Ragsdale v. Price

• Decision Date: 25 July 1960
• Docket Number: Civ. A. No. 2568.
• Citation: 185 F. Supp. 263
• Parties: David R. RAGSDALE, Plaintiff v. Ray N. PRICE et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

185 F. Supp. 263

David R. RAGSDALE, Plaintiff v. Ray N. PRICE et al., Defendants.

Civ. A. No. 2568.

United States District Court M. D. Tennessee, Nashville Division.

July 25, 1960.

William Waller, Jr., and James C. Kirby, Jr., of Waller, Davis & Lansden, Nashville, Tenn., and Jack L. Burnam, San Francisco, Cal., for plaintiff.

Ward Hudgins and Richard H. Frank, Jr., of Barksdale & Hudgins, Nashville, Tenn., for defendant.

WILLIAM E. MILLER, District Judge.

Plaintiff has moved for an order transferring this case to the United States District Court for the Northern District of California pursuant to the provisions of 28 U.S.C.A. § 1404(a):

"(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."

The action was brought by plaintiff, a resident of the Northern District of California, against the defendant, a resident of the Middle District of Tennessee, to recover damages for personal injuries sustained by plaintiff in the Northern District of California as the result of the alleged negligence of the defendant. Federal jurisdiction being founded upon diversity of citizenship, the requirements of venue could have been satisfied in either district.¹ However, since the defendant could not be served with process in California, plaintiff instituted the action in this district, and having obtained personal service upon the defendant, he now seeks to have the case transferred to the Northern District of California for trial. The defendant opposes the proposed transfer and insists that since he was not present in the Northern District of California when the action was brought and could, therefore, not be served with process therein, that district is not one where the action "might have been brought," within the meaning of Section 1404(a).

Since the California District on the facts presented appears to be the more convenient forum, the question presented is whether a district having jurisdiction of the subject matter and statutory venue but in which the defendant is not amenable to process is, within the meaning of the statute, a district where the action "might have been brought."

Many courts and some text writers take the view that Section 1404(a) is clear and that "its words should be considered for what they say." (See e. g., All States Freight, Inc. v. Modarelli, 3 Cir., 1952, 196 F.2d 1010, 1011). But even the most cursory survey of reported decisions would readily disclose a decided conflict in the views of courts which have had occasion to construe and apply Section 1404(a), and particularly with respect to the words "where it might have been brought." Many of these conflicting decisions are cited and discussed in a recent decision of the Supreme Court, speaking through Mr. Justice Whittaker, and in a dissenting opinion by Mr. Justice Frankfurter, in the companion cases of Hoffman v. Blaski (Sullivan v. Behimer). 80 S.Ct. 1084, a decision discussed hereinafter.

It would seem clear from the Reviser's Notes, which were before Congress at the time Section 1404(a) was under consideration, that the section was drafted in recognition of the doctrine forum non conveniens and to give that doctrine, with certain modifications, a statutory effect.² That these notes should be regarded as authoritative in interpreting the meaning of the code, including this particular section, is expressly pointed out by the Supreme Court in United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226.

The doctrine forum non conveniens presupposed at least two forums in which the defendant was amenable to process, Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 506, 67 S.Ct. 839, 91 L.Ed. 1055, and under it a district court, finding the doctrine applicable, had no power to transfer but could only dismiss the action without prejudice. The view supported by the Reviser's Notes as well as by a preponderance of judicial opinion is that the primary purpose of Section 1404(a) was to authorize transfer of a civil action for the convenience of the parties and in the interest of justice, where dismissal would have been required under forum non conveniens. In an article entitled "The Judicial Code, 1948 Revision," appearing in 8 F.R.D. 439, the Chief Reviser of the Judicial Code, states:

"One very important change was made with respect to venue. Section 1404(a) is new. It authorizes a United States District Court `for the convenience of parties and witnesses, in the interest of justice' to transfer any civil action to any other district or division `where it might have been brought.'"

"Formerly a district court had no such power. If it declined to consider a case on the ground of forum non conveniens it could only dismiss. It could not transfer. This change was called to the attention of Subcommittee No. 1 of the House Committee on the Judiciary at hearings held more than a year before the revised code was enacted into law."

Furthermore, the recent decision of the Supreme Court in Hoffman v. Blaski (Sullivan v. Behimer), supra, begins with this statement 80 S.Ct. 1085:

"To relieve against what was apparently thought to be the harshness of dismissal, under the doctrine of forum non conveniens, of an action brought in an inconvenient one of two or more legally available forums. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, and concerned by the reach of Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, Congress, in 1948, enacted 28 U.S.C. § 1404(a) which provides: * * *."

It may be conceded that Congress, in adopting this section, did more than codify the existing law. For example, it granted district courts a broader discretion in the application of the statute than they possessed in applying the doctrine of forum non conveniens. Coffill v. Atlantic Coast Line R. Co., D.C., 180 F.Supp. 105. As stated by the Supreme Court in Norwood v. Kirkpatrick, 1955, 349 U.S. 29, at page 32, 75 S.Ct. 544, at page 546, 99 L. Ed. 789:

"* * * as a consequence, we believe that Congress, by the term `for the convenience of parties and witnesses, in the interest of justice,' intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed, * * *."

Nevertheless, in application of the statute the courts essentially are performing the same function that they did under the doctrine, and there is no indication that Congress intended to dispense with the pre-existing requirement of amenability to process in the transferee district.

The decided weight of authority supports this view, clearly articulated by Judge Learned Hand in Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949, 951, as follows:

"* * * it is true that the District Court of the Southern District (Northern Division) of California would have jurisdiction over an action brought by the plaintiff against the defendants, provided he served them with process within that state, or, perhaps, that district. Hence, the plaintiff argues, since he could have `brought' the action in California, Sec. 1404(a) authorized its transfer thither. That would be true, if that section regards the mere filing of a complaint as a bringing of the action; but it is not true, if it presupposes that the defendant can be served. We do not forget that an action is `commenced' when the complaint is filed; and it would follow, if it is `brought' whenever it is `commenced,' that the plaintiff is right. The inference is, however, unwarranted that Rule 3 meant to assimilate the filing of a complaint to the service of a summons. Apparently its primary object was to fix a limit upon the period of limitation; and that has never required the service of process, * * *. We need not say that that is the only office of Rule 3, but we are satisfied that at least it does not make the filing of a complaint the equivalent of `bringing an action' under Sec. 1404 (a).

"It is horn book law that transitory actions must begin with personal service upon the defendant and that, when they do not, the judgment is a nullity. It is of course true that Congress might make the process of a district court run throughout the Union, as indeed it has done in suits by the United States under the Anti-Trust Acts 15 U.S.C.A., Sec. 25. But, unless otherwise specifically provided, the initial process in a transitory action has always been limited territorially; and Rule 4(f) now confines it to the boundaries of the state in which the action is pending. If, however, the plaintiff be right, § 1404(a) has made it possible in `diversity' cases for a plaintiff to dispense with service upon the defendant in the district where the case is to be tried; for by serving him in an action in the defendant's own district, the plaintiff may fetch him 2,000 to 3,000 miles away for trial in a district where he does not live and where he has never set foot. Considering that, this is contrary to the substantially uniform practice of Congress, and we ought to demand a plain expression of intent to so revolutionary a change. Not only is there no such expression, but analysis of the results of such an interpretation make it to the last degree improbable that this could have been the purpose.

* * * * * *

"While there is as yet no controlling authority upon the point, what there is accords with our conclusion. The revisors say that Sec. 1404(a) `was drafted in accordance with the doctrine of forum non conveniens,' and that doctrine always `presupposes at least two forums in which the defendant is amenable to process.' The same conclusion was expressed obiter in Christopher v. American News Co. 7 Cir., 176 F.2d 11, and Judge Rodney so decided in Tivoli Realty Insurance Co. v. Paramount Pictures, D.C. Del. 89 F.Supp. 278."

The Court of Appeals for the Ninth Circuit considered the question in Shapiro v. Bonanza Hotel...