Akers v. Norfolk & Western Railway Co.

378 F.2d 78

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 5, 1967
• Docket: Misc. Nos. 382, 11153
• Status: Published

Opinions

PER CURIAM:

Transfer under 28 U.S.C. § 1404(a) of Hewlett Akers’ Federal Employers Liability action, 45 U.S.C. § 51 et seq., against Norfolk & Western Railway Company from the United States District Court for the Western District of Virginia at Roanoke, to the Southern District of West Virginia at Huntington, was refused the railway, and it now asks us to direct the removal.

The controversy comes here on the company’s application for permission to appeal under 28 U.S.C. § 1292(b) from the interlocutory order denying the transfer, and also on its petition for mandamus requiring the District Judge to order the change of courts. Exercising our statutory discretion, we decline the appeal. However, we think the transfer advisable and should be effectuated.

The suit of Akers, filed on March 21, 1966, alleged that the defendant was an interstate common carrier by railroad, with its general offices in the City of Roanoke, Virginia; that on January 17, 1966, while in the employ of the railway in the repair of its tracks near Cyrus, West Virginia, Akers was injured through the negligence of his employer in failing to provide him and the others on the job with adequate help and equipment to lift and move heavy rail sections; and that as a result thereof he experienced severe suffering, loss of wages and impairment of his work and earning ability, for which he sought damages.

Cyrus is not far from Huntington, where sits the United States District Court for the Southern District of West Virginia. The plaintiff as well as all of the persons who witnessed the events of the plaintiff’s injury reside within the Cyrus area. Following the accident, Akers was treated by a neurosurgeon having his office in Huntington. He was hospitalized and underwent surgery there.

None of the witnesses to the accident or the extent of plaintiff’s injury is within reach of the subpoena of the Federal District Court at Roanoke. The only relation of that city to the case is that it is the headquarters of the railway and the place where its employee records are kept. The suit was filed there, we are told, because the court docket in the Western District of Virginia was more current than the West Virginia docket. However, it now appears that a case of this kind would be given a trial at Huntington within a year of filing.

Transfer of cases is regulated by 28 U.S.C. § 1404(a), which reads:

“(a) 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.”

This statute is more lenient in authorizing transfers than is the common law doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 31, 75 S.Ct. 544, 99 L.Ed. 789 (1955).

Looking at the determinative factors recited in the statute, obviously the action ought to be tried in Huntington. The circumstances just enumerated are indisputable; they uncompromisingly point to transfer. Otherwise, the railroad could be left with no alternative but to adduce its evidence through depositions, a mode of proof universally acknowledged to be inferior to the personal appearance of witnesses in court. We note that in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), which presaged adoption of § 1404(a), the Court approved dismissal on the ground of forum non conveniens of an action instituted in the City of New York to recover damages for the destruction of the plaintiff’s warehouse in Virginia. The expediency of a local trial was deemed to outweigh the plaintiff’s choice of forum.

Of course, we recognize the •primary right of the plaintiff to choose his forum, a selection not easily to be •overthrown. Moreover, we recognize, too, that the decision rests in the discretion of the District Judge. Nevertheless, we must be equally sensible to an abuse of that discretion when measured upon the considerations of 28 U.S.C. § 1404(a), .supra. In Morehead v. Barksdale, 263 F.2d 117 (4 Cir. 1959), we upheld refusal to order a transfer, finding no abuse of discretion. In like vein we ordered a transfer in Southern Railway Company v. Madden, 235 F.2d 198 (4 Cir. 1956), ■cert. den. 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244, despite denial in the trial ■court, where the case “clearly” called for .an exercise of the power. True, in Clayton v. Warlick, 232 F.2d 699, 706 (4 Cir. 1956), we declined to countermand by mandamus or prohibition an order of "transfer. However, there the Court saw no abuse of discretion in the transfer and consequently there was no occasion "to issue the writ, the question of power thus rendered moot. Cf. Paesch v. Winter, 366 F.2d 756 (4 Cir. 1966). In General Tire & Rubber Co. v. Watkins, 373 F.2d 361 (4 Cir., en banc, January 11, 1967), we utilized the writ to effect a transfer.

In view of this history of our supervision of rulings on transfer, we have no hesitancy in holding that in the circumstances here denial of transfer constitutes abuse of discretion, and we may issue mandamus, under the authority of the all writs statute, 28 U.S.C. § 1651, to require the transfer of the case to West Virginia. Chicago, R.I. & Pac. R. R. v. Igoe, 220 F.2d 299 (7 Cir. 1955), cert. den. 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735, see, also, Annotation, 93 A.L.R.2d 802, 815, 855-59 (1964). We note, too, the recent case of A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 443 (2 Cir. 1966), where it was said:

“the great majority of recent appellate decisions * * * indicate that the Courts of Appeals consider themselves possessed of the power to issue mandamus in extraordinary circumstances to correct the disposition of a transfer motion by the District Court, even where the District Court has purported to consider proper factors. * * *” (Citations omitted.)

It will be unnecessary, we are sure, to do more than advise the District Court of our ruling to accomplish the instant transfer.

Petition for mandamus granted.