# Nicol v. Koscinski, U.S. Dist. Judge

> Court of Appeals for the Sixth Circuit · April 25, 1951 · 188 F.2d 537

URL: https://www.frixlaw.com/law-library/cases/9442798

## Case

- **Full name:** NICOL v. KOSCINSKI, U. S. Dist. Judge
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 25, 1951
- **Citations:** 188 F.2d 537; 1951 U.S. App. LEXIS 3070
- **Precedential status:** Published
- **Opinion:** Dissent by Allen
- **Judges:** Allen, Hicks, Si-Mons, Simons
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9442798

## Opinion text

ALLEN, Circuit Judge
(dissenting).
I regret that I am unable to concur in the holding of my colleagues.
The complaint was filed in the Eastern District of Michigan against The J. C. Penney Company, a corporation doing business in that state, by a woman who alleged that she has suffered serious injuries resulting in considerable medical and hospital expense, and possible permanent disability, by being precipitated from an escalator in the Penney store in Omaha, Nebraska. The plaintiff is a resident of Michigan and all of her witnesses, including an eye-witness to the accident, doctors, nurses, and hospital attendants, are in Michigan. The District ■Court, on motion of defendant, ordered the case transferred to the United States District Court for the District of Nebraska, and the plaintiff applies here for a writ of mandamus to compel the District Court to proceed with the trial of the case in Michigan. Since the order of transfer is not appealable, the plaintiff has no adequate remedy at law.
While the Penney Company, for the purposes of this case, has various witnesses who are residents of Omaha, Nebraska, it operates in other states, including Michigan. Presumably it has lawyers in Michigan and could handle a lawsuit there with more ease and at less expense than this plaintiff could handle a case in Omaha. She says in her verified petition that she is responsible for her own support, and that she will not be able to carry on this suit if it is transferred to Nebraska.
The Penney Company suggests that three corporations may be liable to indemnify it if it is held liable to the plaintiff, and that these parties should be made third party defendants in Omaha. The possibilities for delay and mounting expense arising out of such motions are certainly great. It is a fair inference that the plaintiff would find it difficult to transport her counsel and her witnesses from Michigan to Omaha, to pay hotel bills there, and to in *539 cur the probable delays in the conduct of a suit into which the Penney Company wishes to introduce three other parties. One of these parties is alleged to do business in Michigan.
This change of venue permitted by the District Court may cut plaintiff off entirely from prosecuting her suit.
Title 28 U.S.C.A. § 1404 (a) gives the power of transfer to the District Court “For the convenience of parties and witnesses, in the interest of justice * * I think this order was not in the interest of justice; that the finding upon which it was based was clearly erroneous, Cf. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 331 ; and that the writ should issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9442798. Public record. Not legal advice.