Hite v. Norwegian Caribbean Lines

• Decision Date: 18 November 1982
• Docket Number: Civ. A. No. 82-71789.
• Parties: Else Watson HITE, Plaintiff, v. NORWEGIAN CARIBBEAN LINES, Defendant.
• Court: U.S. District Court — Western District of Michigan

551 F. Supp. 390

Else Watson HITE, Plaintiff, v. NORWEGIAN CARIBBEAN LINES, Defendant.

Civ. A. No. 82-71789.

United States District Court, E.D. Michigan, S.D.

November 18, 1982.

D. Michael O'Bryan, The Jacques Admiralty Law Firm, Detroit, Mich., for plaintiff.

John D. Mabley, Kevin S. Hendrick, Hill, Lewis, Adams, Goodrich & Tait, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

INTRODUCTION

This action, for the reasons discussed herein, will be transferred to the United States District Court for the Western District of Michigan, pursuant to 28 U.S.C. § 1404(a).¹

PROCEDURAL HISTORY

Plaintiff Else Watson Hite filed her complaint in this action on July 27, 1981 in the State of Michigan's Wayne County Circuit Court. Plaintiff brought this action "in accordance with the provisions of the General Admiralty and Maritime Law," seeking damages, under a negligence theory, for personal injuries allegedly sustained when she fell over a doorsill on defendant Norwegian Caribbean Lines' vessel. Defendant removed the cause to this court on August 18, 1981.

Defendant filed a motion for summary judgment on December 10, 1981 alleging that plaintiff's suit is barred by the doctrine of laches, by the applicable federal statute of limitations, and by a contractual limitation of remedy.

On February 22, 1982, this court ordered the parties to show cause why the action should not be transferred to the United States District Court for the Western District of Michigan. Plaintiff, in response to the court's order, filed a brief contending that venue was proper in this district on March 2, 1982. On March 3, 1982 defendant filed a brief with an attached affidavit and exhibit arguing that any transfer of venue would be premature, but that if venue is to be transferred, it must be to the Southern District of Florida. The court heard oral argument by both parties regarding the court's order to show cause on March 8, 1982. At the conclusion of oral argument, the court delivered an opinion from the bench ruling that the cause would be transferred, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Western District of Michigan, and directed the parties to present an order consistent with that ruling. This court made specific findings of fact at that hearing which are set forth verbatim below, justifying its decision to transfer. On March 19, 1982 the court entered an order, approved as to form only by the parties, that transferred venue of this action to the Western District of Michigan.

On April 23, 1982, this time in the Western District of Michigan, defendant again moved for summary judgment or, alternatively, for change of venue to the Southern District of Florida. Plaintiff filed her response in opposition to defendant's motion on May 3, 1982. On May 6, 1982 the Honorable Richard A. Enslen, United States District Judge for the Western District of Michigan, entered a memorandum opinion and order transferring the action back to the Eastern District of Michigan. Hite v. Norwegian Caribbean Lines, K82-64 (W.D. Mich. May 6, 1982).

DISCUSSION

Plaintiff's complaint, originally filed in the State of Michigan's Wayne County Circuit Court, alleges that this action is brought in accordance with provisions of "General Admiralty and Maritime Law." Plaintiff is apparently referring to the "Savings to Suitors" clause, 28 U.S.C. § 1333(1), which "... excepts from the exclusive admiralty or maritime jurisdiction of the United States District Courts all cases in which suits may be brought to obtain other than admiralty remedies to which suitors are `otherwise entitled.'" Paduano v. Yamashita Kisen Kabushiki Kaisha, 221 F.2d 615, 617 (2d Cir.1955). Under this clause plaintiff was able to commence a common law negligence action arising out of an accident on a ship at sea in state court, and was not restricted to the exclusive jurisdiction of the federal district courts over admiralty or maritime actions.

Actions commenced in state court under the Savings to Suitors clause, however, may be removed under 28 U.S.C. § 1441(a) to federal district court provided the parties are of diverse citizenship, and the amount in controversy requirement is met. C. Wright, Law of Federal Courts § 38, at 152 (3d ed. 1976); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3674, at 298 & n. 6 (1976). In addition, as in all diversity removal cases, no defendant in the action may be a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). Here it appears from the removal petition,² which was not disputed by plaintiff, that both jurisdictional requirements were met, and that defendant is not a citizen of Michigan. According to the petition, plaintiff is a citizen of Michigan, and defendant is a corporation incorporated under the laws of Norway having its principal place of business in Florida. Defendant, for purposes of diversity jurisdiction, is thus a citizen of Florida. 28 U.S.C. § 1332(c). Plaintiff seeks $500,000.00 in damages.

Venue for a removed action is the federal district court "... for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). See, Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 73 S.Ct. 900, 97 L.Ed. 1331 (1953). Here, since the Eastern District of Michigan embraces Wayne County, Michigan, and since the action was pending in Michigan's Wayne County Circuit Court when defendant filed its removal petition, the action was properly removed to the United States District Court for the Eastern District of Michigan, Southern Division. Id.

A civil action properly removed can be transferred to a more convenient forum pursuant to 28 U.S.C. § 1404(a). 1A J. Moore & J. Wicker, Moore's Federal Practice ¶ 0.1578, at 123 and cases cited n. 15 (2d ed. 1982). Although it is usually one of the parties that moves to transfer the action under 28 U.S.C. § 1404(a), the court may order transfer sua sponte provided the parties are first given the opportunity to argue their views on the issue. See, Starnes v. McGuire, 512 F.2d 918, 933-34 (D.C.Cir.1974) (en banc); Fine v. McGuire, 433 F.2d 499, 501 (D.C.Cir.1970); National Acceptance Co. of America v. Wechsler, 489 F.Supp. 642, 649 (N.D.Ill.1980); Riordan v. W.J. Bremer, Inc., 466 F.Supp. 411, 418 (S.D.Ga.1979); Donald v. Seamans, 427 F.Supp. 32, 32-33 (E.D.Tenn.1976); Stanley Works v. Globemaster, Inc., 400 F.Supp. 1325, 1338 (D.Mass.1975); Monsanto Co. v. United Gas Pipe Line Co., 360 F.Supp. 1054, 1056 (D.D.C.1973). Judge McGowan, speaking for the District Court of Columbia Circuit sitting en banc in Starnes v. McGuire, said:

This should not be taken to imply, however, that it is normally appropriate for the district judge to order transfer sua sponte without benefit of the parties' views. Where neither party has requested transfer, it would appear that the forum is preferred by both. Accordingly, before ordering transfer the judge should, at minimum, issue an order to show cause why the case should not be transferred, and thereby afford the parties an opportunity to state their reasons for believing that this forum is most convenient or that the proposed alternative forum is inconvenient or not within the ambit of § 1404(a).

512 F.2d at 934 (footnote omitted).

This court, as previously discussed above, ordered the parties to show cause why the action should not be transferred to the Western District of Michigan, considered the briefs of both parties on this issue, and heard oral argument. Only then did the court deliver the following opinion from the bench:

The Court will transfer the lawsuit pursuant to 28 USC § 1404(a) to the Western District of Michigan. It appears that the injury of which the plaintiff complains occurred on the high seas; that the plaintiff is a citizen of Michigan and a resident of Kalamazoo; that the witnesses are all in Kalamazoo, Michigan, that is the plaintiff's husband, the plaintiff's daughter, and her treating physician; that the plaintiff bought her cruise ticket in Kalamazoo, Michigan from a travel agent representing the defendant there; the defendant is doing business, if at all in Michigan, there in Kalamazoo. So the case will be transferred to Kalamazoo. Present an order.

It is well settled that the district courts have wide discretion to transfer an action to a different district or division, where it might have been brought, for the convenience of the parties and witnesses, in the interests of justice, pursuant to 28 U.S.C. § 1404(a). Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955).

The limiting phrase "where it might have been brought," contained in 28 U.S.C. § 1404(a), refers to the district(s) where federal venue law allows an action to be brought. Van Dusen v. Barrack, 376 U.S. 612, 616-26, 84 S.Ct. 805, 809-14, 11 L.Ed.2d 945 (1964). A diversity action "... may be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose." 28 U.S.C. § 1391(a). The residence of a corporation, for venue purposes, is the judicial district where it is incorporated, or licensed to do business, or is doing business. 28 U.S.C. § 1391(c). Plaintiff is a resident of the Western District of Michigan. Defendant is a corporation incorporated under the laws of Norway, has its principal place of business in the Southern District of Florida, and is doing business, if at all in Michigan, in the Western District of Michigan. Defendant, therefore, is a resident of the Southern District of Florida, and possibly is a resident of the Western District of Michigan, for venue purposes. The claim arose on the high seas. Since it is undisputed by the parties that plaintiff resides in the Western District of Michigan, it is clear that this action "might have been brought" in that district, within the meaning of 28 U.S.C. § 1391(a).

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