Popkin v. Eastern Air Lines, Inc., Civ. A. No. 28664

• Decision Date: 25 March 1966
• Docket Number: 28762-28764,30306,29724,29881-29884,Civ. A. No. 28664,30078,29615,30305,30079,30284,28788,29159-29162,29099,29901,303,30263,29768,29616,29100,30289,30301,28789,30200,30288,30230,30258,29274,28741,29275,30260,30302,30266
• Parties: Sidney W. POPKIN v. EASTERN AIR LINES, INC., Lockheed Aircraft Corp., and General Motors Corporation (and related cases).
• Court: U.S. District Court — Eastern District of Pennsylvania

253 F. Supp. 244

Sidney W. POPKIN v. EASTERN AIR LINES, INC., Lockheed Aircraft Corp., and General Motors Corporation (and related cases).

Civ. A. Nos. 28664, 28741, 28762-28764, 28788, 28789, 29099, 29100, 29159-29162, 29274, 29275, 29615, 29616, 29724, 29768, 29881-29884, 29901, 30078, 30079, 30200, 30230, 30258, 30260, 30263, 30266, 30284, 30288, 30289, 30301, 30302, 30305, 30306, 30343, 30344, 30346, 321, 323, 325, 327, 329, 375 of 1961 in Admiralty.

United States District Court E. D. Pennsylvania.

March 25, 1966.

Freedman, Borowsky & Lorry, by Milton M. Borowsky, Philadelphia, Pa., for plaintiffs in Civ. A. Nos. 28664, 29881, 29882, 29883, 29884, 29901, 30258, 30260, 30301, 30302, 30305, 30306, 30343, 30344, and Nos. 321, 323, 327, 329 and 375 of 1961 in Admiralty.

Abram P. Piwosky, Philadelphia, Pa., and Lee S. Kreindler, New York City, for plaintiffs in Civ. A. Nos. 29724, 30288 and 30289.

Morgan, Lewis & Bockius, by Ralph Earle, II, John R. McConnell, Philadelphia, Pa., and O. Jacob Tallman, (Allentown, Pa.) for plaintiffs in Civ. A. Nos. 30078, 30079, 30284 and 30346.

Krusen, Evans & Byrne, by Thomas E. Byrne, Jr., Philadelphia, Pa., for plaintiffs in Civ. A. No. 29768.

Richter, Lord & Cavanaugh, by B. Nathaniel Richter, Philadelphia, Pa., for plaintiffs in Civ. A. Nos. 28741, 28762, 28763, 28764, 28788, 28789, 29099, 29100, 29159, 29160, 29161, 29162, 29274, 29275, 29615, 29616, 30200, 30230, 30263, 30266.

Rawle & Henderson, by J. Grant McCabe, III, Philadelphia, Pa., for defendant Eastern Air Lines, Inc.

Montgomery, McCracken, Walker & Rhoads, by Sidney L. Wickenhaver, Philadelphia, Pa., for defendant Lockheed Aircraft Corp.

Dechert, Price and Rhoads, by Owen B. Rhoads, Philadelphia, Pa., for defendant General Motors Corp.

Drew J. T. O'Keefe, Philadelphia, Pa., and Wallace Maloney, Dept. of Justice, Washington, D. C., for United States of America.

WOOD, District Judge.

On October 4, 1960, an Electra airplane on a commercial flight from Boston to Philadelphia crashed into Boston Harbor shortly after take-off from Logan Airport. The airliner was owned and operated by Eastern Air Lines, Inc. and had been designed by Lockheed Aircraft Corp. which also had built the airframe. The propulsion engines were designed and built by General Motors Corp. The United States had supervised the licensing of the Electra for commercial use and controlled various aspects of the plane's last flight. All of the parties mentioned are defendants in some of these cases in some form.

As a result of the accident, fifty-five actions were brought in the Eastern District of Pennsylvania, of which forty-eight are still pending here¹ and over one hundred actions were commenced in the United States District Court for the District of Massachusetts. The record in these cases indicates that the primary basis for liability on which plaintiffs will rely is alleged fault of defendants resulting in bird ingestion by the turboprop engines of the plane involved in this accident. At this time, because of the paucity of discovery, we have no idea what facts either side will rely upon to prove his case.

Defendants filed motions under 28 U.S.C. § 1404(a)² to transfer these cases to the District of Massachusetts, which were considered and granted by Judge Francis L. Van Dusen of this court. Popkin v. Eastern Air Lines, Inc., 204 F. Supp. 426 (E.D.Pa.1962). Plaintiffs thereafter obtained a Writ of Mandamus in the Court of Appeals on the ground that as the fiduciary plaintiffs had not qualified under Massachusetts law, the District of Massachusetts was not a court in which the actions "might have been brought." Barrack v. Van Dusen, 309 F.2d 953 (3rd Cir. 1963). The Supreme Court of the United States reversed the Court of Appeals and remanded to the district court holding that section 1404 (a) must be so interpreted that the transferee district court, after a change of venue, is generally bound to apply the law of the state of the transferor and that the district court erred in ignoring several factors which stem from this conclusion in determining whether or not to grant the motions to transfer. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). The case assumed a rather narrow interpretation of the transfer statute by regarding it merely as "federal judicial housekeeping" that authorizes only "a change of courtrooms." Van Dusen v. Barrack, 376 U.S. at 636-637, 84 S.Ct. 805.

Pursuant to the Supreme Court's directions, Judge Van Dusen scheduled additional arguments but before actual hearing, the Court of Appeals suggested that he remove himself from the cases after the plaintiffs had applied for a writ of mandamus seeking to disqualify him from sitting further in these cases. Rapp v. Van Dusen, 350 F.2d 806 (3rd Cir. 1965). The plaintiffs had alleged that he was biased, in fact or in appearance, because of his associations with defense counsel in the course of the prior mandamus action. Upon reassignment of these cases to us, we scheduled a hearing to consider the future course of this litigation.

The defendants renewed their motions to transfer these actions to the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 1404(a). In support of their motions, defendants state essentially that a transfer would enable consolidation of these cases with the case in Boston, would be in the interests of many eyewitnesses and experts who would be saved a dual trial, would relieve a congested docket here and free us from duplicating Judge Julian's decisions and enable them to implead the Massachusetts Port Authority.

Under Section 1404(a) it is clear that the burden is upon the movant to show by a preponderance of the evidence that trial will more conveniently proceed and the ends of justice will be better served by a transfer. The Supreme Court in Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955) established that the discretion to be exercised in transferring a case was broader than that exercised under forum non conveniens. Jurgelis v. Southern Motors Express, 169 F.Supp. 345 (E.D. Pa.1959). However, moving defendants are still required to show a strong balance of inconvenience in their favor before a transfer will be granted. Calva v. American Air Lines, Inc., 177 F.Supp. 238 (D.Minn.1959). Plaintiffs' right to choose a forum is a very relevant consideration in weighing the disadvantages to defendants, especially when the plaintiffs are residents of the transferor forum. Cressman v. United Air Lines, 158 F.Supp. 404 (S.D.N.Y.1958). With these considerations in mind, we may now proceed to an analysis of the relevant factors.³

The starting point in ruling on the transfer motions is the position taken by the United States Supreme Court in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) where they suggested certain criteria which they "concluded * * * that the District Court ignored * * * which might well have been more clearly appraised and might have been considered controlling * * *." The suggestions of the Supreme Court were as follows:

1. "Since * * * Pennsylvania laws would govern the trial of the transferred cases, insofar as those laws may be significantly different from the laws governing the cases already pending in Massachusetts, the feasibility of consolidation and the benefits therefrom may be substantially altered.⁴

2. "If the transferred actions would not be subject to the Massachusetts culpability and damage limitation provisions, then the plaintiffs might find a relatively greater need for compensatory damage witnesses to testify with regard to the economic losses suffered by individuals. * * *

3. "To the extent that Pennsylvania laws are difficult or unclear and might not defer to Massachusetts laws, it may be advantageous to retain the actions in Pennsylvania where the judges possess a more ready familiarity with the local laws." Van Dusen v. Barrack, 376 U.S. at 643-647, 84 S.Ct. at 823.

The Court, however, specifically refrained from commenting on the criteria relied upon by the District Court.

Generally, we can hardly disagree with Judge Van Dusen's exhaustive and well-considered opinion concluding that a transfer was justified as of April 6, 1962. However, because of the Barrack and Griffith decisions of which he did not have advantage and because of circumstances occurring after 1962, we conclude at this time that these cases should not be transferred to the District Court for the District of Massachusetts. We will add only a brief note to the comments made by Judge Van Dusen relative to those factors not specifically treated by the Barrack opinion to make clear the weight we ascribe to each factor.

Those factors which Judge Van Dusen felt justified a transfer were as follows:

1. Massachusetts will be more convenient for the known witnesses on the issue of liability.

2. Massachusetts will be as convenient as Philadelphia for all other persons who are likely to be liability witnesses.

3. Once the issues of liability have been determined, relatively few of a large group of cases such as these go to a trial on the damage issues.

4. Consolidation of all cases for pre-trial proceedings will result in more fair and orderly trials for all litigants and will save needless time and expense for the public.

5. Consolidation in one district will result in as few trials as feasible on the issues of liability and will reduce the risks of inconsistent results.

6. Massachusetts is the only district in which all defendants, including the Massachusetts Port Authority, may be brought before the court.

7. The trial of the issues of liability will be held in a forum at home with the applicable law and where the docket is less congested.

8. Massachusetts is the only district in which all actions against the United States may be maintained.

9. There will be no duplication of pre-trial procedures.

We do not feel that we can...