and that while a large number of medical witnesses are in Pittsburgh, their testimony will be cumulative.
The plaintiff in opposition to the motion for transfer, by affidavit, asserts that there were no eyewitnesses to the accident; that the injuries have disabled the plaintiff from working; that his medical treatment in Missouri was short and only after the accident; that he was confined to a hospital there, but that he was confined to the Harmarville Rehabilitation Center in this area for hospitalization and treatment for 110 days; that the long and major list of medical witnesses are all within the Western District of Pennsylvania; that none of these can be required to testify in Missouri; that the plaintiff, himself, is now indigent and cannot afford the expenses of transporting the witnesses for trial in Missouri; and that it would be an injustice to require that he do so.
Under 28 U.S.C.A. § 1404(a) provision is made, 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought'. But the facts as presented here by the defendant are conditional and vague. There is no persuasiveness in what the defendant asserts to indicate that the majority of witnesses will be inconvenienced by a failure to transfer this case to Missouri. While on the other hand, it is obvious that the plaintiff and his witnesses will be very much inconvenienced if a transfer is made.
We have another matter which must be considered. The plaintiff has made his choice of action in this forum. The Act was not intended to defeat the plaintiff in the right of bringing his action in such forum as he deemed proper to prosecute an action for such remedy as he may have under the circumstances, and wherever possible, consideration ought to be given to the choice of the plaintiff's forum. Dairy Industries Supply Association of Connecticut v. LaBuy, C.A.7, 1953, 207 F.2d 554.
The question here is in reality who has presented the greater need in whichever forum convenience will be enhanced. Transfer of an action in another District Court should be made only for the greater convenience of the parties or in the interest of jjstice. Wilson v. The Ohio River Company, D.C., 211 F.Supp. 666, 1962.
From all that appears here before me now, I cannot say that a transfer of this action ought to be made to Missouri. Accordingly, the motion of the defendant for transfer of this action to Missouri will be denied.
© 1992-2004 VersusLaw Inc.