offer evidence in aid of either of the parties, but that in any event they would voluntarily come to Pittsburgh when so required; that the accident occurred in Western Pennsylvania waters according to the log of the vessel; that the crew members have no evidentiary value; that medical witnesses from Baltimore will be required to testify; that Baltimore is a few miles nearer to Pittsburgh than it is to Huntington; that medical experts from Pittsburgh will be called in support of the libellant; that the libellant was also at Monsour Clinic at Jeannette, Pennsylvania, which is approximately 25 miles from Pittsburgh; and that expert seamen will be called from Pittsburgh for the purpose of proving the libellant's case.
Although the libellant in her affidavit states that the seventeen witnesses would be willing to come to Pittsburgh if asked, there is no dependence upon such statements. For if they should refuse to come and the respondent should desire to have them, it could not compel their attendance at Pittsburgh because they are not within 100 miles of Pittsburgh. Federal Rule of Civil Procedure 45(e)
provides that witnesses may be compelled to attend within the territorial limits of the district or within 100 miles of the place of hearing or trial specified in the subpoena. This will not help the respondent if it desires the attendance of these witnesses.
as to the need by the libellant of expert seamen for the purpose of supporting the libellant's action, there is no indication by way of affidavit as to the substance of such expert testimony. However, this Court must be concerned with those witnesses who are substantially a part of the case itself, as they relate to the occurrence of an accident or incident and to doctors who have actually treated the person involved or who may have received the injuries, as against experts whose evidence is adduced from subsequent facts. This is in accord with the phraseology of the Act, '* * * the convenience of the parties and witnesses, in the interest of justice * * *'.
The overwhelming number of witnesses is more convenient to Huntington, West Virginia. The factors favoring the libellant in retaining the case in this jurisdiction cannot outweigh these conveniences. Wilson v. Ohio River Co., D.C., 211 F.Supp. 666 (1962). These Circumstances alone are sufficient cause for granting the respondent's motions to transfer the actions. But we have more than that involved here. Since it is obvious that the same facts are the basis for the action already transferred to the United States District Court for the Southern District of West Virginia in 1962, and since there are motions pending in that Court as the circumstances may relate to the appeal before the Pennsylvania Supreme Court, it is both reasonable and in the interest of justice that these actions be not spread about, but be assembled in a single forum for inclusive and judicious disposition.
And what is more significant, the filing of these two present actions in this district has the earmark of an attempt to subvert the transfer of the 1962 action to the United States District Court for the Southern District of West Virginia. This is strengthened by the libellant's motion to postpone its transfer from this district and the further motion in West Virginia to withdraw that action there, and by the entry of a state action in 1963.
It may be that these actions are independently and properly based, but in view of all the other circumstances, they will all be more justly determined by the United States District Court for the Southern District of West Virginia.
Accordingly, the motions for transfer of these actions will be allowed and inasmuch as the question of the disposition of the various actions of 1962 and 1964 are involved, the motions of the respondent to stay proceedings in this court and to strike the demand for jury trial here will be denied.