Glasfloss Corp. v. Owens-Corning Fiberglas Corp.

• Decision Date: 05 May 1950
• Citation: 90 F. Supp. 967
• Parties: GLASFLOSS CORPORATION v. OWENS-CORNING FIBERGLAS CORPORATION et al.
• Court: U.S. District Court — Southern District of New York

90 F. Supp. 967

GLASFLOSS CORPORATION v. OWENS-CORNING FIBERGLAS CORPORATION et al.

United States District Court S. D. New York.

May 5, 1950.

Silver & Saperstein, New York City, John H. Kelley, Julius Silver, David Saperstein, Isaac M. Barnett, all of New York City, of counsel, for plaintiff.

Shearman & Sterling & Wright, New York City, for defendants Owens-Corning Fiberglas Corporation and Corning Glass Works.

Cravath, Swaine & Moore, New York City, John A. Wilson, John Marshall Briley, New York City, of counsel, for defendant Owens-Illinois Glass Co.

CONGER, District Judge.

The corporate defendants move to transfer this action to the United States District Court for the Northern District of Ohio, Western Division, pursuant to Section 1404(a) of Title 28 United States Code Annotated.

The action is one arising under the antitrust laws of the United States for treble damages suffered by plaintiff by reason of an alleged monopoly of trade and commerce in glass fibers and glass fiber products as well as by reason of certain alleged unfair and unlawful trade practices.

Plaintiff is a Connecticut corporation qualified to do business in the State of New York. It maintains only a statutory office in Connecticut. Subsequent to the institution of this suit, the assets of plaintiff, exclusive of the legal title to this action were transferred to Tilo Roofing Company, Inc.

Ownes-Corning Fiberglas Corporation is a Delaware corporation with its principal offices at Toledo, Ohio; Ownes-Illinois Glass Company is an Ohio corporation with its principal offices at Toledo; Corning Glass Works is a New York corporation with its principal offices at Corning, New York.

The complaint also lists thirteen individual officers of the three corporate defendants, ten of whom are alleged to reside in Ohio and three in Corning, New York. In fact one officer resides in Connecticut.

Section 1404(a) of the Judicial Code provides: "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 plaintiff raises the question of the power of this Court, as a matter of law, to transfer this action to Ohio, pointing out that Corning, admittedly not an inhabitant, nor found nor transacting business in Ohio¹ could not have been sued there initially; and that, therefore, the Ohio district is not one "* * * where it the action might have been brought" within the meaning of Section 1404(a).

I shall not dwell on this point. Judge Ryan of this Court has decided it, and correctly so I believe, in Ferguson v. Ford Motor Company et al., D.C., 89 F. Supp. 45, 49. He stated:

"There is, consequently, no practical reason requiring that the transferee forum be a proper venue as to all of several defendants. It is sufficient that the transferee forum be, * * * more convenient to all parties and witnesses, and highly so that it be a proper venue as to at least one defendant and that the other defendants consent to the transfer."

* * * * * *

"Accordingly, I conclude that although Sherman Tractor Co. may not be amenable to process in Detroit * * * I nevertheless have the power to transfer this action to that city, under Section 1404(a). Sherman has consented to the transfer and the venue in Detroit is proper as to all the other defendants."

In the instant case, Corning has consented to be sued in Ohio, and the venue is proper for the other defendants.

Defendants assert that the suit should be transferred because (1) it would prevent a possible conflict of jurisdiction between two courts; (2) it would simplify access to sources of proof, both documentary and witnesses; and (3) it would not delay the trial, due to the relative condition of the dockets of the two courts.

(1) It appears that the defendants are now operating under a decree of injunction issued by the District Court in Toledo as the result of a civil anti-trust suit filed by the United States.

I have no fear of conflict between the two courts. Although it might be efficient to have this matter determined by the Court which has great familiarity with it, I feel that this Court may properly determine the scope of the relief, if any, to which the plaintiff may be entitled, and that the interests of justice will be served here as well as there.

(2) It is true that a transfer to Toledo would simplify access to sources of proof, at least to that proof in control of defendants.

The defendants have listed 76 witnesses residing in or near Toledo who will testify in connection with the submission of voluminous documents. The documents are in the possession of Fiberglas at Toledo and Newark, Ohio, and are contained in more than 3,000 file drawers. Undoubtedly, it would be burdensome for the defendants to transport all of these witnesses and documents to New York, although I think it is safe to assume that defendants will not find it necessary to use all the documents in all the file drawers to properly and efficiently defend. It is difficult to estimate at this stage just how many witnesses defendants will require.

Further, the defendants will seek testimony from persons connected with various battery manufacturers whose location is more proximate to Toledo than New York including a former officer of Fiberglas whose knowledge of the subject is important to defendants' case. He, among others, evidently is not subject to subpoena from this Court.

(3) It is a well known fact that the calendars of this Court are heavily congested. The case per judge is larger than that of any other District Court and is nearly seven times that of the Court in Toledo. Even though there is only one judge in the Toledo Court, it is fairly possible that this case will be reached sooner there than here, especially since it is a practice, as defendants assert, to assign a judge from the Eastern Division of that District to assist in Toledo.

The fact that a speedier trial may be held in the transferee forum is often given some weight in this type of application. See Gulf Oil...