The opinion of the court was delivered by: SUGARMAN
Mary McGee and Connell McGee, her husband, residents of New Jersey, bring action to recover damages for personal injuries sustained by Mary McGee and consequential damages sustained by her husband.
It is claimed that on February 1, 1955, Mary McGee was injured through the negligence of the defendant, The Southern Pacific Company, In Palo Alto, California, while she was a passenger on its train.
The instant action was commenced on January 10, 1957.
'1. For an order dismissing the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure (28 U.S.C.A.) on the ground that the Court has no jurisdiction over the subject matter of the action, in that the exercise of jurisdiction would be contrary to the intent and in violation of Clause 3 of Section 8, Article I, of the Constitution of the United States, for the reason that it would impose an unreasonable and unnecessary burden and obstruction to interstate commerce; or in the alternative
'2. For an order pursuant to 28 U.S.C.A. 1404(a) transferring this action to the United States District Court for the Northern District of California, Southern Division, for the convenience of parties and witnesses and in the interest of justice; or in the alternative
'3. For an order dismissing the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on the ground that it appears on the face of the complaint and from allegations therein that the claims set up in said complaint did not accrue, if they accrued at all, to the plaintiffs within one year before the bringing of this action and that, therefore, the action is barred by Section 340 of the California Code of Civil Procedure and Sections 13 and 49 of the New York Civil Practice Act.'
The plaintiffs cross-move:
'For an order pursuant to 28 U.S.C.A., Section § 1404(a), transferring this action to the United States District Court, District of New Jersey, for the convenience of parties and witnesses and in the interest of justice.'
The court will not pass upon the constitutional question raised in the first branch of the defendant's motion because it is unnecessary to do so in the light of the disposition of the motion on other grounds.
The second branch of the defendant's motion for transfer to California is denied. It is agreed by the parties that the granting of this relief will inevitably result in the dismissal of the action under the one-year statute of limitations applicable to this case by the law of California. It would be a useless gesture to transfer for a dismissal if such result is indicated here.
The parties are in further agreement that unless the plaintiffs' cross-motion for transfer to New Jersey is granted, the third branch of the defendant's motion to dismiss the complaint must be granted.
Turning then to plaintiffs' cross-motion to transfer to the District of New Jersey, the power to transfer is to be found in 28 U.S.C.A. § 1404(a).
Assuming that, for the convenience of the parties and witnesses and in the interest of justice, this case should be transferred, it may only be transferred to any other district where it might have been brought. It is necessary, therefore, to determine whether the action might have ...