Cain v. Bowater's Newfoundland Pulp and Paper Mills, Civ. No. 16451

Decision Date27 October 1954
Docket NumberCiv. No. 16451,16450.
Citation127 F. Supp. 949
PartiesLouis CAIN v. BOWATER'S NEWFOUNDLAND PULP AND PAPER MILLS, Ltd. Otto NILSSEN v. BOWATER'S NEWFOUNDLAND PULP AND PAPER MILLS, Ltd.
CourtU.S. District Court — Eastern District of Pennsylvania

Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.

Krusen, Evans & Shaw, Philadelphia, Pa., for defendant.

LORD, District Judge.

The case is before this Court on a motion by defendant-respondent to transfer the suits to the United States District Court for the District of Delaware under the provisions of 28 U.S.C.A. § 1404(a).

Three admiralty actions arising out of this collision have already been transferred to the Delaware Court. Defendant asserts as its reasons for transfer various facts reflecting the convenience of parties and witnesses, in the interest of justice. Details of such reasons need not be outlined here; suffice to say, the Court believes proper administration of justice will best be served by transferring the case to the Delaware District Court.

Plaintiffs claim that defendant is not entitled to obtain transfer of these civil actions as a matter of law. They argue that since they did not have a choice of more than one forum (because defendant was not amenable to service of process in the District of Delaware), transfer under § 1404(a) cannot be granted. Plaintiffs cite Gulf Oil Corporation v. Gilbert, 1947, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, as requiring "at least two forums in which the defendant is amenable to process" before transfer can be considered. Without discussing at length the doctrine of forum non conveniens this Court believes that § 1404(a) of Title 28 is more than a codification of the doctrine of forum non conveniens; it is also a revision. Ex parte Collett, 1949, 377 U.S. 55, 62, 69 S.Ct. 944, 93 L.Ed. 1207; Paramount Pictures, Inc., v. Rodney, 3 Cir., 1951, 186 F.2d 111, 113, note 5; Jiffy Lubricator Co., Inc., v. Stewart-Warner Corp., 4 Cir., 1949, 177 F.2d 360, 362. 28 U.S. C.A. § 1404(a) states:

"(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

The main problem in this case is to determine the meaning of the phrase "where it might have been brought". This Court believes the only true meaning can be "where it might have been brought now." Whether plaintiffs did or did not have a choice of forums at the inception of the action is of no consequence as affecting the result of this Court's decision. Consent of the party seeking transfer is sufficient to bring the case within the words "where it might have been brought". Paramount Pictures, Inc., v. Rodney, supra 186 F.2d 112.

Granting plaintiffs' contention that service of process has no connection with venue, this Court fails to see that a transfer under § 1404(a)...

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7 cases
  • Hoffman v. Blaski Sullivan v. Behimer
    • United States
    • U.S. Supreme Court
    • June 13, 1960
    ...Co., D.C.W.D.N.Y.1950, 89 F.Supp. 643. 3. Otto v. Hirl, D.C.S.D.Iowa 1952, 89 F.Supp. 72, 74. 4. Cain v. Bowater's Newfoundland Pulp & Paper Mills, Ltd., D.C.E.D.Pa.1954, 127 F.Supp. 949, 950. 5. Johnson v. Harris, D.C.E.D.Tenn.1953, 112 F.Supp. 338, 341. 6. Hill v. Upper Mississippi Towing......
  • Sypert v. Bendix Aviation Corporation, 54 C 1112.
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 22, 1958
    ...953, 71 S.Ct. 572, 95 L.Ed. 687; Andino v. The SS Claiborne, D.C.S.D.N. Y.1957, 148 F.Supp. 701; Cain v. Bowater's Newfoundland Pulp & Paper Mills, Ltd., D.C.E.D.Pa.1954, 127 F.Supp. 949. The legal issue thus presented is whether the statute permits a transfer when, at the time suit was bro......
  • Vargas v. A. H. Bull S. S. Co.
    • United States
    • New Jersey Superior Court
    • April 4, 1957
    ...193 F.2d 85 (2 Cir., 1951), certiorari denied 342 U.S. 955, 72 S.Ct. 629, 96 L.Ed. 710 (1951); Cain v. Bowater's Newfoundland Pulp & Paper Mills, 127 F.Supp. 949 (D.C.E.D.Pa.1954). These and other cases are collected and discussed by Judge Irving R. Kaufman in his excellent 'Observations on......
  • Goodman v. Columbia Steel and Shafting Company
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • March 21, 1959
    ...7 Cir., 1958, 260 F. 2d 317; Paramount Pictures v. Rodney, 3 Cir., 1951, 186 F.2d 111. But see Cain v. Bowater's Newfoundland Pulp & Paper Mills, D.C.E.D.Pa.1954, 127 F. Supp. 949. The analysis of Judge, now Mr. Justice, Whitaker in General Electric Co. v. Central Transit Warehouse Co., D.C......
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