The opinion of the court was delivered by: HULBERT
Plaintiffs move to strike out three defenses in defendant's answer.
None of the plaintiffs are residents of this District.
The plaintiff administratrix resides in New Jersey, and the defendant is a Delaware corporation and maintains an office in New York, N.Y. but is not authorized to do business in that state.
The complaint alleges in part:
'Fourth: That at all of the times hereinafter mentioned, the defendant was or still is doing business as a common carrier within the territorial limits of the United States District Court for the Southern District of New York.'
'Seventh: That on or about January 13, 1948 and prior thereto, the defendant was and still is duly authorized under Title IV, Section 401, of the 'Civil Aeronautics Act of 1938' to engage in air transportation as a common carrier with respect to persons, property and mail for hire, between various terminal and intermediate points, including the route between Atlanta, Georgia and New York, New York.'
Paragraph Tenth alleges that on or about January 12, 1948 Lynn Brandt at Atlanta, Georgia, applied to the defendant for transportation to Newark, New Jersey, as a passenger for hire, and after payment of his fare, was received aboard defendant's airliner. While so travelling the airplane crashed at or near Oxon Hill, Prince Georges County, Maryland, and said passenger due to the negligence of the defendant, received injuries, from which he died.
The foregoing allegations are admitted by paragraph 2 of defendant's answer except that it denies any undertaking, contract, or agreement to convey or transport the said Lynn Brandt safety.
The First and Second Defenses read as follows:
'First Defense: Defendant objects to the maintenance of the present action within the Southern District of New York on the grounds that none of the parties, including the equitable plaintiffs, is alleged to be a resident or inhabitant of said District, the decedent Lynn Brandt was not a resident of said District, the accident in connection with which a recovery is sought took place in Prince Georges County, Maryland, during the course of an airplane flight between Winston Salem, North Carolina and Washington, D.C., and numerous witnesses to said accident, including eyewitnesses and other persons whose testimony will be material and necessary at the trial, are non-residents of said District and are not subject to service of process by subpoena issued not of this Court. By reason of the foregoing facts, defendant requests the Court to decline jurisdiction of this action.
'Second Defense: The jurisdiction of this Court is invoked solely on the ground that the action is between citizens of different states. None of the parties, including the equitable plaintiffs, was, at the time of commencement of this action, a resident or inhabitant of the Southern District of New York; therefore suit may not be maintained in the District Court for the Southern District of New York.'
Section 1406 of the new Title 28 U.S.C. provides, in part:
'The district court of a district in which is filed a case laying venue in the wrong division or district shall * * * transfer such case to any district or division in which it could have been brought.'
Defendant requests for convenience of witnesses, if the Court determines to transfer this cause for that reason, that it be transferred to the ...