Petition for Writ of Certiorari — Couture v. United States

Supreme Court brief1964

Ask Donna

What actually matters in this document.

Text

. INDEX 2

Opinions below „ 2

Jurisdictionn e eee eee 53

Question presente... 2

Statute involved Ret eo emcee —i-t! — ae 3

5 Statement +» ee ee 3

— for granting the wait. * 6 a 7

Coneluson 3 ae 22

Appendix ————— —ç b 2 —qS la

, vee CITATIONS

Cases:

» Boudreau v. New England Transportation co. 315

Mass. 423, 53 NE. „ 9

Braff v. United States (C. A. No. 30, 304, E:D. TAR 7

Continental Grain Co. v. Barge FBL-585, 364 U.S. 19. 7,

; 8, 9, 10, 11

~ de Deepwater Exploration Co. v. Andrew Weir Ins. Co.,

167 F. Supp. 185.......----------- 2 — - 3

Gulf Oil Corp. v. Gilbert, 330 U.S. 501--------------- 8

: Hoffman v. Blaski, 363 U.S. 335---.-------- 8, 9-10, 10-11

‘ Long (Reitz) v. Aris No. 30, 303, E. D.

13 . ——r—v—r—ðr˙˖% 7

* Norwood v. Wire 349 U.S, 20 —— — 8

9 Appeals Act, 28 USC: 10200) 3

Judicial Code:

28 U.S. C. 1404(a)_...----- 2, 3,4, 5, 6, 7,8 9 10, 11, 12

‘8 USC. 1408(e)....-.------.------ nn

„Massachusetts Ann. Laws, Chapters 193. and 1985,

Section —8——j——— — — woot 8

2 — Raper, ban

8 of the United States Courts (1962) 12

Ras: Federal Rules of Civil Procedure: Rule 17 (b). 6

- - Hearings on H.R, 6238 before Subcommittee No. 3 of

N. the House Committee on the Judiciary, 85th Cong.

„Ad Seas., pp. 8-9. . "Bi - .:-,+-~--------6----->- 3

H. Rep. No. 1667, 85th Cong. ad . pp, 1-2. n 3

les . m,

D > oe — me DS

KW 4 « . 7

. 1 — ‘ 9

* 7 5 . —

4 2 oe. ¢ 8 * °

. 15 ¢ 0 - .

5 — e

* ‘ - >

203 ° r * 4 4 x 5 5

. ,

3 b 8 i 3

° 8 ae 5 i :

5 4 ; - * * 0 ° ia 5 .

* aS 1 . 1

. . “i e . os pe — . .

. ; ea 7 * % 2 } \ —

a | *

„ 5

. | 8

— „ > : *

* 3 5

a * * *

‘ a2 4

rp? 2

2 .

—

* e 22 sf

* . *

. 8

e .

2 —

‘ *

on.

: „

. ° >

- l : " ‘

= 3

: q 0

é 2...

° 7 ¥

ee * .

. -*

„ py . ‘

* 7 .

„ 5 . 7 >

‘

— : * R

—

„ .

* 8 * . N

seas

+ 2

— .

—

— =

- ‘

| —

}

bie

. .

—

ae?

PS Sete Beret Got ett Sa

Zz —— Tema, 1962 : .

9 2 2 a 7

“ =e No: vo Fh J 1 ne 2. 2

Pieve I. ‘Van Dusen, Uitte Stars Disraicr 2

9 „Ae, EY al., PETITIONERS *

. ieee . >

Ronerra Bannack, Aserxasriicnrs, Erc., Br AL. |

. a F te 5 2 .

7 ’ *

wre Mae ni

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT „ e EROUHT

The Solicitor Genet). for the United States and

en behalf of the Honorable. Franeig L. Van Dusen,

United States District Judge fon the Eastern District, aie

- of Pennsylvania, petitions for a writ of certiorari to

„ teview an order of the United States Court: of Ap-

peals for the Third Circuit, enteréd on December 7,

— 1962, directing that a writ of mandamus i issue, and to

review the peremptory writ of. mandamus issued by.

that edtirt on December 14, 1962." ; 5

2 2 5 petitiog for ia writ of. certiotari (No. 738, this

Term), seeking review of the same judgment of. the court -

of ‘appeals, has already been filed by. General Motors Corpo-

ration, Eastern Air Lines, Inc., and Lockheed Aitcraft Cor“

‘poration, who, like the United oe: were e N Nr

„ venors below.

: : 06 is

* ‘ ° —

te :

The 3 of the United States District Co

for the Eastern District of Pennsylvania (Appendix of

infra, p. laPis reported sub nom. Popkin v. Eastern

Air Lines, Inc., At 204 F. Supp: 426. The opinion

of the court of à aes (App. . p. 26a) is re-

pe at 309 FH 2d a

"JURISDICTION

| "Ae Da ty 1962, the court of appeals, per

guant to its opinion of November 19,1962 (Apy -

infra, | p. 26a); ordered the issuance’ of a writ of mn:

. damus (App., infra, p. 35a). On December 14, |

the clerk of that eourt' issded the pereypto

mandamus (App., infra, p. 87a), which was subse-

quently stayed pending review in this Court (App.,

iu fra, p. 40a). The jurisdietion of this Court is in-

5 nnn 125401). 5

7 “QUESTION PRESENTED

Section. 1404 (a) of the J udicial Code authorizes

the transfer of a civil action to a more eonvenient bes

district “where it might have been brought.” Does 3

a district court have the ‘power .to order such a trans-

fer of a personal injury or wrongful death suit,

brought by a deeedent’s “personal représentative, to

another district in a State in which the plaintiff has

failed to obtain ancillary. appointment as a s 5

Spresentatipe 7

„ Ik this petition is grunted, the . reserves the

right to argue on its own behalf (as it did below). that man-

. was improperly issued here = the court of appeals

fhe i

ron STATUTE INVOLVED *.

Section 140 (4 of the Judicial D. 28 U.S.C.

1404 (a), provides: ey

8 For the convenience of parties e

in the interest of justice, a — may

transfer any civil action to any other distriet

or division where it might haye been brought.

STATEMENT

These actions arise out of the crash of a commer-

cial airliner. into. Boston Harbor on October 4, 1960.

As- a result’ of the erash, 114 personal injury and |

wrongful death actions were commenced in the United

. States District Court fog the District of Massachi-

setts Sp., infra, p. 2a)? The additional 45 actions

here in controversy were commenced in thee United

States District Court for the Eastern District of

a Pennsylvania. In both courts suit was instituted; ~

either jointly or. separately, against Eastern Air Lines,

Inc. (which operated the aircraft), Lockheed Air-

eraft Corporation (manufacturer of the aircraft), |

General Motors Corporation (manufacturer of the

because plaintiffs. had failed to utilize the procedure pre-

by the Interlocutory Appeals Act, 28 U.S.C. 1292 (b).

would seem that that Act, rather than the extraordinary

writ of mandamus, furnishes 3 more appropriate basis for

appellate review of transfer orders, particularly where such

review is sought on the ground that the transferee court is not

one in which thé action “might have been brought.“ See H.

Rep. No. 1667, 85th Cong., 2d Sess, pp. 1-2; ‘see also testi-

“mony of late Chief Judge Parker, Hearings. on H.R. 6238

5 before Subcomnffttee No. 3 of the House Committee on the“

N Judiciary, 85th Cong., 2d Sess., pp. 8-9; Deepwater Exploration —-

Co. v. Andrew Weir Ins. Co., 167 F. Supp. 185,187-+88———

EF ee ch gel! we ere

aircraft’s engines) and the United States, on the

basis of allegations that, because of negligence on

the part of the defendant® the aircraft’s engines

ingested some birds in flight, causing it to crash. In

some of the Massach the Massachusetts

Port Authority (operator the Boston airport) is an

additional defendant. Jurisdiction with respect to

b States is based on the Federal Tort Claims

Act.

The defendants in ‘the Pennsylvania actions nae

to transfer those cases to the Massachusetts court

under 28 U.S.C. 1404(a), on the ground that. such

transfer is S required by’ the convenience of parties

and witnesses” and that it would be in the interest

of justice“ The plaintiffs resisted the transfer, some

of them on the ground (among others) that, since they

had instituted their suits as persona] representatives

appointed in Pennsylvania but had “not qualified in

Massachusetts, the District of Maszachusetts is not

one where these suits might have been brought,“ as

required by 28. U. S. C. 1404( a): .

The district court (Van Dusen, J. noted that such

a transfer will not impose any undue burden on the

plaintiffs (App., infra, pp. 4a-—5a).- The court fur-

ther concluded that the transfer will serve the con-

venience of the witnesses, observing (1) that most

of the survivors, eyewitnesses, and other potential

— — —

witnesses on the issue of negligence reside in the

Baston area, (2) that Philadelphia is not more con-

4 *

. .

* „

— -venient-te~other—potential negligence witnesses than

Boston, (3) that all negligence witnesses would be

“inconvenienced by having to. testify at two trials

sulle, than one, and (4) that, although mee, ‘ot’ “WEN

plaintiffs’ witnesses on damages come from the

Philadelphia area, it is unlikely that many of the

suits will go to trial on tlie damages issue once the

liability issue has been determined (App., inf ra, pp. N

a- ga). The court also concluded that the interests

of justice require the. transfer because (1) consolida-

tion of all cases relating to this single accident will

result in fairer and more orderly trials and will save

time and expense for the public, jurors and other

litigants, (2) the conduct of as few trials as possible a

on the issues of liability and culpability will avoid

duplieatiow und -inconsistent results, (3) the Pistriet

of Massachusetts ig the only federal district in which

jy all defendants (including the Massachusetts Port Au-

thority) ean be served, (4). the litigation should be 8

tried at the situs of the aceident and in a forum more

familiar with applicable state law, and (5) the docket

of the Massachusetts eure is less congested than that

'» Rejecting ‘each of the various mnie wien which

"The court also listed several reasons why transfer was re.

quired; under 28 U.S.C. 1404 (a) in relation to the government:

(a) that, because of the nature of the claims against it, the

„government should be permitted' to bring the Massachusetts

Port Authority in as a third-party ‘defendant, (b) that the

District of Mascachusetts is the only district in which all suits

against the government may be brought, (c) that the Massa-

chusetts court is most familiar with the law applicable to the

government (de., “the whole law of the State where the actor. c

omission occurred”) and (d) that limitations on mbit uu.

Q posed by Massachusetts law are not applicable to the govern- :

ment, whatever may be their eee to other parties

(App. sire, pp. ees

an appointment is a prerequisite to a “foreign fidu-—

_ ciary’s bringing suit in the District of Hlassachusetts.

Although ‘recognizing that venue and personal juris-

7 . diction: would be properly laid in Massachusetts and

„

notwithstanding the fact that the plaintiffs had not

obtained ancillary appointments: as persona! repre- :

sentitivegin Massachusetts (App., infra, pp. 20a-23a).

The court conc that the contention. that this was

an obstacle to the suits’ being brought in Massachu-

At setts was a “legal fiction”? which should not be a

for rejecting the use of 28 U.S.C, 1404 (a); the

uͤrt noted that the lack of appointment merely went

to a defense that might be raised in the Massachu-

“setts proceeding.‘ Accordingly, the court ordered 1

requested transfer.

On plaintiffs’ petitions for writs of mandamus And

prohibition, the court of appeals held that the dis-

triet court had exceeded its authority in entering the

transfer order · and directed the issuance of a writ of

3 The court reasoned. that, under Rule

17 (b) of the Federal Rules of Civil Procedure, ca-

pacity to sue in federal courts is governed by state

law and that, since under Massachusetts law a foreign

fiduciary is not qualified to maintain suit in Massa-

chusetts without securing ancillary appointment, sueh

The court also stated =

....

objecting to the capacity of the personal b N -

— —

the plaintiffs resisted transfer, the dintriet saat con-

cluded that the District of Massachusetts was a dis-

- triet in which these suits “might have been brought,“

——ñ— — eee

— —

ai that n appointment. woul

quite likely” be granted if applied for (App., infra, —

pp. 32a-33a), the- court concluded that the personal

representative plaintiffs did not have the “unqualified

richt“ to proceed in Massachusetts and hence that.

these suits were not suits which might have been

brought’’ there within the meaning of 28 U. 8. C.

nen 1 a

i isin e eee e

i The decision of, the court below is, We. .

g plainly erroneous and presents an important question a

of federal procedyre which should be decided by this

Court.

spirit of the decisioris of this Court interpreting it.

The artificial limitation which the lower court would

impose upon transfers to a more convenient forum

‘will plainly lead to 'the wastefulness of time, energy

and money that § 1404 (a) was designed to prevent”

and frustrate its “desigh to protect litigants, wit-

nesses and the public against unnecessary inconven-

ience and expense.“ See Continental Grain Co. v.

Barge FBL-585, 364 U. S. 19, 26, 27. Moreover, it is

: „It was brought to the court’s that in two of the

suits before it (Braff v United States; aa. he 20,304, E. D.

Pa., and Long (Reitz) v. United States, C. A. No. 30,303, K. 5.

Pa.), venue had been improperly laid in the Eastern District 2

of Pennsylvania. As to these suits, apparently relying on 28

U.S.C. 1406(a) (which permits transfer of such a case- to the

district in -which-it-could

have been brought”), the court held

that the transfer Magenchasetts was Proper (App., infra,

p. 34a). See note I, infra. .

675822632

2 EB ˙% W asetcunty bo the

manifest purpose of 28 U.S.C. 1404 (a) and to the

| 8

. based on a technical, formalistic approach to the

statute, rather than the liberal “common-sense ap-

proach * * * in interpreting 6.1404 (a) called for by

this Court. Continental Grain Co. v. Boge N.

585, supra, 364 U.S. at 24. a

Prior decisions of this Court disclose. the essential

standards governing application of the transfer

statate. Its origin in the doctrine of forum non

conveniens makes it clear that Section 140 (a), like

the superseded doctrine, may be applied, within the

diseretioh of the district court, whenever there are

two or more forums having jurisdiction over the

"defendant and venue of the action, see Hoffman v.

Blaski, 363 U.S. 335, 335-336; Gulf Oil Corp. v. Gil-

bert, 330 U.S. 501, 506-507. From this, and<from

the liberal purposes of the statute, it. follows that.

considerations other than the existence of jurisdiction

and venue in the transferee court will not preclude

transfer but are among the factors that the trans-

feror court must take into aceount in determining

‘the “‘eorivenience- of parties and witnesses” and the

“interest of justice.“ Cf. Gulf Oil Corp. v. Gil-

bert, supra, 330 U. S. at 508-509; Norwood v. Kirk-

patrick, 349 U.S. 29, 32. Transfer to a more con-

venient forgm is not to be impeded by legal tech-

nicalities and. fictions. Continental Grain Co. v.

_ Barge FBL-585, supra, 364 U.S. at 23, 26.

On these decisional premises, the court below

plainly erred in holding that the District of Massa-

„Ot course, such jurisdiction or venue cannot be gonferred

smiply ‘by ths defendant's waiver, Hofman . ng

See pp: 9-10, infra.

ͤ—ũ—m — -

: .

ee chusetts was not a district in which the present suits :

might have been brought” for purposes of the trans-

fer statute. As the court recognized (App., infra,

p. 32a) and as no party disputes, that district has

jurisdiction over the defendants, and venue is proper

there. The fact that the plaintiffs have failed or

refused to seek ancillary appointment there is plainly .

the sort of legal technicality or fiction. rejected in

the Continental Grain ease, supra. Such appointment

a ordinarily a mere formality: thus, te obtain an- 5

eillary appointment in Massachusetts, drie néed only ~

present an appropriate petition and appoint a resi-

dent of Massachusetts as an agent for service of

process, Mass. Ann. Laws, Che, 193, 195, Sec. 8: As

the court below acknowledged, it is quite likely that

most of [the plaintiffs]: would have been ap-

pointed (App, infra, p. 33a). Moreover, these for-

‘malities aré not jurisdictional prerequisites to the

commencement of suit but may be reflected in a later.

amendment of the complaint, Boudreau v. New Eng-

land Transportation Co., 315 Mass. 423, 53. N.E. 2d

92. We submit that the decision below, in permitting

this purely technical default to preclude “transfer,

undermines the purpose and operation’ of 28 U.S. C.

1404(a) and should be reviewed by this Court.

2. There is no support in the decisions of this Court

for the lower court’s ‘ruling. The court placed — .

liance upon Hoff man v. Blaski, 363 U.S. 335 (App.,

. infra, pp. 30a-3la) ; but, as thé district court pointed

— pe —

. ‘Buch jurisdiction 2 venue eth not A upon any

FFF See note 6,

* —— —

¢ l 3 — Ahay, — —

1 „

20.§“ů K . 5

out (App., infra, pp. 22a-28a), that decision has no

"application here. There the Court had before it an

attempt to transfer a case to a district where venue

was not proper, although the defendant was willing to

"waive the defect; the Court held, however, that the

Venue requirement implicit in the statutory phrase,

“other district * * * where [the suit] might have

been brought, gould not be A by waiver or

consent.

That the Hoffman eden as not govern a case ;

were venue and jurisdiction f in the transferee court

are proper without consent, and only a formality

stands’ in the way of transfer, was made abundantly

clear by this Court’s later decision in Continental

Grain Co. v. Barge FBL-585, 364 U.S. 19. There

the Court, in holding that a fiction of admiralty law

did not, preclude transfer under 28 U.S. C. ane

emphasized that its Hoffman ruling was limited to

ease where “the defendant legally could not have 155

subjected to suit m the transferee court (364 U.S.

at 21-22)—i.e., where venue or jurisdiction would be.

improper there. Thus, the present case (in which

A unconsented venue, and jurisdiction are proper in the

transferee court), rather than being governed by the

Hoffman case, rather plainly falls under the “‘eom-

mon- sense approach“ of the Continental Grain case

(364 U. S. at 24). —

Indeed, the Hoffman case , suggests: one ay the a

strongest reasons for holding that a case like the

present is transferable under 28 U. S. C. 1404 (a). The

Court there refused to allow a defendant, by granting

or we a waiver of venue, greater freedom of

transfer than a plaintiff would have, on the ground ae

that this would constitute “gross discrimination“ (363

U.S. at 344). But the decision below would give a

. Similarly diseriminatory* power to plaintiffs in repre-

sentative .actions, since it, allows them to: litigate in

the one State in which they: have seen’ fit to qualify,

notwithstanding that ict in another State, hav-

ing jurisdiction over the defendant and venue ol the

action, would be a more convenient forum.

| 3. The importance of the question presented by this

eus is-plainly apparent, affecting as it does all rep- -

| _. _Fesentative actions. If the holding below is 9

to stand, the possibility of consolidating. multiple

claims arising out of major disuster such us air-

plane accidents —will be virtually eliminated.’ To

borrow this Court’s words, that holding „would prae- |

tically scuttle e forum non conveniens statute’’ with

respect to representative actions: and would provide

a shelter for such actions “in costly and inconvenient

forums” (Continental Grain Co. v. Barge FBL-585,

364 U.S. 19, 24, 27). .

At the same time, adoption of the lower court 5

5 construction of 28 U. S.C. 1404(a) would, by f

As of December 31, 1962, there were pending i in the

federal district courts over 420 Federal Tort Claims Act cages

tae out of airplane crashes or mid-air collisions. Of chese, .

+ or more than 60 percent, are cases filed in multiple juris

_ dictions. throughout the country, although all 274-arike out of

is, 6 airplane disasters. One of these 6 accidents has led to suits

in as many as district courts.

As ae in No. 738 point out (Pet. 8), only a small

‘minority. of States permit a foreign fiduciary to obtain

judgment on the basis of his foreign appointment.

“a

. 0 t “ 0 4 , °

4 - : : —— —

2 .

0 : 12.

| n transfer and consolidation l e a

_ single tfibunal, saddle federal trial courts with an

unnecessary workload in a vast number of multiple

lawsuit situations arising out ef a single oeeurrenee,

and thus make even more difficult the proper, efficient -

and expeditious administration of the federal court

System.“ It is to be noted, too, that the decision

below would have application beyond 28 U.S. C.

1404 (a); for example, it is diffieult to see why it

would not be equally applicable with respect to 28

U.S.C. 1406(a), which authorizes the tratisfer of 4

“ease from a district in which venue was improperly

laid to one in which - it could have been brought.“

In the eireunistances, the need for review of the

° decision below is contpelling.

e The Director of- the Administrative Office of the United

States Courts, in his 1962 Annual Report (p.. I-14), notes that 4

multiple jurisdiction suits “involve production of substanti

the same witnesses” and, documents so that chaos would resu

same time. -

u Presumably on the backs of 28 USC. 1406 (a), the unt

below approve? the transfer to Massachusetts of two cases - in

22 been improperly laid in the Eastern District .

2E Counsel for the 5 re

SE Sebwesd thie action sal Whe court's Lbting

with respect’ to the other cases, have asked the ohurt to modify

ns opinion‘to withdraw approval of the transfer of ches tao.

_ cases, R **

* 9 0

— — an

0 a

-0 ; 7

° „ ° N } ; 13 6 Ss

0 . > 0 o

CONCLUSION

For the . reasons, the~petition for a writ

of certiorari should-be.granted.

Respeettully submitted. f

ARCHIBALD. Cox,

_ Solicitor General. -

2 Jonx W. Dovatas,

Acting Assistant Attorney General.

® „ J. Wuius Doorrrrix,

N Assistant to the Solicitor Cones.

| Moro Hoitanper, i

hha ot 3 STEPHEN B. Swakrz. .

5 rp ee | e.

5 2 *

: 0

bis ä 2

a : 8.

Soe eM — — * =

5 * „*

. a

8 be ;

5 PY 2 , 8

“SNE | “4 . 2 3 1

: . |

0 . *

. 8 8 |

A a oe) ee

. °

1 :

> 1

: 4 0 Se |

5 — |

* |

1 3

. * J ry

7 —

: .

„ 1

i 1 5 = 3

. 2

5 j

— — |

es |

. : med |

Na 5

E BA |

. °

> a \ 5

* Le *

be 8 . 2

—

e :

2 8 i

n 1 ;

* .

APPENDIX _

se 9 88 n

In the United States Distriet Court’

For the Eastern District of Pennsylvania

ren. Acrioxs Nos. 28664, 28741, 28702 28763 25764.

28788, 28789, 29099, 29100, 20159, 29160, 29161,

20102, 29274, 29275, 29615, 29616, 29724, 29768.

20881, 29882, 29883, 29884, 29901, 30078, 30079,

f 0 30200, 30230, 30257, 30258. 30259, 30260, 30263,

30266, 30284, 30288, 30289, 30300, 30301, 3002.

30308, - 30304, 30305, 0306, 30343, 30344, and

30346 * | a sc

\. 4 age

i Nos. 25 323, 325, 327, 329, 335 and 875 of 1961 in

\ Admiralty. eos

: . Sivs r. W. Pork

2 v.

Eastern Am havi INc., AND 8 Fenn

. CorP., AND GENERAL Morons CorPoRATION and suc-

N ceding cases captioned in the orders of 10/17/61

(Document No. 24 in C. A. 28664) and 11/11 °

(Document No. 7 in C.A: rave — Civil * a

ee tions Nos, 30390 and 20391

(

: 2a ra

ie 3 sur motions to transfer

Vax Boman, J. a Ann 6, 1962.

These 55 cases,’ involving fatal and, as to three

plaintiffs, non-fatal injuries suffered when an Electra

airplane manufactured by Lockheed, having engines

made by General 2 and owned and operated by

Eastern, era approximately one minute after

take-off in Boston Harbor on Ottober-4, 1960, are.

before the court on Motions( 30 Transfer inder 28

U.S. OC. A. § 1404(x). There are 114 similar. cases

_ pending in the United-States District Court for the

District of Massachusetts (see Document No. 30 in

0.1. 30078). The record in these cases (see, partieu-

larlx, statements of Lee S. Kreindler, Esq. at the

argument) indicates that the primary basis for lia-

bility on which the plaintiffs presently rely is alleged.

fault of. the defendants ‘resulting in bird ingestion by.

the turbe-prop. engines of the plane involved in this

suit, as well asp in engines of other planes using the

Logan International Airport, ‘Boston, at about the"

time of the accident: ~~.

‘In Jurgelis v. Southern Motors Express, 169 F.

Supp. 345 (E. Pa. 1959), this court said:

There are, 28 plaintiffs involved in those 55- cases, since 13

plaintiffs have filed two suits in this court and 7 plaintiffs have

filed three cases in this court resulting from the injuries re-

esived in the October 4, 1960, airplane accident at Boston, Mass.

: Only one of thie 114 cases in the Massachusetts District Court

is an admiralty action, whereas 7 of these cases are suits in

admiralty brought by the same parties who have also filed Civil

Actions in this court.

Wherever “plaintiffs” is used, it 6 libellants and wher- |

éver “defendants” is used it includes respondents. —

One’ of these cases has already been transferred due to im-

Proper venue (CA. 30307). 0

pay Beau | oe

er ae ay)

li Norwood v. Kirkpatrick, 1955, 849 U.S.

‘29, * the Supreme Court, in discussing the

relation of 28 U.S.C-A. §1404(a) to the doc-

_ .tgine of forum non conveniens as recognized by _

the Supreme Court in Gulf Oil Corp. v. Gu-

bert, 1946, 330 U.S. 501, eee

2 , we Mlieve that Congres,

term ‘for. the ¢onvenienve of parties —

: nesses, in the interest of justice,’ intended to

permit courts to ‘grant transfers upon a lesser

sho of inconvenience. This is not to say

that the relevant factars have changed or

that the plaintiff's choice of forum is not to be

conside but only: that the diseretion to be

: exercised is 8

It appears, there orey that under the present 5

state of the law, the factors to be considered by.

a court in determining whether or not to trans-.

fer the action ‘under §1404(a) are established

by the Gulf Oil Corp. ease,“ and the degree

In the Gulf Oil Corp. v. Gilbert case, supra, the court said

at pp. 508-9:

“** * An interest to be considered. and the only: likely

to be most pressed, is the private interest of the litigant.

Important considerations are the relative ease of access to

sources of proof; availability of con:pulsory process for attend-

ance of unwilling, and the cost of obtaining attendance of

willing, witnesses} possibility of view of premisess if view would

be appropriate to the action; and all other practical problems

that make trial of a case easy, expeditious and inexpensive.

There may also be questions as to the enforcibility of a judg-

ment if ofie is obtained. The court will weigh relative advan-

tages and obstacles to fair tria} It is often said that the plain-

tiff may not, by choice of an inconvenient forum, ‘vex’, ‘harass’, —

or ‘oppress’ the defendant by inflicting upon him expense or

trouble not necessary to his own right to pursus his remedy.

But unless the balance is strongly in favor af the defendant,

the plaintiff's choice of forum should rarely be. disturbed.

“Factors of public interest also have place in applying the

doctrine. Administrative difficulties follow for courts. when an

. Modarelli, 196 F. 2d 1010 (3d Cir. 1952), where the

court said at page 1011: an 8

N The statute limits the privilege of the plaintiff

to have his lawsuit tried in the forum of his

choosing if he can there get jutisdiction over

the defendant: The -purpose of the limitation... 3

is clearly te make the inevitably uncomfortable -

(for the. litigant) judicial process cheaper and

more convenient and, if possible, more prompt.

Alfter consideration of the record in these eases, the

undersignéd has coneludéd..that transfer is required

under 28 U.S. C. A. § 1404 (a), as follows: +

I. Convenience ofcthe parties —

In this case, plaintiffs claim their convenience

would be served by a trial in this District and. the de-

fendants claim that it would be more convenient for

them to have these cases tried in the District of Mas-

° 8

Shat any of the plaintiffs is impeennious, nor ia their

financial condition stated i in the record. i

eachusctts The burden on the survivor-plaintiffs of

presenting their damage testimony in the transferee

District has not been overlooked, but this is a burden

often falling upon persons who, having elected to

travel away from home, are involved in aceidents and

must have heen considered by Copgress in

28 U.S. C. A. § 1404(a). None of the affidavi —

7 TI. Convenience of witnesses

The record makes clear that the Distriet of Massa.

chusetts will be. more ient for the presently -

known witnesses dn th es of liability. and of

degree of eulpability of the "defendants: The Collins

* There is nothing in 28 U.S. C. A. § 1404 (a) which precludes.

transfer because the plaintiff is a resident of the transferor --

District. See, for example, Norwood v. Atlantic Coast’ Line

RR. Co., CA. 15810, p. 4 of opinion of then Chief Judge (now

Senior Judge) Kirkpatrick dated 7/12/54, petition for writ of

mandamus and prohibition denied (3rd Cir., No. 11,364, on

7/16/54), aff'd. sub. nem. Norwood v. Kirkpatrick; 349 U.S. 29

(1955); Harry Winston, Inc. v. Zale Jewelry Company, 191 F.

£86 (S. D. N. v. 1961) Huff v. Nashville, Chattanooga &

St. Louis Ry, 88 F. Supp. 735 (S.D.N.Y. 1949). As stated in .

Brown v. Woodring. 174 F. Supp. 640, 645 (M.D. Pt. 1959) :

“Defendant's mandatory margin for victory * * * con Pon

be an overwhelming one.’ A court should not hesti

disturb plaint Ms choice of forum if the three 7

dictate transfer.”

„The Massachusetts Death Act, in relevant pert, 8

“A person who (1) by his negligence causes the death of a :

person . or (2) by Hilful, wanton or reckless act causes —

death of a person * * *, or (2) operates a common carrier of

~ passengers and by his ‘negligence causes the death of a passen-

ger, or (4) operates a common carrier of passengers and by his

- wilful, wanton or reckless act causes the death of a. passen-

ger , shall be liable in damages in the sum of not less than

two thousand nr more than twenty thousand dollars, to be

ee 924

it (Document No. 31 in G. A. 28664) alleges at

(a) all h t six of the 47 eye witnesses to the a dent

known “Motors residé in the District of

tts and within 25 miles of Boston (par.

the Boston; (e) four employees of the

Logan Airport ho prepared the plane for flight

reside in the vieinity of Boston; (d) seven operators

of the control tower at Logan International Airport,

who were eye witnesses to the aircraft’s flight and

erash and who would know the time of the take-off

and crash,

ton (see

(e) all but one of the six. experts who first examined

the bodies of the dead birds reside within twelve miles N

Mass Ann. Laws, c. 220, 62 (Suppl. 1961). 8

»The second sentence of this paragraph states: Abese wit-

nesses observed the takeoff, flight and crash of the aircraft and

would be to testify to its F mora gpa ager

of its fii

838 and 837 of 1961 in Admisalty, ito alleged thet Majex Soh

vester Koenig resides in Greenville, 8.C. (Document No. 35 in

GA. 28664), rather than Falmouth, Mass, as alleged in this

e arte ee ah leer ery mila a mamas

in not stated in any affidavit filed by plnintifis.

r of ten survivors of the erash reside in

Massachusetts and within 60 miles of

ide within 25 miles of center city Bos-

5 of Document No. 31 in C.A. 28664) ; .

a. 5

ot center eity 1650 and the sixth such bier resides:

in New Hampshire, approximately 60 miles from Bos-

ton (see par. 17 of Document No. 31 in C. A. 28664);

and (f) five other potential witnesses having knowl-

edge. o the presence of birds at the airport, and some

Ofvmhom discovered dead birds at the airport, reside |

within 25 miles of Boston (see pars. 16 and 18 of Doe-

ument No. 31 in C. A. 28664). Also, it is clear that

it will be more convenient for such witnesses if there

is to be one trial, ra r than several, and if the dis-

eovery can be conducted under the supervision of one

court." Of. MacAlister v. Guterma, 263 F. 2d 68, 68- |

; 70 (2nd Cir. 1958).

Plaintiffs have not filed any affidavits’ en det

ing the above sworn allegations, but have emphasized,

generally, without listing any additional, specific wit-.

nesses in their affidavits (except for six individuals

listed without specifying the area of their testimony

in Document No. 35 in C. A. 28741 and five individuals

listed as damage witnesses for one plaintiff in Docu-

ment No. 29 in C.A..30078), that most of their com-

pPensatory damage witnesses come from this district

or near it.“ Experience in this and other Districts

The Wickenhaver Affidavit lists some of the same witnesses

as those referred to above in the Collins Affidavit. See Exhibit

Mass.). *

0 aot the United States of Anierica l is one of the defendants,

the only District in which all the actions cari be consolidated

for trial is Massachusetts. See 28 U.S. C. A. § 1402(b), provid-

ing that the United States may only be sued where the plain-

B to Document No. 30 in C. A. 28664, In pac. S of that Affi- .

da vit, there. is named an additional witness as to the birds

"living in the transferee District A. J. Phelan, of Winthrop.“

tiff resides or wherein the act or amission complained of

For example, the McConnell Affidavit (Document No. 29 in

C.A. 30078). lists six compensatory damage nende that

plaintiff Warch wishes to call “from tis area“ and does not

a large group of cases

determined, relativdly_few of 4

such as these, resulting from one accident, go to trial.

on the damage issues. Furthermore, as indicated

below, there are several legal hurdles the personal rep-

— resentative plaintiffs have to overcome before compen-

satory damages become pertinent in their eases.”

Some plaintiffs also stated in their affidavits that

they seek to. establish that the accident occurred as

the result of negligent design and testing of the en-

gines by General Motors, negligent design and testing

of the aircraft by Lockheed, negligent testing of the

aircraft, as well as negligent. training and physical

examinations of the flight personnel, by Eastern, and

negligence of the Government in execution of its

responsibility for flight safety. par. 8 of Docu-

ment No. 29 in C. A. 30078. At the argument, it was

admitted that plaintiffs hoped that the Government

agency investigating the crash would be able to show

faulty design and testing of the aircraft and its en-

gines, but no definite finding to this effect has been

made over 18 months after the crash. Hence, there

is nothing specifle on the record, to show that any

large number of witnesses from outside the Boston

area, and for whom the transferor District.would be

more ‘convenient than the transferee Distrigt, will be

required for the trial of the above-mentioned issués

of- liability and degree of eulpability. Employees of

t he was also hospitalized in the Boston’ area or that

medical witnesses from that area could present helpful evi-

‘dence on the issue of damages—see, also, Affidavits attached to

Document No. 35 in CA. 28664 and Documents Nos. 34 and 35 .

in C.A. 28741.

wif agreement on cannot be secured in the 8

against” the Govern is most, probable’ that the Gevern-

teaat would ngseo to 9 Gylormination of thh damage 2

: 9a |

the defendants from California and Indiana, referred.

to at page 10 of the Kreindler Affidavit, being Docu-

ment No. 12 in C.A. 29724, would not be substantially

inconvenieneed any more by a trial in Philadelphia

than one in Boston, but it is clear. that they will

_ be’ inconvenienced by having to testify at trials in

both places, as opposed to one trial in Boston. (see n

footnote 8 above, showing that the transferee District--

is the only place where there can be a single trial).

Employees of Civil Aeronautics Boat Bureau }

of Safety, similarly have to testify in the Dis-

ttriet of Masachusetts in any-event and, if the trans-

fer of these 30 cases is denied, they will have to

attaad another trial in this District.

III. "The interest of justice

The interest of justice requires the transfer of

these cases to the W Distriet for these rea-

6 m m e Cet bee

of proceedings betere trial is likely to procure fairer and more orderty

: trials for all litigants and save needless time and expense for the pub-

. lic, inetading jurors, and other litigants whose cases are awaiting trial

See MacAlister v. Guterma, supra, at 68-70;

O'Donnell v. Watson Bes. Transportation Company, — |

183 F. Supp. 577 (N.D. III. 1960) ;.and cases cited in ;

those cases. With reference to the argument in the 3:

attached letter of January 11, 1962 (based on a letter

from the Clerk of the Massachusetts District dated ,

January 9, 1962, which is also attached), that “there |

is nothing to be gained administratively by the-trans-

fer of these matters to Boston,“ the United States

„X trial in this District would be less convenient for defend-

ant@ since it would require them to transport their employees to

testify at least twice from the west or mid- west to the eastern

a part of this country: f f

628822— 62

10a

¢ District Court for the District of Massachusetts has

informed the undersigned that all the cases ‘arising

out 6f this accident have been assigned to one judge, -

who is handling all such cases for purposes of pro-

ceedings prior to trial and will consider possibilities

of severance of issues for trial, as well as consolida-

_tion for trial, at the appropriate time.“ As pointed

out in Kelly v. Greer, 295 F. 2d 18, 21 (3d Cir. 1961),

+ even after a consolidation order has been entered, it

does not freeze the future conduct of the litigation.”

en. ot at few iran a fmnible onthe nee of Uisbiity snd

culpability 5

The purpose of the Federal Rules of Civil Pro-

cedure was to encourage consolidation wherever this

was fair and possible? See Sutcliffe Storage & Wure-

house Co. v. United States, 162 F. 2d 839, 851 (1st

Cir. 1947); United States v. Kxauer, 149 F. 2d 519

(7th Cir. 1945), aff'd. 328 U.S. 654 (1946) ; ef. Walker

v. Loop Fish d Oyster Co., 211 F. 2d 777, 780-1 (5th

Cir. 1954); Howey v. Yellow Cab Co., 181 F. 2d 967,

973 (3d Cir. 1950), aff'd. sub. nom. United States v.

Yellow Cab Co., 340 U.S. 543 (1951). In the 8

case, supra, the court said at page 973:

Surely | the stricture of the Swapwved

case , would not serve to require second,

separate trials with the United States as the

sole defendant, the issue being one of contribu-

tion, for such second, separate trials would

* embrace the same evidence as that already re-

ceived and would be conducted before the same

judge.

u Paragraph 8 of the Gaited Affidavit 8 No. 36

in C. A. 30078) refers to the normal. progress of a case in the

United States District Court for the District of Massachusetts,

whereas ‘the court has informed the undersigned that this case

is being treated as a protracted case and not “in the normal

course.” See Handbook of Recommended Procedures for the

** Trial of Protracted Cases, 25 F. R. D. 351 (1960).

- 5

‘ *

0 a „ *

—

N 0

. N

0 .

—

. 1 25

e ee e e e

fairness and desirability of consolidating cases for-

trial, particularly on the issue of liability. See

Weitort v. A. H. Bull & Company, 192 F. Supp. 165

(E.D. Pa. 1961); Hassett v. Modern Maid Packers,

Inc., 23 RR. D. 661 (D. Md. 1959); Polak v. Konink- -.

lijke Luchtvaart Maatschappij, etc., 19 F. R. D. 87

(S. D. N. V. 4956); and cases cited in those cases. In

the Polak case, supra, the court said at page, 88:

The advantages. of corisolidating ‘multiple

claims arising from a. single accident outweigh,

een the considerations requiring strict enforce-

** „*

ment of the rules on jury

[Citing case.] Recent experience with the trial

of such consolidated claims in this court

indicates that almost invariably the only evi-

dence peculiar to each claim is that relating to

damages. Most of the trial court’s time is con-

sumed by the trial issues common to all of the

eases. Considerations of expense as well as

the convenience of witnesses, litigants and the

Court, and the expeditious dispatch of judical

business, impel consolidation under such

cireumstances,

In the Hassett case, supra, involving five actions aris-

ing out of one accident, the court said at page 664:

* * * it will save time for parties, witnesses,

counsel dnd courts, .to have the entire matter

‘edisposed of at one trial. * * *

The five cases should be consolidated for trial

under Rule‘42(a), but, as permitted by Rule

42(h), the jury shall first hear the ev idence on

) the issue of liability and ‘decide that issue: for

7 all the cases. :

It i is neither - fair nor just that there n be a dif.

ferent liability result for some of these plaintiffs than

there is for others. Transfers under 28 U.S. C. A.

1404 (a) have resulted from the desirahility of consdli-

4 .

— mn

6 122

dating the transferred cases for frial with other

similar cases pending in the transferee District. See

“A/S Dampskibsselskabet Svendbord v. United States,

116 F. Supp. 603 (E.D. Tex? 19533, where the court

said at page 606: a :

8 7

Air Lines, 153 F. Supp. 244 . N. V. 1957).

‘the Second }

consolidation

questions of la

and trial under

ter. See Maca

v. Hazeltine Corporation, 122 F. 2d 925 (3d Cir.

1941), the United States Court of Appeals f. the

However, a more important consideration, it

would seem, is that all of the facts and · eireum-

stances necessary to determine the rights of the

rties will have to be presented both there and

— at different times, and it is possible that

the two Courts could reach ‘conflicting conclu-

sions; Whereas if the case filed here is trans-

ferred, it can be consolidated with those in the

Southern Distriet of New Vork and all rights

determifted in a sirigle trial without the _

bility of such a conflict.. -

See, also, Continental Grain Co. v . Barge }

364 U.S. 19, 21 (1960) ; — United Ax Lines,

158 F. Supp. 404 (S. P. N. V. 1958) ; Winsor v. ited

Recently, Wie United States Court of Appeals

uit has emphasized the desirability o

separate actions involving common,

and fact for purposes of pre-trial

e supervision of one judge or mas-

er v. Guterma, supra. In Crosley

Third Circuit, said at page 930: .

It is of obvious’ importance to all the litigants ä

to have a single determination of their contro-

versy, rather than several decisions which if

they contlict may require separate appeals to

different circuit courts of appeals.” No party

has a vested right to have his cause tried by

one judge rather than by another of equal juris-

diction. * “ The economic waste involved in

duplicating litigation is obvious. Equally im-

® . * * *

‘

7 1

——— — — 2 — 2 — cat AM meee — — 4 K

* * a bal

. * .

. .

. 8 1 0

Lassa Ye

. . . * *

. 30 5

e *

* * ° ; , 1

"portant is iis adverse effect upon the promp

—

2 and efficient administration of ‘justice

g of the constant increase in judicial business

in the f courts and the continual neces-

‘sity. of adding to the number of judges, at the

expense of the taxpa oe policy requires

a us to seek „ to avol

se time and entrgy. Courts already heayily bur-

ä dened with litigation with which they must of

necessity deal should therefore not "hie called

upon to duplicate each- other's work in cases

involving the same issues and the same parties.

0 (3) The District ‘ia the only federal jurisdiction where all

defendants can be served

The de fendard (particularly the United States of -

r America and Eastern Air Lines, Inc.) emphasized at

the argument that they wish to join the “Massachusetts _-

Port Authority (owner anid operator of the Boston

Airport) as a third-party defendant and service can

only be obtained: on’ that entity in the District of Mas-

snelfusetts (see page 4 of Kreindler Affidayit, Docu-

ment No. 12 in C.A. 297200. This court has consistentlx

recognized that the ability to join a ‘third-party

defendant. in the transferee forum is a consideration

“in favor of transfer. See Allied Petro Products In-

Sas corporated, ete. v. Maryland Casualty.Company, C.

No, 30180, and cases cited at pages 34 of Opinion of

15 ‘ 12/22/61 (Document No. 7). The unfairness which

ean result from different results in separate trials of

\ actions arising from the same accident is illustrated in

eases such as Curtis v. A. Garcia F. Cia; 272 F. 2d 235

: (3rd Cir. 1959), where differing records in two trials’

produced a fiability result for defendant and third-

party defendant which it is quite possible that neither

fact finder would have reached if both actions had

heen considered at the same trial,

waste of judicial:

11 |

: —— . cnn he nat tice

In addition to the above factors favoring the trans-

feree District. as the only place. where fair procedings —

before trial and a fair trial for all parties on the

issues of liability and culpability may be had, the fol-

lowing factors mentioned by the United States ct

Supreme Court in Gulf Oil Corp. v. Gilbert (see sec-

ond. paragraph quoted in footnote 2, supra) favor 1

trial in the transferee Distriet: 57 0:

1 (ca) The litigation will be handled Kat its

origin,“ rather than in this court, the. docket

of whith is more congested than that of the

n Distriet N BG 7 of Wickenhaver

being Exhibit B to Document No. 31).

will be held “in,a forum that it as

the state law.”’

ed of the principal „ of the persqpal rep-

resentative plaintiffs who oppose the transfer is that

they will be depri ved of the- benefits of the public |

- policy embodied in the Pennsylvania Constitution

(particularly Article I, ‘Section 11, and Article III,

Section 21) if these cases are transferred. Cf. § 612

of Restatement of Conflicts ef Law. This argument

5 E trial of the issues of liability and

pe wi

against transfer is meee. for these reasons, Wan

others:

4 A. There is no reason to believe that « Federal Judge, sitting in Massachu-

law as such a judge sitting in Pennsylvania will be

The Supreme Court of the United States has: ;

recently stated: “The general conflict-of-laws rule,

followed by a vast majority of the States, is to apply

the law of the place of injury to the substantive rights

of the parties.“ _ Richards v. United States, 369 U. 8.—

(1962). * In visw of the possibility that the deci-

sion in the cases g in the Pennsylvania State

Courts referred to\under B below may make moot the

argument against application of the above-quoted rule

in this case, it is not hecessary to decide at this time

such questions argued by counsel as the application

to this situation of $4 384, 391 (comment d), 412, 517

and 612 of the Restatement; Conflict of Laws, and as,

when a case is transferred under 28 U. S. C. A. § 1404 .

(a) does the transferee court determine the rights of

the. parties on the basis of the law that would have

been applied in the District where the suit was origi-

nally filed. See Headrick v. Atchison, T. & S. F. Ry.

Co., 182 F 2d 305, 309-310 (10th Cir: 1950); Gomez

V. Tue SS. Dorothy, 183 F. Supp. 499, 512 (D. Puerto

Rico 1959); Hargrove v. Louisville. Bert Rail-

road Company, 153 F. Supp. 681 (W.D. Ky.

1957); Greve v. Gibraltar Enterprises, 85 F. Supp.

410, 414 (D. New Mex: 1959); “ and authorities cited

in those cases. The transferee. court will be better

able to pass on these questions, if necessary, after

decision of the cases pending in the Pennsylvania

State Courts mentioned in footnote 20 below.

B. Contention that Pennsylvania public policy prevents enforcement of the

measure of recovery but accepts the right of action provided in the

Massachusetts Wrongful Death Act should riot be ruled upon at this time

Relying’ on (1) a recent dietum of four out of

séven justices of the New York Court of, Appeats

1 It is noted that in referring tothe rule of some states “to 725

take into account the interests of the- State having significant

contact with the parties to the litigation,” the court’ did not

refer to any Pennsylvania or Massachusetts cases in footnote ‘-

26. of its opinion (seeipage—of 369 U. S.).

In this case, the court used this language at page 414:

“It appears the rule should be that the legal rights of the

parties are determined by the law of the state or district in

which the cause originates. In other words, a change of .yenue

affects the place of trial only.”

com ey. a

in Kilberg % v. Northeast. Ate Lines,. . 9 N.Y. 2d

34, 211 N. V. S. 2d 133, 172 N. E. 2d 526 (1961), to

support the application. of Article 3, §21, of the

: Pennsylvania Constitution,” (2) an older Pennsyl-

vania Supreme Court case, [Passenger Railway Co.

v. Boudreau, 9 Pa. 475, 481-2 (1880) to support

the application of Article 1, § 11, of the Pennsylvania

Constitution and (3) general language in Pennsyl-

_ vania éases’ that foreign penal statutes will not be

enforced in 3 Se the personal sed

— —

Article 8, § 21, provides: ee 1 “ade

in no other cases shall the General 1 Assembly Ii limit the

_' amount to be recovered for injuries resulting in death, or for

; injuries to persons or property, and in case of death from such

injaries, the right of actiofr shall survive, and the General

“Assembly shall. Ader for whose, benefit such actions shall be

8 prosecuted. 8 ce a

Article 1. $18, of the Now. York Constitution, relied on in the

Kilberg case, supra, provides: “The right of action now existing

10 recover damages for injuries resulting in death shall never be

abrogated ; and the amount recoverable shall not be subject to

any statutory limitations.” It is noted that in view of the rea-

Soring used to support the majority’s dictum in the Kilberg

case. the same result might not be applicable to defendants such.

as Lockheed and General rs, which are not common car-

“riers ‘wha gold r in- forum to domiciliaries or residents

of the :

* Article 1, § 11, of this Constitution n

Al courts shall be open; and every man for an injury done

him in his lands, goods, person or reputation shall have remedy .

phy due course of law, and right and steed ee with-

gut sale, denial or delay.“

_' ™ Nesbitt v. Clark, 272, Pa. 161 41922); Cian’ Nat.

Ban v. Kirk; 222 Pa. 567° (1909). ‘Although language in

Massackusetth Bonding Co. v. United States, 352 U.S. 128, 132

(1956), is relied on to establish that the Magsachusetts Wrong-

ful Death ct is penal, the Pennsyl®ania appellate courts have

recognized that the words “penal” and “penalty” have different,

Shades of meaning. See Cominonwealth v. Musser Forests, Inc.,

3 :

resentative plaintiffs contend that they. are entitled

to recover compensatory damages without limit in

these actions because of the alleged, strong Penn-

: sylvania public policy opposed to the $20,000 limit

in the Massachusetts Wrongful Death Act. Defend-

ants argue that neither the Pennsylvania appeilate

court nor the Federal decisions have, applied such

a publie policy to invalidate such foreign state limi-.

tations on recovery in the past. See, for example,

Slater v. Mexican National N. R. Co., 194 U.S. 120

(1904); Knecht v. United States, 242 F. 2d 929 (3rd -

Dir. 1957); Rennekamp v. Blair, 375 Pa. 620 (19543

cf. Hughes v. Railroad Co., 202 Pa. 222, 228-9 (1902);

and Quaker Mills Corp. v. Howard Corp. 131 Pa.

Super.. 1, 8-9 (1938). Also, defendants*contend that

394 Pa. 205, 146 A. 2d 714 (1958) ; Laughlin et al. v. Baltalden,

Ind., 191 Pa. Super. 611, 617-8 (1960) ; ef. Ward v. Rice, 29 F.

A Supp. 714 (E.D. Pa. 10300. The e appellate courts ;

have diso recognized that, there is “a strong public policy in

“enforcing rights and duties validly) created by foreign law. See

Personal Fin. Co. v. Gen. Fin. Coy 133 Pa. Super. — 585-6

(4938).

In the Hughes case, the court used this 3 at pp.

2289.

“Where a Sies containing a stipulation limiting liability

for negligence, is made in one state, but with a view to its per-

formance, by transportation through or into one or more other

states, we see no reason why it*should not. be construed in ac-

cordance with the law of the state, where its negligent breach,

causing injury occurs. If such a contract comes under construc-

tion, in a state like Pennsylvania whose. policy ‘prohibits such

exemption, and the injury has occurred in a state where the

contract is valid, the stipulation will be enforced, as in Fore-

paul v. K. H. Co., and in Fairchild v. R. H. Co. But if the

injury has taken place within. its limits, it will declare the con-

tract null and void, as in Burnett v. N. H. Co. In the Fairchild

case, as the injury occurred in Maryland, this court enforced

the law of that state; if the injury to the horse had been

« ° a 8 . Weis r * ‘ F

the full faith and credit clause requires Pennsylvania

_ Sourts to follow all the terms of the Massachusetts

- Wrongful Death Act, relying on First Nat. Bank v.

United Air Lines, 342 U.S. 396, 400-401 (1952);

Order of Travelers v. Wolfe, 331 U.S. 586 (1947);

Bradford Blec. Co. v. Clapper, 286 U.S. 145, 100

(1932). Finally, defendants argue that if this Massa- ©

chusetts Act may not be applied in these cases, there

can be no ny e e Sab nae Tene

remedy. . .

However, in accordance ’ with the repeated stute-

Gnents of the Supreme Court of the United States that

District. Courts Should abstain from deciding issues

involving the Constitution and public policy of a state

80 as to afford the state courts a reasonable opportu-

g nity to decide such matters,” the determination of the

delayed until in the course of the journey, it had reached Penn-

sylvania, our own law of pablic policy. would have ‘controlied.”

This approach seems different than the New York law, as exem-

plified in the Conklin case, relied on in the majority opinion in

Kilberg at page 528 of 172 N.E.2d. — >

See Harrison v. .A. A. C. P., 360 U.S. 167, 176-8 (1959);

P. & L. Co. v. Thibodaue City, 360 U.S, 25 (1959) ;

and cases cited in Note, “Abstention : An Exercise in Federa!-

ism,” 108 U. of Pa. Law Rev. 2226 (1959). In the Thidodaur

case, the court said at page 27: “We have increasingly res-

ognized the wisdom of staying actions in the federal courts

pending determination by a state court of decisive issues of state

law.” In the Harrison case, the court said at page 176:

“This now well-established procedure is aimed at thg.avoid-

ane of unnecessary interference by the federal with

proper and validly administered state concerns, a course so.

essential to the balanced working of our federal system. To.

minimize the possibility of such interference a ‘scrupulous —

regard for the rightful independence of state governments * * *

should at all times actuate the federal courts,’ Matthews v.

Rodgers, 284 U.S. 521, 525, as their ‘contribution * * * in further-

ing the harmonious relatiqn between stafe and federal

authority * * *.’” ,

“

Se =O

law governing the measure of f in these actions

should be postponed until the trial on the issues of

liability and culpability has been completed. Mean-

while, a Pennsylvania. appellate court decision may

become available to enlighten us on the public policy

of this Commonwealth in this situation, since there

are two eases pending in the state courts in which

there will be an opportunity for the foregotng con-

tention to be submitted to the ‘Pennsylvania courts.” .

_ Abstention of decision on this aspect of the case at

this time will also prevent a premature decision on

the Constitutional issue of the application of the full

faith and credit clause.” Cf. Railroad Comm'n. v.

Pullman Co., 312 U.S. 496, 501 (1941).

Finally, it should be noted that the considerations

stated in 28 U. S. C. A. 81404 (a) require the transfer

of the actions brought against the Government for

these reasons, amgng others: y

It is noted that two actions previously pending: in this burt

(C.A. Nos. 30390 and 30391) have been remanded to the state

court and are now pending there (Court of Common Pleas No.“

4 of Philadelphia County, Sept. Term 1961, No. 237, and Court

of Common Pléas No. 6 of Philadelphia County, Sept. Term 5

1961, No. 238).

DO e e Marv fir

u Also, it is noted that the . of the Full Faith & *

Credit Clause to the dictum of the majority in the Kilberg case

is raised by an appeal now pending in the United States Court

of Appeals for the Second Circuit from Pearson, eto. v. North- ° -

east Airlines, Inc. Civ. 147-142 in the U.S. District Court for

the Southern District of New York, Opinion and Order filed

11/15/61. Counsel have informed the court that the New

: Tork District Court reached a contrary decision to Pears

supra, in Trauth v. Northeast ‘Airlines, Inc. (S.D.N.Y., C

_ 149-256, 1961), where a New Jersey citizen was plaintiff, on the :

ground that New Jersey’s policy differed from that of New

York. An excerpt from the transcript of the court’s statements

in Trauth, supra, is appended to the attached letter of vege

from, counsel for General Motors.

—

(a) “The basis of the 3

ernment makes it only fair that it be permitted

to bring in as a third-party defendant the Mas-

e Port Authority, as operator of the

oi The District of Massachusetts i is the only

where all the suits against the Govern-

ment may be b t (see footnote 8 above);

(e) The Massachusetts Federal Court is must

fatailiar with the whole law of the State where

the act or omission occurred” which must be

applied in the suits against the Government, see

Richards v. United States, supra, at page—; 5

and

e There is no contention that the ahove-

* mientioned public policy. contained in the Penn-

Sylvania Constitution applies to these Govern-

— ment suits, which are not governéd by the

So measure of damages in the Massachusetts

2 Wrongful Death Act.

The many factors dictating transfer af ‘the cases

against the Government (19) must be considered as

a factor favoring transfer of the other-cases pending

in this District, so that all cases arising from’this ac- |

eident may be treated uniformly by the court which

must dispose of the great majority of such eases. ee

Plaintiffs in C.A, 30078, C. A. 30346 and C.A. 30284

contend that these wrongful death actions may not be

transferred under 28 U.S.C.A. § 1404(a) since they :

were not appointed as personal representatives in

Massachusetts and, hence, could not have brought

actions there,” relying on Hoffman v. Blaski, 363 U. S.

335 (1960). However, the Supreme Judicial. Court

of Massachusetts has held that a foreign personal rep-

til Actions Nos. 28764, 28788. 28789, 29100, 29161, 29162

29275, 29616, 29901, 30230, 30257, 30258, 30263, 30302, 30308,

300304, 30305, 30306 and 80343,

~ gSee Boutillier v. Westhger, 322 Mass. 405, 496, 78 N. E. 2c

195 (1948). PES

= 5

2¹a

resentative may bring a suit under the. wrongful

death act- and later qualify in the forum,“ even

though the Statute of Limitations has run at the time

of such later qualifieations,“ in Boudreau v. New -

' England Transportation Company, 315 Mass. *

426-7, 53 N. E. 2d 921, where the court said:

et prime Even apart from any admission under G. L.

ms (Ter. Ed.) e. 231, § 30; this is not a case where

there was no plaintiff in existence when the

; action was brought. The plaintiff was a live

aT person in whatever capacity she was acting or

purporting, te act. The question was whether

oh she had the capacity to maintain the action.

She could assert that: she had and could bring

the action and try the issue of her competenvy

to maintain it. The action was therefore not a

mere, nullity but was from the first a genuine

lawsuit and an adequate basis for an amend-

ment alleging an appointment in the State of

the forum when sue 3 was secured.

5 Although this is a close question, this contention of

__ plaintiffs is rejected for these reasons? * d

es A. The District of Massachusetts is a District where Congress designated

litigation of ‘this type might be brought 2

The appropriate Congressional Title of the United

| States Code (Title 28. cov ering “Judiciary and Judi-

- ¢ial Procedure“) provides in Chapter 85 (District.

Courts; Jurisdiction) at Section 1332 (a) and in Chap-

ter 87 (District Courts; Venue) at. Sections 1391 (a)

and (e) and 1402(b) for institution of thése actions ii

the District of Massachusetts 0

65 In determining where a suit might have been

brought, the dissenting opinion ‘in Paramount Pic-

See Mass. Gen. Laws, Ch. 193, $§ 1 & 2, Ch. 194, 8 5, Ch. 195,

$8, Mass. Ann. Laws, Ch. 204, 8 3.

2 Brennan v. Rooney, 139 F. Supp. 484, 486-7 fd Pa.

1956). 5

— T. ⏑ .iÜ

‘teres v. Rodney, 186 F. 2d 111, 116 (8d Cir. 1951),

which was quoted with approval i in Hoffman v. Blaski,

supra, at 343; states: |

I be district j © © © hai to decide whethet

the Northern A, na fia Oe earl

where the suits Agde have been brought.

was to see whether Congress in some other

This. 88 siggede that. proper venue

in more than one forum is the limiting context

of the Code revision and that. within fhis con-

text Section 1404(a) substitutes a broad power

of transfer for a more restricted pre-existing

pmax — of dismissal. Plaintiffs are prevented

abusing their normal privilege of choice

among districts of proper venue. At the same

time; courts are directed to respect the legisla-

tive enumeration of places which Congress has

deemed appropriate for the trial of various

types of litigation. (pp. 116 & 118).

B. A “common-sense approach” in interpreiing Section 140%(a) of Title 28

te accomplish its purposes requires a construction that these cases

“might have been brought” in the District of Massachusetts. See Con-

tinental Grain Co. v. Barge FBL-585, eupra

For the reasons stated above, it is “in the interest of

justice” and “for the convenience of: * * * witnesses”

these actions be transferted to the» District of

chusetts. Under such circumstances, legal fic-

tions such as the state which has authorized a personal

representative to act should not be a basis for reject-

ing the use of 28 U.S. C. A. § 1404(a). See Continental

Grain Co. v. Barge FBL-585, supra, at 22-24. In

distinguishing Hoffman v. Blaski, supra, the court.

said at page 22 of the Barge FBL-585 case:

plaintiffs filing the suits would have had no

0 f ; |

reasonable and obvious way of determining this

Those ®ases involved transfers in which the

rec.

* 23a

right whatever to 860 originally against the

Ade fendants on the “‘civil actions”’ in the District . ~

Courts to which transfer was sought without

the defendants’ consent. But in this case there

was admittedly a right on the part of the grain

company to subject the owner of the barge, with .

F or without its consent, to a “civil action” in

| Memphis at the time the New Orleans action

was brought.

In applying 28 U.S. CA. § 1404(a), courts do not

consider all the defenses which might have been, or be,

raised in the transferee forum and decide whether an

Action micht have been suecessfully brought there.“

See Greve v: Gibraltar Enterprises, supra, at 412-3;

ef. Ackert v. Bryan, — F. 2d —, 30 L. W. 2310 (2nd

Cir. 1962). |

2 + The defendants, by sequesting these transfers, will

de, estopped from ébjecting to the eapacity of the per-

sonal representative plaintiffs to proceed in these ac-

tions. See Greve v. Gibraltar 3 supra, at

414."

(8) Francis L. Vax Deus; J. 1

Tt is noted that “Tt is not necessary to aver the bapacity

a of a party to sue K . tages: the authority of a party to sue oe ¢

in a pedal ag aan capacity *° * but such matters must be

raised “by specific negative avertment. * * *” See F. R. Civ.

. 9(a).

* There are attached to this opinion letters ees counsel

dated January 9, January 11, January 12 and February 14

with enclosures (including copy of letter of January 9, 1962, *

from the Clerk of the U.S. District Court for the District of ipa

Massachusetts, which was enclosed with the letter of January 11).

— — 7 ee —

4 United States District Court -

— Eastern District of . 5

rn. Actions Nos. 29664, 28741 28762, 28768 28764,

28788, 28789, 29099, 29100, 29159, 29160, 29161,

a 29162, 29274, 29275, 29615 29616, 29724, 29768,

i 29881, 29882, 29883, 29884, 29901, 30078, 30079,

7 30200, 30230, 30258, 30260, 30263, 30266, 30284,

. 30288, 30289, 30300; 30301, 30302, 30303, 30304, -

uu, gt Tecan 3

Sr W. Por

3 1

3 Am Lovee, Inc., and Lock HEED AIRCRAFT

Corp. and GENERAL Motors sc ra and suc-

cCoeding cases captioned in the orders of 10/17/61

(Document No. 24 in C. A. 28664) and 11/1/61

(Document No. 7 in C. A. 29724), except Civil

Actions Nos. 30257, 30259, 30307, 30390. and 30391

and all Admiralty Actions 8

Order Sur Motions to , ribiiper

ao OF 6

5 Nos. 28, 29 & 30 in C. A. 28664; Hen, -

3 30, 31 & 32 in CA. 28741; Nos. 23, 24 & 25 in CA.

28762 Nos. 26, 27 & 28 in C. A. 28763; Nos. 13 K 15

in C. A. 28764; Nos. 13 and 15 in CA. 28788; Nos.

13 4 15 in C. A. 28789; Nos. 22, 23 & 24 in C. A.

29099; Nos. 12 & 14 in C. A. 29100; Nos. 22, 23 & 24

in C. A. 29159; Nos. 22, 23 & 24 in C. A. 29160; Nos.

11 & 13 in C. A. 29161; Nos: 11 & 13 in C. A. 29162;

Nos. 22, 23 & 24 in C. A. 29274; Nos. 12 K 14 in C. A.

25a

292753; Nos. 20, 21 & 22 in C. A. 29615; Nos. 9 & 11

in C. A. 29616; No. 9 in C. A. 29274; Nos. 15, 16 & 17

in C. A. 29768; Nos. 15, 16 & 17 in C. A. 29881; Nos.

15, 16 & 17 in. C. A. 29882; Nos: 15, 16 & 17 in C. A.

29883; Nos. 15, 16 & 17 in C. A. 29884; Nos. 8.& 11

in C. A. 29901; Nos. 21, 22 & 23 in C.A. 30078; Nos.

20, 21 & 22 in C. A. 30079; Nos. 11, 12 & 13 in CA.

30200; No. 7 in C. A., 30230; No. 2 in, C. A. 30258;

Nos. 12 13 & 14 in CA. 30260; No. 2 in C. A. 302633

Nos. 9, 10 & 13 in C. A. 30266; Nos. 15, 16, 17 K 24 in

0A 30284; No. 6 in C. A. 30288; No. in C.A. 30289;

Nos. 13, 14 & 15 in C. A. 30300 ; Nos. 13. 145K 15 in

C. A. 30301 ; No. 11 in GA. 30302; To. 4 in — See

30303; No. 2 in C. A. 30304; No. 11 in CA. 30305;

No. 2 in C. A. 30306; No. 12 in C. A. 30343; Nos. 13,

14 & 15 in C. A. DOSES; Nos.“ Jo, 16 4 17 in C.A.

30346) aoe

AND NOW, April. 6, 1962.. IT 18 ORDERED that

the above-captioned cases are TRANSFERRED to

the United States District Court-for the District: of

Massachusetts purusant to 28 U.S.C.A. §1404(a).

hs (S) Franoss L. Van Dusen, J.

See Opinion filed earlier today. ‘

——— ee

—ͤ—ä——d —— — —— See ee *

United States Court of Appeals for the . Circuit

Nos. 13904, 13997, 14003, 14011, 14083

RoBERTA BagRACK, ADMX., BIC., BT AL., PETITIONERS IN Ae

No. 13994 .

Speer W. Pornnt, er AL., PETITIONERS IN NO. 13997

| Howum H. Rapp, Apr. ETC.; * PETITIONERS IN -

: . No. 14003

Lan e Exrks., ETC., ET AL., 1 IN

| No. 14011 : 8

Dons A. anna, EXTRX., ETC., ET AL., PETITIONERS E.

: 9 No. 14033 1

THE Wenn W L. Vaw Dosen. Jupar or

THE Untrep States Dernier Covrr ron THE Easr-

ERN District, OF PENNSYLVANIA, “RESPONDENT |

and :

Eisra Am 1 INC., lame A Con-

PORATION, GENERAL Morons CORPORATION AND TE

UNTrED Stares OF AMERICA, INTERVENORS.

8 y 2

ON PETITIONS FOR WRITS OF. MANDAMUS OR PROHIBITION

} ] Saray

Argued, October 2, 1962

0 (28) < a f ·

és .

; 27a.-

Before brunn and Foray, - Cee Judges, and a

s Lams, Diatriet — *

* —

Opinion of the Court

(Pied November. 19, 1962)

By Seinny, Circuit Judge. ;

Petitioners seck writs of mandamus or probibition

directing respondent to vacate and set aside. his order

transferring these actions to the United States Dis-

triet Court for the Distriet of ‘Massachusetts. . The

order was entered pursuant to § 1404 (a) of 28 U.S. C.,“ \

but has been stayed *pending the disposition. of these

petitions.

The actions arise out of the crash of an 8 5

Aix Lines ectra airplane in Boston Harbor on Oe-

~ 1960. - These suits were filed in the District.

Court, for the Eastern District of. Pennsylvania by

two survivors of the crash and by the personal repre-

sentatives of several deceased passengers. Named as

defendants were Eastern Air Lines, Inc., Lockheed

Aireraft Corp., General Motors Corp., and i in several

instances, the United States. On April 6, 1962, re-

spondent entered an, order granting defendants’ ,mo-

tions for transfer pursuant to an opinion filed that

same Jay.“

With respeet to the death actions, petitioners assert

that respondent was without power ta enter the order

of transfer beeause tlie * Dintsiet Court

148 1404. ‘Change of venue e

“(a) For the convenience of parties and witnesses, in the

ainterest of justice, a district court may transfer any civil action

to any other district or division where it ne have been

brought.“ 28 U.S.C. § 1404(a) (1988 ed.).

f 6 Supp. 426.

brought' within, the meaning of §.1404(a). Addi-

is not a district 3 these actions “might ave been

tionally, they argue that because the transferee forum

may apply a different rule of substantive law to these

suits,“ the order should be vacated as a matter of law.

Lastly, they contend that the order constitutes a clear

abuse of discretion. Because we hold that respondent

did ft have power to transfer these actions, we find

it unnecessary to consider petitioners’ alternativ 6

: arguments.

At the. outset, we: are faced with: defendant- inter-

venors' ‘contention that the petitions for writs of man-

damus or prohibition Are inappropriate in these eir-

not join in presenting this argument.

Our recent decision in Swindell-Dressler Corp. v.

Dumbauld, — F. 2d — (C. A. 3, 1962), makes it

abundantly clear that mandanius is appropriate when

“the question presentéd is whether the district court

acted without jurisdiction in granting a motion {fo

transfer under § 1404(a). However, intervenors urge

that petitioners had an adequate remedy of appeal un-

der the provisions of the Interlocutory Appeals. Act,

28 U.S. C. A. 5 1292 (b).“ But that very issue was

The Massachusetts Death Act provides i in relevant part:

A person who (1) by his negligence causes the death of a

= in the exercise of due care * * shall be liable in dam:

wei mec not less than two thousand nor more than

d dollars, to be assessed with reference ta the

degree of hia culpability * 2 5 Mass. Ann. Laws, C. 229, § 2.

It has been held to be punitive in nature. Massachusetts Bond.

ing ch Ins. Co. v. United States, 352 U.S. 128 n

4 “8 1292. e decisions

s * 8 8 i * 5 5 *

“(b) When a district judge, in making in a civil action an

order not, otherwise appealable under this section,’ shall be of

: the . that _— order involves a controlling — of

cumstances. It müst be noted that respondent anes 88

‘

20a

squarely raised in Swindell-DWtésler and ‘was decided | |

in the negative.“ Wetherefore, conclude that these

. petitions are properly before us. pee

On the merits, petitioners contend that because the.

personal representatives in the death actions have not

obtained ancillary appointment in Massachusetts, they

5 lack capacity to bring the actions in that state, and

thus § 1404 (a) does not authorize transfer to that dis-

trict. Initially, reference is made to Rule 17(b) of

the Federal Rules of Civil Procedure, which provides

in revelant part: In all other cases capacity to sue

or be sued shall he determined by the lav. of the state

in whieh the district court is held *:* *.“

Next, petitioners point out that under the law of

. Massachusetts a personal represe esentative appointed 1

another state is not thereby qualified to maintain suit

in Massachusetts, Boutillier v. Wiesinger, 322 Mass.

495, 78 N. E. 2d 195 (1948), and that appointment as

: an ancillary or special administrator is in the discre-

law as to which there is substantial ground for difference of

opinion and that an immediate appeal from the order may ma-

terially advance the ultimate termination of the litigation; he

shall so state in _writing in such order. The Court of Appeals

may thereupon, ip. its’ discretion, permit an appeal to be taken

‘from such order, if application is made to it · within ten days

after · the entry of the order tog Pug 2³ U.S. C. 3 me (1958

ed.).

As we en i in Milbert v. Bison Loboratorien, Inc., 260

F. 2d 431, 433 (C. A. 3, 1958), a portion of the legislative his-

tory of § 1292(b) would appear to support intervenors’ con-

tention. However, as*we there pointed out, the district judge's

written statement in the order, ‘conforming to the language of

the statute, is an essential condition- “precedent before we may

even entertain an application for permission to appeal. Hes, 8

respondent, being fully aware of the provisions of 5 1202 (b),

failed to include such a statement in his order. Moreover, as

heretofore indicated, he has expressly dissociated himself from

inter venors' argument as to the Availability of 1 sa and

a the —— of mandamus.

: : 8 .

2 4 2 y 5 2

* 2 4

„„ Salli SS

_ tion of the W Wü hades 0 Ann.

Laws, C. 193, 5 10. Finally, the Supreme Court's

deeision in Hoffman v. Blaski, 363 U. S. 335 (1960),

is cited as being dispositive of the issue before us.

In Hoffman, the district court in which suit had -

been properly brought nr a it to a disfrict

which did not have venue of the cause. The Supreme

Court, affirming the judgment of the Seventh Circuit,

held that this defect precluded transfer. The phrase

where it might have been brought“ was construed |

as applying to the time when suit was originally

: instituted. With respect to the argument that the

venue defect had been waived by the defendants

motion to transfer, the Court said, But the power

of a Distriet Court under § 1404 (a) to transfer an

action to another district is made to depend not upon

the wish or waiver of the defendant but, rather, upon

_ gwhether the transferee district was one in which the

“aetion’ ‘might have been brought’ by the scenes 2.

363 U.S. at pp. 343-344.

Respondent and intervenors would limit the h

in Hoffman v. Blaski, supra, to the requirement

the transferee forum have both ‘venue and ce.

tion. of the cause,’ They state that the. e nce. of

other potential defenses does not precludé removal,

and cite several ¢ases in ‘which transfer has been

effected although the suits would, have been barred-

2 2 the statute of limitations applicable in the trans- J;

ferpe district. : Additionally, they argue that the/

Mise Pe Grea” Co. v. McMahon, F. od 2 (C.A, 2, 1002);

Headrick v. Atchison. T. & SF. R., 182 F. 2d 305 (C.. 1055

1950): Gomez v. SS. Dorothy, 183 F. upp. 499 (P. Puerto

Rico, 1959) ; Crawford v. S. S. Shirley/Lykes, 148 F. Supp. 958

‘(S.D.N.Y.A95T) ; Curry v. States Morine Corp. v. Delaware,

118 F. Supp. 234 (S. D. N. V. 1954); Frechouꝶm v. Lykes Bros.

S. &. Co, 118 F. Supp. 234 (S. D. 1953) ; Greve v. Gibraltei

2 Enterprises, 85 F. Supp. 410 e * Six of these

2 Syne Zla

phrase the action’? does not, inelude the Na to

the action. a

We think that the holding in Hoffman. v. Blaski,

supra, compels the ‘conclusion that respondent was

Without power to transfer these actions. The import

of that decision is that unless the plaintiff’ had an

unqualified right to bring ‘suit in the tranferee forum

at the time he filed his original complaint, transfer

to. that district is not authorized by 5 1404 (a).

Hence, the fact that at oral argument counsel for

intervenors expressed a willingness to waive any.

- objection ta petitioners’ capacity to sue in Massa@iu--

setts is beside the point. Nor can the district court’s —

statement that these actions involve the legal fiction

of the appointment of a personal representative be

used as a basis fon@listinguishing them from Hoffman

v. Blaski, supra. Certainly, the requirement of capac-

ity to sue is no more a legal fictio n is the neces-

‘ sity for having proper venue. Obviously, it, like

venue, can be. waived. Rules 9(a) and 12(h), Fed.

R. Civ, P. But waiver or the possibility of waiver

did not alter the Supreme Court’s conclirsion in Hoff-

man. In short, we an perceive no basis in either

logie or policy. for i any distinetion between the

absence of venue in the transferee forum and a pro-

a spective plaintiff’s lack of capacity to sue there. /

A similar conclusion was reached in Felchlin v.

American Smelting and Refining Co., 136 F. Supp.

577 (S.D. Calif. 1955) There, suit was filed by Cali-

fornia executors, and the defendant moved to dismiss

or, in the alternative, to transfer: the suit to the

" Wante District of Texas. The court held that pe-

seven cases e Hoffman v. Blaski, supra. Moreover, the

deeisions in all seren were based. upon the legal conclusien that

the statute of limitations of the state of the transferor district F

would apply. N 6 , , .

— 3

— — ö8ñuů—ͤ—

32a

cause s forbids suits by. 1 executors, ‘the

proposed trangferee forum was not a district ‘ ‘where

the action might have been brough “x Accordingly,

the motion was denied.

Respondent and intervenors seek to Ang n

Felchlin from the case at bar on the grounds that a

suit by a foreign personal representative in Texas is

a nullity, whereas in Massachusetts lack of capacity

is a mere defense to the action and can be waived.

However, we deem this distinction insubstantial, for

whether lack of capacity precludes a prospective

plaintiff from filing suit in the first instance, or sub-

jects him to a dismissal at the instance of the defend-

ant, the result is the same. In either case he does not

have an unqualified right to sue.

The transfer sanctioned in Continental Grain Co. v.

respondent and interven for that decision is

‘premised on a fiction pectiliar to the admiralty. law:

The attempted differentiation between “the action”

and the parties thereto is based on the language of

Rules 13(h), 24; and 25 (b) and (e) of the Federal

Bare FBL-585, 364 U.S * (1960), is no help to

_ Rules of Civil Procedure. We think-it without merit.

These rules refer to the addition, intervention, or sub-

stitution of, parties to a law suit which has already

been instituted. —

reference to the aetion the parties to the action

More important, to say that the action and the parties

thereto are separate and distinct is to ignore reality,

kor the identity of the parties is determinative of such .

pointment is diserefionary with the probate court.

argument that petitioners 2

suits in Massachusetts, irrespective of the 4

of intervenors, obtaining ancillary appointn

misses the mark, ä — 22 2

“th as jurisdiction ahd venue.

—

— ss

K RD

—

. institute suit in

a Ba

x ‘

Nad ae: 1 0 183, 6 10. Ge ese in 10 elde

likely that most of these petitioners would have been

so appointed. That, however, is immaterial, for the |

fact remains that here, as in Hoffman, petitioners did

usetts.

Respondent and intervenors urge that the construc-

not de an independent right to maintain suit in

tion which petitioners seek would unduly cireumscribe

--§ 1404(a) in any action brought by a personal repre-

sentative. The short answer to this is that by the use

of the phrase where it might have been brought“

Congress intended that the power to tbansfer should

not be zmqualifled. That most jurisdictions do not

permit foreign personal representatives to bring suit

in their courts as a matter of right is a well known

rule of law, and we cannot presume that Congress

intended to alter state policy to the extent of permit-

ting transfer of ‘such suits to the federal courts sitting

in those states. Indeed, as we previously noted, Rule

17(b), Fed. R. Civ. P., requires the district court to

refer to the law ‘of the state in which it sits, to

determine capacity to sue. . Finally, we must accept

§ 1404(a) as it has been construed by. the Supreme

Court in Hoffman v. Blaski, supra, iv., that it permits

transfer only if the plaintiff at the time of the com-

mencement of the action had un independent 0 to

ie transferee district.

Of ‘course, our Belding that the district . was

without jurisdiction transfer these suits relates only

to the death actions. Howevpt, in light of this opinion:

the district court may. wish’ to reconsider the transfer

. of the, two personal injury suits, particularly as the

death actions, which‘¢onstitute the great majority 2

these suits. willow be * in the Eastern Distriet of

Pennsylvania. .

34a

What we have stated thus far must be qualified to

the following extent. At oral argument counsel for

petitioners in No. 13,997 conceded that transfer of the

‘Abate cases (Civil Nos. 30300 and 30307) was

proper inasmuch as that petitioner is a resident. of

Massachusetts dyly qualified in that state as an admin-

istrator. Subsequently, counsel informed this court by

letter that the Reitz case (Civil Action No. 30303) and

the Braff case (Civil Action No. 30304) must even-

tually be transferred to the district court in Massachu-

- setts. since venue in the Eastern District of Pennsyl-

_ + yania is improper. Thus, with respect to these three

suits, the district. court’s order of transfer was e

and will not be set aside. Ee

: We sisume'that it vin ot be necéssary 10 ene ;

the writ unless a petition for certiorari is filed, and

that the district court will vacate the order of transfer

in me 1 57 this opinion.

— — nen oa, es CLA N ee, ~~ —

— —

Uni | States Court of n for the Third Circuit

ys a No. 13,994 n

Rosunra Bansacx, ADMX, ETC, BT AL. 1 8

2 f 7 5 1 g Ww 0 y

Honorasie Francis L. Van DUSEN, ET AL. .

No. 13, 997

SbNET W. Porxix, Er AL., PETITIONERS

vs.

- HONURABLE Francis I. aly gare Ar al.

e Mel 00

owa H. Rapp, ADMR., ETC., ET AL., PETITIONERS

vs. i,

Honorapie eee L. Vax Dre .

8 Vo. 14,011 —

tie Bifnxnarai, Extrs., Erc., Er AI,

55 ‘ PETITIQNERS 7

2 us. 5

Hoxon nx, Fnäx c L. Van DugeEn.

VA Donis A. Catster, EXTpx., ETC., ET Al., PETITIONERS

ot ti

ä .. “HonoraBte Francis E. Van Disix

. 2 i . ° 1 2 0

Present: STALEY: and/ForMAN, Cirouit Judges, and

LANE, District Judge See

Upon 0 of the isles for writs of

mandamus ‘or prohibition, of the answers by respon-

dent 1 of the briefs, and. after hearing: , Ua

(85a) ~ es

‘It is ORDERED, ADJUDGED and DECREED.

by this Court that thé prayers of the petitions be and “4

„ ee

is hereby directed to_issue the writs of man-

damus in accordance with the opinion of this Court.

Buy the Court. ve

., Starter; Circuit Judge.

Dated: December 7, 19—. coo 1

: 8 —

a ie 8

70 ;

%, : —

2 .

/ i 2 0

* 1

* * 3

pf 3

5 „

: F ee

* / \ -

J /

fe es pf

: 7

4 A ‘

United States Court of Appeals for the Third Circuit

No. 13994

Bannack, ET A., PETITIONERS

; Sats

‘Howorante FRANCIS N Drsxx, Er AL.

Porkix, ET AL., PETITIONERS °

idly ty 2 58. ee s

_ HonoraBie PRANCIS L. Van Dusen

5 in’

Bove, ApacrwIsTRATOR, ET AL., PETITIONERS:

bet. DOU SS:

Hoxonant Francis L. Van ‘Dusex

EVE

No. 14011

BnNnAUx, Er AL., EXECUTORS, ETC., PETITIONERS

e 28 0

HoN ON Francis L. Van Dusen

E No. 14033 —

LAISTER, Execurrry, ETC., ET aL, PETITIONERS

vs.

se . : . 47's 7 (Fra) } 8 5

8 5 bei + es?

7 F 5

te 8 1 . 0 Ba.

“Howoramtt Fraxcis L. V AN bus g 5 Pe

Peremptory Writ of Mandamiis

- Unirep STATES OF AMERICA,

Third Judicial Circuit, ss:

To the Honorable Francis L. Van Dusen, Fuge of the

- United States District Court for the Eastern * 7

8 triet of Pennsylvania, greetings: N

Whereas the Honorable Francis L. Van Dusen by

order filed April 6, 1962 transf to the United

‘States District Court for the Dito Massachusetts

Civil Actions brought against Air Eines, Ine.

Lockheed Aireraft Corp., and General Motors Cor- see

poration and Civil Actions brought against the United

States, a copy of which order is attached to this writ.

and marked Exhibit “A”; a 1

Whereas the plaintiffs in the actions ‘ordered to be

transferred have filed petitions for writs of mandamus

and prohibition directing. the respondent to vacate

and set aside his order of transfer; and

' Whereas the ee has filed answers to the

petitioners ; and

_ ' Whereas the came on to be heard before this

Court on the ‘aforesaid petitions, answers and oval

and fof

Whereas after due ¢ eliberation thereon this Court: *

rendered its opinion November 19, 1962, that the Hon- r

orable Francis L. Van Dasen exceeded his authority

when he entered ene, of transfer on April 6, 1962,

with respeet to the e civil actions in the death cases;

* i 72 i

on Des r 1, 1962 this Court 2 8

Ko ous play its ordef, directing the Clerk of this“ we

Court nie issue soe tie writ of mandamus and prohibition

This Exhibi i is printed at pages 35a-36a in the petition. for

a n or certiorari . in No. 738, this Term

* . 2 8 * 8 8 i

. . J . 5 . * 8 8

„ . . „ 0 .

* — . r . . * i — —

. 4 9 * . * — be ”

* 3 1 * *

Se 4 x * *

— ramen

a writ of certiorari filed in No. 738, this Term.

oats 39a

in 8 with the opinion of the Court: Now: 3

therefore,

The respondent, the Honorable Francis L. Van

Dusen is hereby required commanded, immedi-

ately after the receipt of this writ, and without delay

to vacate and set aside the order of April 6, 1962, in

the eivil actions enunierated i in Exhibit B“ attached

to this writ.

) : 150 O0. CRESKOFF,

"Clerk of the U nited States Court of Appeals

For the Third Circuit.

N “Dated : ‘December 14, 1962. ; 8

ts FS

* This Exhibit is printed at pages 3Ta—45a in the petition for

2 * * , Z 5 Ge) * — 8 * 7

; ¥ , ° ; Bi $

; 7 5 ° . - ; 1 2

8 0 22 Pas 2. J

* . . | 3 2

0 .

United States dan. of Appeals is Se Sat Circuit

"BARRACK, ET Mig PETITIONERS

Vs.

HONORABLE Praxis L. Van De A te

: No. 1399

Porxm, Er AL., PETITIONERS .

: vs.

Hosonisu 88 L. Van’ Dusen, ET AL.

t 2

a 5 No. 14,003

are Rarp, eee Er AL., PETITIONERS

5 Hos FRANcIs ayes Duses, ET AL.

No. 14,011

_ Brenna, ET AL., “EXECUTORS, ETC. , PETITIONERS

Boson FRANCIS 1. Van Desex, ET aL.

No. 14.033 .

Laster, EXECUTRIX, ETC, Er ‘AL., penrmyoxtns 5

,. us.

Hoxon an Francis L. VAN Dux, ET AL.

4 es b 230 I

9 #

» Prévent: Sratzy aud ForMAN, Ci route Judges, .

. LAN, District J lage ö

. | / nS A oe

7 5

Upon oh 1 of the Peil tor stay sas the.

execution of * peremptory. writ tot mandamus

_ oa) 1 e

/ 2 * ; 2 5

. a ö . 7 J

——— Si ohn ty bf

eee,

gett 55 2 41a ae

ö Corporation,

It is ORDERED That, . : ~.

> these cases filed by Intérvenors, Eastern Airlines, Ine.

Lockheed. Aircraft Corporation and General Motors

1. The execution of the peremptory writ of man:

~ damius shall be stayed for a period of thirty days

from December 14, 1962;

2. Tf within the said period of 30 days, there shall

be filed with the Clerk of this coifrt a certificate from -

the Clerk of the Supreme. Coyrt in accordance with g

Rule 36 2) of this Court's Rules, the stay shall con-

tinue until final disposition of these cases bx the Su-

preme Court; and

3. The Honorable Francis L, Van Dusen is directed =

to stay further proceedings in these eases until cereal

By the Court.

order of this Court. es

STALEY.

Dated : December 26, 1962.

/ 3 J Yo ae

„ Oi Yet 55

? *

ö op a Hike . gaa = .

— * of ne ened WA : J

y 2 , 7 7 9.8. a ** PRINTING be chicane tanta *

. . . 10 8

Ve : ,

/ ,

7 *

175 4

„

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.