# Petition for Writ of Certiorari — Couture v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0039%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 853 ## Text V . 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 5 . 2 . — * e 22 sf * . * . 8 e . * © ex ° 2 — ‘ * on. . . * : „ . . ° > - l : " ‘ = 3 : q 0 . é 2... . ° 7 ¥ ee * . * . -* „ py . ‘ * 7 . „ 5 . 7 > ‘ — : * R — „ . N \ * 8 * . N seas * + 2 — . * — ° — = * - ‘ * | | — } bie * oe + . . * 0 — * 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 S 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 6 | "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 S 2 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. 0 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 ö 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 - e — — 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 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 0 a : 8. Soe eM — — * = 5 * „* . a 8 be ; 5 PY 2 , 8 “SNE | “4 . 2 3 1 : . | 0 . * . 8 8 | A a oe) ee . ° 90 1 : > 1 : 4 0 Se | 5 — | * | 1 3 . * J ry 7 — : . „ 1 i 1 5 = 3 . 2 5 j ' — — | es | . : med | * Na 5 ö 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 ~. 8 . 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 % 6a 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. * wT 9 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) ; . * 2 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 EE 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 . = 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 * * *.’” , om “ 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 4 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 1 = 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." 0 (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 o> 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 a 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) 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. 0 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 EA 2 „ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0039%3A03. Public record. Not legal advice.