324 F.2d 295 (5th Cir. 1963), 19819, Koehring Co. v. Hyde Const. Co.

Docket Nº:19819.
Citation:324 F.2d 295
Party Name:KOEHRING COMPANY et al., Appellants, v. HYDE CONSTRUCTION COMPANY, Inc., Appellee.
Case Date:September 19, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 295

324 F.2d 295 (5th Cir. 1963)

KOEHRING COMPANY et al., Appellants,



No. 19819.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1963

Rehearing Denied Feb. 5, 1964.

Roger C. Landrum, George H. Butler, Jackson, Miss., William A. Denny, Milwaukee, Wis., for appellants.

John F. Friedl, Milwaukee, Wis., Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., of counsel.

Vardaman S. Dunn, Jackson, Miss., Cox, Dunn & Clark, Jackson, Miss., of counsel, for appellee.

Before CAMERON, BROWN, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This case concerns the transfer of a cause to another district, under 28 U.S.C.A. § 1404(a).

Hyde Construction Company, a Mississippi company, brought suit in a federal district court in Mississippi against Koehring Company, a Wisconsin corporation, and C. S. Johnson Company, a division of Koehring. Hyde alleged that Koehring agreed to construct a concrete cooling and mixing plant at the job site of a spillway at Keystone Dam on the Arkansas River in Oklahoma, and that the plant, as built, did not meet the

Page 296

minimum operational standards agreed on in the contract between the parties. Koehring moved to dismiss on the ground that the court lacked jurisdiction since it was not 'doing business' in Mississippi within the meaning of that state's statutes. Alternatively, it asked the district judge to transfer the cause to the Northern District Of Oklahoma, where the alleged breach of contract took place and where its own action against the plaintiff was then pending. The trial judge denied both motions.

We do not reach the jurisdictional question for we hold that the case should be transferred under 28 U.S.C.A. § 1404 (a) to the Northern District of Oklahoma.


Section 1404(a), Title 28 U.S.C.A., states the criteria to be considered in a motion for change of venue:

'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.'

These criteria have been spelled out in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. In that case the Supreme Court said:

'Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. * * *'

Advantage and convenience to the litigants themselves are not the only important considerations, however. The Supreme Court went on to point out that

'Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided...

To continue reading