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MCCARLEY v. FOSTER-MILBURN CO.

March 9, 1950

McCARLEY
v.
FOSTER-MILBURN CO. et al.



The opinion of the court was delivered by: KNIGHT

Plaintiff moves to change place of trial of this action to U.S. District Court: Northern Division of Southern District, sitting in Fresno, California. His counsel cite 28 U.S.C.A. § 1404(a) and state: 'We rely * * * upon each of the three grounds included within this section, namely: (1) the convenience of the parties (2) the convenience of the witnesses and (3) the interest of justice.'

Plaintiff, a citizen of California suing as administrator of the estate of his deceased wife, alleges that, on or about February 10, 1949, she purchased in Merced, California, a bottle of 'Westal', made and distributed by defendant New York corporations, consumed its poisonous contents and on March 2, 1949, died there as a proximate result thereof. He demands judgment in sum of $ 300,000 and makes three claims for relief based on: (1) negligence; (2) implied warranty; (3) 'false representations by misbranding and otherwise.'

 28 U.S.C.A. § 1404(a) provides: 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.'

 28 U.S.C.A. § 1391(a) provides: 'A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.'

 Both defendants are New York corporations having their business offices in Buffalo, New York.

 Rule 4(d) of Federal Rules of Civil Procedure, 28 U.S.C.A., provides: 'Service shall be made as follows: * * * (3) Upon a domestic or foreign corporation * * * by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.'

 Plaintiff's counsel admit they could not effectuate such service upon defendants in California. They allege in their memorandum: 'Our presuit investigation indicated that defendants were not doing business in California to the extent necessary to establish their presence for the purpose of service of process upon them. This being the case, it appeared to us that we had no choice but to sue them in the only other available forum, namely, the district of their residence, and once having brought them properly within the jurisdiction of the federal courts to them invoke the right of transfer on the basis of the doctrine of forum non conveniens * * * .'

 W. G. Gomez, Jr., vice-president and secretary of Foster-Milburn Company and secretary of Westwood Pharmacal Corporation, in an opposing affidavit, alleges: 'The defendants * * * no agents * * * no office in (said state), and no valid service can be made upon them in (said state).'

 The application of said section 1404(a) of 28 U.S.C.A. depends on whether the words 'where it might have been brought' mean actually or potentially. Rule 3 of Federal Rules of Civil Procedure provides: 'A civil action is commenced by filing a complaint with the court.' The words 'brought' and 'commence' are synonymous. 'A suit is brought when in law it is commenced'. Goldenberg v. Murphy, 108 U.S. 162, 163, 2 S. Ct. 388, 389, 27 L. Ed. 686. 'The new statute (28 U.S.C.A. § 1404(a)) assumes that the action has been instituted in a proper district, and grants to the court discretion to change the place of trial to some other district in which the action might have been originally commenced.' United States v. E. I. DuPont De Nemours & Co., D.C.D.C., 83 F.Supp. 233, 234. Actually when the instant action was commenced in this court, service on the two defendants could not be effected in California. Process could not be served in that state by a marshal of this court for his authority 'to make service is limited to the territorial jurisdiction of the court of which he is an officer, and, in the absence of specific provision of federal statute, there is no authority for sending the process of one district into another to be served by the marshal of the latter district.' Boykin v. Hope Production Co., D.C.W.D. La., 58 F.2d 1041, 1042.

 Said section 1404(a) must be read with said section 1391(a), which limits the venue in cases based on diversity of citizenship. In such cases, except as otherwise provided by law, the action may 'be brought only in the judicial district where all plaintiffs or all defendants reside.'

 In the case of Sherman v. Chafets, now pending in this court, plaintiff sued defendant for personal injuries sustained in an automobile collision in Florida. Defendant actually could not be served in New York state. He was served in Michigan, where he resided. Plaintiff then moved to change the place of trail from the U.S. District Court in Michigan to this district, basing his motion on said sections 1391(a) and 1404(a) of U.S.C.A.

 Plaintiff's attorney in his brief 'urged that inasmuch as this action could have been brought in the Western District of New York under Section 1391 * * *, provided the defendant could have been found within the State of New York by the United States Marshal located at Buffalo or Rochester, New York, that the Western District of the State of New York is a proper forum for the trial of this action and that transfer of the action from the Eastern District of Michigan, Southern Division, to the Western District of New York is authorized and entirely possible under Section 1404 * * * .'

 The motion was opposed by defendant's attorneys but was granted, without opinion, by U.S. District Judge Thornton.

 In Barnhart v. John B. Rogers Producing Co., D.C.N.D. Ohio, W.D., 86 F.Supp 595, plaintiff, a citizen of Pennsylvania, could not serve process upon defendant in that state but brought suit and effected service in Ohio and then moved to change place of trial to Pennsylvania. The court, in denying the motion, did not consider the words 'where it might have been brought' of said section 1404(a) but based its decision on the ground that the section 'is not available to plaintiffs who voluntarily choose their own forum.' 86 F.Supp at page 599. The same principle was applied in Bolten v. General Motors Corp., D.C.N.D. Ill. E.D., 81 F.Supp. 851.

 In Greve v. Gibraltar Enterprises, D.C.D.N.M., 85 F.Supp. 410, defendant's motion under said section 1404(a) to change place of trial was opposed by plaintiff on the ground that the action could not have been originally brought in Colorado because the statute of limitations had run. The court said: 'With plaintiff's contention in this regard the Court cannot agree. First, the Court believes the language of the statute, 'where it might have been brought', relates primarily to venue and in a proper case would include jurisdiction. It concerns plaintiff's right to institute the suit ...


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