Mitchell v. Gundlach, 8100.

• Decision Date: 30 November 1955
• Docket Number: No. 8100.,8100.
• Citation: 136 F. Supp. 169
• Parties: William MITCHELL, Sr., Administrator of the Estate of William Mitchell, deceased, v. Henry GUNDLACH, T/A Seaboard Asphalt Products Co.
• Court: U.S. District Court — District of Maryland

136 F. Supp. 169

William MITCHELL, Sr., Administrator of the Estate of William Mitchell, deceased, v. Henry GUNDLACH, T/A Seaboard Asphalt Products Co.

No. 8100.

United States District Court D. Maryland, Civil Division.

November 30, 1955.

Louis Ginsberg, Samuel Levine, Washington, D. C., for plaintiff.

Paul F. Due, Eldridge Hood Young, Baltimore, Md., for defendant.

CHESNUT, District Judge.

The presently more important question in this case is whether the court can and should transfer the case to the District of Columbia under section 1404(a) of title 28 of the Revised Judicial Code of 1948, which reads as follows:

"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." (Italics supplied.)

The plaintiff is a resident of the District of Columbia and sues as administrator of the estate of William Mitchell, who was also a resident of the District of Columbia. The defendant is a citizen of the State of Maryland resident in Baltimore City. The ground of the action is based on the alleged wrongful death of the decedent said to have occurred on or about March 7, 1954 consequent upon injuries sustained by him on March 3, 1954 while engaged in the process of laying floors, when a quantity of mastic primer exploded or took fire and severely burned the decedent. It is further alleged that the defendant in Baltimore manufactured and sold the mastic primer in drums to a retail dealer or distributor in Washington from whom the decedent's employer bought the mastic primer. It is further alleged that the defendant was negligent in the manufacture and sale of the article because he did not attach to the drums or containers in which it was sold a warning of its dangerous nature. The suit is grounded on the District of Columbia statute providing for survival of actions by or against administrators, D.C.Code 1951, § 12-101 et seq., in combination with the wrongful death statute of the District of Columbia, D.C.Code 1951, § 16-1201. Suit was instituted in this court on March 2, 1955 and the defendant promptly appeared and filed answer to the complaint. On November 1, 1955 the plaintiff filed a motion to transfer the case to the District of Columbia and the defendant has filed written opposition thereto.

The question to be decided is whether the court has the power to transfer the case in view of the above italicized clause in section 1404(a), and the absence of any showing by the plaintiff that the defendant could be subjected to personal service in the District of Columbia. In my opinion the court does not have the power to make the transfer in this case. I will, as briefly as possible, state the reasons for this conclusion.

Section 1404(a) first appeared in the Revision of the Judicial Code of 1948. It was a remedial improvement of the well-known judicial doctrine of forum non conveniens. That judicial principle in its primary application related to the discretionary power of the court to decline the exercise of jurisdiction which it otherwise had where the controversy was between non-residents and the circumstances of the case showed that the controversy could more conveniently be adjudicated in another jurisdiction. The principle involved had been brought to prominent attention shortly before the Revision of the Judicial Code in several opinions of the Supreme Court, particularly Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28; Gulf Oil Corp v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Koster v. (American) Lumbermans Mutual Casualty Co., 1947, 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067; and United States v. National City Lines, 1948, 334 U.S. 573, 68 S.Ct. 1169, 92 L.Ed. 1584. While legislative consideration of the proposed revision of the Judicial Code was under consideration, Prof. Moore, a special consultant to the revisioning staff, proposed that as an improvement of the common law doctrine of forum non conveniens, it would be better to have a statutory enactment authorizing a transfer of a case instituted in one district to another district in which it could more conveniently be tried. See Moore's Commentary on the United States Judicial Code, p. 206, s. 0.03(29) relating to section 1404(a). This suggestion in principle was adopted and enacted by Congress on the conditions stated in the section. It constitutes a remedial improvement in procedure over the application of forum non conveniens in that the result of the application of the latter was simply to dismiss the case leaving the plaintiff to originate a new suit elsewhere in an appropriate jurisdiction, with, of course, the undesirable incidence of accumulated costs and possibilities of accrual of period of limitations. These latter disadvantages are obviated where the suit can simply be transferred to another proper jurisdiction. See Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 1949, 177 F.2d 360.

Where one of the parties moves for a transfer of the case it is clear from the wording of the section that the first question is whether, under the circumstances of the case as presented to the court, there is the power to make the transfer; and secondly, if so, whether under the circumstances of the case a transfer if made will be for the convenience of the parties and witnesses and in the interests of justice. As to the question of power, it is apparent from the wording of the last clause of the statute that a transfer cannot be made to any other district but only to a district "where it might have been brought." The precise question here is, what was the intention of Congress in enacting this condition with respect to the desired change of venue.

This question is not a new one. The very great weight of federal authority in judicial decisions since 1948 is that the power to transfer to another jurisdiction is limited to a federal district where the case might have been brought originally. This question was considered at length and expressly decided by the Second Circuit in 1950 in the case of Foster-Milburn Co. v. Knight, 181 F.2d 949. The circumstances with respect to the residence and citizenship of the parties there was precisely similar to that in the instant case. The opinion was the unanimous opinion of a court of very able and experienced federal Circuit Judges consisting of Chief Judge Learned Hand, and Judges Swan and Chase. The decision in effect reversed a contrary view by the district judge and a reading of the case will show that the opinion, written by Chief Judge Learned Hand, was based on the lack of power to make the transfer to California where the defendant in the case, a citizen of New York, could not be subjected to personal service in California.

The same conclusion in another fully considered opinion was reached by the Ninth Circuit in Shapiro v. Bonanza Hotel Co., 185 F.2d 777. Both these appellate decisions were rendered in 1950. They are so fully considered from all aspects of the question and are so persuasive and convincing that I have no difficulty in following them although there seems to be no express decision precisely on the point by the Court of Appeals of this Fourth Circuit.

In addition the same conclusion has been reached by nearly all the district courts which have considered the question since 1948. Indeed I have been able to find only two district court opinions to the contrary. One was in the District Court of Iowa, Otto v. Hirl, 1950, 89 F. Supp. 72 which, however, was not followed by the same district court in 1951 where the contrary opinion was based on the decision of the Second Circuit case just referred to.¹ Herzog v. Central Steel Tube Co., D.C., 98 F.Supp. 607.

The clause in the section reading "where it might have been brought" is clearly a limitation on the district to which the transfer can be made. I think it could not have been within the contemplation of Congress that the suit could be transferred to a district where it could not have been effectively brought. Literally a suit can be filed by a plaintiff in any district but, of course, if it is not brought in the proper venue it must be dismissed for want of jurisdiction or, by 28 U.S.C.A. § 1406, it might now be transferred to the district having proper venue. Where there is no jurisdiction of the subject matter under federal constitutional or statutory law, there must be a general jurisdiction based on diversity of citizenship, and under the federal statutes where so based it may be brought only in the district in which all the plaintiffs or all the defendants are resident. 28 U.S. C.A. § 1391(a). In other words, there must be both general jurisdiction and special venue jurisdiction dependent upon the residence or citizenship of the parties. See Moore's Commentary on U.S. Judicial Code, pp. 200-11. Nor can the action be effectively brought in another district even though there is special venue jurisdiction unless the defendant can be subject in that district to personal service of summons to answer the suit which can be made on the defendant only where he is personally served with summons from the court where the suit is pending, and this can be accomplished only where there is authority in the court to issue the summons to be served. Therefore the condition in the clause of 1404(a) referred to requires that the court to which the case may be transferred must be one in which the court would have had both venue jurisdiction and authority to issue summons to the defendant to subject him to the jurisdiction of the court over his person. We are dealing here with a simple case where the suit is brought in this district in accordance with the requirements of the venue statute because the only defendant is a citizen of Maryland. The case therefore does not involve the more complex circumstances which may arise in suits under the Sherman...