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SCHMIDT v. AMERICAN FLYERS AIRLINE CORP.

November 16, 1966

Helen M. SCHMIDT, as Administratrix of the goods, chattels and credits of Richard A. Schmidt, deceased, Plaintiff,
v.
AMERICAN FLYERS AIRLINE CORP., Defendant


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Defendant airline moves under 28 U.S.C. ┬ž 1404(a) to transfer this action to the United States District Court for the Eastern District of Oklahoma on the ground that a transfer would serve the convenience of parties and witnesses and the interest of justice.

 The action is for wrongful death brought by plaintiff administratrix, a resident of Suffolk County, located in the Eastern District of New York, for the death of her son, who was killed in a crash of defendant's plane on April 22, 1966 near Ardmore, Oklahoma, located in the Eastern District of Oklahoma. The plane, at the time of the crash, was en route on a military charter flight from Fort Ord, California to Fort Benning, Georgia, and was carrying ninety-two soldiers and six employees of defendant. All six employees and seventyseven soldiers were killed. Fifteen of the soldiers survived.

 The complaint predicates liability on defendant's negligent operation and maintenance of the aircraft. Defendant denies negligence and pleads act of God or unavoidable accident as an affirmative defense. There is no question that the action might have been brought in the proposed transferee district. *fn1"

 Convenience of the Parties.

 Defendant is a Texas corporation, with its main offices in Fort Worth, but leases a hangar and one administration building at the Ardmore Municipal Airport. Its flight operations, maintenance department, and records are located in Ardmore. It operates largely as a charterer and does business throughout the United States. It is amenable to process in this district.

 Defendant makes no showing that its records cannot be produced in New York quite as easily as in Oklahoma. It lists seven employee witnesses, two of whom live in Texas and five in Oklahoma. Apparently only one was an eyewitness. One of the remaining six was in charge of maintenance of the aircraft and kept records; one installed the aircraft's flight recorder; one observed lights of the aircraft as it passed north of the airport; one was captain of another aircraft on a flight just prior to the crash; and another monitored the following flight. The seventh merely followed the crash truck and found the body of the pilot.

 The moving affidavit does not contain a statement showing what the testimony of any of these witnesses is expected to be, or how it is material or necessary to the issues. All of these witnesses are under defendant's control and can testify in New York, if defendant desires. We are not convinced that defendant would suffer any oppressive or unusual expense or inconvenience in transporting its own employees to New York, where it does business.

 Again this, plaintiff and her husband are persons of modest means and certainly cannot match resources with defendant. Their roots are here, they have no connection whatever with Oklahoma, and no occasion to travel there. Moreover, whatever other witnesses there may be to the pecuniary loss suffered by the death of their son will be located here, where he lived.

 Obviously, it would be easier and cheaper for defendant and a handful of its employees to try this case in Oklahoma, but it would be inconvenient and expensive for the plaintiff. Surely, when this Texas airline undertook to carry soldiers serving in the armed forces of the United States, it knew that large groups of them would live in populous states, that others would reside in states scattered across the country, and that few, if any, would be likely to have any connection whatever with the defendant's place of business, locus of operations, or site of a crash. Just as surely, it calculated and accepted the inconvenience and expense of defending suits around the country in the event of a crash. The soldiers and their next-of-kin, however, had no choice in the carrier or route of flight and no control over the maintenance of the aircraft or its operations.

 The plaintiff has a right to choose the forum, *fn2" and his choice is not to be disturbed absent a showing that the convenience of the parties and witnesses and the interest of justice are balanced strongly in favor of the party seeking a transfer. *fn3" A mere showing of inconvenience to the defendant is not enough to warrant transfer where it would merely shift the expense and inconvenience to the other party. *fn4"

 We think that, in the circumstances, the convenience of the plaintiff in prosecuting her claim in this district outweighs the inconvenience of defendant and a handful of its employees who may, or may not, have anything material to say about this crash.

 Convenience of the Witnesses.

 Defendant submits a list of forty-two other witnesses. The cumulative or immaterial nature of the testimony of most of them is apparent from defendant's cryptic description of what they saw or did and is fortified considerably by the fact that only ten of them testified at the Civil Aeronautics Board hearings investigating the cause of the crash. Two of the ten "observed lights of aircraft;" one piloted a simulated FAA flyby after the accident; one took weather observations at Ardmore Airport just prior to crash, observed lights of the aircraft flying north of the field and was the last person in radio contact with the plane; one was a traffic controller at Ardmore, was in radio communication with aircraft before the crash and cleared its approach to the airport; one was the weather forecaster on duty at Fort Worth, Texas; one observed and photographed a thunderstorm cell on radar at the time of the crash; and the remaining three are doctors and medical personnel. Two of the doctors had examined or treated the pilot at times before the crash, and the other performed autopsies on the pilot and three ...


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