Scaramuzzo v. American Flyers Airline Corporation

• Decision Date: 06 December 1966
• Docket Number: Civ. A. No. 66-C-858.
• Parties: Peter SCARAMUZZO, an infant over the age of 14 years, by his father and natural guardian, Angelo Scaramuzzo and Angelo Scaramuzzo, Plaintiffs, v. AMERICAN FLYERS AIRLINE CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of New York

260 F. Supp. 746

Peter SCARAMUZZO, an infant over the age of 14 years, by his father and natural guardian, Angelo Scaramuzzo and Angelo Scaramuzzo, Plaintiffs, v. AMERICAN FLYERS AIRLINE CORPORATION, Defendant.

Civ. A. No. 66-C-858.

United States District Court E. D. New York.

November 7, 1966.

Reargument Denied December 6, 1966.

Daniel A. Novok, New York City, for plaintiff.

Condon & Forsyth, New York City, for defendant; Shaw, Pittman, Potts, Trowbridge & Madden, Washington, D. C., of counsel, by Phillip D. Bostwick, Washington, D. C.

MISHLER, District Judge.

Motion to transfer this action for personal injuries to the Eastern District of Oklahoma pursuant to 28 U.S.C. § 1404 (a).¹

The infant plaintiff is one of fifteen soldiers who survived an air crash near Ardmore Airport, which is within the territorial jurisdiction of the Eastern District of Oklahoma. Seventy-seven soldiers and the crew of six were killed. The crash occurred on a flight from Monterey, California, destined for Columbus, Georgia. The stop at Ardmore was scheduled for refueling and crew change. Two deceased soldiers resided in Oklahoma. Eleven soldiers resided in New York — four survived, seven were killed; of those eleven, seven resided in the Eastern District of New York; three of the survivors live in this district. The other soldiers resided in twenty-three other states, two in Puerto Rico and one in Czechoslovakia.

The affidavit in support of the motion states that the defendant was doing business within the Eastern District of Oklahoma 28 U.S.C. § 1391(c) and that the action "might have been brought," there.

Nine actions are presently pending in six United States District Courts. One action is pending in the Eastern District of Oklahoma instituted by an Administratrix residing in Pennsylvania on behalf of a deceased resident of Pennsylvania. Two actions are pending in the Northern District of Oklahoma — one of which was instituted by an Administrator residing in Colorado on behalf of a deceased resident of Colorado. Defendant moved for transfer, in all the pending cases, to the Eastern District of Oklahoma. "If any cases are transferred defendant intends to file a motion in the Eastern District of Oklahoma to have all cases there consolidated for the purposes of discovery, pre-trial and a single trial on the issue of liability." Aff. Phillip D. Bostwick, p. 6. Attached to the moving papers is a list of forty-nine witnesses who defendant expects will be deposed "by one or more of the parties to the pending actions, and that a large percentage of the persons on this list will be called by one or more parties to testify at trial." Aff. Phillip D. Bostwick, p. 7.

Plaintiff suffered an amputation of the right leg nine inches below the knee and other injuries including severe burns. He is presently being treated for revision of the stump of the right leg and the other injuries at the Army Base Hospital at Fort Sam Houston in San Antonio, Texas. It is expected, that he will return home soon, for continued treatment.

Upon oral argument, the Court inquired of defendant whether it would pay the travel costs of plaintiff, his witnesses and counsel for trial in the Eastern District of Oklahoma. Defendant argued against such a condition, claiming it would be a penalty and should not be imposed.

Purpose of § 1404(a)

The enactment of § 1404(a) vested the district courts with power to transfer upon a lesser showing of inconvenience than previously existed under the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 30, 75 S.Ct. 544, 545-546, 99 L.Ed. 789 (1955). The purpose of the statute is expressly stated, i. e., "For the convenience of parties and witnesses, in the interest of justice * * *."

The statute did not negate the traditional right of the plaintiff to choose the forum. Norwood v. Kirkpatrick, supra at 32, 75 S.Ct. at 546. In a diversity suit, where the plaintiff venues the action in his home district, the burden is upon the moving defendant to show that the balance of convenience is in his favor. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); 1 Moore, Federal Practice, ¶ 0.1455, at 1787 (2d ed. 1964); Kaufman, J., Observations on Transfers Under Section 1404(a) of The New Judicial Code, 10 F.R.D. 595, 605 (1950). The defendant must list factors to show that the convenience of parties and witnesses, and the interest of justice, are balanced strongly in his favor, Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). In Popkin v. Eastern Air Lines, Inc., 253 F.Supp. 244 (E.D.Pa.1966), on remand from Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), the Court said:

"* * * Plaintiffs right to choose a forum is a very relevant consideration in weighing the disadvantages to defendants, especially when plaintiffs are residents of the transferor forum cases cited." Id. at p. 246.

A showing of inconvenience to the defendant is not enough for the granting of § 1404(a) relief, where the transfer would merely shift the inconvenience to the other party. Miracle Stretch Underwear Corp. v. Alba Hosiery Mills, 136 F.Supp. 508, 511 (D.Del.1955).

Factors

The factors to be considered were stated in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843, as follows:

"Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make the trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial."

Several of these factors are raised by defendant in support of its motion, but these "important considerations" must be weighed with the traditional right of the plaintiff "conferred by statute, of choosing the forum * * *." Ford Motor Co. v. Ryan, supra, 182 F.2d at 330.

Inconvenience of Witnesses

Of the forty-nine prospective witnesses listed by defendant in his papers, the first twenty-one are residents of Ardmore, who saw and/or heard the aircraft pass overhead. Witness No. 22 flew over the airport in a private plane shortly after the crash and observed the weather conditions. Witnesses numbered 24 to 30 are employees of defendant; the value of their testimony is questionable. Witness No. 31, an F.A.A. service station attendant, is described as being the last person in radio contact with the aircraft; he took surface weather observations at Ardmore Airport. Witness No. 32, a F.A.A. air traffic control specialist, was in radio communication with the aircraft; he cleared the aircraft for approach to land at the Ardmore Airport. Witness No. 33 is a U.S. Weather Bureau forecaster and all that is said of his testimony is that he was on duty at Fort Worth prior to the crash. Witness No. 34 is a meteorologist, and he observed a thunder-storm cell on radar and took a radar photograph. All the rest are doctors and medical personnel who aided the sick and performed autopsies on the dead, and the embalmers and funeral directors who buried the dead.

The only medical witnesses whose testimony is of significance, however, are: Dr. Earl F. Rose, Medical Examiner of Dallas County, who performed the autopsy on Reed W. Pigman, the pilot of the plane and defendant's principal officer; Dr. Thomas Cross, F.A.A. Medical Examiner, who gave Mr. Pigman his aviation medical examinations; and Dr. John P. F. Fershtand of Fort Worth, Texas, Mr. Pigman's personal physician.

One of plaintiff's theories of liability is that Mr. Pigman was suffering from coronary artery arteriosclerosis, and that the crash occurred when Mr. Pigman suffered a cardiac insufficiency. The testimony of the doctors who knew of his condition before the flight, and the testimony of the doctor performing the autopsy, is material on this issue. It is noted, however, that Drs. Rose and Fershtand are not within the territorial jurisdiction of the district court of the Eastern District of Oklahoma.

Judge Kaufman, in Observations on Transfers Under Section 1404(a) of The New Judicial Code, supra 10 F.R.D. at 607, decried the "* * * tendency to weigh the number of witnesses." He continued: "The district judges must be able to see through the voluminous affidavits presented and determine, as best possible, who are the key witnesses and what witnesses need be called, rather than merely count up the witnesses for each side." Id., pp. 607-608; see Mims v. Proctor & Gamble Distrib. Co., 257 F.Supp. 648, 655 (D.S.C.1966).

Defendant cites Glenn v. Trans World Airlines, Inc., 210 F.Supp. 31 (E.D.N.Y. 1962); Rodgers v. Northwest Airlines, Inc., 202 F.Supp. 309 (S.D.N.Y.1962); Cressman v. United Air Lines, Inc., 158 F.Supp. 404 (S.D.N.Y.1958), and Winsor v. United Air Lines, Inc., 153 F.Supp. 244 (E.D.N.Y.1957), in support of its application. These cases are clearly distinguishable from the case at bar. In Rodgers, Cressman and Winsor, neither plaintiffs' administrators, nor the decedents, were citizens or residents of New York. In Glenn, the public administrator represented the mother of the decedent (Kmetty), a citizen and resident of Hungary, and a decedent named Kiss. A sister of decedent obtained letters of administration in Ohio and commenced an action in the Northern District of Ohio. Judge Zavatt severed and transferred the Kmetty case to the Northern District of Ohio and retained jurisdiction over the Kiss case.

In this case, three survivors live in California, four in New York, one in Texas, two in New Jersey, one in Tennessee, one in Arkansas, one in Virginia, one in Alabama, and one in Wyoming. All the survivors are fact witnesses on the...