Maloney v. New York, NH & HR Co.

• Decision Date: 13 December 1949
• Parties: MALONEY v. NEW YORK, N. H. & H. R. CO.
• Court: U.S. District Court — Southern District of New York

88 F. Supp. 568

MALONEY v. NEW YORK, N. H. & H. R. CO.

United States District Court S. D. New York.

December 13, 1949.

O'Neill, Higgins & Latto, New York City, for plaintiff.

Edward R. Brumley, New York City, for defendants.

NOONAN, District Judge.

This is a motion by the defendant for an order under Sec. 1404(a) of the United States Code, Annotated, transferring this action to the United States District Court for the District of Massachusetts.

The action has been brought under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., and was commenced in this district pursuant to the provisions of Section 6 of said Act, 45 U.S.C.A. § 56.

The plaintiff as administratrix of the estate of her late husband, James J. Maloney, has filed this action in this court to recover damages on her own behalf as his surviving widow, and on behalf of her infant child, for the decedent's death on July 27, 1948, at defendant's Freight Terminal, at Boston, Massachusetts, while he was acting in the defendant's employ.

The defendant, in support of its motion to transfer, states that at the trial, it expects to have present the following necessary witnesses:

(a) Five members of the switching engine crew which shunted the car which struck and killed the deceased.

(b) Four surviving members of the switching engine crew with which the deceased was working when he was killed.

(c) An assistant yardmaster, switchman and a freight conductor who were present in the yard when deceased was killed.

(d) An assistant track supervisor who examined the scene of the accident afterwards.

(e) A shop foreman who took measurements after the accident.

(f) A car inspector who examined the car which struck the deceased.

(g) Two draftsmen who made maps of the area of the accident.

(h) A photographer who took pictures of the scene of the accident.

This is a toal of eighteen witnesses, seven of whom defendant alleges are not now in its employ.

Defendant's witnesses are said to live within a radius of 25 miles of Boston with the exception of one, who, it is stated, lives in Rhode Island. Defendant's counsel gives an estimate of three to four days for the trial of this action, and it would appear that such estimate is fair. It is further anticipated by defendant's counsel that such witnesses will have to come to New York and remain for a period of several days, involving expenditures for lodging, subsistence, lost pay and, in the instance of non-employees, travel costs. The court notes that the distance between New York and Boston is approximately 229 miles. Plaintiff argues that, while the defendant is not incorporated under the laws of New York, it does a substantial amount of its business in this district, and the office of its general counsel is located in New York City. Nevertheless, it is not denied that the plaintiff is a resident of Massachusetts, and plaintiff's counsel does not set forth that any of plaintiff's witnesses live outside the vicinity of Boston, where the accident is alleged to have occurred, nor is it claimed by plaintiff that any event related to this case took place outside this same vicinity.

It can now be stated unequivocally that there is no conflict between the provisions or application of Sec. 1404(a), of Title 28 United States Code, Annotated and Sec. 6 of the Federal Employers' Liability Act. The language of Sec. 1404(a), Title 28 U.S. C.A. is clear and unambiguous and effects no change or modification of a plaintiff's rights under Sec. 6 of the Federal Employers' Liability Act.

In Ex parte Collett, 337 U.S. 55, 60, 69 S.Ct. 944, 947, 959, the Court stated: "Section 6 of the Liability Act defines the proper forum; § 1404(a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems."

The doctrine of forum non conveniens is applicable to actions under the Federal Employers' Liability Act. Ex Parte Collett, supra. As the court said in that case, 337 U.S. at page 60, 69 S.Ct. at page 947: "Section 1404(a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to bring suit in a particular district."

This action has been properly brought in this district. The question that must now be determined is whether or not, under the provisions of Section 1404(a) of Title 28 U.S.C.A., the facts in this case warrant the granting of defendant's motion to transfer this cause to the United States District Court for the District of Massachusetts. Sec. 1404(a) of the U.S.C.A. provides: "Section 1404. Change of Venue (a) 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."

In essence, the section just quoted is a codification of the doctrine of forum non conveniens and does not alter the rule set forth in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. Cf. Auburn Capitol Theatre Corp. et al. v. Schine Chain Theatres, Inc. et al., D.C., 83 F.Supp. 872. It is significant that in the Reviser's notes, Title 28 U.S.C.A., it is stated that Section 1404(a) "was drafted in accordance with the doctrine of forum non conveniens." What circumstances must be present in order to justify or require the transfer of an action from one district to another, may not easily be catalogued. Gulf Oil Corp. v. Gilbert, supra. In the latter case, however, the court did note certain factors which should be considered in this connection. These may be succinctly stated as: (a) relative ease of access to sources of proof; (b) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (c) possibility of view of premises, if such be appropriate; (d) all other practical problems that may make the trial of a case easy, expeditious and inexpensive.

The court significantly adds 330 U.S. 501, 67 S.Ct. 843: "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."

The instant case is clearly distinguishable on its facts from Naughton v. Pennsylvania R. Co., D.C., 85 F.Supp. 761, for...