Texas Gulf Sulphur Company v. Ritter, 9118.

• Decision Date: 03 January 1967
• Docket Number: No. 9118.,9118.
• Citation: 371 F.2d 145
• Parties: TEXAS GULF SULPHUR COMPANY, a Texas corporation, and Charles F. Fogarty, Petitioners, v. The Honorable Willis W. RITTER, Chief Judge of the United States District Court for the District of Utah, and George Gordon Reynolds, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

371 F.2d 145 (1967)

TEXAS GULF SULPHUR COMPANY, a Texas corporation, and Charles F. Fogarty, Petitioners, v. The Honorable Willis W. RITTER, Chief Judge of the United States District Court for the District of Utah, and George Gordon Reynolds, Respondents.

No. 9118.

United States Court of Appeals Tenth Circuit.

January 3, 1967.

Calvin A. Behle, Salt Lake City, Utah (Keith E. Taylor, of Parsons, Behle, Evans & Latimer, Salt Lake City, Utah, on the brief), for petitioners.

Parker M. Nielson, Salt Lake City, Utah (A. Reed Reynolds of Clyde, Mecham & Pratt, Salt Lake City, Utah, on the brief), for respondents.

Before MURRAH, Chief Judge, HILL, Circuit Judge, and KERR, District Judge.

HILL, Circuit Judge.

This original action was filed pursuant to our Rule 28, seeking to prohibit respondent from proceeding to try an action pending in the District of Utah, and to compel him to transfer the case to the Southern District of New York under 28 U.S.C. Section 1404(a); and, to either dismiss the action as to a named defendant, Charles F. Fogarty and to quash the service of summons as to him or to transfer the case, as to him, to the above named district under either of sections 1406(a) or 1404(a) of 28 U.S.C.

A brief summary of the uncontroverted facts of the pending action is necessary for a proper consideration of questions presented here.

George Gordon Reynolds filed the action under the provisions of section 27 of the Securities Exchange Act (15 U.S.C. § 78aa) alleging violations of 15 U.S.C. § 78i(a) and (e) and 78j and Rule 10b-5 of the Securities Exchange Act. He also alleges residence in Utah; that he is a former stockholder of defendant company, Texas Gulf Sulphur Company; that defendant company is a Texas Corporation qualified to do business in Utah, with its principal business office at Mohab, Utah; that defendant Fogarty is a resident of Rye, New York, and a director and executive vice president of defendant company; that he sold his stock in the company through a local Utah brokerage house on April 16, 1964, after reading a press release dated April 12, 1964, which was released to the news media by the defendants in New York and appeared in an issue of the Wall Street Journal received by him in Salt Lake City; that statements contained in the press release misrepresented relevant facts concerning mineral prospecting activities of the company near Timmons, Ontario, Canada; and that such misrepresentations were violations of the S.E.C. Act.

Writs of mandamus and prohibition are drastic and extraordinary remedies and should be issued sparingly by appellate courts. When used against a trial court, there must be a clear showing of abuse of discretion by the trial court and the right to such relief must appear clear and undisputable.¹ It may fairly be stated that this court has "been extremely reluctant to find an abuse of discretion by the district court" and we are not convinced this is an appropriate case for the granting of such extraordinary relief.²

The transfer of pending civil cases from one district to another is governed by 28 U.S.C. § 1404(a) which provides "(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 burden of establishing that the suit should be transferred is upon the movant and unless the evidence and the circumstances of the case are strongly in favor of the transfer the plaintiff's choice of forum should not be disturbed. The transfer lies within the sound judicial discretion of the trial judge and his determination should not be rejected unless the appellate court can say there has been a clear abuse of discretion.³ The circumstances of each particular case must be examined by the trial judge in the exercise of his discretionary power under section 1404(a) to order a transfer. Among the factors he should consider is the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious and economical.⁴

Petitioners point out that nearly 100 cases arising from the same factual background from which Reynolds' case arose are now pending in the state and federal courts in New York City; that more than half of that number are in the federal district court in the Southern District of New York, some having been originally filed there and others having been transferred there from other federal courts; all of these cases in that court have been assigned to a single judge for discovery and trial; the principal office of Texas Gulf is in New York City and its officers reside there; the files and records of the company are kept there; and Texas Gulf and the anticipated witnesses in its behalf would suffer great inconvenience and unnecessary expense if the action is tried in Utah.

On the other side of the scale the facts show that Reynolds, a man seventy years of age, is a resident of Utah and selected that forum; Texas Gulf has substantial operations in Utah, including a plant where the Canadian minerals taken from core drills were assayed; the expert witnesses for Reynolds and other witnesses to be used by him to prove many of the circumstances surrounding his sale of stock reside in Utah; the receipt in interstate commerce of the press release and the publication of it relied upon by Reynolds were in Utah; New York City, as a place of trial, would be inconvenient and expensive to Reynolds and his witnesses; and, from the record it is apparent to us that this case is not a complicated case likely to result in a prolonged trial involving new or novel legal theories or requiring any unusual or extensive discovery procedures.

Some discussion is appropriate here concerning the sufficiency of the affidavit of William D. Conwell filed in the trial court in support of the motion to transfer. In view of the heavy burden imposed upon the movant, the factual content of a supporting affidavit is very important. In ...