Cullinan v. New York Cent. R. Co.

Decision Date10 December 1948
Docket NumberCiv. 47-412.
Citation83 F. Supp. 870
CourtU.S. District Court — Southern District of New York

William J. Brock, of Buffalo, N. Y., and Harrington, Silber & Mulvey, of New York City, for plaintiff.

Frederick L. Wheeler, of New York City, for defendant.

HULBERT, District Judge.

This is a motion by the defendant to transfer this action to the District Court for the Western District of New York, pursuant to 28 U.S.C.A. § 1404(a). Plaintiff seeks to recover damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

The accident which forms the basis of this action occurred while the plaintiff was in the employ of the defendant at Churchville, New York. Plaintiff resides in Buffalo, New York, and the defendant is a New York corporation and its main office is in this District.

In support of the motion, defendant lists 19 witnesses who are said to be necessary to the presentation of its case. Of these witnesses, 15 are employees of defendant, and four are doctors.

Assuming arguendo, without deciding it, that the doctrine of forum non conveniens under 28 U.S.C.A. § 1404(a) applies to cases under the Federal Employers' Liability Act, the application of the doctrine rests in the sound discretion of the court. In commenting on the doctrine, the Supreme Court said, in Williams v. Green Bay & W. R. Co., 1946, 326 U.S. 549, 66 S.Ct. 284, 287, 90 L.Ed. 311: "We mention this phase of the matter to put the rule of forum non conveniens in proper perspective. It was designed as an `instrument of justice.' Maintenance of a suit away from the domicile of the defendant — whether he be a corporation or an individual — might be vexatious or oppressive."

The plaintiff has not only brought this action in the state in which the defendant does a considerable portion of its business, but also has brought it in the city in which the defendant maintains its main office.

In Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, at page 508, 67 S.Ct. 839, 91 L. Ed. 1055, Mr. Justice Jackson listed the factors that should be considered in forum non conveniens matters. These factors are of two kinds: (1) the private interest of the litigant, and (2) factors of public interest.

Admittedly some of these factors are inapplicable in the present case, but those that do apply militate against the transfer requested. The trial is estimated by defendant to require only three days. All the witnesses, except the doctors, are employees of defendant, and so presumably there will be no difficulty in securing their appearance here. They live in various...

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8 cases
  • Cotton v. Louisville & N. R. Co.
    • United States
    • Illinois Supreme Court
    • May 21, 1958
    ...Railroad Co., D.C., 140 F.Supp. 487; Markantonatos v. Maryland Dry Dock Co., D.C., 110 F.Supp. 862, 864; Cullinan v. New York Central Railroad Co., D.C., 83 F. Supp. 870; Gore v. United States Steel Corp., 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678; St. Louis- San Francisco Railway Co. v. Supe......
  • Bracy v. Great Northern Ry. Co., 9826
    • United States
    • Montana Supreme Court
    • August 19, 1959
    ...the doctrine should be applied in a given case is a question resting in the discretion of the trial court. Cullinan v. New York Cent. R. Co., D.C.N.Y.1948, 83 F.Supp. 870; Mooney v. Denver & R. G. W. R. Co., 118 Utah 307, 221 P.2d Affidavits of defendant show plaintiff to be a resident of S......
  • Dolly Toy Co. v. Bancroft-Rellim Corp.
    • United States
    • U.S. District Court — Southern District of New York
    • May 7, 1951
    ...D.C. N.D.Ohio 1950, 89 F.Supp. 822, 823; Naughton v. Pennsylvania R. Co., D.C.E. D.Pa.1949, 85 F.Supp. 761; Cullinan v. New York Central R. Co., D.C.S.D.N.Y.1948, 83 F.Supp. 870. The plaintiff asserts that New York witnesses, Perner, Greenbaum, Robben and Diehl, in addition to other witness......
  • Auburn Capitol Theatre Corp. v. Schine Chain Theatres
    • United States
    • U.S. District Court — Southern District of New York
    • April 21, 1949
    ...Milwaukee, St. P. & P. R. Co., D.C., 80 F.Supp. 745; Pascarella v. New York Cent. R. Co., D.C., 81 F.Supp. 95; Cullinan v. New York Cent. R. Co., D.C., 83 F.Supp. 870. Hulbert, Suggestion is made by the moving defendants that a settlement of the differences between plaintiffs and the distri......
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