Petition — Clean Land Air Water Corp. v. Waste Systems, Inc.

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Binreme Court, Uh 7

FILED

JUN 12 1980

, JR., CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-1956

CLEAN LAND AIR WATER CORPORATION,

Petitioner,

versus

WASTE SYSTEMS, INC. and

ROLLINS ENVIRONMENTAL SERVICES, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ADCOCK, DUPREE & SHOWS

821 Main Street

Post Office Drawer 3037

Baton Rouge, Louisiana

Telephone: (504) 383-5276

Herschel C. Adcock

Counsel for Petitioner

>

Page

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Page

CITATIONS

CASES:

C.I.R. v. Scaggs, 122 F.2d 721 (5 Cir. 1941) 0.0.00. 8

Continental Grain Company v. The FBL-585, 364 U.S.

SR ie BE CIID vsciccsciicescossceacsrescacucecivasescecsos 9, 11

Garner v. Wolfinbarger, 433 F.2d 117 (5 Cir. 1970) ............ 5

Gorsalitz v. Olin Mathieson, 429 F2d 1033 (5 Cir. 1970)... 7

Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.

Ct. 839 (1947) ooccceocccccccceccoseeseesceseesees eee eee. 6, 9

ANNE Sicieisna.scinsicndinicnivesccnséesosonaciyntypinhataunaesgssiiesiicosdane 15

Oil and Gas Venture-First 1958 Fund, Ltd. v. Kung,

250 F.Supp. 744 (D.C. N.Y. 1966) oo..0...oococoeccccocccccseeeees 7

Teas v. Kimball, 257 F. 2d 817 (5 Cir. 1958) ooo... 8

Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805

CE cee mee Re eer SNPS Ar By. 7, 10, 11

Page

MISCELLANEOUS:

Rule 45 (e), Federal Rules of Civil Procedure ..................... 6

Leflar, American Conflicts Law, 350-351 (3 Ed. 1977) ........ 8

Louisiana Civil Code Articles 2520, 2543, and 2545 ............ 8

Louisiana Revised Statute 14:74 oo..0.....cccccccecccccesecscceseescees 9

Restatement 2d, Conflict of Laws, Sec. 188 20.0.0.00.000cccce 8

28 Southwestern Law Journal, 202 (1974) oo... 8

12 Tex. Jur. 2d Conflict of Laws, Section 9, p. 308-309 ...... 3

Vernon’s Texas Codes, Penal Code, Title 7, Chapter 32.43... 9

RG a ee ee 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

CLEAN LAND AIR WATER CORPORATION,

Petitioner,

versus

WASTE SYSTEMS, INC. and

ROLLINS ENVIRONMENTAL SERVICES, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Clean Land Air Water Corporation, re-

spectfully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Fifth Circuit entered in this proceeding on April 29,

1980. Because the decision of the court of appeals was simply

a denial of CLAW’s petition to review the judgment of the

district court, CLAW respectfully requests that the Court con-

sider both lower decisions in this petition.

1

2

OPINIONS BELOW

The opinion of the court of appeals and the opinion ren-

dered by the District Court for the Eastern District of Texas

appear in the Appendix hereto.

JURISDICTION

CLAW filed a petition for a writ of mandamus with the

court of appeals to review the decision of the district court.

The court of appeals denied the petition on April 29, 1980.

This Court’s jurisdiction is invoked under 28 USC § 1254(1).

QUESTIONS PRESENTED

Was there a failure by the district court to correctly

apply and construe 28 USC § 1404(a), or to consider the rele-

vant factors incident to a ruling upon a motion to transfer, or

was there a clear abuse of discretion on its part.

Was there a clear abuse of discretion on the part of the

court of appeals.

STATUTORY PROVISION

UNITED STATES CODE, TITLE 28:

§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.

3

STATEMENT OF THE CASE

Petitioner Clean Land Air Water Corporation (CLAW)

operated an injection well for the disposal of industrial wastes.

The injection well, located in Iberville Parish, Louisiana was

permitted and approved by the Louisiana Department of Con-

servation. On June 14, 1978 an “Agreement of Sale” was

signed between CLAW and Rollins Environmental Services of

Louisiana, Inc. Under the Agreement of Sale, Rollins had a

45 day option period to inspect the well and the books and

records of CLAW before a final sale would be closed. Engi-

neers from Rollins inspected the physical properties and Rol-

lins’ accountants inspected CLAW’s books. A report literally

over one inch thick was compiled by Rollins (Exhibit “Dixon

#1,” deposition of Lynwood Dixon, September 28, 1979). Rol-

lins retained an independent consulting firm from New Orleans

to make a geological study of the well and contacted several

of CLAW’s customers. On July 28, 1978, Rollins purchased

the well and surrounding 20 acres, paying $800,000.00 in cash

and giving promissory notes totaling $2.1 million for the bal-

ance.

On August 2, 1978, Waste Systems, Inc. (WSI), a Texas

corporation, filed suit in the Eastern District of Texas, Beau-

mont Division, seeking injunction relief against Rollins and

CLAW and damages of $500,000.00. WSI acted as a broker,

arranging for waste material generated by Mobil Oil Corpora-

tion to be disposed of in the injection well. At a hearing held

on August 14, 1978, WSI contended it had a long-term written

contract with CLAW whereby CLAW was obligated to accept

from WSI 500,000 barrels, or 21 million gallons, of the Mobil

waste material. The alleged contract was signed by Donald

Antie, an employee of CLAW. CLAW officials testified they

4

had no knowledge of the alleged contract and denied the

authority of Donald Antie to enter into the written agreement

as alleged by WSI. Injunctive relief was granted to WSI, how-

ever, in effect forcing Rollins to accept material from WSI on

WSI’s terms.

Deposition testimony has revealed that while Donald Antie

purportedly negotiated a contract with WSI on behalf of

CLAW to receive 21 million gallons of the Mobil waste mate-

rial at 444¢ per gallon, Mr. Antie without CLAW’s knowledge

negotiated an agreement for himself whereby WSI paid to him

or his wholly-owned Louisiana corporation, the “A.LE. Cor-

poration,” 144¢ per gallon on the Mobil material.1 WSI has

admitted making these payments (Deposition of Robert L.

Howard, April 4, 1979, p. 22) and Mr. Antie has admitted

receiving them and depositing checks received at his home in

Watson, Louisiana into an account at the 1st National Bank

of Denham Springs, Louisiana (Deposition of Donald A. Antie,

May 14 and 15, 1979, p. 138).

On January 10, 1979, Rollins filed a cross-claim against

CLAW which sought indemnification on the claim of WSI and

alleged that the well was in a “condition of disrepair” when

purchased and sought damages for repairing the well ($200,-

000.00) and for lost profits ($500,000.00). Louisiana counsel

was retained by CLAW, and enrolled on May 5, 1979. On May

22, 1979 CLAW filed a counterclaim against WSI on unpaid

invoices totaling $376,000.00 and on July 16, 1979 filed a cross-

claim against Rollins for unpaid invoices and unjust enrich-

ment whereby Rollins had collected accounts receivable of

1, 500,000 barrels (21 million gallons) at 1/2 cent per gallon totals

$105,000.00. As a full-time employee of CLAW, Donald Antie received a

salary of $25,000.00 per year and the use of a car.

9)

CLAW earned before but collected (by Rollins) after the sale

of the well. These claims total approximately $80,000.00.

On August 8, 1979 Rollins filed an amended cross-claim,

which named as additional defendants Cyril Hinds and Law-

rence J. Thompson, officers of CLAW. In addition to its previ-

ous claims, Rollins sought “punitive or exemplary damages”

from Mr. Hinds in the amount of $1 million, and from Mr.

Thompson in the amount of $500,000.00, based on allegations

of “fraudulent conspiracy,” “malicious intent,” and “callous

disregard for human life and public safety.” These allegations

are based on events supposedly occurring in Iberville Parish

relative to the purchase of the well by Rollins.

On September 24, 1979, CLAW filed a Motion for Sep-

arate Trials and Change of Venue asking that the principal

demand of WSI regarding the alleged contract be tried sep-

arately from the cross-claims of CLAW and Rollins involving

the sale of the injection well. CLAW sought to have the entire

action transferred to the Middle District of Louisiana, pursu-

ant to 28 USC § 1404(a), or in the alternative to have the

cross-claims of CLAW and Rollins transferred. On January

24, 1980 the district court denied CLAW’s motion in all

respects (Appendix p. 1). CLAW sought review from the

court of appeals by filing a petition for a writ of mandamus,”

which was denied. (Appendix p. 3).

REASONS FOR GRANTING THE WRIT

CLAW submits the following points merit the Court’s

attention:

2. The Fifth Circuit has held that mandamus is the appropriate vehicle

for review of a motion to transfer under §1404(a), Garner v. Wolfinbarger,

483 F. 2d 117 (5 Cir. 1970).

—~6

L

If trial is forced in the Eastern District of Texas, crucial

and necessary witnesses will be outside the subpoena power of

the trial court.? CLAW believes nearly all material witnesses

regarding the authority of Donald Antie to enter into the

alleged contract, and all witnesses to the circumstances of the

Louisiana sale by CLAW to Rollins and the condition of the

well, are located in the Middle District of Louisiana. The only

witnesses located in Texas are the principals of WSI who nego-

tiated the purported contract with CLAW. These are corpo-

rate officers of WSI (WSI consists of only 4 people) under its

control and they can easily be produced for trial in Baton

Rouge.

Further, Mr. Hinds and Mr. Thompson will be forced to

defend claims which are personal attacks, for damages total-

ling $1.5 million, based on allegations of “fraud” and “mali-

cious intent” and “gross misconduct.” Though the claims are

frivolous, they should not have to rely on depositions to defend

them when live testimony is available.

The Court in Gulf Oil Corporation v. Gilbert, 330 U.S.

501, 511, 67 S. Ct. 839, 844 (1947), stated, “Certainly to fix

the place of trial at a point where litigants cannot compel per-

sonal attendance and may be forced to try their cases on depo-

sition is to create a condition not satisfactory to court, jury,

or most litigants.” Furthermore, “the importance of live wit-

nesses at a trial revolving about charges of fraudulent con-

3. These witnesses are located more 100 miles from Beaumont

and their attendance cannot be pean al Rule 45(e) Federal Rules

of Civil Procedure, However, these witnesses would be subject to the sub-

poena power of the federal court in Baton Rouge.

>

7

duct is evident,” Oil and Gas Venture - First 1958 Fund, Ltd.

v. Kung, 250 F. Supp. 744, 756 (D.C.N.Y. 1966).

Il.

Louisiana law should be applied to all claims. All claims

in litigation arose there. Texas conflict of laws rules will apply

even if the case is transferred to Louisiana, Van Dusen v. Bar-

rack, 376 U.S. 612, 84 S. Ct. 805 (1964). However, those rules

indicate Louisiana law will apply.

Donald Antie, the employee who signed the alleged con-

tract with WSI on behalf of CLAW, was not an officer nor a

board member nor was there any corporate resolution or attes-

tation giving him corporate authority. The authority of a

Louisiana agent on behalf of a Louisiana corporation to enter

into a contract to be performed in Louisiana should obviously

be governed by Louisiana law. Even though the “contract”

was purportedly executed in Texas, under Texas law the con-

struction of a contract executed in Texas but performed wholly

in Louisiana is according to Louisiana law. Gorsalitz v. Olin

Mathieson, 429 F. 2d 1033 (5 Cir. 1970).

The claims of Rollins on the injection well derive from the

sale of Louisiana immovable, or real, property. Conflict of

laws rules dictate that a Texas court would apply Louisiana

law in this case, regardless of which major conflict of laws

analysis or approach is taken, whether it be:

a) situs of the property

b) contract choice of law rules

8

c) a weighing of interests analysis*

The well and surrounding 20 acres were transferred before a

Notary Public in Baton Rouge, Louisiana. Louisiana is the

situs of the property, the state of contracting, the state where

negotiations took place, the place of performance, the domicile

of the seller, and the state where both buyer and seller did

business.

The applicable Louisiana law in determining the obliga-

tion of a seller of immovable property to respond in warranty

for the condition of the property sold would be an action in

redhibition under the Louisiana Civil Code, whereby the sale

may be avoided (Art. 2520) or the price reduced (Art. 2543)

and damages paid (Art. 2545).

It.

The injection well from which all events in litigation

spring is located approximately 30 miles from the federal

court in Baton Rouge. Trial would be infinitely more conve-

nient and WSI certainly would not be prejudiced by transfer

to the Middle District of Louisiana. For a period of more than

one year prior to suit WSI had been shipping waste materials

into Louisiana, and in fact the main thrust of its suit is to gain

the right to continue doing business in the Middle District of

Louisiana on a regular basis. If trial is held in Texas, all of

CLAW’s witnesses as to the validity of the “contract” with

Waste Systems will have to be brought to Texas. All of the

witnesses to the circumstances of the Louisiana sale by CLAW

4. See Teas v. Kimball, 257 F. 2d 817 (5 Cir. 1958); CU.R. v. Scaggs,

122 F. 2d 721 (5 Cir. 1941). See also 28 Southwestern Law Journal 202

(1974); 12 Tex. Jur. 2d Conflict of Laws, Section 9, Pp. 308-309. See also

Leflar, American Conflicts Law, 350-351 (3 ed. 1977); Restatement 2d—

Conflict of Laws, Sec. 188.

9

to Rollins including witnesses with knowledge as to any

“defects” in the property must also be brought to Texas. Bal-

anced against this is WSI’s burden of taking to Louisiana its

corporate officer (or officers) who negotiated the purported

contract with CLAW, and who have knowledge of the corpo-

ration’s dealings with Donald Antie. Further, CLAW believes

the payments received by Don Antie from WSI arising out of

the business he was supposedly negotiating on behalf of

CLAW may constitute commercial bribery® and a third-party

claim against Mr. Antie may be necessary. Mr. Antie, his rec-

ords, and the bank where he deposited the payments are

located in the Middle District of Louisiana. Also, trial by jury

has been requested, and “jury duty is a burden that ought not

to be imposed upon the people of a community which has no

relation to the litigation.” Gulf Oil Corporation v. Gilbert, 330

US. 501, 67 S. Ct. 839 (1947).

The balance is overwhelmingly in favor of transferring

this case to baton Rouge. If this case is forced to trial in Beau-

mont, Texas, it “will bring about exactly the kind of mischie-

vous consequences against ‘the interest of justice’ that

§1404(a) was designed to prevent, that is, unncessary inconve-

nience and expense to parties, witnesses, and the public.” Con-

tinental Grain Company v. The FBL - 585, 364 U.S. 20, 21, 80

S. Ct. 1470, 1472 (1960).

IV.

With its motion to transfer, CLAW filed a detailed affi-

davit setting forth the names, locations, and expected testi-

5. The actions of WSI and Mr. Antie are seemingly in violation of

Louisiana Revised Statute 14.74, Vernon’s Texas Codes, Penal Code, Title

7, Chapter 32.43, and 18 U.S.C. § 1952.

10

mony of witnesses who would only be subject to subpoena in

the Middle District of Louisiana. Neither WSI nor Rollins

opposed this showing nor made a showing of their own. WSI,

the only Texas party, has never filed an opposition of any kind

to CLAW’s motion. Rollins filed an opposition to the alternate

request which sought to transfer of the cross-claims only.

Despite the clear-cut and unopposed showing made by

CLAW, the district court denied the motion to transfer. The

only conceivable connection the present case has with the East-

ern District of Texas is that WSI resides there. But this is

exactly the kind of situation §1404(a) was meant to remedy.

“*$1404(a) operates on the premises that the plaintiff has

properly exercised his venue privilege. This distinction

underlines the fact that Congress, in passing §1404(a),

was primarily concerned with the problems arising where,

despite the propriety of the plaintiff’s venue selection, the

chosen forum was an inconvenient one.” Van Dusen v.

Barrack, supra, 376 U.S. at 634, 84 S. Ct. at 818.

1. THE DECISIONS BELOW CONFLICT WITH THE DE-

CISIONS OF THE SUPREME COURT REGARDING

CHANGES OF VENUE.

The spirit of Section 1404(a) of Title 28 is that a transfer

is to be merely a change in courtrooms, to promote justice and

judicial efficiency.

Section 1404(a) reflects an increased desire to have fed-

eral civil suits tried in the federal system at the place

called for in the particular case by considerations of con-

venience and justice. The purpose of the section is to pre-

vent the waste “of time, energy and money” and “to pro-

tect litigants, witnesses and the public against unnecessary

11

inconvenience and expense. . . .” Van Dusen v. Barrack,

376 U.S. 612, 84 S. Ct. 805 (1964).

The Court in Van Dusen and Gulf Oil identified as major fac-

tors to be considered the convenience of the parties; the con-

venience of the witnesses; the parties’ access to sources of

proof, including the availability of compulsory process; the

cost of obtaining attendance of witnesses; the competence of

the trial court to deal with the legal issues likely to arise; the

avoidance of multiplicity of litigation; and plaintiffs’ choice of

forum. In this case, these factors mandate transfer. This

Court stated in Continental Grain, supra, that ‘The idea behind

§1404(a) is that where a ‘civil action’ to vindicate a wrong—

however brought in a court—presents issues and requires wit-

nesses that make one District Court more convenient than

another, the trial judge can, after findings, transfer the whole

action to the more convenient court. That situation exists

here.”

That situation even more certainly exists here. The issues

presented require the application of Louisiana law and trial

would be infinitely more convenient in Louisiana. The interest

of justice requires that CLAW must not be forced to litigate

claims totalling millions of dollars, and the officers of CLAW

must not be required to defend claims against their personal

integrity, without being able to subpoena necessary witnesses.

This Court has recognized that “Section 1404(a) was devised

to avoid needless hardship and even miscarriage of justice

. .” Hoffman v. Blaski, 363 U.S. 335, 351, 80 S. Ct. 1084,

1093 (1960). The lower court decisions will mean injustice to

CLAW and hardship to many others. They are in direct con-

flict with the guiding principles of this Court’s decisions inter-

12

preting §1404(a). CLAW respectfully requests the grant of

certiorari to review the judgments below.

2. THE DECISIONS BELOW ARE CONTRARY TO THE

PURPOSE AND INTENT OF 28 U.S.C. § 1404(a) AND

THE FEDERAL RULES OF CIVIL PROCEDURE AND

ARE A DEPARTURE FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS.

The decisions below are directly contrary to the Congres-

sional purpose and intent behind § 1404(a) and if allowed to

stand will undermine the integrity of § 1404(a) and will sub-

vert the spirit and intent of the Federal Rules of Civil Proce-

dure.

As noted in this Court’s decisions, the clear intent of Con-

gress was for § 1404(a) to promote convenience and justice.

The liberal rules of venue and joinder and the doctrine of ancil-

lary jurisdiction are also designed to promote efficiency, con-

venience, and justice. However, in this case, these rules have

allowed a very complex litigation to develop in a most incon-

venient forum. § 1404(a) provides the means to avoid incon-

venience and injustice by transfer to a more appropriate

forum. CLAW timely moved for this relief. The most cur-

sory review of the many cases dealing with § 1404(a) would

show that transfers are routinely ordered in circumstances

much less compelling than those at bar.

If it is within the power of a federal court to avoid injus-

tice without prejudice to other parties, CLAW submits the fail-

ure to act is an abuse of discretion which diminishes the integ-

rity of the law and respect for the judicial system. The intent

of Congress is subverted and § 1404(a) becomes meaningiess.

13

Perhaps the truth will not come out in every lawsuit litigated,

but that is supposed to be the goal of our system. When a

court has the power to do so, and fails to take action that

would better insure a just and truthful result, review by this

Court is warranted. CLAW submits that the interests of truth

and justice compel such review in this case.

3. THE LOWER COURT DECISIONS WERE CLEARLY

ERRONEOUS AND REVIEW IS REQUIRED TO PRE-

VENT INJUSTICE.

In its opinion the district court offered three reasons

for its decision. The district court stated:

“Defendants have not made a clear-cut showing that a

transfer, when considered regarding all parties, would be

more convenient to the parties and witnesses. It appears

more likely that a transfer would merely shift the incon-

venience inherent in the maintenance of this action from

these Defendants to the other parties to 'the action.” (Em-

phasis added)

The district court did not indicate how the transfer to Louisi-

ana would shift the inconvenience from CLAW to the other

defendant, Rollins, when that defendant is in fact operating

the injection well site in the Middle District of Louisiana. The

district court failed to articulate a single fact in support of

its conclusion. The district court did not allude to the loca-

tion of any of the witnesses or proofs. The district court

failed to articulate any application of the factors which should

have governed the exercise of its discretion.

The district court also stated that the interest of justice

would not be served by transfer because:

14

“This court has already invested much time and effort in

this case having held one trial, several conferences and

hearings, and having spent considerable time becoming

informed on the issues and facts of the case.”’

With all due respect, this is simply not accurate. The

“trial” referred to was the original hearing on injunctive relief,

held 12 days after the suit was originally filed. The docket

sheet will indicate only two hearings have been held, both of

which involved injunctive relief. More importantly, since

undersigned Louisiana counsel entered the case in May, 1979,

there have been no hearings or conferences. The majority of

the pleadings now controlling have been filed since that time,

and the great majority of discovery has been undertaken since

that time, and is not yet complete. At the present time a trial

date has been continued indefinitely.

The district court denied CLAW’s alternative request,

holding that separate trials would involve proof of similar

issues and might lead to conflicting judgments. However, the

“contract” claim of WSI is in no way related to the claim

between CLAW and Rollins over whether condition of the

well was defective or misrepresented. The claim of Rollins,

for indemnification from CLAW in the event Rollins is held

liable to WSI on the principal demand, can easily be retained

and tried with the principal ‘contract’? demand, while the

claims on the well are severed under Rule 42. Conflicting

adjudication is not a problem if the discretion of the district

court is used wisely.

It seems apparent the district court considered the

motion only from the perspective of the Texas party, WSI,

who did not even bother to file an opposition to CLAW’s

15

motion. The purpose and intent of Congress and this Court’s

decisions interpreting § 1404(a) make it clear considerations

of convenience and justice should overrule any notions that a

plaintiff is entitled to a home-court advantage.

The decision of the district court was erroneous and an

abuse of its discretion. The court of appeals abused its discre-

tion and was in error in not reviewing that decision. CLAW

cannot fathom the appellate court’s failure to at least order an

answer to CLAW’s petition for review when the motion to

transfer was practically unopposed in the district court. The

summary denial of CLAW’s petition by the appellate court is

especially puzzling in light of its prior opinions. The case of

Koehring v. Hyde Construction Co., 324 F.2d 295 (5 Cir. 1963),

in which the Fifth Circuit overturned a district court decision

and ordered a transfer, is on four corners, involving a fact

situation almost identical to the one at bar. (Please see excerpt

of Koehring opinion in Appendix). The facts in this case are

clear. Trial should be held in the Middle District of Louisiana.

The appellate court’s decision was erroneous, was contrary to

its own precedent, and perpetuates injustice. For these rea-

sons a writ of certiorari should issue.

16

CONCLUSION

It is unfortunate that a civil suit involving millions of dol-

lars may be tried in an inconvenient forum where the best

proofs and live testimony are not available when trial could be

held within 30 miles of the physical property involved. Not

only is the situation at present unjust, but Congress has passed

a specific remedial statute, which has been elucidated in sev-

eral opinions of this Court, to relieve such injustice. The words

of § 1404(a) should be given meaning, not thrown out the win-

dow and ignored, and the integrity of our laws and the deci-

sions of this Court should be guarded. The facts in this case

are clear-cut and undeniable. CLAW respectfully requests the

issuance of a writ of certiorari to review the decisions of the

lower courts.

Respectfully submitted,

ADCOCK, DUPREE & SHOWS

821 Main Street

P. O. Drawer 3037

Baton Rouge, LA 70821

Telephone: (504) 383-5276

HERSCHEL C. ADCOCK

Counsel for Petitioner

17

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

WASTE SYSTEMS, INC.

)

)

VS. ) NO. B-78-526-CA

)

CLEAN LAND AIR WATER )

CORPORATION AND ROLLINS )

ENVIRONMENTAL SERVICES, INC. )

ORDER

On this date came on for consideration the Motion by

Defendants, Clean Land Air Water Corporation, Cyril Hinds,

Lawrence J. Thompson and L. E. Hughes, for Separate Trials

and Change of Venue and the responses thereto.

The Court is of the opinion that a transfer of this case to

the United States District Court for the Middle District of

Louisiana would not promote the convenience of the parties

and witnesses nor be in the interest of justice. See, 28 U.S.C.

§1404(a). Defendants have not made a clear-cut showing that

a transfer, when considered regarding all parties, would be

more convenient to the parties and witnesses. It appears more

likely that a transfer would merely shift the inconvenience

inherent in the maintenance of this action from these Defen-

dants to the other parties to the action. See, Kane v. Hallmark

Ins. Co., 409 F.Supp. 467 (S.D.Fla. 1976). Furthermore, the

interest of justice would not be served by a transfer of this

action. This Court has already invested much time and effort

in this case having held one trial, several conferences and

hearings, and having spent considerable time becoming in-

formed on the issues and facts of the case. A transfer of this

18

case would hinder the policy of proper conservation and utili-

zation of judicial resources central to efficient and effective

judicial administration. See, Smith Kline Corporation v. Ster-

ling Drug, Inc., 406 F.Supp. 52, 55 (D.Del. 1975).

The Court is further of the opinion that it would not serve

the ends of justice to order separate trials of the cross-actions

under Fed.R.Civ.P. 42(b) or to sever the cross-actions under

Fed.R.Civ.P. 21 and order a transfer of the cross-actions under

28 U.S.C. §1404(a). Adjudication of the primary claims and

the cross-actions will involve proof of many of the same issues

and facts and the piecemeal trial of these separate claims is

not in the interest of efficient judicial administration and might

lead to conflicting adjudications.

It is, therefore, ORDERED, ADJUDGED and DECREED

that Defendants’ motion be, and hereby is, in all things denied.

SIGNED this 23rd day of January, 1980.

UNITED STATES DISTRICT JUDGE

s/ William M. Steger

19

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-1459

In Re:

CLEAN LAND AIR WATER CORPORATION,

Petitioner.

On Petition for Writ of Mandamus to the United States District

Court for the Eastern District of Texas

Before GEE, HENDERSON and HATCHETT, Circuit Judges.

BY THE COURT:

IT IS ORDERED that the petition for writ of mandamus

is DENIED.

IT IS FURTHER ORDERED that petitioner’s motion for

stay pending disposition of the writ of mandamus is DENIED.

Cir.

20

In Koehring v. Hyde Construction Co., 324 F.2d 295 (5

1963), the Court of Appeals for the Fifth Circuit wrote:

“Many of the elements mentioned in Gulf Oil as important

are present here. The concrete cooling and mixing plant

here in question was installed in Oklahoma; all relevant

facts concerning its alleged failure to perform occurred in

Oklahoma; if, in view of the complexity of its operation,

an on-site inspection of the plant is necessary, it can be

had only in Oklahoma. Most of the witnesses to the al-

leged failure of performance reside at or near the plant

site, and the records of the U.S. Corps of Engineers deal-

ing with the functioning of 'the plant are kept in Tulsa.

Moreover, the docket in the Southern District of Missis-

sippi is extremely congested, while that of the federal dis-

trict court in the Northern District of Oklahoma is rela-

tively current. Thus, every factor points to Oklahoma as

the most logical forum for this action, whereas, the only

connection which Mississippi has with this case is ‘that one

party to this suit resides there. This case is similar to

Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 7 Cir.,

1955, 220 F. 2d 299. There the Court pointed out that if

‘convenience of the parties’ were the sole criterion, the

refusal of the trial judge to transfer under Section 1404 (a)

could be sustained, since the plaintiff did in fact live in the

district where suit was brought. There were, however,

other statutory criteria to be considered. The Court

stated:

“*As to the second test “convenience of witnesses” it is

self-evident that the convenience of both plaintiff’s and

defendant’s witnesses would be served by a trial of the

cause in the Southern District of Iowa. A number of wit-

nesses reside at Avoca which is 459 miles from Chicago

but only 33 miles from Council Bluffs and 104 miles from

Des Moines, the two cities where the trial might be held.

* * * There is nothing in this record to indicate the con-

venience of witnesses will be served by a trial in Chicago.’

21

“The Seventh Circuit then went on to discuss the ‘interest

of justice,’ which it felt should be given paramount con-

sideration: ‘In the interest of justice there should be con-

sidered the relative ease of access to sources of proofs;

availability of compulsory process for attendance of unwill-

ing, and the costs of obtaining attendance of willing wit-

nesses; the possibility of a view of the premises: and the

State of the court calendar both in the District where the

case is pending, and in the District to which it is sought

to have the case transferred.’ The Court concluded that

in these circumstances it was warranted in ordering the

cause transferred to the proper forum. The same factors

obtain here, and we have reached the same conclusion.”

(Emphasis added)