federal court to decline to decide it.' Concluding that each case 'turns on its facts, ' the court reverses the exercise by the lower courts of discretion in refusing jurisdiction. D.C.S.D.N.Y., 59 F.Supp. 98, and 2 Cir., 147 F.2d 777.

It is true, as the District Court held, that the refusal of jurisdiction over tort claims between nonresidents has been extensively developed in the New York courts, much more so than in the federal system, so that jurisdiction may be refused to claimants under the Federal Employers' Liability Act, 45 U.S.C.A.§ 51 et seq., equally with other foreign claimants, Murnan v. Wabash R. Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747, even though the litigant's choice in the federal courts is held absolute under the statute. Baltimore & O. R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222. Though the rule is stated broadly as though applicable to all tort claims, it Seems in practice restricted to claims for personal injury and wrongful death; at least we have been cited to, and have

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found, no other cases. It clearly does not apply to contract claims, 1 and is said not to apply to cases of a commercial or property nature, 2 sot that commentators have expressed doubt of its wider applicability. 3 Moreover, the acceptance of jurisdiction even in personal injury cases Seems not unusual by the trial courts, and quite accept able to the appellate courts. 4 Thus, there is a...

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