Brown v. Insurograph

• Decision Date: 27 July 1949
• Docket Number: Civ. A. No. 1204.
• Citation: 85 F. Supp. 328
• Parties: BROWN et al. v. INSUROGRAPH, Inc.
• Court: U.S. District Court — District of Delaware

85 F. Supp. 328

BROWN et al. v. INSUROGRAPH, Inc.

Civ. A. No. 1204.

United States District Court D. Delaware.

July 27, 1949.

Alexander L. Nichols (Morris, Steel, Nichols & Arsht), of Wilmington, Del., E. B. Whitcomb, of Toledo, Ohio, and John C. Blair (Blair & Black), of New York City, for plaintiffs.

William H. Foulk, of Wilmington, Del., and Henry L. Jennings of Birmingham, Ala., for defendant.

RODNEY, District Judge.

This is a motion to transfer the present action from the District of Delaware to the Southern Division of the Northern District of Alabama, where the court is held in Birmingham, Alabama. The motion is made under 28 U.S.C.A. § 1404(a).

The original plaintiff is a citizen and resident of the State of Ohio. An intervening plaintiff, Goal Insuraide Machines, Incorporated, is a corporation organized and existing under the laws of the State of Texas and having its principal place of business at Houston, Texas. The defendant is a corporation organized and existing under the laws of the State of Delaware, having its principal place of business at Birmingham, Alabama.

The action is for a declaratory judgment and primarily involves the validity of certain patents owned by the defendant and whether such patents are infringed by the plaintiffs. Suggested by the defendant are somewhat collateral questions involving the right of the plaintiffs to maintain the action or profit therefrom. The present question merely involves the propriety of transfer.

This court, in Cinema Amusements v. Loew's, Inc., et al., 1949, 85 F.Supp. 319, discussed at some length the principles controlling this court on questions of transfer. These principles will not be here repeated at length but merely referred to as to their application. In the Cinema case it was held that while the methods of procedure under Section 1404(a) differed from the application of the older doctrine of forum non coveniens, yet the standards or criteria in the application of the new Section 1404(a) conformed largely to those involved in the application of the older doctrine.¹

In the Cinema case it was thought that while the new transfer section did not abrogate the older doctrine, it was substantially a codification of the principles of forum non conveniens with a modification of the stringent requirement of dismissal of the suit when the older doctrine was applicable. The evident purpose of the section, when considered in connection with the older doctrine, would lead to the conclusion that an action should be transferred under the new section when a dismissal of the action would be required under the older doctrine of forum non conveniens. The corollary would seem also to be true, viz., that the similarity of the two procedures is such, and the new transfer section with its liberalized procedure is so akin to the former doctrine, that only a most unusual case would justify a transfer unless on the same facts a dismissal could be sustained under the doctrine of forum non conveniens. This would seem to be true except where the running of the Statute of Limitations might enter into the conclusion as to dismissal. The new transfer section, of course, allows of no question as to Limitations.

The transfer section has placed in statutory language the only reasons permitting a transfer. "For the convenience of parties and witnesses, in the interest of justice," an action may be transferred to that place where it might have been brought. The convenience of the court considering transfer or of the court to which transfer is sought is not an allowable standard or criterion except as it may be embraced in the term "in the interest of justice."

I shall consider briefly the statutory criteria authorizing transfer as applicable to the present case.

1. Convenience of parties. This question need not be considered at length. The plaintiff is a citizen and resident of Ohio. The intervening plaintiff is a corporation doing business in Texas. They deny that Alabama is a convenient forum to which they should be sent. The defendant is doing business in Alabama and could have been sued there, but is a corporation of the State of Delaware. The plaintiff had the choice of at least two forums and selected Delaware. There is no suggestion of harassment in the election. A denial to the plaintiff of the forum of his choice on the ground of convenience of parties should not be based solely on the convenience of the defendant and transfer on such ground, over objection, should be based upon a more conclusive showing of convenience than the mere desire of the defendant. Insofar as convenience of the parties themselves is concerned, passing for the moment the convenience of witnesses, it does not appear that transfer should be required.

2. Convenience of witnesses. This is primarily a patent litigation. It seems clear that the questions of validity and infringement will involve a number of professional witnesses whose testimony will be both intricate and lengthy. It is argued that witnesses of this character are to a large extent found in the metropolitan centers of the North and that Delaware is a more convenient forum for them than Alabama. I need not go so far. It may not be said that available expert witnesses are confined to any particular...