Alabama Great Southern R. Co. v. Allied Chemical Co.

• Decision Date: 15 April 1970
• Docket Number: Civ. A. No. 155-69.
• Citation: 312 F. Supp. 3
• Court: U.S. District Court — Eastern District of Virginia
• Parties: ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. ALLIED CHEMICAL COMPANY et al.

312 F. Supp. 3

ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. ALLIED CHEMICAL COMPANY et al.

Civ. A. No. 155-69.

United States District Court, E. D. Virginia, Richmond Division.

April 15, 1970.

Lewis T. Booker, Richmond, Va., for plaintiff.

Edward A. Marks, Jr., Richmond, Va., Sherwood W. Wise, Jackson, Miss., for defendant, Allied Chemical Co.

Ernest G. Garrett, Jr., Richmond, Va., Wm. F. Goodman, Jr., Jackson, Miss., for defendant Armco Steel Corp.

Edward A. Marks, Jr., Richmond, Va., for defendant, First Union.

James W. Morris, III, Richmond, Va., for defendant, General American.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, Alabama Great Southern Railroad Company (hereinafter referred to as AGS) has brought an action in this Court for damages alleged to have been sustained as the result of a derailment of one of its trains in Laurel, Mississippi, on January 25, 1969, jurisdiction being predicated on diversity of citizenship, 28 U.S.C. § 1332(a). Subsequent to the filing of the complaint, the instant issues to which the Court addresses itself came on for attention in the form of pre-trial motions filed on behalf of the corporate defendants.

Defendants First Union Properties, Inc. (hereinafter referred to as First Union) and General American Transportation Corporation (hereinafter referred to as GATX) have moved to quash service of process, contending that the Court cannot acquire in personam jurisdiction as to them because allegedly they are not doing business in this district, and that in any event venue is improper in this district.

Defendants Allied Chemical Company (hereinafter referred to as Allied) and Armco Steel Corporation (hereinafter referred to as Armco) have moved the Court to dismiss the action for improper venue or, alternatively, to transfer this action to the United States District Court for the Southern District of Mississippi as a more convenient forum pursuant to 28 U.S.C. § 1404(a).

In the event defendants First Union and GATX fail in their motion to quash service in this Court, they have joined with Allied and Armco in the motion for transfer.

Plaintiff seeks relief on several bases: one, for direct injury to itself flowing from the derailment; two, reimbursements for settlements entered into by the plaintiff with innocent third parties; and, finally, a decree establishing liability, in order that defendants be required to assume the responsibility for actions now pending against AGS by third parties and actions which AGS anticipates will be forthcoming in the future.

AGS predicates the liability of the defendants on theories of negligence, defective design, manufacture and inspection, and breach of warranty.

Allied and Armco bring their "Motion for Transfer" pursuant to the procedural means by which a district court is permitted to transfer civil actions to a different forum if it be "For the convenience of parties and witnesses, in the interest of justice," and the transferee forum is a district or division "where it might have been brought." 28 U.S.C. § 1404(a).

In opposing the transfer motion, AGS contends that the requested transferee forum is not one in which the action "might have been brought." Aside from the equitable considerations to be hereinafter discussed, the United States Supreme Court in Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), held that the transferee forum must be one in which service of process could have been effectuated and federal venue would have been proper had the suit been initially instituted in that forum. See also, Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).

If these initial prerequisites are not met, the transferor court is without power to transfer the action, regardless of equitable reasons adequate to facilitate such transfer. See Goranson v. Capital Airlines, Inc., 221 F.Supp. 820 (E.D.Va.1963).

Defendants advance alternative theories alleged to be sufficient to render defendants amenable to service of process.

Pursuant to Code Miss.1942 § 2729 et seq.,

The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any non-resident, absent or absconding debtor, who has lands and tenaments within this state, * * * who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance. Code Miss. 1942 § 2729.

In 1963, Rule 4 of the Federal Rules of Civil Procedure was amended to allow "for service upon or notice to a party not inhabitant of or found within the state to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule." Fed. Rules Civ.Proc. rule 4(e), 28 U.S.C.

Movants argue that First Union and GATX would be amenable to suit under this provision inasmuch as both defendants own rolling stock which is located in Mississippi and therefore subject to attachment proceedings under the statute. Plaintiff, on the other hand, argues that it would be forced to proceed to Mississippi to search for and attach the rolling stock, with no assurance that any stock could be found though a diligent search be made. While the Court agrees with plaintiff that the statutory provision is inadequate for purposes of effectuating a transfer pursuant to 28 U.S.C. § 1404(a), it does so for a different reason.

The statute upon which defendants rely "provides for primarily a suit in rem * * *. It is only in cases where personal summons has been served upon the defendant in the state, or where it has entered an appearance, that a personal judgment can be rendered against it." Clark v. Louisville & Nashville Railroad Co., 158 Miss. 287, 130 So. 302, 306 (1930).

While possibly true that First Union and GATX may have had rolling stock located in Mississippi subject to attachment under this provision at the time the suit was instituted in this Court, to require plaintiff to bring such an action would have destroyed the theory upon which he chose to rely — specifically, he seeks an in personam judgment and not a judgment in rem. Indeed, considering the scope of the action, if AGS is successful against either or both defendants, it is unlikely that such property would adequately compensate the injuries sustained. Nor is it persuasive that as a practical matter First Union and GATX, once having their properties subjected to attachment, would come in to defend the same, thereby rendering themselves amenable to personal service. Suffice it to say that such speculation is not allowed by the transfer statute. Consequently, the action brought in this Court, seeking personal judgment against all defendants, was not one which could have been brought in the Southern District of Mississippi as would otherwise be provided by the Mississippi attachment statute.

Moreover, the rigidity of the rule will not allow the transfer of a case even though the defendant consents to waiver of venue and personal jurisdiction. As succinctly pointed out by the Court in Hoffman v. Blaski, supra, if such "thesis" were adopted, a finding of convenience would allow a District Court to transfer a case at the whim of a defendant, but would discriminatorily restrict that privilege in the case of a moving plaintiff who could not obtain the consent of an unwilling defendant. In the instant case, the injustices may have a greater effect. While the state procedure may be utilized by both parties, thereby reducing the discriminatory effect, the plaintiff's case could be altered, seriously constraining the relief sought. In this regard the movants have not established the worth of First Union or GATX's property located in Mississippi at the time the action was filed. Therefore, allowing the transfer under this statute would effectuate a change in the "civil action" which plaintiff has brought and controvert the proper application of 28 U.S.C. § 1404 (a). See Van Dusen v. Barrack, supra; Continental Grain Co. v. The Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960); Hoffman v. Blaski, supra.

Movants urge alternative grounds, however, which they assert would satisfy the "where it might have been brought" requirement of § 1404(a). It is contended the First Union and GATX would have been amenable to in personam jurisdiction under the Mississippi "long-arm" statute.¹

Single-act provisions find their genesis in the line of cases touched off by the Supreme Court's decision in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).² Particular impetus for their passage flowed from McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).³

Realizing the change in jurisdictional philosophy, the states reacted by passing procedural statutes to effectuate service of process on non-resident defendants. Further, a plaintiff seeking to have his claim adjudicated in a federal forum may, pursuant to Fed.Rules Civ.Proc. rule 4(d) (7), 28 U.S.C.A., avail himself of the state service of process statutes to render the nonresident defendant amenable to in personam jurisdiction in the federal court.

While, then, there seems to be an abundance of "long-arm" statutes being passed, the requisite contacts must exist in order that the guidelines espoused in International Shoe be satisfied.

The railroad car alleged to have been deficient, thereby causing the resulting injury, was owned by First Union and leased to Allied at the time of the mishap. The initial purchase of the...