a case the trier of the facts should have the opportunity of observing the witnesses in order to pass upon their credibility.
In his affidavit in support of the motion for change of venue the guardian alleges that neither Betty K. Hilsdorf nor her children have the means to pay for the traveling expenses of the witnesses from Arizona to Pittsburgh, Pennsylvania. Furthermore, even if the cost of transporting the witnesses could be provided, it would nevertheless place a considerable burden upon the witnesses if they would be required to leave their businesses and personal affairs and travel to Pittsburgh for the trial. It is conceivable that a witness, whose testimony would consume half a court day, might be required to spend much more time away from his home if the case were tried in Pittsburgh, whereas the same witness would be available for call upon a few hours' notice if the case were tried in Phoenix.
Because the issue of be tried arose out of matters occurring in the State of Arizona, and in view of the fact that all of the witnesses who will testify at the trial are residents of Phoenix, Arizona, except the defendant, Paul Ginsburg, after balancing the conveniences and in the interest of justice, we conclude that this is a proper case for transfer pursuant to § 1404(a) of the Judicial Code.
The guardian is directed to submit an order in conformity with this opinion within fifteen days of this date.
As requested by the petition of Paul Ginsburg, I have reconsidered my decisions in the above matter. The briefs have been read and reread and another lengthy oral argument heard. I find no substantial reason to change my opinions.
With respect to the motion for summary judgment, by suggesting and giving the guardian the opportunity to secure counter-affidavits in Arizona, I perhaps exercised more care than necessary to ascertain whether the claim of the minor children was empty or vexations;
but I was persuaded that something should be shown to pierce the allegations of fact in the formal pleadings in view of the affidavit of Emil O. Anderson submitted on behalf of Paul Ginsburg.
As it turned out, the counter-affidavits submitted by the guardian not only supported the allegations set forth in the guardian's complaint, but satisfactorily demonstrated that there was a genuine issue of fact to be tried.
In opposing the change of venue to Arizona, counsel for Paul Ginsburg asserted at the oral reargument that the Mutual Life Insurance Company of New York filed the interpleader in the Western District of Pennsylvania as a result of a compromise whereby all the parties thereto agreed upon the venue being laid in the Western District of Pennsylvania where no action was pending. Previously, the Insurance Company had been sued in Arizona by the minor claimants and in New York by Paul Ginsburg. The latter argues that because of this alleged agreement, the venue cannot now be transferred to Arizona pursuant to 28 U.S.C.A. § 1404(a). This contention fails because there is nothing on the record to support the existence of the alleged compromise agreement. It was not even mentioned, so far as I am aware, until the reargument.
He further contends that the order transferring the cause to Arizona 'is not authorized by law and would be such a gross and arbitrary infliction of hardship upon the defendant, Paul Ginsburg, as to warrant his taking or applying for a writ of prohibition against such a transfer in the Circuit Court, if necessary'. He argues that the jurisdiction is fixed in this court by the interpleader statutes,
and that 28 U.S.C.A. § 1404(a), does not apply to this particular case. He further contends that 'the law never surrendered and the decisions have never abandoned the right of the individual to be sued in his place of residence.'
In view of these contentions, further consideration of § 1404(a) in connection with the interpleader statutes seems advisable.
Under the interpleader statutes, the stakeholder may bring the interpleader action 'in the judicial district in which one or more of the claimants reside', e. g., in Phoenix, Arizona, or in Pittsburgh, Pennsylvania. 28 U.S.C.A. § 1397. The court in the district where the interpleader action has been brought has the power to 'issue its process for all claimants * * * where the claimants reside or may be found'. 28 U.S.C.A. § 2361. Thus the minor claimants and Paul Ginsburg were effectively joined as parties by the Insurance Company to its interpleader action in Pennsylvania.
In my opinion, after the interpleader action has been brought, the process issued and the interpleader granted, under § 1404(a) the venue may be changed by the court having jurisdiction over the parties and the subject matter, if it appears, as I think it does here, that the change is for the convenience of the parties and witnesses in the interest of justice.
Section 1404(a) by its terms applies to 'any civil action' and it was intended to blanket the field and could appropriately be construed to include a contest between two claimants after interpleader has been granted.
Section 1404(a) presupposes at least two forums in which the action can be brought; beyond doubt the interpleader could have been brought by the Insurance Company in either Arizona or Pennsylvania. It also furnishes the criteria for choice between these states by placing 'in the hands of an impartial federal tribunal the determination as to where the suits can best be tried.'
I tried to point out in my original opinion that the balance of conveniences and the interest of justice favor a trial in Arizona.
The weight usually given to a plaintiff's choice of forum, see Nicol v. Koscinski, 6 Cir., 1951, 188 F.2d 537; Mazinski v. Dight, D.C.W.D.Pa.1951, 55 F.Supp. 192, is absent here since the plaintiff Insurance Company which brought the interpleader has been discharged as a party and will not participate as such in the trial on the merits.
Counsel for Paul Ginsburg also complains that I am overruling my associate, Judge Willson. When Judge Willson refused to change venue, the minor claimants and their mother were residing in New York, and no affidavits had then been filed showing that all the witnesses to the alleged parol trust, other than the claimant Paul Ginsburg, reside in Phoenix. The return of the family of the minor claimants to Phoenix and the disclosure of the residences of the witnesses in that place have shifted the balance of conveniences in favor of the change.
The order submitted by the guardian in conformity with the original opinion will be entered.