Brief for the Respondent in Opposition — Couture v. United States

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Court, U.S.

FILED

| ‘ME. Sour’ pi, 3 messOhee 3

: Ts Uh Bl MAR 271863

JOHN F. DAVIS, CLERK:

Sopree Court of ‘the United

a Sapa nD

o. TB and No. oon

THE HONORABLE FRANCIS L. VAN. DUSEN, Judge

_.. of the United States District -Court- forthe Eastern Dis-.-- --- 2."

\ "trict of EASTERN “ZINC.,

LOCKHEED AIR CORPORATION and GEN-

ERAL MOTORS ‘CORPORATION,

and . SS

THE UNITED STATES OF AMERICA,

Petitioners,

v. _ o

ROBERTA BARRACK, Admx., Etc., Et Al. (No: 13994),

Reependents, :

Ss -

es ban cee. bas States

| “Ogatt of Appeals for the Third Croats.

4 eae am A

| —* FOR RESPONDENTS ROBERTA‘ BARRACK,

Ex.woop 8.

; ai Davp F, B '

‘Of Counsel :~ / | Attorneys for Respondents ex

RIcHTER, Levy, Lorp, : Roberta Barrack, Admz., \

Tor & CAavANavGH, ,°. Etc., et al. (No. ,13994),

ao Broad Street, VA

adelphia 7, Pennsylvania.

| <Y, | (

‘| Antgmnational, 711 So..$0th St., Phila. 43, Pa. SS: Nhe

PAS

2PM Tee 18 De eR ATE: ARISES PORE REE SREP Hh: BE NICD GEMM SEE MELON OAR

iat sory EK SRT AN SP we

® _— 3

QUESTIONS PRESENTED ................ nddebea da teacoes ae

~" SraTuTE INVOLVED ..............0.00- gh yack at rar nk “

STATEMENT @ pies Atiaes BoA Sine ear e ehh there ;

SUMMARY, OF Asobuswe SEA OD hhc aaned aos .

ARSUMENT .. Pe ak aa TST ORE ASN BED pa sae

‘I. The Opinion of the Court of Appeals Is: Correct for

3 k the. Reasons Stated UTR cos vaenehcsetevy outs ej

: Bie The Opinion of *he Caurt of Appeals is Correct for Bi ie

_ sAdditional Reasons chenneeicd ei nae aed 5 one sebeee Re,

A. Transfer. Will Emasculate Damages Shececn ses .

B. The District Court's Order Constituted a Clear

: Abuse of Discretion .......:...'.. sei ccakies Bie”

a i Mieibleesal Talla Pi selinsa ct eee

2. Defendants’ Failure to Sustain Their Burden e

Se ee ie to Justify Transfer Under § 1404(a) :... 19 :

: Seeks Ce of the Parties ........ Ree ee /

_b. Convenience of Witnesses dike esos 23 :

c. The Interest of Justice TedGan Crea ee o* 25

es - (1) ‘Transfer From a More Congested

Siar Docket and Consolidation .....:. 25

gee mere (2) Desirability of Serving All De: aac teed

- ; oo TCE OT TiA Sane meaecias

a (3) Handling Litigation at Its Origin “27 ;

Ill. The Opinion ofthe Court pf Appeals. ‘Ts Consistent y,

| cmiotasmedictes whe. pedereadeat wens 17 B :

ConcLUSION weve ee tet eb eee tees eeveeneceeees sake Koankne 3 —; —

| APPENDIX A. igdiisbasuen nik chante eens ne 5 Sea Ss neey ee

CASES CITED.’ = ~

Page .

Bouidreau v. New England ‘Transpo-tation Company, 315 Mass.

423, 53°N. E. 2d 92 (1944) ...... Gane GAChL aks 8

- Boutillier v. Wesinger, 322° Mass. 495, 78 N. E. 2d 195. (i948) ris

Bush v. United Air Lines, Inc., 148 F, Supp. 104 (S.D.N.Y, >

1956} 233.5%.. Sasi rest Cc sukekdicnterass . +. 120,21, 22,26

Calva v. American Air Lines, Inc., 177.F. Supp. 238 (D. C.

_ Minn., 1959) ...... So csglcdwsccmgecccMccnneiveaes 20.

2°. Coffill.y. Atlantic. Coast Line R. Co. 180 F, Supp. 105.(E.D. oe eo.

‘ps gOS | re eS eye ee SOU TET EE LITE T ETT - .

) at Ae National Bank v. Kirk, 222. Pa. 567, 71 Atl. 1085.

TR i. Gerdiekew cons ters METER et ae OR

Continental Grain Company v. The FBL- 585, . 364 U.~ S. 19

yeah TASER Fest paps, liues a ea Kenrenigs ae

Crawford Transport Co: v. eae Corp., 191 F. Supp. 223

CR EE a ign co eeknetasiceTucngatescanes 20

Felchlin v. American Smelting and ‘Refining’ Coropany, 136 F.

| Supp. $77 (SD, Cal, 1955)... seneeceeses ema See

+ Goldlawr, Inc. y. Heiman, 369 U. S. 463 (1962) ..... ee vanes

Gulf Oil Corp. v.-Gilbert, 330 U. S s..501 (1947) ..5.050.3.2.19,20-. -

pane v. Atchison, Topeka & aes Fe Ry. Co,, 182 F. 2d.

CU GMs EOD coccpet ees cbuersces PreURTC, tie 20

me nv. Blaski, 363 U.S. 335 (ib60), paves iy Sy Sth BO BT, 12,

Mead? sist - 14,29, 30,31. .

Hopson ¥ Hepson, 221 F. 24 839 (D.C. Cir.. RNS | Ei

- Keller-Dorian Colorfilm Corp. v. Eastman Kodak .Co., 88 F.

Supp 863 (5.3D.N.Y., 199) 20.) .,0.ec0eecesLovens | 2B

+ Kilbetg.v. Northeast AirsLines, Inc., 9 N. Y, 2d 34, 172 N. E:

z d 526 (1961) ...... REISE SPIE OES ER ED APT ARD: 16, 17,19

on. Co. v. Stentor Electric. Mig. Co., 313 U.S. 487 (1941) 15

Macchiaroli .v. Howell, 294 Mass. 144, 147, 200 N."E. 905 oe

TS GMMR Ss cers oud nue Ged hPa Vis dak hobs Mea ha is /

Massachusetts Bonding & Ins. Co. ¥. Uniset States 352US/

AIBC IBS0) 85K ofr gg eosnsssceesen ht ee

SG A mf, oy se, PR /

ih ATS BAL ENe aire

United Air Lines, Inc. v. Wiener, 286 F. 2d 309 (9 Cir. 1961) . hee Ne

;

CASES ( ITED (Continued)

Nesbitt v. Clark, 272 Pa. 161, 116 Atl. 404 (1922) Leuecet ee Comes.

_New York Centra! Railroad Company v. United States, aco :

F. Supp. 944 (S. D. N. Y.,.1961) reel &.. We i veeen: 10

Norwood v. Kirkpatrick, 349 U. S. 29 (1955) * ie eA ee *, 19

"Pearson v. Northeast Airlines,.Inc., 309 F. 2d 553 (2 Cir.,

1962), cert. denied, — U.S, =, 8 S. Ct: 726 (Feb. 18,

___) Pe RteR Vopiuceenensucnceieees eee TPE 17,19

Richards v. United States, 369 U. S.-1 (1962) ...... athe 19

_ Shakton v. Eastern Air Lines, Inc:, Court of Comimon Pleas No.

if Seotmmber Term, 1961, No. 237, and Court of Common

Pleas No. 6, September. Term, 1961, No. 288 ciccc ees ee See °

‘Spangler v. Helm’s N. Y.-Pgh. M. Express, 396 Pa. 482, ms: *

A. 24.490 (1959) . 0... vee eeeeeeeeeeeeee? vee yeeshent Ly HS.

Ultra Sucro Company v. Illinois Water Treatrnent Cornpany, ;

146 F. Supp. 393 (S..D..N. Y., 1956) Sy4s hakathewheee 24 of

United Air Lines v. United States, 192 F. Supp. 795 (D. ad

_ Del.71959) and 192 F. Supp. 796 (D. C. Del., 1961) . .22, 26,27

of | MISCELLANEOUS. x

y : ; : ; “Page |

62 Stat 937, 2B U. S. c. $4043) oobi 4, 5, 7,8,9,.11, 12, 13; 17, -

18, 19, 28, 30,31

’ Federal Rules ‘of Civil pues Rule 17(b) ae cso oceM em his he

_ 62 Stat. 937, as amended, 28 U. S. C. § 1406(a) ..... ES Ree 7,31

- Mass. General Laws (Ter. Ed.), g. 193, $10,.as s amended, 6

+ Amp. Laws of Mate. 999 0... 5ciccccerecdeorsth seins =.

Mass. General Laws (Ter. Ed.), ¢.° 215, a3., as amended, 70 /

: Dla “Saeee a Mie BOP oki. ck td bcdan linens 29

. Massachusetts Death- Act, [G. ‘: (Ter. -Ed.), c. 229, "§2C, as. .

* amended, 7A Ann. Laws of Mass. 407] «2 +..4.....220.. 415

New York Constitution, Article I, Section FRIIS FOES / 16

_ Pennsylvania Constitution, Article II]; Section’ 21 prasverees ‘4, 16

sho ert Death Act, WPS S. 8 1601-1604 ........ Ree SER

EE as a 2 A , ; s

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"IN THE

Spears Supreme Court of the United States

2 ——

aio Term, 1962.

ae .

No. 738 and No, 851. os!

, ; ets FRANCIS L. VAN DUSEN,’ UNITED. STATES

we _. * DISTRICT JUDGE, ET AL, —

foot . = e : oo _ Petitioners, 2S

*. |. |. * ROBERTA BARRACK, ADMINISTRATRIX,

es ue ETC, BT AL, |

: On Péririon ror. WRIT oF Cuntibesnt TO THE Unrrep States

weares: APPEALS FOR THE Tarp Circurr.

; E>

BRIEF “FOR: RESPONDENTS, ROBERTA “BARRACK, 4

ADMX., ETC., at AL. _ cig heel OPPOSI. .

- TION.* -

( OPINIONS BELOW. ©

: :

_ The opinion of District J udge Van Dusen is/a decuutely:

set forth in the petitions (No. 738 and No. 85}, this Term).

a ay a opinion of the Court of Appeals filed November 19,

5 hat Ba forth gs 1962 and reported at 309 F. 2d 953 sub nom. Barrack -v.

; an Dusen is adequately set forth in. both petitions except

a mae Se a for/an amendment (as yet unreported) by order dated Feb-

+ ’ ruary 21, 1963, to correct a maalleey lapigortenty therein;

gt - the order and amendment of the /opinion are printed in

= : i Appendix B to this Brief i in Opposition.

/ fo SiS * This Brief in. n is filed on behalf”of those

Ae VE: who, were Pushionere £0 Wet of eave Prphtiion under u

yo: No. 13994 in the United States Court of Appeals for the Third. Ci

as listed in Agents A, on Pp. 1b-2b. | : é

“ ‘

es y ig

@ " Sf

; . ag

9. {Brief for sericea in Opposition

* JURISDICTION. ~S ES

' The jurisdictional requisites are adequately set forth

in the si nerpraoess ee eS

QUESTIONS PRESENTED.

1, Is the Massachusetts District Court a court where —

these death actions ‘‘might have been brought’’ within the

meaning of §1404(a) of the Judicial Code, where all of

‘the fiduciary plaintiifs theré lackéd ‘éapacvity to sue -as-a--~-- -

matter of right except by the wish, aperee or, consent of

the defendants? :

2. Where plaintiffs properly institute death actions in

their home forum against defendants there engaged in

-business, can transfer be ‘‘in the interest of justice’? where

‘its effect is to emasculate the’ plaintiffs’ claims by substi-—

tuting a harsh and. penal limitation on damages in viola- ~~“

tion of the. strong public policy of the forum state?

3: Where domiciliaries ot the Eastern Distriet of ae

sylvania, who are personal representatives appointed by

appropriate state courts situate in that*District, bring suit

’ in that District to recover damages for the wrongful-death'.

of domicilaries of that same District: and all beneficiaries

', therein reside and all defendants are there engaged in

__. business, does not transfer to a distant district constitute.

a clear abuse of discretio: where such transfer resdits in.

radical | ‘emasculation of the ‘measure of damages tothe |

detriment of the parties opposine transfer?

Fiz : e

STATUTE. OLVED.

_ . 62.Stat. 937, 28 U1. 8, as 1404(a),.is 5. at forty both

petitions. : . é

Brief for Respondents in Opposition ea

. ~ . . STATEMENT.

Vrs

On October 4, 1960, an Electra airplane manufactured ©

_ by Lockheed, having engines made by General Motors, and |

" . owned and operated by Eastern Air Lines, Inc., crashed

cnr immediately after. take-off from Logan Airport, Boston, -

Massachusetts, on a scheduled non-stop flight’ to Philadel-.

phia, Aboard were sixty-seven, passengers arid a crew of °

five, of whom fifty-seven we and three crew mem-

: bere were fatally injured. . :

---. -:- - “Phis- Brief. in- Oansaition. selicnicnd: ait. bied i in the |

‘> “United States District Court for the Eastern District of

Pennsylvania by the personal representatives of nine de-

’ ceased passenger's against the three named corporate de-

-fendants ; separate suits on. the same claims-were instituted

‘against the United States. under the Federal Tort Claims

Act. There aré therefore eighteen cases pending within

| No. 13994. ‘The gravamen.of the claims is that the mee:

_ligence of the four defendants caused fhe crash.‘ -

All of these decedents were domiciliaries of the ‘astern

District of Pennsytvania, All of the personal representa- _

tive: plaintiffs are domiciliaries of the Eastern District of .

Pennsylvania. All were appointed by Pennsylvania courts ;

none -received ‘any letters of . administration, from any

_probate.court of Massachusetts and none are: or have ever

“qualified ‘2 ‘as personal represéntatives.in that state. Allof ;

the survivors entitled to benefit from the wrongful death

- actions are domiciliaries 6f the Eastern District. of Penn: *.

. sylvania. All of the corporate défendants’ are engaged in.

- business in the Eastern District of f Pennsylvania.

| The Massachusetts Death Act’ restricts damages to a

- ‘snm of not less than twé thousand nor more than twenty

. thousand Ponsa te to be assessed with canada the de-~

Ji. “ane éther actions have been instituted by other, plaintiffs

a iy Ahe Un States District Court for the Eastern District of Penn-_

nat sylvania or deaths and injuries arising rom the same crash. -

Q° 3 .

ey Kare . e Tf

VA 4 ae

“greg of . . . culpability” (Mass. Ann. Laws, c. 209 $2) 3

4 : Brief for Respondents in “Opposition

it was held by. this Court to be a punitive statute. Massa-

chusetts Bonding .¢ Ins: Co, v. United States, $2 U. 8.

128 (1956)...

However, the cianiae Constitution ( Article Il,

7 ~ $21) prohibits (except for workmen’s compensation law’)

_ refudes to enforce foreign penal statutes, even when they

° °

>»

p -

any limitation on the amount of damages to be recovered

for injuries resulting in death. Pennsylvania case law

are remedial i in nature.

.... .4Nevertheless, and over plaintiffs’ objections, defend- : Ba:

ants’ ‘motions for transfer under 28°U. "S. ©. § 1404(a)

to the United States District Court for the District. of |

Massachusetts (Boston) were granted "by the Honorable

Francis. i, Van Dusen, District Judge, for the ‘‘conven-

ience’’ of parties and witnesses and—‘‘in the interest of

justice’’ (District Court Opinion, App. in No. 738, , P. Sia;

App. in No. 851, p. 22a).

- On ‘petitions for writs of mandamus and prohibition,

plaintiffs contended \(1) athat the District Judge was with-

out power to enter the order of transfer because-the Massa-

chusetts District Court ‘is not a district where these’ death

actions ‘‘might have been brought’’ within the meaning of

-§1404(a), (2) that transfer should be vacated as 4 matter ;

of daw because the transferee court: would apply .a penal

limitation of damages to the prejudice of the parties oppos-

-ing it and in violation of the strong ‘public policy of the

forum, and (3) that the order: of: transfer ete? a

_clear abuse of disérétion. . fe

The Court of hpeenl held that the District J udge was

without power to enter the order of transfer for the reason

that under thé Federal Rules of Civil Procedure and Massa-

chusetts law, the ‘plaintiffs lacked ¢gapacity to sue in the

Massachusetts vourts and that the District Court of that

_ state was therefore not a district, where these suits’‘‘might - :

have been brought’? within the meaning of 28.U. S. C.

Mpeava as defined in- Hoffman v. sy ama er: U.S. 335° p

ee s + . ¥! we 4 = -69". =

, pant ATT FANE seh Sarees sh RAN a _ NO USO eo

; aj KA Z :

z : a ee

crn: *

E Beez ie | Brief for Respondents in Opposition - ig ae

i. * > QgeD)= ‘Having: 80 vaied, the Court o “Appeals found it

, 2 ee ‘. unnecessary to consider tamermecest t © remaining alterna-

. tive arguments? ox,

past ' . ° There followed the petition for writ of certiorari by

“ _ the corporate defendants (No. 738, this Term) and a sepa-

a5 . |... * vate petition by the government (No. 851, this Term).

an Fe This beief is j wabeithed 1 in wppes ttn, to both petitions.

ep " SUMMARY OF ARGUMENT.

Wie Dracaena ts opinion. of the Conrt of Appeals is édtirvet for the.”

3 reasons stated therein. Under “Massachusetts law the plain-

fs tiffs in these death actions have Ho capacity, to sue in that

é _. Commonwéalth; any such suit would be dismissed if thig

+ ' deferise were not waived’ by the defendants, Under

°. FL R. C.-P. No. 17(b), capacity to sue in the federal courts

. is determined by reference to state- law. The Court of

\ BAU Te ete - Appeals properly followed this Court’s opinion in Hofman

v. Blaski, 363:U. S. 335, which holds that a proposed trans- _

feree district i is not. one in which an action ‘‘might have

been brought’’ under § 1404(a) if suit°there could’ not

Se _ originally have been instituted and maintained by the plain-

: _ tiffs independently of the wish or waiver of the defendant. —

- The decision of the Court of Appeals is correct on two

' addjtional grounds, Dd y

“The real’ reason that the detaudaite/- sae to transfers

. -7 . &he withtin death actions is to avail themselves of Ahe harstt >.

rs . . » penal limitation on leeewses in déat a obtiining in

., °° Massachusetts. Pensisylvania, the home forum of these

‘| +... phaintiffs and their deeedents, would not enforce the Massa- _

Vac tiete chusetts penal limitation because it is sontrary to the strong:

ee SP a Defendants i in No. 738, this Term, in ‘ierring. to the Fatigs

: S.. 3 , of the District’ Judge i in support of transfer assert (p. 5): “In issuing

‘the writ the Court of ae did not dispute these findings.” In ‘

fact, the Court of|A pressly foundit unnecessary to, consider /

ther (App. in No. re 24a; App: in/No. 851, P. 28a). Vg

° ad op o ‘ - 4

% : : fs zi , . s

6 Brief for Reson Opposition :

, —-° » Thé District Cou orl of thnater“pucatitten'

Bde elear abuse of discretion for many reafons; among which

nt are: (1) Pennsylvania has by far the greatest number and

~-the uayst important with case ‘and the parties

ae reto; (2) the weight of the evid does not shew that

ats G y substantial convenience to. parties. or withess¢s would

‘be served by transfer, (3) the so-called convenience of the

_ parties and witnesses and prospective consolidation with.

—————ether-casés® cannot possibly overbalance the severe hard =

. _ * ship to’ plaintiffs which would be caused by trial in a dis-

~-*tant forum and -by the ‘substitution of a harshly punitive

‘limitation for full compensatory damages, (4) the District

Court gave great weight to many irrelevant and. i improper

sonsiderations. /

’. | This case will have no substantial effect on other liti-

gation. Defendant’s contention to the contrary is illusory.

Only ont other_reported case in the country has dealt with

- . the issue here-resolved by the Court of Appeals; these tt z

heal opinions are in harmony inter se and with all othe? fede

>. —— deeisions.. This case is also-ad hoc because it involves a ~°

penal limitation. on damages in death actions, and such

ees ‘limitations exist in only two states in the Uniew,

So ee ee compelling reason for the grant of certiorari exists

‘ */ ‘and the defendants’ pocitieny, hee be denied.

7 es porte = —_$_$— on > die

a nouns, Ae bas ors N° oe .

iby *-

; { °

‘ 5 | \ ~

| Brief for Respondents in Opposition ="

Q | RGR AREN, : , ye?

he Pike , te

| cae seeking review, the defendants urge as an infernal

: ' inconsistency in the Court of Appeals’ opinion what in. fact

ae Sree was yj manifest inadverteney relating fo two cases not here

a tater involved (No. 738 at pp. 3-4, 11; No.-751, P. 7, n. 5, p: 12, .

- nm. 11), This is invoked by defendants as rising to error of

_law bringing § 1404(a) intg collision with § 1406(a).' How-

-ever,. the Court of Appeals’ opinion was corrected- by.

. . amendment entered February 21, 1963 which nivoted the

ECA ee point (App. B, infra, pp. 3b-5b). These plaintiffs therefore

Bas ae make’ no further response to defonidaiste® assortions on this --

im subject.

"1 The Opinion of the Oourt of Appeals Is Correct for the

Reasons Stated Therein.

‘The Court of Appeals held that a district court has no

power to transfer wrongful death actions to a district in

. which the plaintiffs have no capacity t6 sue. The Court’s:

opinion relied upon and followed the opinion of this Court

_ in Hoffmakn. Blaski, 363 U. 8. 335, . °

hese cases were brought in.a ‘federal.court in n Penn-

sylvania i in the dfstrict of their residence by Pennsylvanians. °

as Pentisylvania fiduciaries of and for Pennsylvania de-

cedents and their survivors, .

tinder Rule 17(b)-of the Federal. Rules of Civil Pro- a

cedure, the capacity of a representative party to sueris. to

be determined by’ state law! “‘. . +¢ capacity to sue or be

* sued shall he determined by the law of the state in which

‘ the district court is-held . . .”’.

Under Massachusetts law a personal representative ap-

> pointed in another jurisdiction is not thereby. qualified to

' maintain an action in¢the Massachusetts courts; if a per- .

sonal representative appointed in another state brings such

suit and the defendant. moves to dismiss, the motio must

_ be granted: Boutillier-v. Wesinger, 322 Mass. 495, 78 N. E.

2d: 195 (1948), Tn that case a New Hampshire administra-

Se .

ere) Are) Briel for Respoials i Oppo)

. trix appointed by a New Hampshire court brought suit in

Massachusetts under the latter’s death statute. The unani-

mous Supreme Judicial Court of Massachusetts (per Chief

Qe) Ses Sek @ nally ination to Gemics would

ve been granted, stating (page 496) :

. “Jt is settled in this Commonwealth that an ad-

‘ministrator appointed in another jurisdiction is not

thereby qualified to maintain an action here under our

death statute.’’

‘ The corporate ‘defendants cite Bow dreau.v- New Eng.

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

92 (1944), for the proposition that Massachusetts is liberal

in permitting a foreign fiduciary who has brought suit.in.

Massachusetts to obtaif an ancillary appointment in Mass-

chusetts and to amend his complaint after the statute of

limitations has ran (pp. 10-11 of petition in No. 738). How-

ever, what the Boudreau case actually held was that the de-

fendant therein by its failure timely to plead the plaintiff's

lack of capacity‘to sue had waived this defense ; it was for

that reason alone that the Court permitted the plaintiff's .

amendment to capacity by subsequent appointment in

M usetts.

Thus, it is sunday. clear from the Boudreaw and

Boutillier cases that lackyf capaeity to sue is an affirmative

defense under Massachusetts law which will defeat the ac-

‘tien if raised but which may be waived.

. In Hoffman v. Blaski, 363 U. 8. 335, this Court held

that lack of venue (an affirmative defense which, like ca-

pacity to sue, may be waived by the defendant) in. the

transferee district absolutely precludes transfer under

_. §1404(a), even though the defendant agrees to waive that ,

defense. This is so, this Court stated, because a proposed _.

transferee district is not one in which ap action ‘‘might

- have been brought”, within the meaning of § 1404(a), if suit

there could not ori ‘have been instituted and main-

tained by the plaintiff ‘‘independently of the wishes of the -

defendant”. This Court stated (pp. 342-344): .

Brief for Respondents im Opposition | 9

**We do not think the § 1404(a) phrase ‘where it might

_ have been brought’ can be interpreted to mean, as peti-

tioners’ Satay Were Peery Waaee sang: Boy Se

ee en Ree

jurisdiction over theadhetions only if pro rly brought

- in those courts, or if validly transferred thercto under -_

§ 1404(a). . . . But_the power of a Distrid Court ©

banca § 1404(a) to transfer an action to another dis-

trict is made to depend not upon the wish or waiver of

~ the defendant but, rather, upon whether the transferee

district was one in which the action seuigns Renye_bome

brought’ by the plaintiff... . .

We agree with the Seventh Circujt thet:

§ ‘If when teal 0 Geena Ghaaell bon w riahe

' to sue in that district, independently of the wishes of

defendant, it is a district ‘‘where [the action] might

have been brought.’’. If he does not have that right,

independently of the wishes of defendant, it is not a

flistrict ‘‘where it might have been brought,’’ and it ‘is

immaterial that the defendant subsequently [makes

himself subject, by consent, waiver of venue and _per-

‘sonal jurisdiction defenses or otherwise, to the juris-

diction of some other foram).’*’ (Emphasis supplied.)

The corporate defendants argue (p. 10 of petition at

No. 738), but cite no cases-to support such argument, that

§ 1404(a) should be construed to mean that a district court

may transfer an action’ to any other district which has

jurisdiction and venue over the parties. The short answer’ |

to this contention is that if Congress had intended such a

result it would simply have so stated, i.e., it would have pro-

vided that any civil action could be transferred? to any other

district ‘‘which has jurisdiction and venue ovér the par-

ties’’. Congress, however, did not so provide; it limited

‘the power of a district court to transfer a civil action ‘‘to

% of The transferee courts could have acquired

any other district or division where it might have been ~

_—

a) di .

— &

10 _ Brief for Respondetis in Opposition” .

brought”? (cenphasis supplied), which means, as daged i in a,

Hoffenan v. Bjaski, 363 U. 8. 335, 342-344, where it might

have been brought, as a matterof. independent right, with.

or without defendants’ consent and without reference &

_ their wish or waiver. ‘

~The Court of Appeals pointedly and properly disposed

of this contention of the petitioners as follows (App. in No.

—— point. Nor

738, pp. 26a-27a; App. in No. 851, p. 3la):

‘‘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 un-

qualified right to bring suit in the transferee fortim at

the time he filed his original complaint, transfer to that

_ district is net authorized by § 1404(a). Hence, the fact

that at oral argument counsel for . intervenors ex-

pressed a willingness to waive any objection to peti-

tioners’ capacity to sue in Massachusetts is beside the

the district court’s statement that these

actions involve the legal fietion of the appointment of a .

persona! representative be: used as a basis for dis-

tinguishing them from Hoffman v@Blaski, sipra. Cer-

‘tainly the requirement.of capacity to sue is no‘more a

lefyal fiction than is the necessity 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

conclusion in Hoffman. In shoft, we can perceive no

basis in either logic or policy fo¥ making any distinc-

tion between the absence of*venue in the .transferee

forum and a prospective plaintiff’ 's lack of capacity to

sue there.” ' .

' Iy New York Central Railroad. dit v. United.

States, 200 F. Supp. 944, 947 (S,-D. N.¥., 1961), the Court,

per Judge Henry J. Paeaty, 3 held that the decision in: .

cee

. Hoffman v. Bask snot Limited to eases of jursdition and

; venue deficiencies, stating>-— ———___

‘‘Hoffman v, Blaski, 363 U;, 8. 335; 80 8. Ct. 1084, ‘1085,

4 L. Ed. 1254 (1960), against a claim that an

action ‘might have been brought’ in a district where a

defendant seeking transfet. could not have been served —

with process and would have had a valid venue objec-

tion, although by his motion he. accepted the jurisdic--

_ tion of, and forewent objection to venue in, the pro-

- posed transferee court. We do not read the opinion as

limited to cases presenting such a conjunction of juris-

diction and venue: deficiencies; it approved, p. 344, 80°

S.-Ct. p. 1090, the statement of the Seyenth Circuit,

- 260 F. 2d 317, at 321, and Behimer v. Sullivan, 261 F. 2d

467, at 469, that the statutory test is met only ‘If when

# suit is commenced, plaintiff has a right to sue in that

district, independently of the wishes ¢f defendant.’ Cf.

Continental Grain Co. v. Barge FBL-585, 346 U. 8. 19, .

80-8. €t.:147, 4 L. Ed. 2d 1540: (1960).”” (Himphasi«

. supplied.)

‘The corporate defendants’ argue that the opinion of the

Court of Appeals subverts the purpose of § 1404(a) ‘‘be-

cause of wholly unrelated matters of state law and of a sup-

posed state policy’’ -(p. 6 of petition in No. 738). They —

contend that by the decision below ‘‘state legislatures be-

come the arbiters of the extent to which Acts-of Congress

- governing procedure i in federal district courts are effective’’

> (p. 10 of petition’in No. 738).

This argument is illusory. Itis F. R. C. P. No. 17(b),

promulgated by this Court, which requires all federal dis-

trict courts to refer to the law of the state in which they sit

to determine capacity to sue. What the Court of Appeals

did was merely to apply a federal procedural rule which

makes reference to state law mandatory. Under Rule +17

(b), how can matters of state law concerning — to

sue be ‘‘wholly unrelated”? ~ — »

a Brief for Respondents in Opposition cia

/ oO

4s | Brief, for Reepondents in Opposition °

Defendants’ also argue (pp. 6-12 of petition in No, 738,

"pp. 11-12 of petition in No.’ See Seat Sen Aentin ap

Court of Appeais, following Hoffman v. Blaski; be-

overruled because it would restrict the transfer of most .

actions for wrongful death, some of which arise out of air-_

line crashes and other disasters.

Fide etquusent was ehly and dogentiy avawered by the

; Court of Appeals wheh:it held (App. in Ne. cy Sa

™ «

- 29a; App. in No. 851, p. 33a):

“Respondent and. intervenors-urge that’ the con-

‘struction which petitioners seek would unduly vircam-

. Tepresentative. short answer to this is that.by

the use of the phrase ‘where it, might have “been.

brought’ Congress intended that the power to transfer

should nit be unqualified. That most jurisdietions. do ‘

not..permit foreign personal représentatives to bring

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

rule of law, and -we cannot presume that Congress in-

tended to alter state policy to the extent of permitting

transfer of such suits to the federal courts sitting in

those states. Indeed, as we previously noted, Rule 17

(b), Fed. R. Civ. P., tequires the district court to refer

- to the law of the state in which it sits to determine |

capacity to sue. Finally, we must accept 4 1404(a) as

- it has been construed by the Supreme Court in Hoffman - -

v. Blaski, supra, i.e., that it permits transfer only if the .

plaintiff at the time of the commencement of the action

-had an independent right to institute suit i in the toaae

feree-district.”’ SS

Defendants’ argument is not a epenil approach to fed-

‘eral statutory construction. There is nothing to indicate

that § 1404(a) was designed by Congress to be all-encom- 2

‘passing or was intended to permit the transfer of all manner - -

of litigation with equal facility. Such, obviously, was not

. the intention of Congress, and was the precise reason that

. seribe §1404(a) in any action brought by a personal

. °o > . o

2: Brief for Reopondents in Opposition. 13

Nenited tranafer to digtricts in which the action —- .

“might have been broughi”’ by the plafftiff. Ef most of the

states do not permit Pennsylvania personal representatives

te bring actions as a matter of right in their state courts,

it is certainly ne cause for alarm that federal law should

not gratuitously endow-defendants with a right to transfer

such actions to federal courts sifting in those states. In-

deed, fairness and justice would seem to militate against

any such endowment. . And F. RB. C. P. No. 17(b); promal-

ee wm eee

' gated by this Court, would prohibit it. -2-———~—~""_-

“Moreover, there is good reason why it should be more -

difficult for the defendants to force the transfer of actions

for wrongful death than it is for them to force the transfer

of other types of litigation. Wrongful death actions are

often cases of extreme hardship involving widows-and stall

children and other dépendents whose sole source of support

has been taken from them. (This is true of most of the

' eases herein concerned.) _ It is normally a greater sacrifice .

for them than for most*other litigants to be subjected to

the rigors of lengthy travel, and to take up residence for

long periods of time at distant points in order there to

maintain. and prosecute. sustained litigation in a forum

selected by the defendant as best situated to eatiafy the

convenience of itself and of its witnesses..

Also, the doctrine of forum non conveniens still exists

{him the federal courts, and may be utilized by any defénd-

“ant to effect the dismissal of a case which hag been brought:

arbitrarily in an improper forum. See Hopson v. Hopson,

_ 221 F. 2d 839 (D. C. Cir., 1955).

The only other reported case in the country aecling

With the issue here resolved by the Court of Appeals is .

Felchlin v. American Smeiting and Refining Company, 136

__F. Sap. 577 (S. BD. Cal., 1955), which is in accord there-

with (see discuggion, infra, pp. 28-29). Section 1404(a) has

been in éffect since June 25, 1948. In light of the fact -

that there have been only two reported federal decisions.

dealing with this issue in the mere than 14 years which

—e

14. Brief for Respondents in Opposition © fot

Es have passed nines the effective date of the Act, itis diff

eult to accept the defendants’ assertions that this ‘case.

‘will have any massive effect upon “other litigation through-

out thegountry.

It is submitted that the etatutory limitation upon

‘transfer to districts in which the action ‘might have been

brought’’, independently of the wish or Waiver of ‘the de-

fendant (Hoffman v. ‘Blaski, 363 U.'S. 335), is both a sen-

sible and desirable expression and Pritt of Con- re

Been ad hers a Meee scbcaie Ss Wechoch tae a

Additional Reasons.

Plaintiffs additionally argued.to the Court of Appeals - ~

~ that transfer was improper because it would result in

emasculation of plaintiffs’ damages, and because it consti-

' tuted a clear abuse of discretion in the circumstances. The

‘Court of Appeals. expressly found it unnecessary to. con-

sider these alternative arguments: (App. in No. 738, p. Ba;

*° App. in No. 851, p. 28a).

._ @t-is.submitted that’ the deeision of the Court Se

\-—Appeals is correct and would have been required for the

reasons discussed in plaintiffs’ alternative - arguments

(summarized in subsections A and:B, infra), regardless of -

‘the issue upon which the Court rested its decision.

| A. Transfer Would Emasculate the Plaintiffs’ Claims

ct . for Damages. -

The real reason that the corporate defendants desire

to tronsfer. the within death. cases to Massachusetts is be-

cause such.transfer would substantially diminish the meas-

ure of damages to which the plaintiffs would be entitled,

-M usetts and Alahama~are the only two states

in . the Unitéd States having statutes imposing a penal or

punitive restriction on damages for wrongful death:

. - Brief for Respondents in Opposition * gare

Massachusetts Bonding é Tasurdues Co. » United States,

852 U. S. 128, 130.131.

“Tes General Privisions of the Massachusctis Death .-

Act [G. L. (Ter. Ed.), e229, § 2C, as amended, 7A Ann.

Laws of Mass, 407} provide that a person who negligently

canses the death 4f anothér ‘shall be liable in damages - —

in the'sum of not less" than two thousand nor more thar

twenty thousand dollars, to be assessed with reference to 2

the degree of his culpability or that of his agents or serv-

- ants.’’ Compertsatory damages: are not'awarded as pro-_

vided for under Pennsylvania law: 12 P. S. $§ 1601-1604 ;

Spangler». Helm’s N-. ee MM, Express; 396 Pa.. 482, ee :

153 A. 2d 490 (1959).

‘ The’ damages provision in the Massachinsetts Death

Act is. based on concepts of punishment and is penal in

nature. This Court so held in Massachusetts Bonding &

Insurance Co. v. United States, 352 U.S. 128. The Su;

_ ~preme Judicial Court of Massachusetts so held in Mac-°

chiaroli v. Howell, 294 Mass. 144, 147, 200 N, E..905 (1936),

‘stating, ‘‘The chief characteristic of the statute is penal.’’

Pennsylvania courts would not enforce the penal limi-

_ tation of damages contained ‘in the Massachusetts Death -

Act and, consequently, a federal district: court sitting in

Pennsylvania would not enforce it, under the doctrine of

Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487

(1941), which holds that a federal court is Constitutionally

bound to apply the conflict of laws rulg and’ public policy

of the state in which it sits.

The Pennsylvania courts ola not enforce the Massa-

chusetts penal limitation because to'do so would violate

Pennsylvania public pokey as. expresséd jn Article—-IIl,

§ 21, of the Pennsylvania Constitution, which provides that

the General Assembly may enact workmen’s compensation .

_laws *“‘but in no other case shall the General Assembly |

limit the amiount to be recovered for injuries resulting in .

death. . .’’, and also because it has long been the estab-

~ lished “rule in Pennsylvania that Pennsylvania will not

F @

°16 —— Brief for Respondents in Opposition

enforce the penal provisions of a foreign’ statute, even

when they are aléo remedjal in nature: Nesbitf v. Clark,

272° Pa. 161, 116. Atl. 404 (1922); Commercial National

Bank v. Kirk, 222 Pa. 567,71 Atl. 1085 (1909). =~

While the Massachusetts statute until now has not been

attticked in the Pennsylvania courts on the*ground that it —

contravenes the public policy.of Pennsylvania, it was rée-

cently considered by the Court of Appeals in the neigh-

‘ boring state of New York. In Kilberg v. Northeast Air

Likes, Inc., 9 N. Y. 2d 34, 172 N. EB. 2d 526 (1961), plain-

. tiff’s decedent was killed in an airplane crash in Massachu- ;

setts, Both plaintiff’s decedent and the plaintiff were New

York domiciliaries. The plaintiff brought suit for wrong-

ful death in the state coprts of New York. The New York.

’ Court of Appeals, in an opinion by Chief Judge Desmond, .

declared that New York would refuse to give effect to the

Massachusetts penal provision limiting recovery on the

. ground that. that. provision contravened the public policy

of the state of New York. The Court further held that the

plaintiff conld recover the compensatory damiages which °

are recoverable under the°New York Wrongful Death Act,

- totally free of the Massachusetts restriction. The-Court of

Appeals looked, to and quoted from Article I, Section f8,

of the New York Constitutiomaaon expression of the pub-

lie policy of that state, providing that ‘‘the right of action

now existing to recover damages for injuries resulting in

‘death shall never be abrogated, and the amount recover-

able not be subject to any statutory limitations.’’

is clear that the Massachusetts penal provision limit-

_ing the recovery of damages in wrongful death actions

“ equally contravenes . the , public policy ‘of. the Common-

wealth of Pennsylvania: as expressed in Article III, Sec-

tion 21° of the Pennsylvania Constitution. The Constitu-

. ‘tion of, Pennsylvania, like the Constitution of New York,

‘ embodies and expresses the firm public policy of the Com-

monwealth. 54

— "ain

‘

Brief for Respondents in Opposition iy re

“The Kilberg ruling, which had been attacketras 8 vio-

lation of the Full Faith ard Credit Clause of the United

. States Coristitution, was recently affirmed and applied by

the U. S. Court of Appeals for the Second Cirenit, sitting

en bane, in Pearson v. Northeast Airlines, Inc., 309 F. 2d ..

553 (1962), cert. denied, — ~ U. —sy (Feb. 18,

1963).

: Regardless of the convenience of partios gad witusanes,

transfer under §1404(a) may lawfully be ordered only

when it would be ‘‘in the intetest of justice”. Justice

y "Means, fairness. A transfer of death claims: which sub- -

/a harshly restrictive punitive mieasure of damages

fer a fully com ry rule violates all concepts of fair- |

“ nessand, asa, of law; is not in the interest of justice.

It is submitted that the Court of Appeals would have

been bound to vacate the District Court’s order of transfer

on this ground, even if.it had not already determined that

the transfer was invalid because Massachnpsetts is not a .

Geteiet te wee So aatioen * ‘might have been brought”’.

|B. The District Oourts Order of Transfer Constituied

& Clear Abuse of Discretion. .

“It is important to note that all of the decedents ees

death actions were residents and domiciliaries of the East-

ern District of Pennsylvania. All of the plaintiff fiduciaries °

in these actions are therein domiciled and all were appointed

_ by Pennsylvania courts. All of the survivors entitled to

berefit from the wronkfal death actions ave residents and

domiciliaries of the Eastern District of Pennsylvania. At

the time of the accident all of the decedents were en route to

their Pennsylvania homes on a non-stop flight to Philadel-

phia. All of the corporate-defendants are engaged in busi-

negs in the Pennsylvania forum. -Permsylvania could hardly

have a greater ‘jxiterest ‘in a. case or a more significant

contact with its parties than in the instant matters. No

suggestion has been made that suits hy these residents in

their home district represent forum shopping or that they

aie ee

‘18 i Brief for. Respondents in Opponition , oom

constitute weiiiares vexation ‘or oppression as to the

- defendants in’any manner whatsoever. - a

The weight given by the learned District Judge to such .

. factors as were treated by him as #equiring transfer, to the

- ‘total exclusion. of matters of substance invoked by plaintiffs —

_ but swept aside to their great detriment, points sharply to—

~ the conclusion that the order of transfer. constituted a cleat

= .

- Abuse of discretion ; its. grant and the reasons given for its.

> grant skirt dangerously close to the proposition that the .

-. Supposed convenience of ‘the defendants in and of itself’ is

rt transfer without gemiine’ regard to-the

interest of justice and’ the private interest of the plaintiffs,

where both latter facters point overwhelmingly to a con-

trary result. ‘It is submitted that analysis seriatim of the

factors relied on by the District Judge demonstrates clearly .

_that the Court of —— was correct i in perce nd the order 8

oa involved. paraah!

L Re Transfer Involving Emasculation of Damages to the .

ne Prejudice of the Parties Opposing It.

Whatever. may be said for the weight to -be given to,.

“the convenience of parties and witnesses’’, surely it cah-

not be said that the words ‘‘in the interestxof justice’? add .

. nothing to the requirements of § 1404(a).*. Yet here, trans-

fer for supposed ‘‘convenience’? of the defendants, and of’ -

some witresses, would involve the application in the trans: .

feree court of a punitive restriction on fhe nature an:l

ure of damages of*such overwhelming magnitude a as to

-y Soonoaiaig toae Melelainedaidiog of these @laims.. ‘

’ We submit that ‘‘eonvenience”’ cannot here overbalance ;

the enormous potential loss to ‘plaintiffs and. their bene- _

ficiaries, that the expense to defendants of trial and, counsel

fees in the Pennsylvania federat court cannot possibly out-

weigh ‘the detriment to plaintiffs in the radical and sub-

— See District Court Transcript, sigma C, infra, pp. 6b-8b.

o —

‘

TiN nite

transfer, whether “it “be. to show that ‘the balance: PAD oe

Be for Respondents, in “Opposition ee |) i :

; ‘aici DMs tisha etic iain

. the two jurisdictions." We further submjt that ® order

_. placing’ conventencé ahead, of the‘protection of sithsgantive

rights and thé private intefest ofthe litigant violates a

. than furthérs the interest justice.

. While it is true that the private interést of the litignnts

as an important factor to be i ee was announced Shar

. Grdf Oil. Corp. v. Gilbert, 330 U

enactinent of § 1404(a), nevertheless, ineNorwood v. Kirk- res

501 (1947), prior to the

patrick, 349-U.-S.29. ), this Court “held that even

. though the ‘discretion ufider § 1404(a) is ‘broader than under -

’ ‘the ‘formér doctrine-of- forum non conveniens, the relevant

factors to be considered here have not been changed. Even |

under Norwood “the interést of justice’’ remains the » devi: ;

sive test: Coffilk v. Atlantic Coast Ling R. R. Co., 180 F.

Supp. 105, 107-8 (E..D. N. Y., 1960).

. Pennsylvania has no less an interest in the protection

; of its domiciliaries than does: New York as to its citizens

[Kilberg v. Northeast Airlines; Iné., 9 N. Y. 2d 34, 172 N. BK.

2d ‘526; Pearson*u, Northeast Airlines, Inc., 309 F.2d 553;

cert. den., — U. S. —, 83 S. Ct. 726; see Richards v. United

States; 369-8--8-1-(1962) ]. To have so fundamental and

deep-reaching an issue determined in‘ thé district of their

permanent Pennsylvania residencdy there favored and sup:

ported by local state policy, rather than-in-a strange and

distant forum whose law and policy is in collision with that

of their home state, constitutes an overriding consideration ;

which merits, the most serious weight and precise attention. *

2. Defendgnts Wholly Failed to Sustain Their Burden to 2 oi

Show That Transfer Is Justified Under. § 1404(a). |.

Whatever be. the. burden upon defendants to support

4..In Massachusetts Bonding & Insurance Co.'v. United States,

352 U. S. at p. 134, this Cotirt recognized the “substantial differences

in recovery” between compensatory senate weies the Massachusetts

penal limit. ext; 6

“u

: 2 * ‘ 2 Oy Ae , :

. 20 « Brief for Respondents in Oppdsition

\\ strongly’ in théir favor [Gulf Oil Corp. v. Gilbert, 330 pate

U.S. 501; Bush v. United Air-Lines, Inc., 148 F. Supp. 104, . re

\\ 105 (S. D. N. Y,,.1956) ], er to show retention to be ‘‘oppres-

.sive, harassing and vexatiqns”’ [Crawford Transport Co. v.

Chrysler Corp., 191 F: Supp. 223, 228 (E. D.dX yp 1961)], ©

s to show a ‘‘strong balance of inconvenience”’ [Calva v.

American Air Lites, Inc., 177° . Supp. 238, 239 (D.C.

Minga.,, 1959)]}, or to show the ce in their favor by” eae }

_ “lear and con¥incihg evidence’’ [Headrick v. Atchison, .

_ Topeka ¢ Sante Fe Ry. Co., 182 F. 24 305 (10 Cir., 41950)],

in-any event, -the interests of justice require.that, at the.very.

least, the defendants make some affirmative showing in.

order to overcome the plaintiffs’ choice of forum. Where .-

the factors are ‘in doubt orsin seeming balance or constitute. -

‘fa close. question”’ (Districi Court Opinion, App. in No.

- 738, p. 20a, in No. 851, p. ia), then and in such éase defend-

‘ant has: failed to sustain'its burden and transfer must be -

denied.. |

Faf from iicaibideine defendants to meet their ote en

in justify transfer, the learned District Judge instead ©

porte upon the plaintiffs the burden of showing why the

cases shcaid no? be transferred.and for their alleged failure

to sustain their burden, set aside their’choice of forum.

- We submit that the grounds advanced by the District J udge

- ein support, of transfer and now invoked by defendants.

‘demonstrate that the District Court’s order was wrong

and tat the Court of Appeals’ action is correet.

oe.

eee |

a Csnabiidacs of the Parties. fe Bae : ‘ Se

Re - The learned District Judge ounclutied that thev first ,

listed factor ‘which ‘‘required’’ transfer’ was’the conven-_ - .

_ ience of the parties (Opinion, App. in No. 738 at p. 3a, in ©

‘No. 851, at p. 4a). To this entire point, eleven lines of

the: opinion “were devoted. -The first .three simply state .

_, that plaintiffs claim their convenience would be served by

Sy ‘erie in Philadelphia and defendants claim otherwise.

@ . vA o

| ‘Brief for Respondents in Opposition ‘21 vi

The Court aie wink ‘on. ee Beiree thai while the burden

_ on the plaintiffs of bringing their damage testimony in the

transferee District had not been overlooked, “+, . . this

isa burden often falling upon persons, ‘who, having elected

to travel dway from home, are involved in accidents . . .”’

(Opinion, App. in No. 738, at p. 4a, in No. 851 at p. 5a).

_. We submit this to be an extraordinary and novel ratio —

decidendi. It has frequently been held, and with -good

reason, that defendants engaged in nationwide transporta-

tion business are expected to anticipate suits at various

United Air Lines, Tnc., 148 F. Supp. 104,105. ° ° ~ :

- But never before have we heard it suggested, nor have

we found any judicial support for the proposition that this

burden s‘.all fall not on the ‘corporaté defendants who de-

rive their profits from opérating in the Eastern District

of Pennsylvania ell as elsewhere, but rather upén

' the individual passengers or their survivors who must,

-according to the District Court and the: defendants, accept

the farum fortuitéusly_ determined by tlie locale of impact:

of the falling aircraft, for no better reason than that they

chose to or were required to travel. ~¢ |

. The learned Judge then went on to say, ‘*none of the

affidavits. allege that any of the plaintiffs is impecunious

. ‘nor is their financial condition stated in the recordg? Opi

ion, App. in No. 738, at p. 4a, in No. 851 at p. 5a). We

submit that more than anything else, the last quoted sen-

tence demronst ' that the learned District Judge im-

‘ .* posed on theplaintiffs the burden to establish hardship

_ or serious inconvenience by retention. We would not think

‘an affidavit wonld be required to show that travel by the

. widows (many with young children) from Philadelphia to

Boston and their attendance at a protracted trial, would

work substantial inconvenience and obvious hardship upon —

them. We submit that to predieate transfer on the absence

_of such an affidavit in th@ instant cases is to indalge in

pirate formalism. Clearly the situation here is ‘the

———— Brief for Respondents in Opposition

come on thet which was oo well cteted in Bust «. United

Air Lines, Inc., in which, in denying the airlines’ motion to _

, transfer, the Court stated (148 F. Supp., atp. 105):

3 ‘‘Here the plaintiff has. properly exercised her

venue privilege by initiating this action before this

. court. I have failed to find any subfantiation for the

‘

defendant’s argument that the plaintiff has chosen this ~:~

forum on the basis of a ‘shopping tour.’. On the con-

. trary, the plaintiff has all the cogent reasons possessed

ws seis - by- a litigant*acting with complete forthrightness. This

action. is a matter of grave concérn t6 lier and to her - 3

infant children. She has serious burdens of a legal and

_practical.nature to sustain in the ensuing litigation.

She can accomplish her task with far greater conven-

ience here, where she is. making her hoine with her

children and earning her livelihood, than.in Cheyenne, _

‘Wyoming, to which she is an utter stranger.. This con-

‘sideration is emphasized by the probable extended

length of the trial which can take from two weeks ta

two months to. try. There is not even the suspicion

of harassment in her initiation of a suit in this

district.”’ i

Under this heading of the District Court Opinion, there

is absolutely nothing.to show in any manner whatsoever

_ how and on what grounds defendants established that the

balance of "convenience. was eithef ‘‘strongly’’ or other-

wise in favor of transfer. The order as to this point is -

bottomed on nothing more .specific’ than defendants’

‘‘elaim’’ of inconvenience and plaintiffs’ failure by affidavit

or otherwise to show their impecuniosity. Proof that the

balance qf convenience clearly favored defendants was an_

essential precondition to ‘the exercisé of the Court’ s dis-:

cretion in determining where that balance lies. Mere

‘ “elaim’’ of, inconvenience does not equate with ‘‘transfer’’

under any view of the law.‘ See United Air Lines, Inc. v.

“ United States, 192 F. Supp. 796, ib (D. C. Del., 1961).

We submit that defendants wholly ‘failed to meet thr SORES

a> Convenience of Witnesses. =

Brief for Respondents ix Opposition of | B:

Under this heading the District J udge bottomed ihe

. ‘transfer order.on the ground that a number of listed wit-

nesses reside in the Boston area. However, nowhere does:

either the District Judge or any defendant point ‘to any

substantial inconvenience to these witnesses by the re- |

quirement of trial in Philadelphia.

Defendant Eastern, Air Lines, Inc.; in its affidavit

_ which ‘incorporated ‘the “affidavits of Genvral -Motors and -.

. Lockheed Aircraft Corporation, listed the names of forty-

. one witnesses, not “including the crew and survivors, who

-- are Massachusetts residents. Defendants did not list seven

additional witnesses we are listed by the Civil Aeronau-

ties Board as residents from states other than Massa-

chusetts. = _

-Bufieven if’ these ‘witnesses were not cinenihie ‘ spe

process for trial in Pennsylvania, analysis with respect to

materiality, control and preservation of their testimony —

- shows that it will not be lost by refusal to transfer.

Of the 41 witnesses listed by defendant, 16: are em-

ployed by the Federal Aviation Administration or the pub-. -- °

lie airlines. Certainly. the defendants-.can control the

_ attendance of their own personnel and there is nothing to

indicate"that any is unwilling or unable tq testify in Penn-

sylvania. In any event, depositions of the tower personnel

or of any other ‘witness may be taken either far discovery

or for use at trial, or for both purposes. zs

Of the remaining 25 witnesses, 6 are laren under

the age of twelve whose testimony cannot be regarded |

either as vital or persuasive. The remaining 19 witnesses

gave statements and testified at the Civil: ‘Aerunautics

Board hearing as to the manner of the falling of the air- ~ -

craft. We doubt that defendants need 19 witnesses to tes- .

tif that the airplane crashed and how it crashed. Here

’ 4

ern Ot ae rae

ue Bris for Respondents in Opposition

| ' again, there is. nothing isaac to. eiiai the aie

of their depositions for use. at trial.

‘The key witnesses to this accident are the persons who .

compose the ten survivors of the crash. Of these, three

are from Pennsylvania, two from Georgia, two from Massa-

chusetts, one from South Carolina, and three are in the |

Armed Services. . Wis these witnessey whose testimony is

most needed at the time of and seven out of ten are

not residents of Massachuse As stated in Ultra Sucro

: Company wv. Illinois Water Treatment Company, i bd

Me Supp. 393, 398 (8. D. N. Y., 1966): © ~*.

“the judge must endeavor to determine who the key .

_ witnesses are rather than mene count up the poeeible-

witnesses for each side.’’

Moreover, any disproportion j in ONCE, of oiiaaes—

required by defendant is more than offset by reason of

. the airline défendant’s ability to bring its witnesses on its

own planes or those of other carriers, a problem far more

fe eS easily solved by defendants than by plaintiffs.

The Government adopts (p: 5 in No. 851) the District

’ J udge’s holding which ‘brushes aside plaintiffs’ genuine

burden if forced to produce damage testimony in Boston,

_by making the sanguine obsérvation that once liability has

been determined, few, if’ any, cases: such as these go to trial

on damszes (p. 8a in No. 851)e — |

This gives scant comfort to the plaintiffs : Q) ieee i is

- absolutely nothing. to indicate that under Massachusetts

law liability and damages can be severed; the two are in-

. extricably intertwined, i.e:, the amount of the damages de-

pends on the degree of culpability; (2) there is no assurance

that the Massachusetts court would sever the i S,even .

» if it could do so; (3) it is error to suggest that plaintiffs

will not need eompensatory damage testimony in Boston

unless and until they have overcome the Massachusetts

punitive limit. .Transfer, if upheld, would include the

actions, against the United States of America under the ~

+ by

. Brief for Respondents Oppssition = 25

= Federal Tort Claims Act; in. those actions the Massachy-

setts penal limit is inapplicable. Thus; even if the penal

limit’ were applied in the corporate suits, plaintiffs would

nevertheless be required to prove compensatoby damages

-in Boston rather than in Philadelphia. It flies in the face of

all reason and common sense to suggest that this is not

harshly burdensome on the plaintiffs to a far greater degree

than it could ever inconvenience the defendants; (4) it wiil

be necessary, in any event for defendants to produce wit-

_ nesses in Philadelphia without reference to the transfer of

the instant actions; this is so because of the pendency of

ant Eastern Air Lines, Inc., in the state courts of Pennsyl-

. —

ee .

fe two suifs (arising ‘out of ‘this same trash) -against defend- -

vania sitting in Philadelphia (Shakton v. Eastern Air Lines, _

Inc., Court of Common Pleas No. 4, September Term, 1961,

No. 237, and’ Court of Common Pleas No. 6, September

Term, 1961, No. 238). Thus, transfer of the instant cases

to Boston doe’ not and cannot avoid one of more separate

trials in Philadelphia. 5

. The Interest of Justice..

—. The defendant in No. 851 (at p. 5), adequately enu-

merates the: grounds under this heading upon which the

District Judge considered’ transfer to be required. We

- 5 submit that none of these Sachors justify transfer; let alone

‘*require’’ it. °

(1) Transfer From a More Congested Docket and |

Consolidation With Other Pending Cases.

If transfer from a more to a less congested docket

“could ‘fairly be said ipso facto té further the interest of

_justice, the point would merit little discussion. Concededly .

- consolidation with other similar eases ding elsewhere

~ must at first blush appear mdst attractive to a congested

‘court. But surely the interest of justice is not- determined .

by any array of statistics, either as to the number of cases

pending elsewhere or the degree of congestion whith ob-

‘tains, for in that event, transfer would automa cally be

% . Brief for Respondenie-in Oppanition

— made either to the least congested. court or to’ that court

having the greatest number of cases arising from the same-

accident. Such‘a standard by which to det4rmine where the -

interest of justice lies is nowhere ison HIS it is particu-

larly unsupportable here. < - ~

We submit that 4 1404({a) was never intended as a ve- ©

‘hicle to be used by a District Court for the pifrpose of re-

lieving itself of portions of its own trial list. A transfer

on such considerations would be tantamount to a bargain.

...0f gonvenierice at the expense of plaintiffs who have done

no more than institutée ‘suit- in -theit. ddmiciliary. forum. _

[Bush v. United Air Lines, Inc., 148 F. Supp. 104, 105 (S. D.

N. Y., 1956); Keller-Dorian Colorfilm Corp. v. Eastman

Kodak Co., 88 F. Supp. 863, 866 (S. D. N. Y., 1949)]. More-

over,. transfer for such purpose may well create more

rather than fewer problems.and thus frustrate rather than

further the aims of justice. [See United» Air Lines, Inc. v.

United States, 192 F. Supp. 796, 800 (D. C. Del., 1961)]. At.

least one Court of Appeals has held i in a group of airline?

"eases arising from one crash, that ‘the same jury: which de-

termines liability must al:. fix damages [United Air Lines,

Inc. v. Wiener, 286 F. 2d 3u2 (9 Cir., 1961)}. Thus, either

all cases must be tried before a single jury on both liability

‘and damages, or each must be treated separately.

There is.absolutely nothing im the record in the cases

at bar to show what benefit, if any, the proposed transfer |

would accomplish by way of consolidation-with other such __

- cases now pending in the Boston Federal Court. Counsels*

- eorrespondence on this point with the Clerk of that court

_. showed that these same defendants there- made nd motions

for consolidation®nor haye any special procedures been

established for trial (App. D, infra, pp. 9b-11b).> It would ~~

‘ thus appear that nothing is to be gained administratively

- by transfer, which’ at best would yield ‘‘.. . .- only insig-

nificant and uncertain benefits . . .”* United Air Lines;

- Inc. v. United States, 192 F. Supp. at eGR, 1%:

5. Counsel for aie wee Uilerated by thd tegety clerk Uy -

telephone on March 1, 1963 si na a

oo +e eee «+ - om eee

oe et et ES OS NT a

’

es)

4 ae

* Brief for Respondents in Opposition : 27

(2) Desirability of Strving All Deferidants.

- Parther support for transfer is. seught in the ex-

é.

.pression of defendants’ ‘‘wish’’ (District Court Opinion,

App. in No..738, p. 2a, in No. 851, at p. 13a} to join as a

third-party defendant the Massachusetts Port Authority, —

suable only in Massaehusetts. Without reference to the ~

questien whether this vague assertion furnishes a real

rather than an illusory reason, we submit that there is abso-

‘lutely nothing in this record to show that the defendants

are in any way unable to maintain their own-separate and

dircet aetions against that Authority if they claim it tebe =

responsible, and that without any transfer’ whatsoever.

This was exactly the procedure fol!owed in United Air Lanes

v. United States, reported both in 192 FP. Supp. 795 (D. C.

Rel 1959) and 192 F. Supp. 796 (D. C. Del., 1961).

(3) Headling Litigation at Its Origin i in a Forum

' at Home ith State Law. -

A further factor claimed by the defendants and adopted

_ by the District Judge as favoring transfer (Opinion, App.

gain No. 738 at p. 12a, in No. 851 at p. 14a) is the handling of

litigation ‘‘at its origin’’ and-‘‘in a forum that is et hejne

with state law’’. We submit that this point is ansubstantial

* and without merit as a reason for transfer.

Without reference to the fact that the courts of one

district must be presumed to be as well qualified to handle

litigation as those ii another, the District Court in Phila-

delphia is constantly ealled upon to determine and apply the

laws of other states. Indeed, it:‘may even encounter diffi-’

culty in determining the law of the very state in which it

sits. The defendants. have.'pointed to no-instances where

. the ‘substantive law of negligence of Massachusetts differs

in any particular from the substantive law of negligence of

Pennsylvania. |

We submit. that this contention of the defendants simply

unmasks, the real purpose of (ho: mations, which is to force”

23 ° Brief for Respondents in Opposition

application of the Manincbenstte penal restrictio these~

3 cases, camouflaged by an i to the factors of

. convenience and justice contemplated by § 1404(a).

. The serious inconvenience and genuine hardship to the .

plaintiffs which would flow from transfer of thes¢ cases,

together with the emasculation of their damage claims, in-

dicate overwhelmingly that those factors far exceed any

genuine inconvenience to defendants Ry. retention of the

‘ . actions in the domiciliary forum of choice. It is these. addi-

; tiogal factors which establish that the order of the District -

Court con: ituted a clear abuse of discretion. It is these —

addition | reasons which further establish that the Court of

Appeals’ decision is correct and should not be” reviewsd.

III. The Opinion of the Court of Appeals Is Consistent’

with All Other Federal Decisions.

: The opinion of the Court of Appeals i is in harmony With

the only other reported federal case in which transfer of a

déath action was opposed on the ground that the transferee

district was not a district in which the plaintiff had capacity.

to sue. In Relchlim,v.- American’ Smelting and Refining

Company, 136 F. Supp. 577, suit was filed in a federal court

._ ‘in California by-executors who were qualified in California,

'- The defendant moved under § 1404(a) transfer the case

to the Western District of Texas. Court refused

‘ transfer on the ground that the proposed transferee district

was not a district in which the action ‘‘might have been

brought’? because ‘the plaintiffs had no capacity to sue in

Texas. The Felchlin case was examined by the Court of

_ Appeals: in instant cases in the following language

(App. in No. p. 27a; App. in No. 851, p. 32a):

‘Respondent and intervenors seek to distinguish

Felehlin from the case at bar on the grounds that & ,

- 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. How-

he ete sto Be

‘

ne er eee ——

° "

ee eee

on we ttl 1 act, Deen

en eee

4. Matas ermal ten Bt

‘ Brief for Respondents in Opposition gg

ever, we deem this distinction insubstantial, for

whether lack of capacity precludes a prospective plain-

tiff from filing suit in the first instance, or subjects him

’ to a dismissal at the instance of the defendant, the re-

sult is same, In either case he does not have an

unqu right to sue.’” —

The defendants allege (pp. 12, 15-16 of petition in No.

738; pp. 10-11 of petition i in No. 851) that the decision of the .

Court of A conflicts in principle with this Court’s -

opinion in Hoffman 'v.. Blaski, 363 VV. S. 335, 344, wherein

it is said that it would be grossly di sriminatory to permit Bets dns

the defendants to transfer a case to a district to which the

. plaintiffs could not transfer it without the consent and

‘waiver of the defendants (which is also the situation in the

instant case). Defendants complain that plaintiffs may

= ‘have an unfair choice .of forum because. they may seek

qualification only in the particular state-in which they wish

to litigate. But that is not this case. Here the plaintiffs.

could and did obtain original appointment as fiduciaries

only in Pennsylvania, the domicile of each of these dece-

+ dents, and it is in Ge dompiliary forum that. their actions

pend. .

Defendants’ reasoning is otherwise fallacious. The -

plaintiff i in every case is given a choice of suing the defend-

ant in any district in which the defendant is a resident. In

many state courts, including those of “Pennsylvania, a de-

fendant may be sued in any county in which he can be

served, ‘and: there if no provision for transfer. There is

nothing unjustly discriminatory, or even unsual, about this.:

Moreover, the defendants erroneously assume that the

_ plaintiffs could qualify as personal representatives in Mas- —

4 sachusetty merely by applying for ancillary letters there.

Such is not the case. The appointment of an ancillary or a

_ special’ administrator is in the discretion of the Massa.

__chusefts Probate Court: Mass. General Laws (Ter. Ed.), ¢:

215, § 3, as amended, 7 , Laws of Mass. 157; Mass. Gen-

’

30 $ ‘Brief for Resposdents im Opposition

‘eral Laws (Ter. Ed.), ce. 193, § 10, as cmenie’, 6 Ann. Bets

; of Mass. 399 (see App. in- No. 738, p. 25a; ; App. in.No. 851,”

pp. 29a-30a).

The defendants: allege (pp. 12-16 of petition in.No. 738 ;

pp. 7-11 of petition i in No. 851} | that the decision of the Coirt .

of Appeals conflicts in principle with this Court®s opinion —

in Continental Grain Company v. The FBL-585, 364 U: 8.

* 19 (1960). Such allegation is in error. °

The -Continental Grain Company cs case is completely

‘- dissimilar and -simply -holds that the unique admiralty in

rem fiction is not relevant to’a motion-to transfer under -

§ 1404(a). This Court there noted that the in rem fiction

-has for its. purpose the allowance of actions against ships

‘twhete a person owning the ship could not be reached’’

bringing the owner into court”’ (364 U. Seat page 26).

' The Court of Appeals correctly and succinctly disposed

of this argument of the defendants as follows (App. in No.

_ 138, p. 27a; App. in No. 851, p. 32a):

‘The transfer sanctioned in Continental Grain Co.

v. Barge FBL-585, 364 U. 8. 19, 80'S. Ct. 1470, 4 L. Ed.

- 2d 1540 (1960), is no help to respondent. and inter-

_venors, fer that decision is premised on a fiction pecul-

iar to the admiralty law.’’

It is noteworthy that Hoffman v. Blaski (which the

Court of Appeals follows), and Continental Grain Company}

v. The FBL-585 were argued before this Court on the same

day (April 20, 1960), and that ffie opinions in the two -

_ eases were handed down only two weeks apart. It is in-

conceivable that the principles of law expounded in these

two cases could be in co

- Goldlawr, Inc.4y. Heinen, 369 U. S. 463 (1962), an ‘euti--

trust case cited by the corporate defendants (page 13 of

of the Court of-Appeals, is notin point. It merely held

that lack of personal jurisdiction over two corporate de-

- petition in No. 738) as being in conflict with the opinion ~

& oe?

March 27,1968 ®

o : " nbter for tespondents m Opposition. Ss “at ?

.- fendants by the transferor court did. not a Se it from

- transferring the case pursuant to 28 U.S. C. A. § 1406(a)

[a section not even involved in the.cases at bar]. tr

: In summary, Felchlin v. American Smelting and Refin- -

ing Company, 136 F. Supp. 577, the only other reported de- /—

. cision ‘dealing with the i issue involved in the instant case in ~.

the more than 14 years in which § 1404(a) has been in

effect, is in complete accord therewith. Both that opinion

and the instant opinion are in full harmony with Hoffman :

_ v. Blaski, which holds that_a district court has-no power

‘» to transfer an action under 4 1404(a) to any district -in

which plaintiff did not have an u@qualified right to bring

‘and maintain the action Sa oaths eaned of the wishes of

defendant”.

= ‘CONCLUSION.

For 9 foregoing reasons it is yeupestfully submitted

_ that the petitions for a writ of certiorari should be denied. °

-@ Respectfully submitted,

‘ Eiwoep 8. Levy, gt

Davin F. Brxver, >

Counsel for Sianindonta (in

* No. 13,994). + ;

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‘ Ee fi Civil

- Action

: si . . . No 8.

: ’ Roberta Barrack, Administratrix of the Estate Bese

: Jack M. Barrack, Deceased | . 29,274

? °

7 _ Lorraine Browndorf, Administratrix ofthe Estate Fae 4 3,

. of Irving Browndorf, Deceased” re . 29,099.

4 i Henry XQ, Gransden, Administrator of the Estate .

j _ . ** of Henry V. Gransden, Deceased > 2896329 °

oy a Ge

J. Michael King and Berks County Trast Com. ° —_

B Ageriee pany, Executors a/v of Henry P: tated aed ty

| 0° Decemsed > “+s 99,615

Barbara B. Meltzer, Adtninistratiix of the Estate. “

ie +>) of Allan J: Meltzer, Deceased “+ 28,762 *

4 . Ida q. Schwartz, Executrix .u/w of t Meyét A. che A

Bs Ua "Schwartz, Decedsed ~ - * 29,160

pe aN ‘Elizabeth B. Schwartz, Executrix u/w en Theo-

| ‘. " dore William Schwartz, Deceased m 29,159 :

Bs + + Ruth Staller, Administratrix of the Estate of .

3 oe ‘Phillip Staller, Deceased °. , 30,266

"Joyce J. Wright, Adminjstratrix of the Estate of, «

John ane Wright, Deceased 7 . 30,200

as Ot eames 2

- BASTERN AIR LINES, INC, ‘ooKEED ‘AIR.

ype CRAFT CORP. anp GENERAL 7 caicnus COR: + ;

“- " BORATION., - .

RE ee i eS

- Henry €; er wonecrery nome the Estate

= Q ®

Hees Appendiz A

Civil

°, . Action

Nos.

Roberta Barrack, Admitistratrix of the Estate of | ae

Jack M. Barrack, Deceased : 29,275

~ Lorraine Browndorf, Administratrix of the Estate

of Irving Browndorf, Deceased 29,100

of Henry V Gransden, Deceas

. J. “Michael King and Berks County Trust Com-

"pany, Executors U/W, of meaty: P. King, :

Deceased SF 5hy 5 8 " 29,616

‘Barbara | B, Melteor: Administratiiz of the Estate ds

788

of Allan J: Meltzer, Deceased

Ida G. Schwartz, . Hxeoutrix u/w ‘of Meyer A.

Schwartz,, ee ie 29,162

Elizabeth B. Schwartz; a u/Ww of Theo- —

dore William Schwartz, Deceased Gree ers

Cin \

‘Ruth Staller, Administratrix ofthe Estate of. oS nee AS

Phillip, Staller, Deceased 30,263 .

Joyce J. Wright, Administratrix of the Estate of :

John Allen Wright, Deceased eee 30,230

Apis D ;

THE UNITED STATES OF AMERICA

MON git ee

a EASTERN AIR LINES, ENC.,

. Third Party Defendant.

)

a LN ton Bong ere

Y : Appendic \B - | Pa. 2a

lb aeae idee APPENDIX 5.

UNITED STATES COURT OF APPEALS.

. For THE Tuep Crrcurr.

al ws

fee Sev : eae No. 13,994.

—_—_—

BARRACK, Er At,

.. ere

. \ HONORABLE FRANCIS L. VAN DUSEN, Er AL,

i SR Ow:

Re aes aa Se POLS pts |

POPKIN, Er Au,

Petitioners,

HONORABLE: FRANCIS L. VAN‘ DUSEN, Er Au,

° . 2 . ‘, ‘@

No. 14,

RAPP, ADMINISTRA Yate

a ' Petitioners,

HONORABLE FRANCIS L. VAN DUSEN, Er Au.,

NET Se

“agieors Petitioners,

@®< -: =, ¥

caer gic Appeniiz B ts

“3 ' ¢ Np

BIERNBAUM, Er. At. Eunovross, Erc., eo . =

- <Petitioners,

we uae’

HONORABLE FRANCIS L. VAN DUSEN; Er Au,

No. 14,033.

4 oo

- LAISTER, Execurux, Erc., Er Au.

oe . Petitioners,

Py * " a

. ose

HONORABLE FRANCIS L. L.°VAN DUSEN, Ex At, *

Present: Srauey and anetaih: Circuit: Tedpes) and ‘Laser,

oF ' District Judge.

It in Onoenzo that the last paragraph on pago-7 and

concluding on page 8 of the opinion of this Court. filed

November 19, 1962, which reads:

‘*What we have stated thus far ‘must be qualified

to the following extent. At oral argument counsel for

petitioners in No. ? conceded that transfer of the

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

a inasmuch as‘ that petitioner is a resident of

assachusetts duly qualified in that state as. an ad-

. ministrator, Subsequently, counsel informed this court

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

> and the Braff ; ase. sae Action No. 30304) must even-

‘\

’

So a NC ay

tually be transferred to the district court in Maisa-

chusett# since venue in the Eastern District of Penn-.

sylvania is improper. Thus, with respect to these three

_ suits, the district court’s orderof transfer was proper

~ and will not be set aside.”’ Ps ved ee

Je ; ae Veseeee

be and. it hereby is amended to read: as follows: }

.. What we have stated thus far must be qualified

the following extent. At oral argument éounsel for

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

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

proper inasmuch“as that. petitioner is-a resident of _-.

Massachusetts duly qualified i that state as an ad- __

ministrator.. Thus, wth to these suits the ,

district. court’s order of transfer was proper and will

not be set aside. Subsequéntly connéel informed this

court by’ letter that the. Reitz case (Civil Action No.

o. 30303) and the Braff case (Civil Action No. 30304) .

fitust eventually be transferred to the district court in

Massachusetts since venue in the Eastern District of

Pennsylvania is improper. With respect to°these suits,

__ therefore, we do not pass upon the question whether the

district court’s order of transfer was proper since it is

not-Contested here. ” ee US te oh?

) By THECOURT: = — «2

; . Srarey, =

ri 3 , Circuit Judges

Dated: February 21, 1963 nate -

; °

33 Appendiz C .

Rerpta From District Oourt Transcript.

(6) The Court: And, also, I suggest to you in presenting

- ‘your argument, remember that the Supreme Court and the

_ Appellate Courts have said what justice means in Section

1404(a), and a trial judge is here to carry out the directions

of the Appellate Court, not. to use. his. emotional feelings |

as to what justice ma&¥ mean in that section. It has been

giver a definition, and it seems to me that those considera-

tions that have been stated are the considerations which the

Court is es to follow, in the absence of some legisla- ~

tive histor

erations.

Similarly, I know of 1 no- reason why. a court is not’ ex-

or other information showing other consid-

pected'to recognize that experienced. counsel, such as (7) are

involved in this case, when they file a suit and they know

1404(a) is in the law, and then to come in here and say, ‘*Oh,

isn’t it awtul,’* somebody wants to tran nsfer the case. They

could have gone into the State Courts There are plenty of

other forums that ebuld have been chosen; but when you

-chodse 4 Federal forum, you accept the law as.it is at that

time, and 1404(a) was in the Federal-law when this case

‘was started, when all these cases were started. Ani, of

course, if, the other side sits back and does not make a

motion and allows you to go to a lot of expense that is-ane

thing. If there are cases which say that the extent of

diseovery has been sych that the defendant should be

estopped, that-would be a perfectly proper onan, as I

see it, under the cases.

: : are ee é

— (10) Mr. sisi The other observation I would like to make,

if the Court please, is that in connection with Your Honor’s

comments as to 1404(a), I must confess a very uncomfort-

able feeling of pre-. fetguent. I hope, of course, that the

aid]

“2 ,

san i Ma Mie leo colRad Gi dein aad baa

P Z

ome, ~

Re ~

oe ppenilia OF. ee

feeling is completely miéplaced.* It may be; and certainly .

is the law (11) that anyone who ‘institutes suit-in the Fed-

eral Courts institutes it subject’ to the laws applicable to:

the Federal Courts, but it-does not follow from the fact that

such suit was instituted in the Federal Court that ee

amoral made it means ‘**transfer’’. .

' ’ ‘TH Gourt : Of course, it does not, but there aré a lot af

+ arguments. I am commenting on the briefs. You have got

a limited time to argue. I am trying to help you, Mr. Levy.

ve done so

= And'there are large portions of these briefs which deal with |

“the fact of how terriblé it,is to even. the fact of -

., transfer because. the plaintiffs’ attorne

much work...

Now, I say that the plaintiffs’ attorneys in doing work

‘did it having in mind all'the federal statites and federal

Tules. Now, you can proceed to argue it, but I am just

| suggesting to you that in usmg ‘your thirty minutes, ‘each

_ of you, ‘that you have that point in mind, because I think it

has bey overlooked in many of the briefs,

Me. Kreindler : ‘Your Honor, may I ask a question

which troubles me‘a bit’and might save some time? The

Court ipdicated that 1404(a) contains its own definition of |.

justice. Now, as- I understand 1404(a) it. contains three

standards, convenience of parties, convenience of witnesses

. and interest of justice.. Is the Court suggesting that in-

terest of justice adds nothing to the other two?

The. Court: Oh, no, no. : :

Mr: Kyindler: I just wanted to—— _

The Court: No. I just meant’ that the phrase ‘*interest .

'; of justice’ as used-there had been commented on and de-

‘fined by the Appellate Courts.

. Mr. Kreindler: 1 see.

The Court: And it was not just a’question of a trial

judge applying what ‘he thought ‘‘justice’’ meant.

: oar >, . o

*& Appendia C_—*.

‘Mr. <li I misunderstood what Your ities had

_ Said, and T thought-¥o6 had said that the definition was (13)

built into the section itself. .

“¥ The Court: Oh, no. ‘In a0 far as T knw, there is no

definition in the section.

_ Mr. Kreindler: All right. Thank youn

The Court: But the Appellate Courts have said ‘these —

are the considerations——’’

, Mr. Kreindler: I understand.

The Court: ‘‘—which you take into seat 3 in deter-

mining What the interests of jastion are as that phrase: is

used in that section.’’ .

‘“ ° —_ “—

er van C. ay sige OO stp egnnrt nh BEC PAM BOAR AD eM: Le Nepales ne

Appendiz D See eT

‘ ; APPENDIX D. =

Larrea o Duceansn 28, 1961

Sein K. Cisse, Cheuk ; 5.

United States District Court — : atest aR {<9 5

Federal Building - re § ‘ ;

Boston, Massachusetts : . :

Dear Mr. Canvan:

With reference te: the crash of the Rastérn AisLines

Electra plane at Logan Airport, Boston, on October 4, 1960,

we are advised thatcapproximately ty-eight law suits

arising from this accident are pre tly pending in the.

United fates District Court for the District of. Masss-

chusetts:

Riolaibitihe tite spnissaden cohen wine 4

@ accident are also pending in the United States District

- Court. for the Eastern District of Pennsylvania (Philadel-

phia). Insome of these this firm is counsel for the plaintiffs.

ey Motions to transfer to the Federal Court in Boston are

presently pending in the Philadelphia Federal Court. As

a matter of interest with respect to the handling of multi-

ple claims arising from a single catastrophe, I would ap-'

preciate being advised whether to your knowledge any spe-

cial procedures have been established in your court with

respect to the processing or trig! of the cases now pending

there. Has any indication bee given as to whether each

- *of the cases will be tried separately before separate juries —

or if there will be consolidation, to what extent? It would

also be informative to know whether any motions for con-

solidation have been filed and if so, whether they have been

granted or denied.

I would appreciate any information you could furnish

along Chess lines. ~

Very truly yours,

ESL :elp / Exwoop 8S. Levy

10b ‘ “Appendiz D-

yee Lerrer or January 9, 1962

” Unrrep States Distaict Covet

District of Massachusetts: . 2

-. Office ofthe Clerk —

1525 Federal Building

~~ Boston9 . F

“The K. Canavan, Clerk ~ pf. et nT OTT TE

| ee January 9, 1962

- Re: Crash October 4 1960 of ister: Air snap Electra :

plane,” :

§ a

, Dear Mr. Lave Pinna ee

, This will ‘diiiadialign veiniot of your letter dated-De,

' cember 28, 1961 upon the subject. matter above.

Answering your several questions, please be’ advised

that no special procedures. have been established in this .

District with respect to. processing or trial of cases now.

pending here, ‘nor has any indication been given as to-

whether the cases will be tried separately or if they’ will

be consolidated for trial. To date, no motion for such con-

_ solidation has been filed. : :

Very truly yours, .

% tag ; Joun A. Canavan

Sf John A. assis Clerk, FRF

jae

Elwood S. Levy, Esquire

Messrs. Richter, Levy, Lord, Toll & Cavanaugh

_ 121 South Broad Street, Philadelphia 7, Pa.

ee OD

* —— -

ee ee a

eet eee Appendie ss 7

r area, OF January in 1962

° January 11, 1962

‘Hon. Francis L. Van Dusen.

2110 United States Court House

Ninth and:Chestnut Streets

Philadelphia 7, Pennsylvania coer

Re: Easteen Air Lines Electra crash—-Boston,

- October 4, 1960 |

_ Dear Judge Van Dusen:

. During the preparation of my supplemental brief: for-

warded on behalf of Barrack et al. December 29 last, it oc

curred to me that it might be of interest te your Honor to

_ knew whether the’ Massachusetts Fedéral Court had put into —

effect any specializéd procedures for the processing or ex-

pediting of the fifty-seven cases there pending and involv-

ing the same crash giving rise to the matters now pending

‘before your Honor, Accordingly, I wrote to the Clerk of

the Federa! Court at: Boston but did not recei¥e a reply

‘until today. I enclose herewith a copy of-my letter of

December 28 to the Clerk and a copy of his reply dated

January 9, 1962.

_ I think it noteworthy that to bite none of the defend."

ants there,-which group most certainly includes some or all

of the identical defendants here, has filed any motion for

consolidation of trials. It’ would therefore appear that

apart from a shorter median interval from the time of suit

to the time of trial (which would not be advantageous to

_ plaintiffs) there is nothing to be gained administratively

by the transfer of these matters to Boston.

= Very truly yours,

a _,Exwoon 8. Levy

- Enclosures

ce. J. Grant MeGabe, TIl, sents

Sidney L. Wigkenhaver, Esquire

' :Owen’B. Rhoads, Esquire

Robert E. Jones, Esquire

Max L. Kane, Esquire «

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.