Chicago, Rock Island and Pacific Railroad Co. v. Igoe

• Decision Date: 16 February 1955
• Docket Number: No. 11247.,11247.
• Citation: 220 F.2d 299
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Petitioner, v. Honorable Michael L. IGOE, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

220 F.2d 299 (1955)

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Petitioner, v. Honorable Michael L. IGOE, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, Respondent.

No. 11247.

United States Court of Appeals, Seventh Circuit.

February 16, 1955.

O. L. Houts, Chicago, Ill., for petitioner.

James A. Dooley, Chicago, Ill., for respondent.

Before DUFFY, Chief Judge, and MAJOR, FINNEGAN, LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

This is a petition for a Writ of Mandamus seeking an order directing the respondent to transfer from the United States District Court for the Northern District of Illinois, Eastern Division, to the District Court for the Southern District of Iowa, pursuant to 28 U.S.C.A. § 1404(a), the case entitled "Claudine M. Mikesell, Administrator of the Estate of Charles Delbert Mikesell, Deceased, plaintiff, v. Chicago, Rock Island and Pacific Railroad Company, defendant, Civil Action No. 52 C 2124."

This proceeding is here for the second time. In the previous proceeding the respondent insisted that this Court did not have the power to entertain a petition for mandamus in a case of this nature. We held, Chicago, R. I. & P. R. Co. v. Igoe, 7 Cir., 212 F.2d 378, 382, that mandamus would lie and after citing various authorities, including Dairy Industries Supply Ass'n v. La Buy, 7 Cir., 207 F.2d 554 we said: "We adhere to the Dairy Industries decision and remand the cause to the District Court with directions to vacate the order denying the transfer and to reconsider petitioner's motion in the light of the views expressed herein." 212 F.2d 382. After the remand the District Court entered an order again denying the petition to transfer, and filed a memorandum in which the District Judge stated: "* * * I have reached the conclusion that it would not be for the convenience of the parties and the witnesses, nor in the interests of justice to transfer this case to either of the Iowa Districts requested in the petition of the defendant."

On September 14, 1951, Charles D. Mikesell and Claudine Mikesell, husband and wife, were residents of Des Moines, Iowa. On that date Charles Mikesell was driving an automobile in the village of Avoca, Iowa, and in passing over the tracks of the Rock Island Railroad, was struck by a train operated by the Railroad and was killed. Avoca is located within the Western Division of the Southern District of Iowa. The District Court of Polk County, Iowa, issued letters of administration to Claudine Mikesell and on September 13, 1952, in her capacity as administratrix, she commenced an action against said Railroad in the Superior Court of Cook County, Illinois, claiming damages for wrongful death.

The Railroad, on the grounds of diversity of citizenship, caused the Mikesell case to be removed from the Superior Court of Cook County to the United States District Court for the Northern District of Illinois. Thereafter, the Railroad filed a motion under 28 U.S.C.A. § 1404(a)¹ to transfer the cause to the United States District Court for the Southern District of Iowa for trial in either its Central Division sitting at Des Moines, or its Western Division sitting at Council Bluffs.

It is without dispute that on and prior to September 14, 1951, the date of the death of Charles Mikesell, he and his wife were residents of Des Moines, Iowa; that letters of administration were issued to plaintiff by the District Court of Polk County, Iowa; and plaintiff continued to reside in Des Moines and was living there on the date when she commenced suit against the Railroad in the Superior Court of Cook County, Illinois. Further, it is averred, in the affidavit filed upon behalf of the Railroad, that in order to defend plaintiff's action, petitioner will be required to call two non-employee witnesses residing at Des Moines, six non-employee witnesses residing at Avoca and five employee witnesses residing at Des Moines and Avoca; that the testimony of said non-employee witnesses can be obtained only by subpoena and that the legal process of the United States District Court for the Northern District of Illinois does not extend to any of the localities where such witnesses reside. It was also shown that Des Moines is 358 miles from Chicago; that Avoca is 459 miles from Chicago, but that Avoca is 33 miles from Council Bluffs and 104 miles from Des Moines; that all of the witnesses petitioner expects to call in its defense are within the range of legal process which can be issued by the United ed States District Court for the Southern District of Iowa. Petitioner's affidavit also asserted that it would be impossible for it to properly present its defense by depositions as it could not, in advance, anticipate evidence which may be offered by the plaintiff.

Plaintiff opposed petitioner's motion to transfer and filed an affidavit which disclosed that on May 2, 1953 she married one M. L. Davis and since June, 1953, she and Davis have resided in Lombard, Illinois, in a home which they have purchased and that she now considers Lombard as her permanent residence.

Plaintiff's counsel filed an affidavit showing that petitioner's main offices are in Chicago, Illinois; that the train service between Avoca and Des Moines is poor, the trip consuming 2¼ hours, while the train service between Des Moines and Chicago was much more frequent, the trip taking about 6 hours. The affidavit also stated that plaintiff had hired an attorney residing in Chicago, Illinois, and that if the case were tried in Iowa that plaintiff would be put to the expense of hiring an additional attorney.

When the petition for transfer was first presented to the District Judge he denied the motion "* * * on the general proposition that the place where this accident occurred is about as close to Chicago as to Des Moines where you want to have the case tried, and this case was started in the State Court and you folks transferred it over to the Federal Building evidently for the purpose of having a trial, and as soon as it got here the only trial you wanted was to ship it out to Iowa, I don't think § 1404(a) was ever established or ever enacted for that reason * * *." In our previous opinion we pointed out that the reasons given by the District Judge for denying the petition were not valid, and we stated "The governing tests are expressly stated in the Act, and a leading mandamus case points up the correct guides to their application to a particular fact situation, which include `the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, (if necessary); and all other practical problems that make trial of a case easy, expeditious and inexpensive * * *. The Court will weigh relative advantages and obstacles to fair trial. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 67 S.Ct. 839, 91 L.Ed. 1055.'" We then remanded this case with directions to vacate the order denying the transfer and to reconsider petitioner's motion in the light of the views that we expressed in our opinion

Plaintiff invokes the doctrine of res judicata based on the statement in our previous opinion herein, "Ultimate decision on that motion is within the province of the District Court, and we cannot, as petitioner would have us do, usurp its function and decide the question in this court." All we intended to say was that the District Court must, initially, make the decision by applying the statutory tests laid down in § 1404 (a), viz., "* * * convenience of parties and witnesses, in the interest of justice * * *." We thought we clearly delineated the scope of our decision when we stated: "However, this opinion deals with the existence of power only, not with the permissible limitations on its exercise." It is clear that the doctrine of res judicata has no application. Furthermore, we feel there is no inconsistency between this opinion and our previous opinion in this case.

In considering the three factors prescribed by the statute, the District Court should bear in mind that in filing an action the plaintiff is permitted to choose any proper forum and that the plaintiff's choice of forum should not be lightly set aside. In acting on such motion the District Judge has a broad discretion, but in exercising this discretion he is limited in his consideration to the three factors specifically mentioned in § 1404(a), and he may not properly be governed in his decision by any other factor or consideration. Dairy Industries Supply Ass'n v. La Buy, supra, 207 F.2d at pages 557-558.

Whether the plaintiff followed the litigation or whether, by an unusual coincidence, she moved to the Northern District of Illinois because of her second marriage, is, as we see it, not of great importance. Although plaintiff was not a witness to the collision at Avoca, Iowa, she, undoubtedly, might be called to testify at the trial as to undisputed matters, and we think, under the circumstances of this case, if the first test alone were to be considered, viz., "convenience of the parties", that the trial judge acted within his discretion in refusing to order the transfer. But the statute requires the application of two additional tests.

As to the second test "convenience of witnesses" it is self-evident that the convenience of both plaintiff's and defendant's witnesses would be served by a trial of the cause in the Southern District of Iowa. A number of witnesses reside at Avoca which is 459 miles from Chicago but only 33 miles from Council Bluffs and 104 miles from Des Moines, the two cities where the trial might be held. The other witnesses apparently all reside at Des Moines. Plaintiff's counsel argues that train service between Avoca and Des Moines is poor, but we assume the highways in that area are suitable for automobile travel, and that Iowa, like other...