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POPKIN v. EASTERN AIR LINES

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


April 6, 1962

Sidney W. POPKIN
v.
EASTERN AIR LINES, INC., and Lockheed Aircraft Corp., and General Motors Corporation and succeeding cases captioned in the orders of 10/17/61 (DocumentNo. 24 in C.A. 28664) and 11/1/61 (Document No. 7 in C.A. 29724), except Civil Actions Nos.30390 and 30391

The opinion of the court was delivered by: DUSEN

These 55 cases, *fn1" involving fatal and, as to three plaintiffs, non-fatal injuries suffered when an Electra airplane manufactured by Lockheed, having engines made by General Motors, and owned and operated by Eastern, crashed approximately one minute after take-off in Boston Harbor on October 4, 1960, are before the court on Motions to Transfer under 28 U.S.C.A. § 1404(a). There are 114 similar cases pending in the United States District Court for the District of Massachusetts (see Document No. 30 in C.A. 30078). The record in these cases (see, particularly, statements of Lee S. Kreindler, Esq. at the argument) indicates that the primary basis for liability on which the plaintiffs presently rely is alleged fault of the defendants resulting in bird ingestion by the turbo-prop engines of the plane involved in this suit, as well as in engines of other planes using the Logan International Airport, Boston, at about the time of the accident.

In Jurgelis v. Southern Motors Express, 169 F.Supp. 345 (E.D.Pa.1959), this court said:

 'In Norwood v. Kirkpatrick, 1955, 349 U.S. 29, 75 S. Ct. 544, 99 L. Ed. 789, the Supreme Court, in discussing the relation of 28 U.S.C.A. § 1404(a) to the doctrine of forum non conveniens as recognized by the Supreme Court in Gulf Oil Corp. v. Gilbert, 1946, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055, said at page 32 of 349 U.S. (29), at page 546 of 75 S. Ct. (545):

 "* * *, we believe that Congress, by the term 'for the convenience of parties and witnesses, in the interest of justice,' intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff's choice of forum is not to be considered, but only that the discretion to be exercised is broader.'

 'It appears, therefore, that under the present state of the law, the factors to be considered by a court in determining whether or not to transfer the action under § 1404(a) are established by the Gulf Oil Corp. case, *fn2" and the degree of discretion to be exercised by the court is established by the Norwood case.'

 The last sentence quoted above was approved by Chief Judge Biggs, sitting specially in this court, in Medich v. American Oil Company, 177 F.Supp. 682, 683 (E.D.Pa.1959). See, also, All States Freight v. Modarelli, 196 F.2d 1010 (3rd Cir., 1952), where the court said at page 1011:

 'The statute limits the privilege of the plaintiffs 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.'

 After consideration of the record in these cases, the undersigned has concluded that transfer is required under 28 U.S.C.A. § 1404(a), as follows:

 I. Convenience of the Parties

 In this case, plaintiffs claim their convenience would be served by a trial in this District and the defendants claim that it would be more convenient for them to have these cases tried in the District of Massachusetts. *fn3" The burden on the survivor-plaintiffs of presenting their damage testimony in the transferee District has not been overlooked, but this is a burden often falling upon persons who, having elected to travel away from home, are involved in accidents and must have been considered by Congress in enacting 28 U.S.C.A. § 1404(a). None of the affidavits allege that any of the plaintiffs is impecunious, nor is their financial condition stated in the record.

 II. Convenience of Witnesses

 The record makes clear that the District of Massachusetts will be more convenient for the presently known witnesses on the issues of liability and of degree of culpability of the defendants. *fn4" The Collins Affidavit (Document No. 31 in C.A. 28664) alleges that (a) all but six of the 47 eye witnesses to the accident known to General Motors reside in the District of Massachusetts and within 25 miles of Boston (par. 12); *fn5" (b) four of ten survivors of the crash reside in the District of Massachusetts and within 60 miles of the center of Boston; *fn6" (c) four employees of the Logan Airport who prepared the plane for flight reside in the vicinity of Boston; (d) seven operators of the control tower at Logan International Airport, who were eye witnesses to the aircraft's flight and crash and who would know the time of the take-off and crash, reside within 25 miles of center city Boston (see par. 15 of Document No. 31 in C.A. 28664); (e) all but one of the six experts who first examined the bodies of the dead birds reside within twelve miles of center city Boston and the Sixth such expert resides in New Hampshire, approximately 60 miles from Boston (see par. 17 of Document No. 31 in C.A. 28664); and (f) five other potential witnesses having knowledge of the presence of birds at the airport, and some of whom discovered dead birds at the airport, reside within 25 miles of Boston (see pars. 16 and 18 of Document No. 31 in C.A. 28664). *fn7" Also, it is clear that it will be more convenient for such witnesses if there is to be one trial, rather than several, and if the discovery can be conducted under the supervision of one court. *fn8" Cf. MacAlister v. Guterma, 263 F.2d 65, 68-70 (2nd Cir., 1958).

 Plaintiffs have not filed any affidavits contradicting the above sworn allegations, but have emphasized, generally, without listing any additional specific witnesses in their affidavits (except for six individuals listed without specifying the area of their testimony in Document No. 35 in C.A. 28741 and five individuals listed as damage witnesses for one plaintiff in Document No. 29 in C.A. 30078), that most of their compensatory damage witnesses come from this district or near it. *fn9" Experience in this and other Districts indicates that, once the issues of liability have been determined, relatively few of a large group of cases such as these, resulting from one accident, go to trial on the damage issues. Furthermore, as indicated below, there are several legal hurdles the personal representative plaintiffs have to overcome before compensatory damages become pertinent in their cases. *fn10"

 Some plaintiffs also stated in their affidavits that they seek to establish that the accident occurred as the result of negligent design and testing of the engines by General Motors, negligent design and testing of the aircraft by Lockheed, negligent testing of the aircraft, as well as negligent training and physical examinations of the flight personnel, by Eastern, and negligence of the Government in execution of its responsibility for flight safety. See par. 8 of Document No. 29 in C.A. 30078. At the argument, it was admitted that plaintiffs hoped that the Government agency investigating the crash would be able to show faulty design and testing of the aircraft and its engines, but no definite finding to this effect has been made over 18 months after the crash. Hence, there is nothing specific on the record to show that any large number of witnesses from outside the Boston area, and for whom the transferor District would be more convenient than the transferee District, will be required for the trial of the above-mentioned issues of liability and degree of culpability. Employees of the defendants from California and Indiana, referred to at page 10 of the Kreindler Affidavit, being Document No. 12 in C.A. 29724, would not be substantially inconvenienced any more by a trial in Philadelphia than one in Boston, *fn11" but it is clear that they will be inconvenienced by having to testify at trials in both places, as opposed to one trial in Boston (see footnote 8 above, showing that the transferee District is the only place where there can be a single trial.) Employees of the Civil Aeronautics Board, Bureau of Safety, will similarly have to testify in the District of Massachusetts in any event and, if the transfer of these 55 cases is denied, they will have to attend another trial in this District.

 III. The Interest of Justice

 The interest of justice requires the transfer of these cases to the transferee District for these reasons, among others: *fn8"

 (1) Consolidation of all the cases arising from this accident for purposes of proceedings before trial is likely to procure fairer and more orderly trials for all litigants and save needless time and expense for the public, including jurors, and other litigants whose cases are awaiting trial.

 See MacAlister v. Guterma, supra, 263 F.2d at 68-70; O'Donnell v. Watson Bros. Transportation Company, 183 F.Supp. 577 (N.D.Ill.1960); and cases cited in those cases. With reference to the argument in the attached letter of January 11, 1962 (based on a letter from the Clerk of the Massachusetts District dated January 9, 1962, which is also attached), that 'there is nothing to be gained administratively by the transfer of these matters to Boston,' the United States District Court for the District of Massachusetts has informed the undersigned that all the cases arising out of this accident have been assigned to one judge, who is handling all such cases for purposes of proceedings prior to trial and will consider possibilities of severance of issues for trial, as well as consolidation for trial, at the appropriate time. *fn12" As pointed out in Kelly v. Greer, 295 F.2d 18, 21 (3rd Cir., 1961), even after a consolidation order has been entered, it 'does not freeze the future conduct of the litigation.'

 (2) The conduct of as few trials as feasible on the issues of liability and culpability.

 The purpose of the Federal Rules of Civil Procedure was to encourage consolidation wherever this was fair and possible. See Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir., 1947); United States v. Knauer, 149 F.2d 519 (7th Cir., 1945), aff'd 328 U.S. 654, 66 S. Ct. 1304, 90 L. Ed. 1500 (1946); cf. Walker v. loop Fish & Oyster Co., 211 F.2d 777, 780-781 (5th Cir., 1954); Howey v. Yellow Cab Co., 181 F.2d 967, 973 (3rd Cir., 1950), aff'd sub. nom. United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523 (1951). In the Howey case, supra, the court said at page 973:

 'Surely the stricture of the Sherwood case * * *, would not serve to require second, separate trials with the United States as the sole defendant, the issue being one of contribution, for such second, separate trials would embrace the same evidence as that already received and would be conducted before the same judge.'

 Federal trial courts have consistently recognized the fairness and desirability of consolidating cases for trial, particularly on the issue of liability. See Weitort v. A. H. Bull & Company, 192 F.Supp. 165 (E.D.Pa.1961); Hassett v. Modern Maid Packers, Inc., 23 F.R.D. 661 (D.Md.1959); Polak v. Koninklijke Luchtvaart Maatschappij, etc., 19 F.R.D. 87 (S.D.N.Y.1956); and cases cited in those cases. In the Polak case, supra, the court said at page 88:

 'The advantages of consolidating multiple claims arising from a single accident outweigh even the considerations requiring strict enforcement of the rules on jury demand. * * * (Citing case.) Recent experience with the trial of such consolidated claims in this court indicates that almost invariably the only evidence peculiar to each claim is that relating to damages. Most of the trial court's time is consumed by the trial issues common to all of the cases. Considerations of expense as well as the convenience of witnesses, litigants and the Court, and the expeditious dispatch of judicial business, impel consolidation under such circumstances.'

 In the Hassett case, supra, involving five actions arising out of one accident, the court said at page 664 of 23 F.R.D.:

 '* * * it will save time for parties, witnesses, counsel and courts, to have the entire matter disposed of at one trial. * * *

 'The five cases should be consolidated for trial under Rule 42(a), but, as permitted by Rule 42(b), the jury shall first hear the evidence on the issue of liability and decide that issue for all of the cases.'

 It is neither fair nor just that there should be a different liability result for some of these plaintiffs than there is for others. Transfers under 28 U.S.C.A. § 1404(a) have resulted from the desirability of consolidating the transferred cases for trial with other similar cases pending in the transferee District. See A/S Dampskibsselskabet Svendbord v. United States, 116 F.Supp. 603 (E.D.Tex.1953), where the court said at page 606:

 'However, a more important consideration, it would seem, is that all of the facts and circumstances necessary to determine the rights of the parties will have to be presented both there and here at different times, and it is possible that the two Courts could reach conflicting conclusions; whereas if the case filed here is transferred, it can be consolidated with those in the Southern District of New York and all rights determined in a single trial without the possibility of such a conflict.'

 See, also, Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 21, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960); Cressman v. United Air Lines, 158 F.Supp. 404 (S.D.N.Y.1958); Winsor v. United Air Lines, 153 F.Supp. 244 (E.D.N.Y.1957).

 Recently, the United States Court of Appeals for the Second Circuit has emphasized the desirability of consolidation of separate actions involving common questions of law and fact for purposes of pre-trial and trial under the supervision of one judge or master. See MacAlister v. Guterma, supra. In Crosley Corporation v. Hazeltine Corporation, 122 F.2d 925 (3rd Cir., 1941), the United States Court of Appeals for the Third Circuit said at page 930:

 'It is of obvious importance to all the litigants to have a single determination of their controversy, rather than several decisions which if they conflict may require separate appeals to different circuit courts of appeals. No party has a vested right to have his cause tried by one judge rather than by another of equal jurisdiction. * * * The economic waste involved in duplicating litigation is obvious. Equally important is its adverse effect upon the prompt and efficient administration of justice. In view of the constant increase in judicial business in the federal courts and the continual necessity of adding to the number of judges, at the expense of the taxpayers, public policy requires us to seek actively to avoid the waste of judicial time and energy. Courts already heavily burdened with litigation with which they must of necessity deal should therefore not be called upon to duplicate each other's work in cases involving the same issues and the same parties.'

 (3) The District of Massachusetts is the only federal jurisdiction where all defendants can be served.

 The defendants (particularly the United States of America and Eastern Air Lines, Inc.) emphasized at the argument that they wish to join the Massachusetts Port Authority (owner and operator of the Boston airport) as a third-party defendant and service can only be obtained on that entity in the District of Massachusetts (see page 4 of Kreindler Affidavit, Document No. 12 in C.A. 29724). This court has consistently recognized that the ability to join a third-party defendant in the transferee forum is a consideration in favor of transfer. See Allied Petro Products Incorporated, etc. v. Maryland Casualty Company, E.D.Pa., 201 F.Supp. 694, and cases cited at pages 695, 696. The unfairness which can result from different results in separate trials of actions arising from the same accident is illustrated in cases such as Curtis v. A. Garcia Y. Cia, 272 F.2d 235 (3rd Cir., 1959), where differing records in two trials produced a liability result for defendant and third-party defendant which it is quite possible that neither fact finder would have reached if both actions had been considered at the same trial.

 (4) Other reasons favoring transfer of the cases in the interest of justice.

 In addition to the above factors favoring the transferee District as the only place where fair proceedings before trial and a fair trial for all parties on the issues of liability and culpability may be had, the following factors mentioned by the United States Supreme Court in Gulf Oil Corp. v. Gilbert (see second paragraph quoted in footnote 2, supra) favor trial in the transferee District:

 (a) The litigation will be handled 'at its origin,' rather than in this court, the docket of which is more congested than that of the transferee District (see par. 7 of Wickenhaver Affidavit, being Exhibit B to Document No. 31).

 (b) The trial of the issues of liability and culpability will be held 'in a forum that is at home with the state law.'

 One of the principle arguments of the personal representative plaintiffs who oppose the transfer is that they will be deprived of the benefits of the public policy embodied in the Pennsylvania Constitution (particularly Article I, Section 11, and Article III, Section 21, P.S.) if these cases are transferred. Cf. § 612 of Restatement of Conflicts of Law. This argument against transfer is rejected for these reasons, among others:

 A. There is no reason to believe that a Federal Judge, sitting in Massachusetts, will not be just as able in selecting and interpreting the applicable law as such a judge sitting in Pennsylvania will be.

 The Supreme Court of the United States has recently stated: 'The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties.' Richards v. United States, 369 U.S. 1, 82 S. Ct. 585 (1962). *fn13" In view of the possibility that the decision in the cases pending in the Pennsylvania State Courts referred to under B below may make moot the argument against application of the abovequoted rule in this case, it is not necessary to decide at this time such questions argued by counsel as the application to this situation of §§ 384, 391 (comment d), 412, 517 and 612 of the Restatement, Conflict of Laws, and as, when a case is transferred under 28 U.S.C.A. § 1404(a), does the transferee court determine the rights of the parties on the basis of the law that would have been applied in the District where the suit was originally filed. See Headrick v. Atchison, T. & S.F. Ry. Co., 182 F.2d 305, 309-310 (10th Cir., 1950); Gomez v. The SS. Dorothy, 183 F.Supp. 499, 512 (D.Puerto Rico 1959); Hargrove v. Louisville & Nashville Railroad Company, 153 F.Supp. 681, 684 (W.D.Ky.1957); Greve v. Gibraltar Enterprises, 85 F.Supp. 410, 414 (D.New Mex.1949); *fn14" and authorities cited in those cases. The transferee court will be better able to pass on these questions, if necessary, after decision of the cases pending in the Pennsylvania State Courts mentioned in footnote 20 below

 B. Contention that Pennsylvania public policy prevents enforcement of the measure of recovery but accepts the right of action provided in the Massachusetts Wrongful Death Act should not be ruled upon at this time.

 Relying on (1) a recent dictum of four out of seven justices of the New York Court of Appeals in Kilberg v. Northeast Air Lines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), to support the application of Article 3, § 21, of the Pennsylvania Constitution, *fn15" (2) an older Pennsylvania Supreme Court case ( Thirteenth & Fifteenth St. Passenger Railway Co. v. Boudrou, 92 Pa. 475, 481-482 (1880)) to support the application of Article 1, 11, of the Pennsylvania Constitution, *fn16" and (3) general language in Pennsylvania cases that foreign penal statutes will not be enforced in Pennsylvania courts, *fn17" the personal representative plaintiffs contend that they are entitled to recover compensatory damages without limit in these actions because of the alleged, strong Pennsylvania public policy opposed to the $ 20,000. limit in the Massachusetts Wrongful Death Act. Defendants argue that neither the Pennsylvania appellate court nor the Federal decisions have applied such a public policy to invalidate such foreign state limitations on recovery in the past. See, for example, Slater v. Mexican National R.R. Co., 194 U.S. 120, 24 S. Ct. 581, 48 L. Ed. 900 (1904); Knecht v. United States, 242 F.2d 929 (3rd Cir., 1957); Rennekamp v. Blair, 375 Pa. 620, 101 A.2d 669 (1954); cf. Hughes v. Pennsylvania Railroad Co., 202 Pa. 222, 228-229, 51 A. 990, 63 L.R.A. 513 (1902); and Quaker Worsted Mills Corp. v. Howard Trucking Corp., 131 Pa.Super 1, 8-9, 198 A. 691 (1938). *fn18" Also, defendants contend that the full faith and credit clause requires Pennsylvania courts to follow all the terms of the Massachusetts Wrongful Death Act, relying on First Nat. Bank of Chicago v. United Air Lines, 342 U.S. 396, 400-401, 72 S. Ct. 421, 96 L. Ed. 441 (1952); Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 67 S. Ct. 1355, 91 L. Ed. 1687 (1947); Bradford Electric Co. v. Clapper, 286 U.S. 145, 160, 52 S. Ct. 571, 76 L. Ed. 1026 (1932). Finally, defendants argue that if this Massachusetts Act may not be applied in these cases, there can be no recovery at all, since the plaintiffs have no remedy.

 However, in accordance with the repeated statements of the Supreme Court of the United States that District Courts should abstain from deciding issues involving the Constitution and public policy of a state so as to afford the state courts a reasonable opportunity to decide such matters, *fn19" the determination of the law governing the measure of damages in these actions should be postponed until the trial on the issues of liability and culpability has been completed. Meanwhile, a Pennsylvania appellate court decision may become available to enlighten us on the public policy of this Commonwealth in this situation, since there are two cases pending in the state courts in which there will be an opportunity for the foregoing contention to be submitted to the Pennsylvania courts. *fn20"

 Abstention of decision on this aspect of the case at this time will also prevent a premature decision on the Constitutional issue of the application of the full faith and credit clause. *fn21" Cf. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S. Ct. 643, 85 L. Ed. 971 (1941).

 Finally, it should be noted that the considerations stated in 28 U.S.C.A. 1404(a) require the transfer of the actions brought against the Government for these reasons, among others:

 (a) The basis of the claims against the Government makes it only fair that it be permitted to bring is as a third-party defendant the Massachusetts Port Authority, as operator of the airport.

 (b) The District of Massachusetts is the only District where all the suits against the Government may be brought (see footnote 8 above);

 (c) The Massachusetts Federal Court is most familiar with 'the whole law of the State where the act or omission occurred' which must be applied in the suits against the Government, see Richards v. United States, supra, at page 1 of 369 U.S., at page 585 of 82 S. Ct.; and

 (d) There is no contention that the above-mentioned public policy contained in the Pennsylvania Constitution applies to these Government suits, which are not governed by the measure of damages in the Massachusetts Wrongful Death Act.

 The many factors dictating transfer of the cases against the Government (19) *fn22" must be considered as a factor favoring transfer of the other cases pending in this District, so that all cases arising from this accident may be treated uniformly by the court which must dispose of the great majority of such cases.

 Plaintiffs in C.A. 30078, C.A. 30346 and C.A. 30284 contend that these wrongful death actions may not be transferred under 28 U.S.C.A. § 1404(a) since they were not appointed as personal representatives in Massachusetts and, hence, could not have brought the actions there, *fn23" relying on Hoffman v. Blaski, 363 U.S. 335, 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960). However, the Supreme Judicial Court of Massachusetts has held that a foreign personal representative may bring a suit under the wrongful death act and later qualify in the forum, *fn24" even though the Statute of Limitations has run at the time of such later qualification, *fn25" in Boudreau v. New England Transportation Company, 315 Mass. 423, 426-427, 53 N.E.2d 92, 94, where the court said:

 'Even apart from any admission under G.L. (Ter.Ed.) c. 231, § 30, this is not a case where there was no plaintiff in existence when the action was brought. The plaintiff was a live person in whatever capacity she was acting or purporting to act. The question was whether she had the capacity to maintain the action. She could assert that she had and could bring the action and try the issue of her competency to maintain it. The action was therefore not a mere nullity but was from the first a genuine lawsuit and an adequate basis for an amendment alleging an appointment in the State of the forum when such appointment was secured.'

  Although this is a close question, this contention of plaintiffs is rejected for these reasons:

 A. The District of Massachusetts is a District where Congress designated litigation of this type might be brought.

 The appropriate Congressional Title of the United States Code (Title 28 covering 'Judiciary and Judicial Procedure') provides in Chapter 85 (District Courts; Jurisdiction) at Section 1332(a) and in Chapter 87 (District Courts; Venue) at Sections 1391(a) and (c) and 1402(b) for institution of these actions in the District of Massachusetts.

 In determining where a suit might have been brought, the dissenting opinion in Paramount Pictures v. Rodney, 186 F.2d 111, 116 (3rd Cir. 1951), which was quoted with approval in Hoffman v. Blaski, supra, 363 U.S. at 343, 80 S. Ct. at 1089, states:

 'The district judge * * * had to decide whether the Northern District of Texas was a place where the suits 'might have been brought'. A reasonable and obvious way of determining this was to see whether Congress in some other statute had designated the places where litigation of this sort might be brought.

 'This background suggests that proper venue in more than one forum is the limiting context of the Code revision and that within this context Section 1404(a) substitutes a broad power of transfer for a more restricted pre-existing power of dismissal. Plaintiffs are prevented from abusing their normal privilege of choice among districts of proper venue. At the same time, courts are directed to respect the legislative enumeration of places which Congress has deemed appropriate for the trial of various types of litigation.' (pp. 116 and 118).

 B. A 'common-sense approach' in interpreting Section 1404(a) of Title 28 to accomplish its purposes requires a construction that these cases 'might have been brought' in the District of Massachusetts. See Continental Grain Co. v. Barge FBL-585, supra.

 For the reasons stated above, it is 'in the interest of justice' and 'for the convenience of * * * witnesses' that these actions be transferred to the District of Massachusetts. Under such circumstances, legal fictions such as the state which has authorized a personal representative to act should not be a basis for rejecting the use of 28 U.S.C.A. § 1404(a). See Continental Grain Co. v. Barge FBL-585, supra, 364 U.S. at 22-24, 80 S. Ct. at 1472, 1473. In distinguishing Hoffman v. Blaski, supra, the court said at page 22 of 364 U.S., at page 1472 of 80 S. Ct. of the Barge FBL-585 case:

 'Those cases involved transfers in which the plaintiffs filing the suits would have had no right whatever to proceed orginally against the defendants on the 'civil actions' in the District Courts to which transfer was sought without the defendants' consent. But in this case there was admittedly a right on the part of the grain company to subject the owner of the barge, with or without its consent, to a 'civil action' in Memphis at the time the New Orleans action was brought.'

 In applying 28 U.S.C.A. § 1404(a), courts do not consider all the defenses which might have been, or be, raised in the transferee forum and decide whether an action might have been successfully brought there. *fn26" See Greve v. Gibraltar Enterprises, supra, 85 F.Supp. at 412-413; cf. Ackert v. Pelt Bryan, 299 F.2d 65, (2nd Cir. 1962).

  The defendants, by requesting these transfers, will be estopped from objecting to the capacity of the personal representative plaintiffs to proceed in these actions. See Greve v. Gibraltar Enterprises, supra, 85 F.Supp. at 414. *fn27"


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