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TUCK v. PENNSYLVANIA R. CO.

July 9, 1954

TUCK
v.
PENNSYLVANIA R. CO.



The opinion of the court was delivered by: FOLLMER

Defendant has moved to transfer this Federal Employers' Liability action to the United States District Court for the District of New Jersey in accordance with the provisions of Title 28 U.S.C. § 1404(a). In support of its motion defendant filed affidavit of its District Claim Agent setting forth, inter alia, as follows:

(a) that the deceased, David G. Tuck, Jr., died as the result of injuries sustained while in the employ of defendant and while working on the premises of the L. A. Young Spring and Wire Corporation (hereinafter referred to as 'Young Corporation') at Trenton, New Jersey;

 (b) that under the terms of a certain agreement between defendant and the Young Corporation, the latter is under a duty to indemnify the railroad for damages or injuries resulting from any unsafe condition of the premises where the alleged accident occurred and to share liability from the joint or concurring negligence of both parties;

 (c) that the Young Corporation is not registered to do business in Pennsylvania, is not subject to the jurisdiction of this Court and has refused to come in and defend the action;

 (d) that defendant desires to join the Young Corporation as a third-party defendant;

 (e) that unless Young Corporation is made a party to this action, defendant will be deprived of its right under Rule 34, Federal Rules of Civil Procedure, 28 U.S.C., to enter upon its land for inspection and discovery and will furthermore be unable under Rules 33 and 36 to obtain discovery to the extent to which Young Corporation and its employees were guilty of negligence prior to and at the time of the accident and were responsible therefor;

 (f) that a view of the premises by the jury is necessary and desirable and such would be more convenient for a jury sitting in Trenton, New Jersey;

 (g) that three members of the crew of plaintiff's intestate, who were witnesses to the accident, reside in New Jersey and one in Wilmington, Delaware;

 (h) that four employees of the Young Corporation claim to have been witnesses to the alleged accident and they all reside in New Jersey;

 (i) that police and medical investigation of the accident were performed by local authorities at Trenton, New Jersey.

 From the pleadings it appears that plaintiff was appointed administratrix of the estate of the said decedent by the Courts of New Jersey.

 (a) that the transfer of the action would constitute an injustice to plaintiff;

 (b) that plaintiff has a special right to choose the venue under this Act and that this right has been regarded by the courts ...


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