Viaggio v. Field

• Decision Date: 10 October 1959
• Docket Number: Civ. A. No. 11499.
• Citation: 177 F. Supp. 643
• Parties: John V. VIAGGIO v. J. Meade FIELD.
• Court: U.S. District Court — District of Maryland

177 F. Supp. 643

John V. VIAGGIO v. J. Meade FIELD.

Civ. A. No. 11499.

United States District Court D. Maryland, C. D.

October 10, 1959.

John J. O'Connor, Jr. (O'Connor & Preston), Baltimore, Md., for plaintiff.

James D. Peacock, John H. Mudd, Semmes, Bowen & Semmes, Baltimore, Md., for defendant.

CHESNUT, District Judge.

The matter presently before the court is whether this damage suit arising from an automobile collision in Maryland, should be transferred to the District Court, Eastern District of Pennsylvania under title 28 U.S.C.A. §§ 1404 (a) or 1406(a), on plaintiff's motion to transfer, or whether the suit should be dismissed on the motion of the defendant because improperly filed in this court, as not within the proper venue under title 28 U.S.C.A. § 1391(a) in that this district is not the residence of either the plaintiff, a citizen of Florida, or the defendant, a citizen of Pennsylvania.

The facts giving rise to the present controversy are relatively simple. On July 28, 1956 the plaintiff and the defendant were involved in an automobile collision within the territorial limits of the District of Maryland. Thereafter, on July 14, 1959 the plaintiff filed his complaint in this district based on the alleged negligence of the defendant. Jurisdiction was based on diversity of citizenship between the plaintiff and defendant and the sum in controversy exclusive of interest and costs, exceeded $10,000. Title 28 U.S.C.A. § 1332. Service of process upon the defendant was effected by means of substituted service on the Secretary of State of Maryland under the provisions of the Maryland Non-resident Motorists Statute, Md.Code 1957, Art. 66½, § 115.

It is to be noted that suit was filed in this district barely two weeks before the expiration of the Maryland three-year statute of limitations (Md.Code 1957, Art. 57, § 1) and nearly one year after the expiration of the two-year Pennsylvania statute of limitations (Purdon's Penna.Stat.Ann. 12, § 34).

Thereupon on August 5, 1959 defendant filed a motion to dismiss alleging improper venue under the provisions of 28 U.S.C.A. § 1391(a), and the case of Olberding v. Illinois Cent. R. Co., 1953, 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39, which held that state non-resident motorists statutes were not a waiver of the federal venue statute. On September 8, 1959 the plaintiff countered with a motion to transfer the case "in the interest of promoting substantial justice" to the Eastern District of Pennsylvania pursuant to 28 U.S.C.A. § 1404(a) and § 1406(a).

Sec. 1404 of title 28 reads:

"(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 section is based upon the doctrine of forum non conveniens and is a relaxation of the rigors of dismissal required by that doctrine. Both the legislative history of the section and the judicial decisions construing it show that, like the doctrine of forum non conveniens § 1404 (a) presupposes that the suit has been filed in a district where there is present both federal general and federal venue jurisdiction. Otherwise there is no power in the court to transfer the case to another district. See Blackwell v. Vance Trucking Co., D.C.E.D.S.C.1956, 139 F. Supp. 103; Burns v. Chubb, D.C.E.D. Pa.1951, 99 F.Supp. 581, and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 841, 91 L.Ed. 1055, where the court, through Mr. Justice Jackson, said:

"Indeed the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of venue." In the Blackwell case, District Judge Paul, at page 110 of 139 F.Supp., quotes from United States v. E. I. Du Pont de Nemours & Co., D.C.D.C.1949, 83 F.Supp. 233, 234, as follows:

"The new provision (§ 1404(a)) assumes that the action has been filed in a jurisdiction where venue may be properly laid, for if it has not been so brought, it is subject to dismissal." It is clear from these authorities that, absent a waiver of venue by the defendant and no such waiver appears in the instant case, this court lacks the power under § 1404 (a) of title 28 U.S.C.A., to transfer this case to the Eastern District of Pennsylvania as the requirements of venue are not met in the District of Maryland. Nor is anything shown that it would be to the convenience of witnesses to make the transfer.

Section 1406 of title 28 presents a somewhat different problem. It reads: "(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." No case involving precisely the same facts with respect to the statutes of limitations as the instant case has been found, though there are numerous cases dealing with transfers under § 1406(a). The majority of the decisions deal with factual situations wherein suit was filed within the applicable period of limitations of both the transferor and transferee forums.

The plaintiff cites some cases holding that under § 1406(a) a transfer can or should be made to another district where there is proper venue, but on examination it will appear that in those cases the transfer was sought to the district where limitations had not expired. See Dennis v. Galvanek, D.C.M.D.Pa.1959, 171 F.Supp. 115, and Wilt v. Smack, D.C. E.D.Pa.1957, 147 F.Supp. 700.

It is extremely doubtful that suit could have been brought successfully in the Eastern District of Pennsylvania on July 14, 1959 as the Pennsylvania statute of limitations had long since expired. It would further seem to be an injustice to the defendant to put him to the added expense of hiring an attorney in Pennsylvania, should this court transfer the case there, merely to plead the statute of limitations there as he has indicated he will do, and there is nothing shown by the plaintiff to indicate successful opposition thereto.

Perhaps the most analogous case from the plaintiff's viewpoint is Headrick v. Atchison, T. & S. F. Ry. Co., 10 Cir., 1950, 182 F.2d 305. There, the plaintiff, a citizen of Missouri, filed suit in a New Mexico State Court against a defendant amenable to service in both New Mexico and California, on a cause of action arising from a negligent injury occurring in California. The defendant removed the case to the United States District Court for the District of New Mexico on the basis of diversity of citizenship and there moved for a dismissal or, in the alternative, to transfer the case to the District of California, Northern Division, pursuant to 28 U.S.C.A. § 1404(a). The district court dismissed on the grounds of forum non conveniens but indicated it would have transferred had not the California statute of limitations expired before the suit was filed in New Mexico. The Court of Appeals reversed as there was not a sufficient showing of forum non conveniens but stated in the opinion that the expiration of the California statute of limitations was not a ground for refusing the transfer as it was an affirmative defense personal to the defendant. However, the opinion clearly shows that there were filed in the case affidavits which raised the possibility that defendant would be estopped to assert the California statute of limitations should the case be transferred. It was further indicated by way of dictum that the law of New Mexico might possibly be held controlling even in the District of California as the case had arisen in a New Mexico State Court, a factor not present in the instant case. Furthermore, § 1404(a) is not applicable to the facts of the present case.

It would therefore seem that unless the plaintiff can show some grounds for avoiding the bar of the Pennsylvania statute of limitations or that the Pennsylvania statute of limitations is not applicable, it would not be in the interest of justice to transfer this case to the Eastern District of Pennsylvania as no hearing would be had on the merits there, and in fact it would be an injustice to the defendant in requiring him to engage other and additional local counsel there for the defense of the case.

The precise question to be determined is whether the plaintiff, who is seeking to transfer to Pennsylvania, has affirmatively shown that it would be in the interests of justice to do so. In considering that question it is necessary to have in mind the whole situation which is disclosed in the papers and the undisputed facts appearing from the argument of counsel.

When the suit was filed by the plaintiff in this court on July 14, 1959, only two weeks before the expiration of the three-year period of limitations under the Maryland law, counsel for the plaintiff had three possible jurisdictions where the defendant could be effectively served with process where the court had jurisdiction of the subject matter and the parties. One such court was a Maryland State Court where, under the Maryland Nonresident Motorists Statute, substituted service could be made on the defendant; and the others were a suit either in the Pennsylvania State Court or in the United States District Court for the Eastern District of Pennsylvania, where the defendant resides. The plaintiff's suit was not filed in any of these three proper jurisdictions but in this United States District Court for the ...