The opinion of the court was delivered by: DUSEN
AND NOW, April 24, 1962, after consideration of the foregoing motion, briefs of counsel (Documents Nos. 55-58 & 60), letters of February 19, March 1, 9, 14 and 23 which have been attached to plaintiff's brief (Document No. 56) and defendant's brief (Document No. 55), oral argument and the record, IT IS ORDERED that defendant's Motion For Dismissal, or, in the Alternative, For Transfer Under 28 U.S.C.A. § 1404(a), is denied.
Defendant's Motion To Dismiss under the doctrine of forum non conveniens is based on the following facts, among others: the injury for which this suit was brought occurred in the Virgin Islands; plaintiff was first treated there; the eyewitnesses are there; the ship concerned calls there regularly; and plaintiff's present wife and four minor children reside there (see Document No. 27).
Although the doctrine of forum non conveniens is recognized in Federal law,
defendant has not sustained its burden of persuading this court that this is one of 'those rather rare cases where the doctrine should be applied.'
In refusing to exercise discretion and dismiss the case, the hearing judge notes especially the affidavits which have been submitted on behalf of plaintiff concerning his physical and financial condition (Document No. 43), the fact that a dismissal of this suit was require plaintiff to obtain counsel in the Virgin Islands and file suit there almost immediately in order to preserve his rights,
and the delay in defendant's filing one of its affidavits in support of its Motion (Document No. 44), thereby delaying the time when the ruling on this Motion could be made.
Such a dismissal would not be 'in the interest of justice' and the Motion has, therefore, been denied.
Defendant's alternative motion to have this case transferred to the District Court in the Virgin Islands has been denied on the ground that this court does not have the power to grant the Motion.
Under the doctrine of forum non conveniens, a case cannot be transferred but can only be dismissed without prejudice. United States v. Nat. City Lines, 334 U.S. 573, 591, 68 S. Ct. 1169, 92 L. Ed. 1584 (1948), rehearing den. 334 U.S. 862, 68 S. Ct. 1526, 92 L. Ed. 1781 (1948). Transfer of a cause from one District to another is a question of power and a District Court does not have the inherent authority to order such a transfer; the power must come from an express statutory grant. General Electric Co. v. Central Transit Warehouse Co., 127 F.Supp. 817, 824 (W.D.Mo.1955); United States v. 11 Cases, Etc., 94 F.Supp. 924, 926-7 (D.Ore.1950).
Statutory authority has been given in Title 28 of the United States Code to the District Courts to transfer any civil action only 'to any other district or division' by 28 U.S.C.A. § 1404(a). 28 U.S.C.A. § 451 states in part: 'As used in this title (Title 28): * * * The term 'district' and 'judicial district' mean the districts enumerated in Chapter 5 of this title.' Chapter 5 of 28 U.S.C.A. (see 28 U.S.C.A. §§ 81 to 144) does not include any district or judicial district of the Virgin Islands.
The Supreme Court of the United States recognized this exclusion in International Longshoremen's etc., v. Juneau Spruce Corp., 342 U.S. 237, 241, 72 S. Ct. 235, 96 L. Ed. 275 (1952), where this language is used in footnote 4:
'The new Judicial Code creates judicial districts for the District of Columbia, 28 U.S.C. § 88; for Hawaii, 28 U.S.C. § 91; and for Puerto Rico, 28 U.S.C. § 119; but none for the Canal Zone, the Virgin Islands, or for Alaska.'
There is no reason to believe that the exclusion was unintentional.
Congress has made specific provision for transfer of certain cases from inferior courts to the District Court of the Virgin Islands (48 U.S.C.A. §§ 1612 & 1613) in Subchapter V of Chapter 12 of Title 48 U.S. Code which provides for the Judicial Branch of the Government of the Virgin Islands. The Federal Courts have held that provisions similar to that in such Subchapter V, giving the District Court of the Virgin Islands 'the jurisdiction of a district court of United States' (48 U.S.C.A. 1612), do not bring it within the historical definition of the term 'district court of the United States' for all purposes. See Mookini v. United States, 303 U.S. 201, 205, 58 S. Ct. 543, 82 L. Ed. 748 (1938), where the court said:
'We have often held that vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a 'District Court of the United States."
Cf. International Longshoremen's, etc. v. Juneau Spruce Corp., supra, pp. 240-243, 72 S. Ct. pp. 237-239. The construction of the above-quoted wording of 28 U.S.C.A. 1404(a) is in accordance with the interpretation placed on similar Congressional language in federal cases involving the jurisdiction of Federal Courts in our territories and insular possessions. See Reese v. Fultz, 96 F.Supp. 449 (D. Alaska 1951); Ottley v. De Jongh, 149 F.Supp. 75, 77 (D.V.I.1957), ...