Markantonatos v. Maryland Drydock Co.
| Decision Date | 18 March 1953 |
| Parties | MARKANTONATOS v. MARYLAND DRYDOCK CO. |
| Court | U.S. District Court — Southern District of New York |
Zimmerman & Zimmerman, New York City (Bernard K. Zimmerman, New York City, of counsel), for plaintiff.
Bounds & Wourms, New York City (John P. Wourms, New York City, of counsel), for defendant.
Two motions are here considered.
Defendant moves, pursuant to Section 1404(a) of Title 28 of the U.S.C.A. to transfer this action "to the United States District Court sitting in and for the City of Baltimore, Maryland," and plaintiff moves to remand the case to the Supreme Court, New York County.
This suit based upon an injury which occurred in Baltimore, Maryland, was instituted in the New York State Court and removed here by defendant on the ground of diversity. The defendant now disputes the plaintiff's New York residence and citizenship but, on the affidavits and other proof submitted by plaintiff, in the form of rent receipts, telephone, gas and electric bills, it is clear to me that he is a resident of New York, where he has maintained a residence at 500 West 190 Street since 1947. The fact that plaintiff has an office in the Baltimore yards of Vergottes, Ltd., a subsidiary of his employer, the Ionian Steamship Co. of Athens, and that he stays at the Hotel Baltimore when he is in that city does not change his residence from New York where he lives for about seven months out of each year.
Furthermore, the defendant's present position is inconsistent with its representation to this court in its petition for removal. Its Vice President there stated under oath that the plaintiff is "a resident of and a citizen of the State of New York."
Defendant is a Maryland corporation, and the amount sought is sufficient to sustain jurisdiction.
The question here then is whether defendant has sufficiently shown that "the convenience of parties and witnesses and the interest of justice" require transfer of the case.
It is clear in this circuit that Section 1404(a) "did not alter the standard theretofore embodied in the doctrine of forum non conveniens,"1 and that the factors to be considered in applying that doctrine, as stated in Gulf Oil Corp. v. Gilbert,2 are still applicable under Section 1404(a). In the latter case the Supreme Court said that "* * * unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."3 This means that "a defendant has the burden of making out a strong case for a transfer."4
Defendant asserts that it has about six witnesses, all of whom live and work in and about Baltimore, Maryland; that these witnesses will have to be examined by deposition if the trial is had in this District. Furthermore, it is "seeking" additional witnesses whose testimony, if they are found too late, will not be able to be taken by deposition and who will have to be brought to New York.
Plaintiff states that he resides in New York City and that most of his medical treatment was rendered here. He urges that his present suffering and the permanence of his injuries will be a major issue on the question of damages and that his expert medical witnesses as to these matters are New York doctors. Insuring their presence in Baltimore would present a real problem.
By a quantitative standard, and considering the inconvenience of witnesses, the defendant has a balance in its favor but, of course, that alone is not enough to defeat plaintiff's choice of forum; it must be shown that transfer will "make the trial markedly more convenient."5 This the defendant has not done. The statement that it is seeking more witnesses is sheer speculation and counts for nothing on this motion.6 There is no showing that its witnesses are unwilling to come to New York to testify. Indeed, since most of them are employees of the defendant, there should be no economic pressure upon them to refrain from leaving work for the time necessary to come to New York for the trial. There is no showing that the plaintiff chose his forum in order to vex, harass or oppress the defendant, or that he shopped for a forum. While it is not necessary here to decide that defendant is "doing business" in this District, it has connections here in that it maintains an office for the regular solicitation of business and employs here a staff of three persons.
The convenience of parties must also be considered. The plaintiff is a resident of this District and, while that is not the only consideration, it is a fact of "high significance."7 Forcing him to leave the...
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Minkoff v. Scranton Frocks, Inc.
...court of their intention to remove, if such an intention then existed, constitute such a waiver. Cf. Markantonatos v. Maryland Drydock Co., D.C.S.D.N.Y.1953, 110 F. Supp. 862, 864. A contrary ruling would permit a petitioner, in an action such as this, to shorten the twenty-day statutory pe......
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Cotton v. Louisville & N. R. Co.
...v. Pennsylvania Railroad Co., D.C., 91 F.Supp. 118; Hohler v. Pennsylvania Railroad Co., D.C., 140 F.Supp. 487; Markantonatos v. Maryland Dry Dock Co., D.C., 110 F.Supp. 862, 864; Cullinan v. New York Central Railroad Co., D.C., 83 F. Supp. 870; Gore v. United States Steel Corp., 348 U.S. 8......
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Haun v. Retail Credit Co.
...Pecos Valley Southern Ry., 196 F.Supp. 404 (S.D.Tex.1961) (filing a compulsive counterclaim is not a waiver); Markantonatos v. Maryland Drydock Co., 110 F.Supp. 862 (S.D.N.Y.1953) (general appearance, filing answer, and serving notice to examine plaintiff is not a waiver). These cases are c......
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Heafitz v. Interfirst Bank of Dallas, 88 Civ. 7244 (PKL).
...(removal not waived where defendant intervened in state court and contested preliminary injunction); Markantonatos v. Maryland Drydock Co., 110 F.Supp. 862 (S.D.N. Y.1953) (removal not waived where appearance and answer filed and notice to examine plaintiff served). Although waiver will not......