Nicol v. Koscinski

• Decision Date: 25 April 1951
• Docket Number: No. 11376.,11376.
• Citation: 188 F.2d 537
• Parties: NICOL v. KOSCINSKI, U. S. Dist. Judge.
• Court: U.S. Court of Appeals — Sixth Circuit

188 F.2d 537 (1951)

NICOL v. KOSCINSKI, U. S. Dist. Judge.

No. 11376.

United States Court of Appeals, Sixth Circuit.

Decided April 25, 1951.

Phillip C. Kelly, Jackson, Mich., for petitioner.

Before HICKS, Chief Judge, and SIMONS and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The petitioner filed suit in the District Court for the Eastern District of Michigan, Southern Division, alleging damages for injuries suffered upon the premises of the J. C. Penney Company Department Store in Omaha, Nebraska. She seeks a writ of mandamus to compel the district judge to set aside an order removing the cause to the District Court of Omaha, Nebraska, under the provisions of 28 U.S.C.A. § 1404 (a). In opposing the defendant's petition for removal, she recites that she lives at Jackson, Michigan; was accompanied by a woman friend who saw the accident and who also lives at Jackson; that the physicians, nurses, hospital attendants, a dental surgeon and a doctor of optometry who attended her after her return home, are all residents of Jackson.

On the other hand the defendant alleges that ten of its employees who are expected to be witnesses in the case, are all residents of Omaha, and that it would be an unnecessary hardship to bring them all to Detroit; that in addition to such employees there are a number of other witnesses such as shoppers in the store and employees or officials of the O'Keefe Elevator who installed the escalator upon which the plaintiff claims to have been injured, and also engineers and experts who live in or near Omaha, Nebraska, and that the latter witnesses may not be compelled to attend by any process issued out of the District Court in Michigan.

It is clear that whether the order stands or is set aside, one of the litigants will be inconvenienced, and it became the duty of the district judge to balance inconveniences and to determine upon which litigant the greater hardship would rest, if he granted change of venue, and that determination was subject to the rule that unless the balance is strongly in favor of the defendant the plaintiff's choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055. It is said, however, in that case, 330 U.S. at page 509, 67 S.Ct. at page 843, 91 L.Ed. 1055, "Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. * * * There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself."

Determination as to the greater convenience or inconvenience must rest within the sound judicial discretion of the district judge to whom the petition for change of venue is addressed, and his decision should not be set aside unless there is apparent an abuse of discretion. This is so whether we accept the view of Judge Frank in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 331, that the judge must guess and that we should accept his guess unless it is "too wild," or whether we take the more conventional approach to the problem by Judge Learned Hand in the same case, who felt that to set aside an order the balance of convenience must be strong enough to declare a finding of the district judge "clearly erroneous."

It must be observed that the greater number of witnesses reside in Nebraska; that the premises upon which the accident is said to have occurred is there; that the device which contributed to it is there; that the persons who installed the apparatus are likewise there and that the law to be applied is the law of Nebraska. It must also be observed that only one of the petitioner's witnesses, other than...