# Petition — Clean Land Air Water Corp. v. Waste Systems, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2527%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 837 ## Text m pie roo mt = a a ar 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 Opinions below .......... cossinasinestighettidijiec nen steeseanipaaladiedeabiae an earn 2 PI IIUERNOI os ccscissiviocaveicdenegsdraasicieos vonninasepunnmedaiee a uae aannn 2 TI IE ai sissnicasvasiasscaveusiassvcunaeaea naan 2 RT COINS visi csisisikimicccamestiasecadacaeaae 2 SNE OE TN UII is esissssiccicbisaisinntcsdivonouscesacenaneeenaaen 3 Reasons for granting the Writ ...................cccccccccccssscsssssssscesses 5 MII 5ssn.ccevnncirenwsiisntiies\innsispulaccussuapin OechunuelienieetaedaieasiaataaaanE 16 IIS is cusses vassnnis sateiscvnnsnssshictvamsiauateesbagedaaienaaniaaeeeenee 17 ii 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2527%3A1. Public record. Not legal advice.