Torres v. Walsh
| Citation | 221 F.2d 319 |
| Decision Date | 13 April 1955 |
| Docket Number | 23488.,Docket No. 23472 |
| Parties | Natalie Ortiz TORRES, Petitioner, v. Honorable Lawrence E. WALSH, United States District Judge, Respondent. Application of THE PENNSYLVANIA RAILROAD COMPANY, Petitioner, for a writ of mandamus, or a writ of prohibition, or both, v. Hon. Archie O. DAWSON, District Judge of the United States District Court for the Southern District of New York and said United States District Court, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Golenbock & Komoroff, New York City (Donald S. Sherwood, New York City, of counsel), for petitioner Natalie Ortiz Torres.
Kirlin, Campbell & Keating, New York City (Roland C. Radice and James B. Magnor, New York City, of counsel), for respondent Honorable Lawrence E. Walsh.
Bleakley, Platt, Gilchrist & Walker, New York City (Robert L. Conkling, New York City, of counsel), for petitioner The Pennsylvania Railroad Company.
Bigham, Englar, Jones & Houston, New York City (James M. Hughes, Jr., New York City, of counsel), for respondent Hon. Archie O. Dawson.
Before FRANK and MEDINA, Circuit Judges, and BRENNAN, District Judge.
These two companion cases, argued on February 14, 1955, serve as illustrations of the law in this Circuit applicable to mandamus and prohibition applications in transfer cases under Section 1404(a), 28 U.S.C.
In the Pennsylvania Railroad Company case, plaintiff's goods, shipped from Waynesboro, Pennsylvania, to Cleveland, Ohio, were damaged in transit; and plaintiff sued the railroad in the United States District Court for the Southern District of New York, which had jurisdiction of the person of defendant and of the subject matter of the action. The transaction occurred in Pennsylvania; most of the witnesses were in Pennsylvania. These facts were known to the plaintiff from the beginning; but it chose to sue in the Southern District of New York. Later it was discovered that the damage to the freight might have been caused by the fault of the shipper, Landis Tool Company, at Waynesboro. Accordingly, as the action could have been brought in the United States District Court for the Middle District of Pennsylvania, plaintiff moved under Section 1404(a) to transfer the case to Pennsylvania, in order to join Landis Tool Company as a co-defendant with the railroad, to amend the complaint and to pray for judgment in the alternative against one defendant or the other or both, as the evidence might disclose the negligence of either or both. Obviously, this would serve the convenience of parties and witnesses; but this had been clear all along, and plaintiff, who was the moving party, had chosen to sue in New York. It seems that a discontinuance and the bringing of a new action in Pennsylvania was no solution to plaintiff's problem, as the one-year period of limitations provided in the Bill of Lading had expired. Thus in deciding whether the transfer was "for the convenience of parties and witnesses, in the interest of justice," Judge Dawson had to give consideration in the aggregate to such matters as: the making of the motion for transfer by plaintiff rather than by defendant, as is almost always the case; issues of veracity raised by the supporting and opposing affidavits; and the desire of plaintiff to amend and join a new party defendant after the transfer. In arriving at a conclusion he is said to have exercised his discretion and, if the order were appealable, this court would have power to reverse for abuse of discretion, as in the case of other appealable interlocutory orders.
In the Torres case libellant was a "longshoreman-seaman" aboard the SS Rosario; he was injured in Puerto Rico where the vessel was at the time of the accident and all or practically all the witnesses are in Puerto Rico. But, perhaps because District Judges sitting in admiralty here were thought to be more generous than those in Puerto Rico, this proceeding was commenced in the United States District Court for the Southern District of New York, where personal service of citation was made and a monition issued, pursuant to which the vessel was seized and released upon the filing of the usual undertaking. The claimant-respondent, perhaps also thinking the judges in Puerto Rico might award a less ample recovery, and relying on the obvious convenience of "parties and witnesses," moved under Section 1404(a) to transfer the case to Puerto Rico. This raised the question of whether an in rem proceeding in admiralty was within the scope of Section 1404(a), a matter of statutory interpretation, and also the question of whether the District Court in Puerto Rico would have power to proceed in rem. While it did appear that the vessel had frequently been in the territorial waters of Puerto Rico, it was equally clear that no attempt had been made to seize her there, and the only jurisdiction in rem was that of the District Court in New York.
The first question is whether the District Judge has exceeded his power under Section 1404(a), by transferring the case to a district where it might not have been commenced originally. Section 1404(a), it will be recalled, authorizes a transfer only "to any other district or division where it might have been brought." While in a sense it is true that an in rem proceeding might have been brought in Puerto Rico, as the vessel had been there from time to time, it may not be doubted that the Congress intended no transfer in any case where the transferee court lacked competence to proceed. As a proceeding in admiralty has been held to be included in the phrase "any civil action1", it is probable that we would hold that the transfer of an in rem admiralty case to ...
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...Foods v. United States, 4 Cir., 188 F.2d 289, 292; Fettig Canning Co. v. Steckler, 7 Cir., 188 F.2d 715, 717—718. Cf. Torres v. Walsh, 2 Cir., 221 F.2d 319, 321; Broussard v. The Jersbek, D.C., 140 F.Supp. 851, 852—853. 9 Notwithstanding the provision of Admiralty Rule 22 (28 U.S.C. p. 5226......
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...enter or vacate orders of transfer under § 1404(a)." See also the decision of the Court of Appeals of the Second Circuit in Torres v. Walsh, 2 Cir., 221 F.2d 319, 321, where the court said it was not called upon to act except in a "`really extraordinary cause'" and quoted with approval the ......
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...ruled in favor of transfer on defendant's motion to a place where the defendant could not have been served with process, Torres v. Walsh, 2 Cir., 1955, 221 F.2d 319; In re Josephson, 1 Cir., 1954, 218 F.2d 174. And the Second and Fifth Circuits have ruled in favor of transfer on defendant's......
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