Walsh v. Pullman Co.

• Decision Date: 23 February 1949
• Citation: 89 F. Supp. 762
• Parties: WALSH et al. v. PULLMAN CO. et al.
• Court: U.S. District Court — Southern District of New York

89 F. Supp. 762

WALSH et al. v. PULLMAN CO. et al.

United States District Court S. D. New York.

February 23, 1949.

Bernard R. Lieberman, New York City, for plaintiff.

Minor & waterman, New York City, for defendants Pullman Co. and So. Pac. Co.

Conboy, Hewitt, O'Brien & Boardman, New York City, for Pa. R. Co.

LEIBELL, District Judge.

The following is quoted from my opinion filed herein on November 22nd, 1948, 10 F.R.D. 77, 78.

"On November 19, 1948 the attorney for the defendants advised the Court that a motion was being brought in this Court to dismiss the complaint as against the defendant, Pennsylvania Railroad Company, on the authority of Morrison v. Pennsylvania Railroad Company,¹ Civil 36-653 (S. D.N.Y. 1946). A favorable decision on this motion might materially affect the determination of the present motion for a change of venue. The attorney for the defendants requests the Court to defer decision on the motion for change of venue.

"The attorney for the plaintiffs, by letter dated November 19, 1948, has objected to such deferment.

"In the interest of economy of time and effort on the part of the Court and the attorneys and in view of the fact that no injustice will result to the plaintiff thereby, I have concluded to defer decision on the motion for a change of venue until the motion to dismiss as against the Pennsylvania Railroad Company is decided."

I have received an affidavit of Mr. Waterman, attorney for the defendants, sworn to February 15, 1949, in which he states that Judge Ryan has granted a motion of the Pennsylvania Railroad Company for summary judgment dismissing the complaint as against the Pennsylvania Railroad Company. An order to that effect was filed February 11, 1949. Mr. Lieberman, attorney for the plaintiffs, has filed an affidavit stating that he has appealed from Judge Ryan's order and will prosecute the appeal with all convenient speed. I have concluded that I should grant the motion of the remaining defendants (The Pullman Company and the Southern Pacific Company) for a change of venue, transferring this action to the United States District Court for the Southern District of California, Central Division, without further delay, so that the plaintiffs may, if they see fit, seek a review of that order at the same time they bring on the appeal from Judge Ryan's order. In order that the appeals may proceed without any action being taken to transfer the case to the District Court in California, the order granting the motion for a change of venue will contain a stay pending the determination of the appeal from Judge Ryan's order and from the order to be entered on the motion for change of venue, if an appeal therefrom is taken.

I will now state my reasons for granting the motion for a change of venue.

Title 28 U.S.C.A. § 1391(a) and (c) provide: —

"§ 1391. Venue generally

"(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.

* * * * * *

"(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."

The allegations of the complaint and the facts stated in the affidavits submitted on the motion clearly show that although the remaining two defendants are not incorporated under the laws of California or licensed to do business in California, they both are doing business and have offices in Los Angeles, in the judicial district and division to which the defendants wish to transfer this case. The provisions of Section 1391(a) and (c) of Title 28 U.S.C.A. are therefore satisfied. See also Tivioli Realty v. Interstate Circuit, 5 Cir., 167 F.2d 155.

Section 1404(a) of Title 28 U.S.C.A. reads as follows: —

"§ 1404. Change of venue

"(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."

It appears that this action could have been brought against The Pullman Company and the Southern Pacific Company in the first instance in the United States District Court for the Southern District of California, Central Division, and therefore that particular requirement of Section 1404(a) can be met. There are two other conditions to be considered: the convenience of parties and witnesses, and the interest of justice.

In support of their motion for a change of venue defendants show that the following will be material and necessary witnesses for the defendants upon the trial; a steward, a chef, a cook and four waiters, all of Los Angeles; and one waiter of Pasadena, California. All of them are said to have been in the diner at the time and place the plaintiff, Theola Walsh, is alleged to have eaten the improper food. They "will testify as to the quality of the food, and the conditions in said diner on the date that the improper food is alleged to have been eaten".

The affidavits submitted for change of venue also state that two switchmen, three agents, two porters, two brakemen and the assistant station master, seven of whom live in Los Angeles and three at other places in California, were present "at the time and place that the plaintiff, Theola Walsh, is alleged to have been improperly removed from the train at Los Angeles, California, and will testify as to the handling of the train, the proper removal of the plaintiff, Theola Walsh, from the train and the care and attention given her thereafter". None of the employees of the Pennsylvania...