Pennsylvania for the purpose of laying venue.
Although the plaintiff was amenable to transfer under Section 1406(a) of Title 28 of the United States Code, we declined to avoid the issue by transferring the matter to the Middle District where, admittedly, the individual defendant Zimmerman resided.
Following our Opinion in that case, counsel for the defendants filed a motion averring that legal questions arising under Sections 1391(a) and 1392(a) of Title 28 of the United States Code had not been briefed by them and they wished an opportunity to further argue in opposition to the above decision. This we granted because we recognized that our decision was contrary to the holding in Jacobson v. Indianapolis Power & Light Co., D.C.1958, 163 F.Supp. 218, and, to some extent, to the decision by former members of this Court. At the outset, we do not retract from our opinion in that case as to corporate residence. The reargument did, however, point up another and more complicated question which, we believe, requires a definitive answer, particularly since the question seems to arise with considerable frequency. The final question is, under the facts of this case, assuming we are correct in our ruling that the corporate defendant is a resident of all Districts of Pennsylvania, when does Section 1391(a) apply and when does Section 1392(a) apply as to venue in a transitory action based on diversity of citizenship?
The factual situation we have before us is that the defendant Zimmerman is a resident of the Middle District of Pennsylvania and the corporate defendant is a resident of both the Eastern and Middle Districts of Pennsylvania.
Section 1391(a) provides:
'A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.'
and Section 1392(a) provides:
'Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.'
Defendant argues that only Section 1391(a) applies since both defendants resided in the Middle District but both defendants do not reside in the Eastern District.
We have searched the records carefully and have taken into consideration all of the cases cited by plaintiff and defendants, but have been unable to find a definite ruling on this precise situation. A summary of the cases cited in United States Code Annotated under the specific statutory provisions leads to the final, inescapable conclusions:
1. Venue statutes are prescribed by Congress;
2. Venue is a privilege which may be waived by either party; and
3. The broad general principle, and in the absence of statutory prohibition, is that a litigant may choose his own forum.
The provisions of these sections are not intended to affect the subject matter jurisdiction but are designed for the practical convenience of the litigants. Davis v. Smith, 3 Cir., 1958, 253 F.2d 286. The Supreme Court has said in Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 74 S. Ct. 83, 85, 98 L. Ed. 39:
'The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction.' (Referring to § 1391(a).)
The problem however, which is not answered by that case and was decided on other grounds is that while Section 1391(a) makes provision for a situation where all plaintiffs or all defendants reside in one district it does not cover the situation where they do not all reside in one district, whereas Section 1392 (a) refers specifically to that problem. In Melvin Lloyd Co. v. Stonite Products Co., 3 Cir., 1941, 119 F.2d 883, 887, Judge Maris stated:
'We have seen that the subject matter of the two sections (not referring to these specific sections, however) is distinct. Under these circumstances each should be given full effect if possible. In a broad sense, of course, each deals with the general problem of venue. if in this sense the sections may be deemed in pari materia they should be construed in harmony with each other so as to give effect to each, if reasonably possible.'
That case dealt with the applicability of the venue statutes to patent and infringement cases but the principle of law as stated by Judge Maris we think is applicable here.
Obviously, Section 1392(a) follows Section 1391(a) and the reasonable interpretation of that situation would be that § 1392(a) was to cover those situations not covered by § 1391(a) and we conclude that § 1391(a) covers only those situations where all plaintiffs or all defendants live in a single judicial district. Were this not so, § 1392(a) would apply only to 'local' actions and the inference is clearly drawn in Miller & Lux, Inc. v. Nickel, D.C.1957, 149 F.Supp. 463, with which we agree, that unless the action is local it may be brought under the provisions of § 1392(a). Where they are residents within the same state the action may be brought in any district in which they reside.
Counsel for defendants are convinced with the propriety of their position and have requested certification. Recognizing that on the question of the residence of the corporation, an important legal question arises on which there is a strong difference of opinion, as well as the possible conflict between the provisions of §§ 1391(a) and 1392(a), there is justification for certification of this matter under the provisions of Section 1292(b) of Title 28 of the United States Code. On these two specific issues, the Court is of the opinion that the matter does involve a controlling question of law and that there is substantial ground for difference of opinion and, further, that an immediate appeal from the order may materially advance the ultimate determination of the litigation involved.
We, therefore, reaffirm our decision and deny transfer on the ground of improper venue as provided in Section 1406(a) of Title 28 of the United States Code. Defendant has also asked us to transfer to the Middle District for the convenience of the parties and in the interests of justice as provided in Section 1404(a) of Title 28 of the United States Code. The record fails completely to show any facts which would move the Court to grant this motion. On the contrary, convenience would indicate that the case should be tried in the Eastern District and, parenthetically, we would add, notwithstanding defendants' argument, there is absolutely no evidence of 'hardship' as a result of our ruling relative to residence and venue.
And now, to wit, this 24th day of August, 1961, it is hereby ordered that the motion of the defendants to transfer under the provisions of Sections 1404(a) and 1406(a) of Title 28 of the United States Code is denied.
The issue of residence of the corporation and interpretation of Section 1391(a) and 1392(a) of Title 28 of the United States Code is certified to the United States Court of Appeals for the Third Circuit under the provisions of Section 1292(b) of Title 28 of the United States Code.