The affidavit submitted by plaintiff's counsel emphasized a truism that it is solely in the discretion of the District Court of Maryland whether a case should be tried at Baltimore or at Cumberland; that plaintiff would have to procure Maryland counsel in the event of a transfer; and that it would be a grave hardship for him to try his case in Baltimore.
Although Keyser, West Virginia, plaintiff's home, is 30 miles farther from Baltimore than from Pittsburgh, the added expense for plaintiff to travel this distance is slight, cf. Henderson v. American Airlines, D.C.S.D.N.Y.1950, 91 F. Supp. 191; and if perchance the trial is held in Cumberland, it will be much more convenient and less expensive for plaintiff.
Neither the statute nor any decision brought to our attention has made the choice or engagement of counsel a factor to be considered in weighing the convenience of a litigant.
Alleged hardship unsupported by particulars by way of proof or affidavit cannot be accorded much weight in balancing conveniences.
From the supported facts it is obvious that the balance of convenience for the parties and the witnesses strongly preponderates in favor of transferring the case to the District of Maryland for trial either in Cumberland or Baltimore.
In addition, defendant asserts that an earlier trial may be had in the District of Maryland than in the Western District of Pennsylvania. It is relevant to consider the docket conditions of the transferor and transferee districts. Fannin v. Jones, 6 Cir., 1956, 229 F.2d 368; Healy v. New York, New Haven & Hartford R. Co., D.C.S.D.N.Y. 1949, 89 F.Supp. 614. Even Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 decided prior to the enactment of § 1404(a) suggested that the congestion of courts is a factor for consideration under the doctrine of forum non conveniens.
As stated by Chief Judge Gourley of this court in Sherman v. Baltimore & O.R. Co., D.C.W.D.Pa.1954, 122 F.Supp. 492, 493:
"Perhaps defendant advances a more cogent reason for transfer when it suggests that judicial notice should be taken of the crowded and congested dockets prevailing in the Western District of Pennsylvania compared to the Northern District of West Virginia."
Norwood v. Kirkpatrick, 1955, 349 U.S. 29, 75 S. Ct. 544, 99 L. Ed. 789 involved a Federal Employers' Liability Act case brought in the Eastern District of Pennsylvania. One of the plaintiffs was a resident of Philadelphia and two others were residents of Washington, D.C. Notwithstanding the residence of the plaintiffs and their right under the Act to choose the federal district court in Philadelphia as the forum, that court transferred the case to South Carolina where the accident happened and where the witnesses resided. This exercise of discretion was affirmed. Although it does not affirmatively appear, there can be little doubt that some of plaintiffs' medical witnesses resided in Philadelphia or Washington.
In All States Freight v. Modarelli, 3 Cir., 1952, 196 F.2d 1010, 1011, approved by the Supreme Court in Norwood v. Kirkpatrick, supra, Judge Goodrich stated:
"The statute [§ 1404(a)] limits the privilege of the plaintiff to have his lawsuit tried in the forum of his choosing if he can there get jurisdiction over the defendant. The purpose of the limitation is clearly to make the inevitably uncomfortable (for the litigant) judicial process cheaper and more convenient and, if possible, more prompt." (Emphasis supplied.)
It is our conclusion from the facts appearing in the affidavits that a transfer to the District of Maryland will make the trial cheaper for defendant, more convenient for the 13 witnesses, and if the trial is held in Cumberland, cheaper and more convenient for plaintiff. To the balance of convenience in favor of a transfer is added the opportunity for a speedier trial which according to current emphasis is highly desirable and clearly in the interest of justice. Fannin v. Jones, supra.
An appropriate order will be entered.