consider the harshness of the doctrine of forum non conveniens, the hesitation with which it is applied, and the difference between that doctrine and a motion to transfer under 28 U.S.C.A. 1404(a).
In All States Freight v. Modarelli, 196 F.2d 1010 (3rd Cir. 1952), Judge Goodrich stated at page 1011:
'The forum non conveniens doctrine is quite different from Section 1404(a). That doctrine involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else. It is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing an action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section 1404(a) avoids this latter danger. Its words should be considered for what they say, not with preconceived limitations derived from the forum non conveniens doctrine.'
The doctrine of forum non conveniens allows a court to resist an imposition upon its jurisdiction even when that jurisdiction is authorized by a general venue statute.
The ultimate inquiry under it is where trial will best serve the convenience of the parties and the ends of justice.
A dismissal under the doctrine is only proper under special circumstances and without special circumstances the District Court should not decline to exercise jurisdiction over the case.
Under the doctrine, unless the balance is strongly in favor of the defendant's position, plaintiff's choice of forum should rarely be disturbed.
It might indeed be more advantageous to defendant if the case had been instituted in the Virgin Islands, where it could bring a third-party action against the West Indian Company,
but, although this is a factor to consider, defendant's rights against that company are not destroyed if the case remains here. It is also noted that even if the case were dismissed and an action brought in the Virgin Islands, the 'piecemeal litigation' about which the defendant complains would not be cured in view of the suit now pending in the District Court for the Southern District of New York, in which plaintiff is suing John W. McGrath Corp. on the same cause of action as is here involved.
The court had sufficient facts before it at the time of the April decision from which it weighed relative advantages and obstacles to a fair trial and found that the balance was not clearly in favor of defendant.
Plaintiff, a resident of this District,
who is impecunious and who is still receiving medical treatment here, has selected this forum. Although there is little to connect this forum with the action, there is sufficient to do so and there are sufficient facts to sustain refusal to dismiss this case.
As Circuit Judge Goodrich stated in Kontos v. The S.S. Sophie C., 184 F.Supp. 835, 838 (E.D.Pa.1960):
'The selection of the forum is in the first instance a matter where the plaintiff's choice is to be made and where, other things being equal, or nearly equal, it should control. If there is difficulty in proving the case and the libellants are unable to support their claim by adequate testimony, they will fail. That burden is on them. The conclusion, therefore, is that the balance of convenience indicates that the case should be retained here.'
The Petition For Rehearing and Reargument of the Motion to Dismiss will be denied, since the case, considered in light of the stipulation concerning the waiver of the statute of limitations contained in the Petition, is not one which should be dismissed under the forum non conveniens doctrine.
Motion For Transfer
The Petition asserts that the court was too restrictive in its interpretation of 28 U.S.C.A. 1404(a) when it held that this court had no power to transfer this case to the Virgin Islands under that Section. The memorandum of defendant on this point cites no cases which were not considered by the court before its decision was made and sets forth no reasons which would persuade the court to change its ruling as to this part of the order of April 24, 1962.
While appreciating the assistance which the New York counsel for defendant has given the court by its brief filed May 24, 1962, this court cannot disregard the plain words of Congress as used in Chapter 5 of 28 U.S.C.A. (28 U.S.C.A. §§ 81 to 144), as referred to at pp. 3 and 4 of Document 61, under the guise of reaching an alleged purpose or policy (see pp. 6-8 of the brief filed May 24, 1962) which is not clearly stated as applying to this situation.
Defendant's remedy is within the power of Congress, rather than within that of the District Court. Rehearing and reargument on this point would serve no useful purpose.
Application for Certification Under 28 U.S.C.A. § 1292(b)
The instant Petition asks, in the alternative, that if the court adheres to its order of April 24, 1962, certification authorized by 28 U.S.C.A. 1292(b) be granted. This alternative has been treated as a motion to amend the order of April 24, 1962, and will be granted since Circuit Judge Goodrich has said, under similar circumstances: 'If the Court is incorrect in the view here expressed, it would be unfortunate to have the parties go through a trial on the merits and then have the case thrown out because the forum was considered an inconvenient one.' See Kontos v. The S.S. Sophie C., 184 F.Supp. 835, 838 (E.D.Pa.1960), aff'd. 288 F.2d 437 (3rd Cir. 1961).