# Brief for the Respondent in Opposition — Couture v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0039%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1964 - **Citation:** 379 U.S. 853 ## Text 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, © ADMX., ETO, ET AL. IN OPPOSITION. 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. | 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 k ; 4 vg ~ eo 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 ¥ p 4 e - 4 é ore a . Sif ¥ Fe . ” « . ~ 8 . : . - . : . } . e » s e . . . 28 4 2 « ian Hy . 7X “ae ‘s . , F eo Gee Ae Eee 7 . ‘ . ? 5 ° * M : . F * . . - : o * “hw . ; . * : . Pe : ‘ . ; , ve * ° ~ ’ ’ » y . ‘ ; o * a, . Fy F . Mie : 7 Ae "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 ae “ ‘ 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? : e 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 ae / ee 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 a 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 t , pS ° ° >» 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 a -§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 4 % of The transferee courts could have acquired any other district or division where it might have been ~ _— ma 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 a Brief for Respondents in Opposition cia : / oO *o 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 te —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 » Fa ‘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 — » ‘ Bs 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 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 Ww - | ‘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 oo 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 wh % . 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. 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 a 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- * 7 ’ 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’’ (364 U. Sat page 23). It is merely ‘‘an alternative way of © 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? Counsel for Sianindonta (in * No. 13,994). + ; ‘ ° - . ys 4 sat > a5") .* - | wae ites Yer : I *. f - ° . ee; - . pS a6 ° a ; ‘i: . s ea ad rs . ne t . ¢ » Tet 3 mt ; ] ; ° J “ o . eae es ’ Nay . ° 4 ob) EY \ . ». . Ke 2 a ” . ° xy € q . ni: : € oe se . | | B ‘ 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. LY —_—_— BARRACK, Er At, .. ere . \ HONORABLE FRANCIS L. VAN DUSEN, Er AL, i SR Ow: Re aes aa Se POLS pts | POPKIN, Er Au, Petitioners, v. HONORABLE: FRANCIS L. VAN‘ DUSEN, Er Au, ° . 2 . ‘, ‘@ No. 14, 6. RAPP, ADMINISTRA Yate a ' Petitioners, HONORABLE FRANCIS L. VAN DUSEN, Er Au., NET Se “agieors Petitioners, @® 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 %! ec aid] “2 , san i Ma Mie leo colRad Gi dein aad baa P Z om ome, ~ a 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 - ys ., 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.