The opinion of the court was delivered by: ROSENBERG
The respondent, The Ohio River Company, filed motions to transfer the causes of action at Admiralty No. 64-15 and Admiralty No. 64-16 to the United States District Court for the Southern District of West Virginia, pursuant to the provisions as contained in 28 U.S.C . § 1404(a).
These actions are based upon alleged injuries received in an accident occurring on September 16, 1961, while the libellant was in the employ of the respondent and a member of the crew of the M/V Bob Genter.
On April 8th and April 9th, 1964, respectively, the libellant filed these actions against the respondent for maintenance and cure and for recovery of compensatory damages allegedly resulting from the same accident on the M/V Bob Genter on September 16, 1961.
On December 21, 1962, after a motion was made by the respondent for a change of venue at Civil Action No. 62-445, the action was transferred from this district to the United States District Court for the Southern District of West Virginia to serve the greater convenience of the parties involved.
On February 11, 1963, the libellant filed a motion in this court for leave to open, vacate or modify the order of transfer made in Civil Action No. 62-445 and that motion was denied. The matter then was appealed to the United States Court of Appeals for the Third Circuit, but that appeal was also denied.
The record further reveals that a motion was filed by the libellant in the District Court for the Southern District of West Virginia to discontinue the action there without prejudice. As of now, there is no record of any disposition of that motion.
In the meantime, on January 7, 1963, the libellant also had filed in the Court of Common Pleas of Allegheny County, Pennsylvania, an action against the respondent averring generally what appeared to be the same facts presently averred in these actions and the action which was transferred to the District Court for the Southern District of West Virginia.
The respondent filed preliminary objections in the nature of a motion to dismiss in the State Court on March 13, 1963, and the objections were sustained. The action in the Court of Common Pleas in the meantime has been appealed to the Supreme Court of Pennsylvania where it is now pending.
The motions presently before this court to transfer these actions to the District Court for the Southern District of West Virginia aver that the factual situations are identical to the action in the Court of Common Pleas and the 1962 action. The libellant does not contest this.
The respondent has also filed a motion to stay the proceedings in these two 1964 actions in this court pending disposition of the 1962 action in the United States District Court for the Southern District of West Virginia. Civil Action No. 1174 (the transferree filing number), and a motion to strike demand for jury trial.
The respondent has filed an affidavit supporting the averments contained in its motion to the effect that (a) the cause of actions occurred on the Ohio River; (b) the seventeen members of the crew of the M/V Bob Genter at the time of the alleged accident lived within 100 miles of Huntington, West Virginia, which city is the dispatch point for the respondent's vessels; (c) the libellant is a citizen of the State of West Virginia and resides in Huntington which is approximately 190 miles from Pittsburgh; (d) the libellant was treated for her injuries in the United States Public Health Service Hospital at Baltimore, Maryland which city is approximately 310 miles from Huntington and 275 miles from Pittsburgh; (e) two of the physicians who treated the libellant have offices in Huntington, while three of the physicians are on the staff of the United States Public Health Service Hospital in Baltimore, Maryland; and (f) nine members of the crew will testify factually to general conditions as of the area and time when the accident to the libellant is presumed to have occurred and other factual circumstances.
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 ...