Sypert v. Bendix Aviation Corporation, 54 C 1112.

• Decision Date: 22 September 1958
• Docket Number: No. 54 C 1112.,54 C 1112.
• Citation: 172 F. Supp. 480
• Parties: Johnny SYPERT, Plaintiff, v. BENDIX AVIATION CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Illinois

172 F. Supp. 480

Johnny SYPERT, Plaintiff, v. BENDIX AVIATION CORPORATION, Defendant.

No. 54 C 1112.

United States District Court N. D. Illinois, E. D.

September 22, 1958.

James A. Dooley, Chicago, Ill., for plaintiff.

Albert M. Howard, McNamara, Voigt, Greene & Nordstrand, B. S. Quigley, Donald John Tufts, Chicago, Ill., for defendants.

MINER, District Judge.

Plaintiff filed suit in this Court on August 3, 1954, to recover for personal injuries arising out of the explosion of an airplane oxygen regulator in Texas. At the time and place of the occurrence, plaintiff was employed by an airplane builder, and was engaged in testing the oxygen regulator as part of his duties. The complaint alleges that his injuries were caused by the negligence of the defendant, manufacturer of the regulator.

On October 26, 1954, defendant filed a motion asking that the action be transferred to the United States District Court for the Northern District of Texas, Dallas Division. After hearing on affidavits, counter-affidavits and briefs, the motion was denied by District Judge Julius J. Hoffman of this Court on October 31, 1955. The case was subsequently tried before District Judge Hoffman and a mistrial declared for failure of the jury to agree on a verdict. Several days later, in another proceeding, Judge Hoffman adversely commented upon his ruling on the motion to transfer, clearly indicating a reversal of his prior opinion.

On March 5, 1958, the defendant filed another motion to transfer to the United States District Court for the Northern District of Texas, Dallas Division. The affidavit of defendant's attorney, submitted in support of the renewed motion, states the following facts concerning the convenience of the parties and witnesses:

(1) That plaintiff alleges in his complaint that his injuries were sustained in Dallas, Texas;

(2) That plaintiff now resides, and did at the time of the occurrence reside, in Dallas, Texas;

(3) That the trial of the case held from January 13, 1958, to February 4, 1958, before District Judge Hoffman, resulted in disagreement of the jury;

(4) That seven witnesses testified for the plaintiff, five having been brought to Chicago from Dallas; that the remaining two were, respectively, a Chicago doctor who examined the plaintiff after commencement of the trial only for the purpose of testifying, and a Glenview naval officer who described the workings of an oxygen regulator;

(5) That four witnesses testified for the defendant, three having been brought to Chicago from Dallas and one, defendant's mechanical engineer, from Davenport, Iowa;

(6) That the testimony of several witnesses had to be, and was, offered by deposition, since they live in Dallas;

(7) That the testimony of prospective witnesses (not identified) was not presented because their presence at the trial could not be obtained since they live in Dallas;

(8) That certain documents, reports and exhibits (not identified), which are available and subject to subpoena in the Dallas court, were not available in this district and could not be presented at the trial;

(9) That since the trial, in treating with a similar motion in another case, District Judge Hoffman has stated on record that the trial of this case convinced him that he had been mistaken in denying the prior motion to transfer. Counsel has attached to his affidavit a copy of the transcript which quotes Judge Hoffman;

(10) That the substantive law applicable to the motion is the law of Texas.

Plaintiff objects to the motion and has countered with affidavits of his counsel affirming facts set forth in his written "Objections" and "Reply to Suggestions of Defendant." The facts so affirmed, which plaintiff deems material, may be summarized as follows:

(1) That on December 3, 1953, prior to the filing of the instant suit, plaintiff filed an identical suit to recover damages in the United States District Court for the Northern District, Southern Division, of California, in response to which defendant filed a motion to dismiss, based upon the one-year California statute of limitations. Plaintiff thereupon voluntarily dismissed the cause.

(2) That defendant's principal witness at the trial before Judge Hoffman aforesaid was the engineer from Davenport, Iowa, which is approximately 165 miles from Chicago, and 635 miles from Dallas.

(3) That in the event of a transfer, plaintiff would have to engage a Texas attorney "who would be without the benefit of the technical knowledge necessary to present the case, and who would likewise be without firsthand knowledge of what had occurred at the first trial. He would be compelled to seek expert testimony in a new section of the country. * * *"

(4) That affiant has spent one week in becoming conversant with the oxygen regulator in question, and the problem involved in the case.

(5) That certain matters (not specified) occurred during the trial which can be forestalled at another trial if handled by the same counsel.

(6) That plaintiff has spent several hundreds of dollars in trying the case in this jurisdiction.

(7) That affiant is informed that "to seek to obtain an expert in Texas, as well as real evidence concerning the oxygen regulator, would well nigh be impossible. * * *"

(8) That affiant could not try the case in Texas.

In substance, the averments of the respective affidavits of counsel are uncontroverted. Were there no other issues presented, the Court would immediately proceed to evaluate the affidavits and arguments in the light of the requirements of Title 28 U.S.C. § 1404(a), and the criteria declared in the cases construing that statute. But plaintiff contends that the Court may not transfer the cause to Dallas under the provisions of 28 U.S.C. § 1404(a), because at the time of the occurrence, August 18, 1952, defendant could not be sued in Texas. Those provisions read:

"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."

In support of this contention, plaintiff refers to cases which hold that a case may not be transferred to a district in which the defendant is not amenable to process. Foster-Milburn Co. v. Knight, 2 Cir., 1950, 181 F.2d 949; Rogers v. Halford, D.C.E.D.Wis.1952, 107 F.Supp. 295; Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y.1953, 116 F.Supp. 426. Cf. Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Shapiro v. Bonanza Hotel Co., Inc., 9 Cir., 1950, 185 F.2d 777; Blackmar v. Guerre, 5 Cir., 1951, 190 F.2d 427, affirmed on other grounds 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534; Blackwell v. Vance Trucking Co., Inc., D.C.E.D.S.C.1956, 139 F. Supp. 103.

No case is cited to sustain the proposition that an action may not be transferred to a district in which the defendant becomes amenable to process subsequent to accrual of the cause of action, but before institution of suit in the district from which transfer is sought. At page 17 of the transcript of hearing on the 1955 motion before Judge Hoffman, the Court stated:

"I think the plaintiff acknowledges that Bendix received a permit to transact business, and appointed a registered agent in Texas on January 29, 1954. The Illinois suit was not filed until August 3, 1954."

Defendant has responded to plaintiff's brief on this point with cases which declare that a district to which transfer is sought is appropriate so long as the defendant is amenable to process there at the time the petition for transfer is made, since the application for transfer is considered a voluntary submission to the jurisdiction of that court. Paramount Pictures, Inc. v. Rodney, 3 Cir., 1950, 186 F.2d 111, certiorari denied 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687; Andino v. The SS Claiborne, D.C.S.D.N. Y.1957, 148 F.Supp. 701; Cain v. Bowater's Newfoundland Pulp & Paper Mills, Ltd., D.C.E.D.Pa.1954, 127 F.Supp. 949.

The legal issue thus presented is whether the statute permits a transfer when, at the time suit was brought in Illinois, suit might have been brought in Texas. To state the issue is, thus, to answer it. The statute does not require that a defendant be amenable to process in two forums at the time of the occurrence out of which the action arose. The Court need not decide whether the statute authorizes transfer where a defendant is amenable to process in but one forum when suit is instituted, and in both only when the application to transfer is made. Nor need the Court decide whether the application constitutes the movant's submission to jurisdiction in the district to which transfer is sought. It is clear that "suit might have been brought" in Texas, both when the Illinois suit was brought and when the original motion to transfer was made, and that defendant continues to be amenable to service in that jurisdiction. See General Portland Cement Co. v. Perry, 7 Cir., 1953, 204 F.2d 316, 318.

Examination of the transcript of hearing on the original motion reveals that Judge Hoffman's denial was predicated on the ground that defendant's affidavits then before him did not clearly demonstrate that the convenience of the parties and witnesses would be served by a transfer. His denial of the motion was not based on a belief that the transfer was precluded as a matter of law. He indicated that the transfer order would be signed if defendant were to make the necessary showing as to convenience.

Plaintiff argues that, once decided, the questions raised by defendant's motion may not be reconsidered by the Court, especially in view of the parties' reliance on the decision in preparing for and trial of the cause. This Court is not bound by a prior disposition of an interlocutory matter (see Clayton v. Warlick, 4 Cir., 1956, 232 F.2d 699, 702; Howes Leather Co. v. La Buy, 7 Cir., 1955, 226 F.2d 703, 704, certiorari granted 350 U.S. 964, 76 S.Ct. 439, 100 L.Ed. 837, affirmed 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290; Chicago,...