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SCARAMUZZO v. AMERICAN FLYERS AIRLINE CORP.

November 7, 1966

Peter SCARAMUZZO, an infant over the age of 14 years, by his father and natural guardian, Angelo Scaramuzzo and Angelo Scaramuzzo, Plaintiffs,
v.
AMERICAN FLYERS AIRLINE CORPORATION, Defendant



The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 Motion to transfer this action for personal injuries to the Eastern District of Oklahoma pursuant to 28 U.S.C. § 1404(a). *fn1"

 The infant plaintiff is one of fifteen soldiers who survived an air crash near Ardmore Airport, which is within the territorial jurisdiction of the Eastern District of Oklahoma. Seventy-seven soldiers and the crew of six were killed. The crash occurred on a flight from Monterey, California, destined for Columbus, Georgia. The stop at Ardmore was scheduled for refueling and crew change. Two deceased soldiers resided in Oklahoma. Eleven soldiers resided in New York - four survived, seven were killed; of those eleven, seven resided in the Eastern District of New York; three of the survivors live in this district. The other soldiers resided in twenty-three other states, two in Puerto Rico and one in Czechoslovakia.

 The affidavit in support of the motion states that the defendant was doing business within the Eastern District of Oklahoma [28 U.S.C. § 1391(c)] and that the action "might have been brought," there.

 Nine actions are presently pending in six United States District Courts. One action is pending in the Eastern District of Oklahoma instituted by an Administratrix residing in Pennsylvania on behalf of a deceased resident of Pennsylvania. Two actions are pending in the Northern District of Oklahoma - one of which was instituted by an Administrator residing in Colorado on behalf of a deceased resident of Colorado. Defendant moved for transfer, in all the pending cases, to the Eastern District of Oklahoma. "If any cases are transferred defendant intends to file a motion in the Eastern District of Oklahoma to have all cases there consolidated for the purposes of discovery, pre-trial and a single trial on the issue of liability." [Aff. Phillip D. Bostwick, p. 6]. Attached to the moving papers is a list of forty-nine witnesses who defendant expects will be deposed "by one or more of the parties to the pending actions, and that a large percentage of the persons on this list will be called by one or more parties to testify at trial." [Aff. Phillip D. Bostwick, p. 7].

 Plaintiff suffered an amputation of the right leg nine inches below the knee and other injuries including severe burns. He is presently being treated for revision of the stump of the right leg and the other injuries at the Army Base Hospital at Fort Sam Houston in San Antonio, Texas. It is expected, that he will return home soon, for continued treatment.

 Upon oral argument, the Court inquired of defendant whether it would pay the travel costs of plaintiff, his witnesses and counsel for trial in the Eastern District of Oklahoma. Defendant argued against such a condition, claiming it would be a penalty and should not be imposed.

 Purpose of § 1404(a)

 The enactment of § 1404(a) vested the district courts with power to transfer upon a lesser showing of inconvenience than previously existed under the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 30, 75 S. Ct. 544, 545-546, 99 L. Ed. 789 (1955). The purpose of the statute is expressly stated, i.e., "For the convenience of parties and witnesses, in the interest of justice * * *."

 The statute did not negate the traditional right of the plaintiff to choose the forum. Norwood v. Kirkpatrick, supra at 32, 75 S. Ct. at 546. In a diversity suit, where the plaintiff venues the action in his home district, the burden is upon the moving defendant to show that the balance of convenience is in his favor. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947); 1 Moore, Federal Practice, P0.145[5], at 1787 (2d ed. 1964); Kaufman, J., Observations on Transfers Under Section 1404(a) of The New Judicial Code, 10 F.R.D. 595, 605 (1950). The defendant must list factors to show that the convenience of parties and witnesses, and the interest of justice, are balanced strongly in his favor, Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert. denied, 340 U.S. 851, 71 S. Ct. 79, 95 L. Ed. 624 (1950). In Popkin v. Eastern Air Lines, Inc., 253 F. Supp. 244 (E.D.Pa.1966), on remand from Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964), the Court said:

 
"* * * Plaintiffs right to choose a forum is a very relevant consideration in weighing the disadvantages to defendants, especially when plaintiffs are residents of the transferor forum [cases cited]." Id. at p. 246.

 A showing of inconvenience to the defendant is not enough for the granting of § 1404(a) relief, where the transfer would merely shift the inconvenience to the other party. Miracle Stretch Underwear Corp. v. Alba Hosiery Mills, 136 F. Supp. 508, 511 (D.Del.1955).

 Factors

 The factors to be considered were stated in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 ...


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