Jordan v. United States Lines, Inc.

• Decision Date: 24 October 1968
• Docket Number: No. 68 Civ. 2844.,68 Civ. 2844.
• Citation: 291 F. Supp. 600
• Parties: Gilbert JORDAN, Plaintiff, v. UNITED STATES LINES, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

291 F. Supp. 600

Gilbert JORDAN, Plaintiff, v. UNITED STATES LINES, INC., Defendant.

No. 68 Civ. 2844.

United States District Court S. D. New York.

October 24, 1968.

Semel & Patrusky, New York City, for plaintiff; Martin M. Baxter, New York City, of counsel.

Kirlin, Campbell & Keating, New York City, for defendant; Robert C. Mirone, New York City, of counsel.

OPINION

HERLANDS, District Judge:

Defendant moves for an order, pursuant to 28 U.S.C. § 1404(a) (1964) transferring this action to the United States District Court for the District of the Canal Zone.

Plaintiff, a citizen and resident of the Republic of Panama, is an employee of the Panama Canal Company. On September 28, 1967, plaintiff was aboard defendant's vessel S.S. PIONEER TIDE, which was then traversing the Panama Canal. While on board, he was injured by a line, the ownership and control of which are sharply disputed. He was apparently treated in a Canal Zone hospital or hospitals. The complaint, charging negligence and unseaworthiness, claims that plaintiff suffered internal and external injuries and that he is still unable to return to his employment.

Plaintiff, in opposing the motion, argues that the Court need not reach the question of convenience for the reason that the Canal Zone is an improper transferee district because there has been no clear showing that it is a district where the action "might have been brought." 28 U.S.C. § 1404(a) (1964).

In Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), the Supreme Court held that an action may not be transferred to a district where, at the time suit was brought, that district could not have entertained the action because of a lack of venue. It is now clear that the transferee district must be one where both venue was proper and defendant was amenable to service of process. See, e. g., Cessna Aircraft Co. v. Brown, 348 F.2d 689 (10th Cir. 1965); Glazer v. Colonial Village Corp., 232 F.Supp. 892 (E.D. Tenn.1964); Glicken v. Bradford, 204 F.Supp. 300 (S.D.N.Y.1962). On the basis of the record before the Court, the Court concludes that the District of the Canal Zone is a district "where the action might have been brought."

Plaintiff has not contended that venue in the District of the Canal Zone would be improper. Indeed, since defendant is a corporation which is "doing business" within such judicial district, it would appear that venue can be properly laid in the District of the Canal Zone, whether the action is predicated on diversity of citizenship or federal question jurisdiction. See 28 U.S.C. § 1391(c) (1964); Pure Oil Co. v. Suarez, 384 U. S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966).

Moreover, the District of the Canal Zone is a district where defendant was and is amenable to service of process. Defendant is presently licensed to do business within the Canal Zone and was so licensed during the year 1967. As required by C.Z.Code, tit. 2, § 872(a) (4) (1963), designation of agents to receive process was made; and thus at all times since the date of the injury, defendant could have been served in the Canal Zone. Section 872(b) also permits service upon the executive secretary of the Canal Zone Government if the designated agent cannot be found. Since defendant was, at all relevant times, amenable to service of process, and venue is proper in the District of the Canal Zone, this Court concludes that the transferee district is a district where the action "might have been brought."

The Court now considers the question of the balance of convenience. Unless defendant makes a "clear-cut showing that when all the interests are considered, trial would more conveniently proceed and the interests of justice would be better served in the other district," Peyser v. General Motors Corp., 158 F.Supp. 526, 529 (S.D.N.Y.1958), plaintiff's original choice of forum should not be disturbed. E. g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The Court finds that defendant has sustained its burden of demonstrating that the District of the Canal Zone is the more appropriate district for the trial of this lawsuit.

It is undisputed that the alleged accident occurred within the Canal Zone; that plaintiff resides and works in the Canal Zone; and that plaintiff was treated in the...