Goodman v. Southern Ry. Co.
| Decision Date | 13 September 1951 |
| Citation | 99 F. Supp. 852 |
| Parties | GOODMAN v. SOUTHERN RY. CO. |
| Court | U.S. District Court — Southern District of New York |
Ouchterloney & Liebowitz, New York City, for plaintiff, Samuel Markewich and Sidney I. Liebowitz, New York City, of counsel.
Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for defendant, J. Roger Carroll, New York City, of counsel.
Defendant moves for an order transferring this action to the District Court for the Western District of South Carolina, Rock Hill Division, Rock Hill, South Carolina, pursuant to Section 1404(a) of Title 28 United States Code, which provides that "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."
This action is brought by the plaintiff as Administratrix of the Estate of Meyer Goodman, for damages for the death of her husband, Meyer Goodman, based upon the alleged negligence of the defendant. Mr. Goodman died as a result of injuries received on September 24, 1950, when the motor vehicle which he was driving collided with a train operated by the defendant at a point where the defendant's tracks cross Route No. 5, near Newport, South Carolina. This suit was originally started in the Supreme Court of the State of New York, County of New York, and was transferred to this court upon the application of defendant.
It is the defendant's contention upon this motion that for the convenience of parties and witnesses and in the interest of justice, this action should be transferred to the district requested.
This Court has frequently stated that the criteria which it must consider and appraise in determining a motion pursuant to Section 1404(a) were derived principally from the forum non conveniens cases, particularly Gulf Oil Corp v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. The exact circumstances which will in every case justify either a granting or a denial cannot be catalogued with certainty. There are always imponderable elements. The final determination must be left to the Court's discretion. It has, however, definitely been settled in this district, that the balance of convenience must be strongly in favor of the defendant before the plaintiff's choice of forum will be disturbed. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329. See also Dolly Toy Co. v. Bancroft-Rellim Corp., 97 F.Supp. 531, decided by this Court in May, 1951; Perry v. Atchison, T. & S. F. Ry. Co., D.C.N.D.Cal., 82 F. Supp. 912; Skultety v. The Pennsylvania Railroad Co., D.C.S.D.N.Y., 91 F.Supp. 118. Judge Learned Hand, concurring in Ford Motor Co. v. Ryan, emphasized additionally the privilege granted the plaintiff in selecting a forum, and his decision to confirm the lower court's denial of the motion to transfer rested solely upon the weight he attached to this privilege.
The defendant, Southern Railway Company, mindful of the state of law, has attempted to establish that this case meets the requirements for transfer and has stated in an affidavit submitted upon this application that there are 20 witnesses "which will be used by the defendant upon a trial of this case." The names of the witnesses are listed and a capsule description of the part they might play in the case follows their names.
In opposition, plaintiff alleges that there were at the maximum four eye-witnesses to this accident. She asserts that it is inconceivable that the defendant would call more than five of the people listed as witnesses unless the defendant desired repetitious testimony. Plaintiff further states that the cost of transportation of witnesses can be better borne by the defendant than by the plaintiff. She contends that her relatives did whatever small investigating was to be done, taking measurements and photographs. All of these brothers and sisters, who will testify either as to damages or liability, live in the general New York area. Two eye-witnesses, Mr. and Mrs. Meyer Levy, who were passengers in the Goodman car, reside in North Carolina and are not subject either to process of the South Carolina or the New York courts.
Despite the fact that she and her husband lived and were domiciled in Rock Hill, South Carolina, plaintiff asserts that she has maintained a...
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