Mitchell v. Farrell Lines, Inc., Civ. A. No. 70-2737.

• Decision Date: 16 November 1972
• Docket Number: Civ. A. No. 70-2737.
• Citation: 350 F. Supp. 1325
• Parties: William H. MITCHELL v. FARRELL LINES, INC. v. UNIVERSAL TERMINAL AND STEVEDORING CORPORATION and Long Island College Hospital.
• Court: U.S. District Court — Eastern District of Pennsylvania

350 F. Supp. 1325

William H. MITCHELL v. FARRELL LINES, INC. v. UNIVERSAL TERMINAL AND STEVEDORING CORPORATION and Long Island College Hospital.

Civ. A. No. 70-2737.

United States District Court, E. D. Pennsylvania.

November 16, 1972.

Freedman, Borowsky and Lorry, Philadelphia, Pa., for plaintiff.

A. Grant Sprecher, Philadelphia, Pa., for Long Island College Hospital.

Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for Farrell Lines, Inc.

Francis E. Marshall, Philadelphia, Pa., for Universal Terminal & Stev. Corp.

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

Plaintiff, a seaman, was injured on board the SS AFRICAN RAINBOW and filed this action against the shipowner, seeking damages under the Jones Act, 46 U.S.C. § 688 et seq., and maintenance and cure. Specifically, plaintiff's Jones Act claim is based on the unseaworthiness of the vessel and defendant's negligence, including the failure to provide prompt and adequate medical treatment. Following plaintiff's deposition, defendant filed a third-party action against Universal Terminal and Stevedoring, Inc. Universal for indemnity, alleging that Universal breached its implied warranty to perform its services in a workmanlike manner. Similarly, defendant filed a third-party action against Long Island College Hospital, alleging that said hospital breached its contract with defendant to provide adequate medical treatment to plaintiff. Before the Court are the motions of defendant and third-party defendant, Long Island College Hospital, to transfer this action to the United States District Court for the Eastern District of New York.

A motion to transfer to another venue may be granted where such transfer would serve the convenience of parties and witnesses and the interest of justice. 28 U.S.C. § 1404. The moving party carries the burden of making ". . . a clear-cut showing that when all the interests are considered, trial would more conveniently proceed and the interest of justice would be better served in the other district." Davis v. Keystone Shipping Co., (E.D.Pa. 1972); Peyser v. General Motors Corp., 158 F.Supp. 526, 529 (S.D.N.Y.1958). A plaintiff's choice of forum is entitled to great weight and the moving party must satisfy a heavy burden of showing a strong balance of inconvenience. Fitzgerald v. Central Gulf Steamship Corp., 292 F.Supp. 847, 848, 849 (E.D.Pa.1968); Clendenin v. United Fruit Co., 214 F.Supp. 137, 139 (E.D. Pa.1963). However, the weight accorded to plaintiff's choice of forum is decreased where none of the operative facts of the action occurred in the forum selected by the plaintiff. Fitzgerald v. Central Gulf Steamship Corp., supra, 292 F.Supp. at 849; Davis v. Keystone Shipping Co., supra; Koeneke v. Greyhound Lines, Inc., 289 F.Supp. 487, 490 (W.D.Okl.1968). In the instant case, none of the operative facts of the action occurred in the Eastern District of Pennsylvania.

Plaintiff is a resident of Baltimore, Maryland and has not sought treatment for his injuries in this District. Defendant is a New York corporation with its principal place of business in New York. Moreover, third-party defendants are New York corporations operating solely within that state. The accident occurred while the vessel was in navigable waters in the Port of Brooklyn and the medical treatment was rendered by third-party defendant hospital in New York and by the United States Public Health Service Hospital in Maryland. Of the list of thirteen witnesses to the accident and to the events occurring prior and subsequent thereto submitted by defendant, none of the witnesses reside in this District. Moreover, all of the medical witnesses relating to plaintiff's claim of inadequate medical treatment reside in New York and all records relating to the medical treatment rendered plaintiff are likewise located in New York. Plaintiff's only contact with this forum is that his counsel maintains his office in Philadelphia. It is well settled, however, that convenience of counsel is entitled to little consideration in deciding a motion to transfer pursuant to Section 1404(a). Weinberger v. Retail Credit Co., 345 F.Supp. 165, (E.D.Pa.1972); Bird v. Central Railroad Co. of New Jersey, (E.D.Pa. 1971); Materials Technology, Inc. v. Circuit Foil Corp., 49 F.R.D. 79 (E.D.Pa. 1970); Roller Bearing Co. of America v. Bearing, Inc., 260 F.Supp. 639 (E.D.Pa. 1966). Even assuming convenience of counsel were a valid consideration, the firm of plaintiff's counsel maintains a New York office, rendering any inconvenience suffered de minimus. Thus, since none of the operative facts occurred in this District, we conclude that the convenience of the parties and witnesses and the interest of...