185 F.2d 766 (5th Cir. 1950), 13345, Atlantic Coast Line R. Co. v. Davis

Docket Nº:13345, 13346.
Citation:185 F.2d 766
Case Date:November 16, 1950
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 766

185 F.2d 766 (5th Cir. 1950)





Nos. 13345, 13346.

United States Court of Appeals, Fifth Circuit.

Nov. 16, 1950

Rehearing Denied (No. 13346) Dec. 27, 1950.

Page 767

Charles Cook Howell, Jr., Wm. M. Howell, Jacksonville, Fla., Charles Cook Howell, Wilmington, N.C., for appellant.

Evan T. Evans, Jacksonville, Fla., Herbert S. Ogden, Chicago, Ill., for appellee.

Before McCORD, BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

We have for consideration both an appeal and an application for the issuance of the writ of mandamus both of which seek, in substance to have set aside an order of the District Court for the Southern District of Florida directing the transfer of the case of Flora Davis, Administratrix of the Estate of Calvin Davis, deceased, against the Atlantic Coast Line Railroad Company to the United States District Court for the Southern District of New York.

The facts underlying both of these proceedings are as follows: Flora Davis, as Administratrix aforesaid, instituted in the United States District Court for the Southern District of New York, a suit based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and against the railroad company seeking recovery for the death of her husband while he was in its employ. The Southern District of New York was a permissible venue for the suit. The administratrix, as was her decedent, is a resident of the Southern District of Florida. It was there that the fatal injuries were suffered as the result of the alleged negligence of the railway employer of the decedent, and it was likewise there, or nearby, where all of the witnesses resided. Upon a proper motion made by the defendant to the New York Court in which the proceeding was pending, Judge Bondy, relying upon the ruling in Pascarella v. New York Central R. Co., 1 was of the opinion that the plaintiff might have an unqualified right to try this action in his Court (because arising under the Federal Employers' Liability Act), but concluded that even if the Court had power to transfer the action, the Court in its discretion would deny 'the motion in the interest of justice, assuring a speedy final determination of the case.' Following the decision in Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207, the defendant-movant for transfer renewed

Page 768

the motion by an application for a reargument and for an order granting the defendant's motion to transfer the action to the Southern District of Florida. Thereafter upon consideration of Ex parte Collett, supra, 'and of the fact that the trial in this district would impose serious inconvenience on the defendant and witnesses, and that the condition of the calendar of this Court makes it likely that this action would be reached for trial sooner in the United States District Court for the Southern District of Florida, ' the Court granted the motion to transfer and by an order set aside the former order and directed that the cause be transferred to the Southern District of Florida. This was done on September 23, 1949. The case was accordingly transferred and trial begun in the Florida Court on March 10, 1950. The jury failed to reach a verdict and an order was entered declaring a mistrial. The case was again tried beginning June 22, 1950, and again the jury failed to reach a verdict and an order declaring a mistrial was entered. Immediately upon entry of the declaration of the second mistrial, counsel for the plaintiff orally moved the Court for a retransfer of the cause back to New York. 2 This motion was opposed by the defendant. The Court took the matter under advisement and thereafter, reciting in substance what is stated above, and declaring it to be 'in the discretion of this Court and in the interest of justice and pursuant to the provisions of said Section (1404(a))' granted the motion and ordered the cause to be transferred to the District Court of the Southern District of New York. The defendant has entered an appeal from this order in pursuance of which an order superseding the transfer has been granted by the trial Court. The defendant also filed an application for and secured leave to file in this Court an application for the writ of mandamus to require the Court and the Judge thereof who presided in the cause to vacate and set aside the order of transfer. In his answer to the order to show cause, the Honorable District...

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