Patterson v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

• Decision Date: 28 March 1960
• Docket Number: No. IP 59-C-307.,IP 59-C-307.
• Citation: 182 F. Supp. 95
• Court: U.S. District Court — Southern District of Indiana
• Parties: Aaron H. PATTERSON v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Corporation.

182 F. Supp. 95

Aaron H. PATTERSON v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Corporation.

No. IP 59-C-307.

United States District Court S. D. Indiana, Indianapolis Division.

March 28, 1960.

Arthur L. Payne (of Lewis, Weiland, Payne & Carvey), Indianapolis, Ind., for plaintiff.

William T. Fitzgerald, Evansville, Ind., for Louisville & N. R. Co.

STECKLER, Chief Judge.

Plaintiff, a resident of Louisville, Kentucky, brought this action under the Federal Employers' Liability Act (45 U.S. C.A. § 51 et seq.).

Pursuant to 28 U.S.C. § 1404(a), defendant filed motion for a change of venue to the United States District Court, Western District of Kentucky, on the ground of convenience of the parties and witnesses, and in the interest of justice. Plaintiff opposes.

In support of its motion, defendant, by way of affidavit of its general attorney, states substantially the following:

The action is for personal injuries sustained by plaintiff while employed in defendant's railroad shops in Louisville, Kentucky, on July 15, 1959; defendant's claim agents have filed all the accident reports with him at his Louisville office; plaintiff's complaint alleges he is a resident of Louisville, Kentucky; defendant is a Kentucky corporation with its principal place of business in Louisville; plaintiff's complaint alleges the accident occurred in defendant's car repair shops at Louisville; that there are twelve witnesses — employees of the defendant, whose presence and testimony is essential to the defense of this action (their names are set forth); ten of such witnesses live in Louisville; two reside in Shepherdsville, Kentucky, approximately twenty-one miles south of Louisville; one resides in New Albany, Indiana, and another in Jeffersonville, Indiana, just across the river from Louisville; that plaintiff was hospitalized in Louisville and was treated by seven doctors whose names are set out, all with offices in Louisville; the testimony of the lay witnesses, the testimony of the named doctors, and the production of hospital and other medical records can be obtained only by subpoena; that all the witnesses to be called by defendant reside in Louisville, Kentucky, or within a few miles thereof; the distance between Indianapolis, Indiana, and Louisville, Kentucky, is approximately 115 miles; that legal process from the United States District Court, Southern District of Indiana (Indianapolis Division), does not extend to Louisville or Shepherdsville, Kentucky; trial of this cause in the Southern District of Indiana would effectively deprive defendant of process to compel the attendance of witnesses; the defendant's defense cannot be appropriately presented by depositions; that all witnesses either party expects to call are within the range of legal process of the United States District Court sitting at Louisville; any witnesses to be called by plaintiff on any disputed issue are necessarily resident in or near Louisville; that there will be no facts to be proved by plaintiff or by the defendant by witnesses residing in the Indianapolis Division of the United States District Court, Southern District of Indiana; the minimum loss of time for each witness attending the trial in the Southern District of Indiana would be three to five days, and the expense for transportation, maintenance, and loss of time for witnesses attending trial, would aggregate many thousands of dollars; a jury in the court in the Western District of Kentucky will have the opportunity of viewing the premises where the accident occurred; because of the above facts, defendant cannot adequately present its defense in the District Court for the Southern District of Indiana; that there will be no delay of trial in the Western District of Kentucky as evidenced by the letter of the chief judge of that district; that the burden of a jury trial will not be imposed upon the Southern District of Indiana if this cause is tried in the Western District of Kentucky; that the forum in the Western District of Kentucky at Louisville would be the most convenient one for the necessary and proper witnesses to attend and for the plaintiff and defendant to attend; a trial in that forum would incur the least cost and produce the greater savings in time to all concerned; the action could have been brought in the Western District of Kentucky; and that a transfer will be agreeable to 28 U.S.C. § 1404 for the convenience of the parties, witnesses, and in the interest of justice.

Plaintiff counters by way of affidavit of his counsel, and, in so far as pertinent, states substantially:

That plaintiff is a resident of the City of Louisville, Kentucky, and was employed by defendant at the time of his accident; defendant has entered appearance, filed its defense and closed the issues in this court, and this court has jurisdiction to try the case; all lay witnesses listed by defendant are employees of defendant and subject to its control, and if called by defendant their attendance at the trial at Indianapolis could be controlled by defendant; plaintiff has given notice of the taking of depositions in Louisville, Kentucky of the following witnesses who may be cross-examined by defendant's counsel: James Shaw, John Durham, Robert Williams, Sam Gillian, George Dewey Roberts, Herbert Moran, Theodore R. Reynolds, Sister M. O'Merita, all of Louisville, Kentucky; Leo Kiess, New Albany, Indiana, and Leonard Williams and E. H. Carrier of Shepherdsville, Kentucky; that one of the witnesses, Leo Kiess of New Albany, who can testify as to the manner in which the accident occurred and who will be called by the plaintiff lives in the Southern District of Indiana and is subject to process of this court; that all of the doctors who treated plaintiff and who are listed in defendant's affidavit, have been employed by defendant and have been reporting plaintiff's condition to defendant and are being paid by plaintiff through defendant under a policy of insurance which plaintiff carries for his benefit; that so far as it would appear to the doctors they have been employed and are being paid by defendant; for that reason, plaintiff will call the two orthopedic surgeons from Indianapolis who are named in the affidavit, neither of whom is subject to subpoena from the District Court in the Western District of Kentucky, and it would be more convenient and less expensive to plaintiff if the case were tried in Indianapolis; defendant is a large corporation, a resident of Louisville, and asserts a great influence on the commercial, industrial, economic and social life of the Western District of Kentucky; that the jury would be drawn from that district if the case should be tried there; that in the interest of justice plaintiff is entitled to have the matter heard in a proper place where neither plaintiff nor defendant is known, and the possibility of influence as to a jury would be absent; Indianapolis is only 110 miles from Louisville and has excellent air, rail and highway facilities; to make a trip from Louisville to Indianapolis it would require by air, forty-five minutes, by automobile, approximately three hours, and by train, approximately four hours; all lay witnesses and employees of defendant are entitled to free transportation; transfer of this cause would cause employment of additional counsel for plaintiff and greatly increase the legal expense in this case; that with respect to the opportunity of the jury viewing the premises if the case is tried in Louisville, plaintiff will prepare photographs and drawings of the general area and place of the accident to acquaint the jury; that plaintiff believes the proof will be largely as to the manner in which defendant operated, and not the place in which it operated; finally,...