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KEPHART v. UNITED STATES

June 15, 1965

Alvin Evans KEPHART and John W. Kephart, Jr.
v.
UNITED STATES of America



The opinion of the court was delivered by: BODY

On October 21, 1963 plaintiffs, citizens of Montgomery County, Pennsylvania, filed a complaint in the United States District Court for the Eastern District of Pennsylvania against the defendant for negligent and wrongful damage to plaintiffs' land located in Gallatin County, Montana (near the northwest corner of Yellowstone National Park). Plaintiffs alleged that defendant, or its agents, workmen or employees, trespassed onto plaintiffs' land and destroyed approximately ten (10) acres of pine trees which rose to heights of approximately eighty (80) feet with butts up to twelve (12) inches in diameter. Plaintiffs also alleged that the removal of trees from their land resulted in appreciable damage to the land itself, thus necessitating considerable work to restore the land to its original condition.

On or about May 8, 1964 attorneys for plaintiffs and defendant agreed that the defendant would submit certain persons who were employees of the defendant, or closely associated therewith, for depositions to be held September 3, 1964 at West Yellowstone, Montana. On July 31, 1964 defendant filed a motion for a protective order to require plaintiffs to pay defendant's attorneys travel costs for taking said depositions. On August 4, 1964 defendant's motion for protective order was denied by this Court.

 On September 3, 1964 the depositions of six individuals were taken at West Yellowstone, Montana. Of the six persons deposed, four were employees of the United States Forest Service in that area, and the remaining two were engaged by the plaintiffs as a surveyor of Bozeman, Montana, and a real estate broker of West Yellowstone, Montana.

 From the foregoing set of facts, three motions have been presented to this Court:

 1. Plaintiffs' Motion to Amend Complaint

 2. Defendant's Motion to Transfer to the District of Montana

 3. Plaintiffs' Motion for Summary Judgment on the issue of liability alone

 PLAINTIFFS' MOTION TO AMEND COMPLAINT

 Plaintiffs' proposed amendment to the pleadings does not change any of the averments of the complaint with respect to liability, but only proposes a change with respect to damages. At the time of argument the Government had stipulated that it would not oppose this amendment. Therefore the Court need not consider this matter, and plaintiffs have leave to amend their complaint.

 DEFENDANT'S MOTION TO TRANSFER TO THE DISTRICT OF MONTANA

 The change of venue provision of 28 U.S.C.A. § 1404(a) states:

 '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.'

 Plaintiffs' contention that the change of venue provision of 28 U.S.C.A. § 1404(a) does not apply to actions brought under the Federal Tort Claims Act is without merit since this section consistently has been construed liberally to include even such actions as those brought under the Federal Tort Claims Act. Nowotny v. Turner, 203 F.Supp. 802 (M.D.N.C.1962).

 In considering motions for transfer it is necessary to determine what is more convenient for parties and witnesses in the interest of justice; and unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Gulf ...


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