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August 24, 1998

MARTIN SCHECHTER, et ano., Plaintiffs, against TAUCK TOURS, INC., Defendant. TAUCK TOURS, INC., Third-party Plaintiff, -against- UNITED STATES OF AMERICA, Third-party Defendant.

The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 This is a motion to dismiss a personal injury case arising from a slip and fall in Volcanoes National Park in Hawai'i on the ground of forum non conveniens or, alternatively, to transfer the action to the District of Hawai'i.


 Plaintiff Martin Schechter and his wife, New York residents, booked a Hawai'ian tour with defendant Tauck Tours ("Tauck") through travel agents operating in New York. On or about May 15, 1995, Mr. Schechter allegedly slipped and fell in Volcanoes National Park on the island of Hawai'i while being led by Ronn Plomer, a Tauck tour guide. His counsel has given two accounts of the location of the accident. In affidavits submitted here and previously in the state court, he asserts that Mr. Schechter fell "on lava rock which he encountered as he disembarked from the tour bus." *fn1" The complaint, however, alleges that the fall occurred while "the defendants' tour guides led the plaintiff . . . onto volcanic lava rocks." *fn2" In any case, plaintiffs claim that Mr. Schechter's fall, which occurred on federal property, was attributable to Tauck's negligence and sued Tauck, as well as the travel agents, in New York Supreme Court. Tauck there moved unsuccessfully for summary judgment and forum non conveniens dismissal. The travel agents obtained summary judgment and were dismissed from the action.

 Tauck thereupon impleaded the United States, claiming that it is responsible, in whole or in part, for any liability that Tauck may have to the plaintiffs. The government removed the action to this Court on June 22, 1998. Shortly thereafter, Tauck filed the present motion. *fn3"

 The record before the Court establishes that the plaintiffs and one or perhaps more local treating physicians are the only likely percipient witnesses resident in New York. The other likely witnesses -- Mr. Plomer, the bus driver who drove the Schechters to the park, and perhaps park officials responsible for the location -- are not here, cannot be compelled to come here for trial, and almost surely reside in Hawai'i. Surely it stands to reason that any treating physicians in Hawai'i are available only in that state. Hence, if the case proceeds here, the case of necessity would be tried on the live testimony of the plaintiffs and their experts and the live testimony of the defendant's experts and any other witnesses whom the defendant can persuade to come to New York voluntarily.


 Since the enactment of Section 1404(a) of the Judicial Code *fn4" "it is only when the more convenient forum is in a foreign country -- or, perhaps, under rare circumstances, in a state court or a territorial court -- that a suit brought in a proper federal venue can be dismissed on grounds of forum non conveniens." *fn5" Hence, if Tauck is entitled to transfer to the District of Hawai'i under Section 1404(a), there would be no occasion to consider its forum non conveniens motion.

 Where the Action "Might Have Been Brought"

 The threshold question is whether the action might have been brought in Hawai'i, *fn6" a point not disputed by the plaintiffs but which nevertheless requires consideration of whether the district court in Hawai'i would have had venue and subject matter jurisdiction and could have obtained personal jurisdiction. *fn7" Venue quite obviously could have been laid in Hawai'i, as the accident giving rise to the suit occurred there. *fn8" Jurisdiction, however, is a somewhat more difficult question.

 This case now is in federal court by virtue of its removal by the United States following its impleader by the remaining defendant. The plaintiffs have asserted no claim against it. Hence, while a tort claim against the United States would have been within federal subject matter jurisdiction, *fn9" the fact that the Schechters have not asserted such a claim precludes a conclusion that the federal court in Hawai'i would have had subject matter jurisdiction based on the presence of the United States as a defendant. There remains, however, the question whether the Hawai'i district court would have had subject matter jurisdiction on the basis of diversity of citizenship.

 The Schechters are citizens of New York. According to plaintiffs' papers, Tauck is a New Jersey corporation having its principal place of business in Connecticut. (Greenberg Aff. PP 15-16 & Ex. B) Hence, there is diversity of citizenship as between plaintiffs and Tauck. Plaintiffs, however, originally sued the travel agents, American Automobile Association, Inc., and Automobile Club of New York, Inc. ("ACNY"), the latter of which allegedly is a New York corporation. Hence, unless the citizenship of the travel agents -- who were dismissed from the action prior to its removal -- appropriately is considered in determining whether the action might have been brought in the District of Hawai'i, this action "might have been brought" in that district from the standpoint of subject matter jurisdiction.

 This question is essentially a matter of statutory interpretation, turning on whether the phrase "civil action," as it is used in Section 1404(a), refers in the case of a removed action to the action in the form in which it was removed to the federal court or to the action in the form in which it was commenced ...

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