Busch v. Reiss SS Co.
| Decision Date | 25 March 1954 |
| Docket Number | No. 1710.,1710. |
| Citation | 120 F. Supp. 886 |
| Parties | BUSCH v. REISS S. S. CO. |
| Court | U.S. District Court — District of Delaware |
Stewart Lynch and Alfred Fraczkowski, Wilmington, Del., for libelant.
William H. Bennethum (of Morford, Bennethum & Marvel), Wilmington, Del., Robert Branand (of Johnson, Branand & Jaeger), Cleveland, Ohio, for respondent.
This is a motion to transfer this case to the United States District Court for the Northern District of Ohio, Eastern Division at Cleveland, Ohio, pursuant to Title 28 U.S.C. Sec. 1404(a).
The respondent is a corporation of the State of Delaware, but transacts most of its business at Cleveland, Ohio. The libelant, having a choice of forums, namely, the home state of the respondent's incorporation or the place where such corporation conducts its business, selected the home state of the respondent as the forum of his choice.
In a motion to transfer under Sec. 1404(a) it is not entirely clear what weight is to be given the matter of the plaintiff's choice of forum. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, it is said, "Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." It is true that this case was determined before the adoption of the transfer section, Sec. 1404(a), and considered the doctrine of "forum non conveniens." After the adoption of the transfer section, Sec. 1404(a), a number of cases, including Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, in considering motion for transfer and the plaintiff's choice of forum, followed the language of Gulf Oil Corp. v. Gilbert. Indeed, in Schoen v. Mountain Producers Corporation, 170 F.2d 707, in note 20 on page 715, 5 A.L.R.2d 1226, the Third Circuit Court said, "The consideration of these amended motions for transfer under Sec. 1404(a) by the District Court would, of course, be had in the light of the rules for the application of the doctrine of forum non conveniens laid down by the Supreme Court in Gulf Oil Corp. v. Gilbert * * *." More lately the Third Circuit Court, in All States Freight v. Modarelli, 1952, 196 F.2d 1010, to some extent differentiated applications for transfer under 1404(a) from the principles of forum non conveniens. I do not understand the Modarelli case to say, however, that the plaintiff's choice of forum is not a factor to be considered in the application for transfer under 1404(a) or that the conveniences of the defendant and his witnesses must not somewhat outweigh the conveniences of the plaintiff and his witnesses, together with his generally accorded privilege of choice of forum.1
Before considering the reasons upon which a transfer in the present case might be based, certain facts should be set out and kept in mind.
The libelant is a seaman now living in New York. He alleges a serious impairment of his vision which took place while he was in the employment of the respondent on its boat. He brought an action against the present respondent in the Northern District of Ohio, Eastern Division at Cleveland. That suit is stated to have been based upon the alleged negligence of the respondent and sought, in addition to damages for such negligence, an amount for maintenance and cure. The verdict of the jury on February 28, 1951, exonerated the respondent of negligence but found a verdict of $2,500 for maintenance and cure.
The present suit is not based on negligence or unseaworthiness of the boat, but is based solely on maintenance and cure, to which the libelant claims to be entitled since the former judgment.
The original libel filed in this action might have been subject to a construction that it was based in part upon negligence or unseaworthiness and thus possibly might give rise to the question of res judicata in connection with the former action in Cleveland and thus make a transfer to Cleveland more desirable. However, it was orally agreed at the argument that the present action is based solely on maintenance and cure and it was agreed that a stipulation to that effect would be filed herein. With the foregoing facts in mind, we may approach the reasons assigned for the transfer.
The statute providing for the transfer allows such transfer "for the convenience of parties and witnesses, in the interest of justice".
A. Convenience of parties. But slight...
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