Bishop v. C & P Trucking Co., Inc.

• Decision Date: 20 December 1993
• Docket Number: Civ. A. No. 92-AR-1798-M.
• Court: U.S. District Court — Northern District of Alabama
• Parties: Guy H. BISHOP, Plaintiff, v. C & P TRUCKING COMPANY, INC., et al., Defendants.

840 F. Supp. 118

Guy H. BISHOP, Plaintiff, v. C & P TRUCKING COMPANY, INC., et al., Defendants.

Civ. A. No. 92-AR-1798-M.

United States District Court, N.D. Alabama, M.D.

December 20, 1993.

Clarence F. Rhea, Rhea Boyd & Rhea, Gadsden, AL, for plaintiff.

James E. Turnbach, Turnbach & Warren, PC, Gadsden, AL, for defendants.

MEMORANDUM OPINION

ACKER, District Judge.

The court notes the following procedural facts in the above-entitled cause:

1. On March 30, 1993, the court granted the motion of plaintiff, Guy H. Bishop, without any objection by defendants, to change the venue of the case from the Eastern Division, where it was filed, to the Middle Division of the Northern District of Alabama. This was, in reality, no more than a change of the place of trial.

2. On April 2, 1993, after a final pre-trial conference, the court entered its pre-trial order.

3. On May 6, 1993, the court denied cross-motions for summary judgment.

4. On August 12, 1993, the court ordered the parties to "notify the court of their willingness or of their unwillingness to try their case in Birmingham."

5. On August 26, 1993, defendants, who had not objected to a trial in the Eastern Division in Anniston, 30 miles away from Gadsden, notified the court of their unwillingness, for reasons of alleged inconvenience and expense, to try the case in Birmingham, insisting that the trial be held in the Middle Division in Gadsden, Alabama.

6. On September 10, 1993, plaintiff notified the court that he was willing to try the case in Birmingham and moved to strike defendants' objection to trial in Birmingham.

7. On December 1, 1993, the Eleventh Circuit docketed In Re: Guy H. Bishop, Court of Appeals No. 93-6960, a petition filed by plaintiff for a writ of mandamus seeking, inter alia, a solution to the above-outlined problem that will prevent defendants from exercising "an option that will insure a trial delay of two years."

The court DEEMS the papers filed by plaintiff, under the overall circumstances, as a motion by plaintiff to move the trial of the case to Birmingham.

The court takes judicial notice of the facts that security is virtually non-existent at the federal courthouse in Gadsden, Alabama; that there is no law library whatsoever in the federal courthouse in Gadsden, Alabama, whereas there are both excellent security and an excellent law library at the federal courthouse in Birmingham, Alabama, where this judge has his chambers; and that there is a four-lane interstate highway connecting Gadsden, Alabama, with Birmingham, Alabama.

When 28 U.S.C. § 1393 was repealed effective February 17, 1989 by Public Law 100-702, the concept of divisional venue disappeared. Plaintiff Bishop filed his original complaint in the Eastern Division without objection. Absent a requirement of divisional venue, he could just as easily have filed his complaint in the Southern Division. If he had done so, the trial location in Birmingham would not only have been appropriate but would have been unassailable.

The legislative history which preceded Public Law 100-702 includes the following Congressional rationale:

The former requirement for venue within the division operated in an irrational fashion ... there was often undue delay ... the change in division venue for criminal cases has not resulted in adverse consequences to the litigants or to the fair and expeditious administration of justice. Accordingly, the Conference Judicial Conference approved the recommendation to eliminate divisional venue for civil cases as well.

1988 U.S.C.C.A.N. 5982, 6027. This is no more than an echo of the impetus provided by Professors Wright and Miller as follows:

In creating judicial districts Congress has provided that many, but far from all, of them are subdivided into divisions. In addition, some districts that have not been divided by C

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