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POPKIN v. EASTERN AIR LINES

March 25, 1966

Sidney W. POPKIN
v.
EASTERN AIR LINES, INC., Lockheed Aircraft Corp., and General Motors Corporation (and related cases)



The opinion of the court was delivered by: WOOD

 On October 4, 1960, an Electra airplane on a commercial flight from Boston to Philadelphia crashed into Boston Harbor shortly after take-off from Logan Airport. The airliner was owned and operated by Eastern Air Lines, Inc. and had been designed by Lockheed Aircraft Corp. which also had built the airframe. The propulsion engines were designed and built by General Motors Corp. The United States had supervised the licensing of the Electra for commercial use and controlled various aspects of the plane's last flight. All of the parties mentioned are defendants in some of these cases in some form.

 Defendants filed motions under 28 U.S.C. § 1404(a) *fn2" to transfer these cases to the District of Massachusetts, which were considered and granted by Judge Francis L. Van Dusen of this court. Popkin v. Eastern Air Lines, Inc., 204 F. Supp. 426 (E.D.Pa.1962). Plaintiffs thereafter obtained a Writ of Mandamus in the Court of Appeals on the ground that as the fiduciary plaintiffs had not qualified under Massachusetts law, the District of Massachusetts was not a court in which the actions "might have been brought." Barrack v. Van Dusen, 309 F.2d 953 (3rd Cir. 1963). The Supreme Court of the United States reversed the Court of Appeals and remanded to the district court holding that section 1404(a) must be so interpreted that the transferee district court, after a change of venue, is generally bound to apply the law of the state of the transferor and that the district court erred in ignoring several factors which stem from this conclusion in determining whether or not to grant the motions to transfer. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964). The case assumed a rather narrow interpretation of the transfer statute by regarding it merely as "federal judicial housekeeping" that authorizes only "a change of courtrooms." Van Dusen v. Barrack, 376 U.S. at 612 at 636-637, 84 S. Ct. 805, 11 L. Ed. 2d 945.

 Pursuant to the Supreme Court's directions, Judge Van Dusen scheduled additional arguments but before actual hearing, the Court of Appeals suggested that he remove himself from the cases after the plaintiffs had applied for a writ of mandamus seeking to disqualify him from sitting further in these cases. Rapp v. Van Dusen, 350 F.2d 806 (3rd Cir. 1965). The plaintiffs had alleged that he was biased, in fact or in appearance, because of his associations with defense counsel in the course of the prior mandamus action. Upon reassignment of these cases to us, we scheduled a hearing to consider the future course of this litigation.

 The defendants renewed their motions to transfer these actions to the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 1404(a). In support of their motions, defendants state essentially that a transfer would enable consolidation of these cases with the case in Boston, would be in the interests of many eyewitnesses and experts who would be saved a dual trial, would relieve a congested docket here and free us from duplicating Judge Julian's decisions and enable them to implead the Massachusetts Port Authority.

 Under Section 1404(a) it is clear that the burden is upon the movant to show by a preponderance of the evidence that trial will more conveniently proceed and the ends of justice will be better served by a transfer. The Supreme Court in Norwood v. Kirkpatrick, 349 U.S. 29, 75 S. Ct. 544, 99 L. Ed. 789 (1955) established that the discretion to be exercised in transferring a case was broader than that exercised under forum non conveniens. Jurgelis v. Southern Motors Express, 169 F. Supp. 345 (E.D.Pa.1959). However, moving defendants are still required to show a strong balance of inconvenience in their favor before a transfer will be granted. Calva v. American Air Lines, Inc., 177 F. Supp. 238 (D.Minn.1959). Plaintiffs' right to choose a forum is a very relevant consideration in weighing the disadvantages to defendants, especially when the plaintiffs are residents of the transferor forum. Cressman v. United Air Lines, 158 F. Supp. 404 (S.D.N.Y.1958). With these considerations in mind, we may now proceed to an analysis of the relevant factors. *fn3"

 The starting point in ruling on the transfer motions is the position taken by the United States Supreme Court in Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) where they suggested certain criteria which they "concluded * * * that the District Court ignored * * * which might well have been more clearly appraised and might have been considered controlling * * *." The suggestions of the Supreme Court were as follows:

 
1. "Since * * * Pennsylvania laws would govern the trial of the transferred cases, insofar as those laws may be significantly different from the laws governing the cases already pending in Massachusetts, the feasibility of consolidation and the benefits therefrom may be substantially altered. *fn4"
 
2. "[If] the transferred actions would not be subject to the Massachusetts culpability and damage limitation provisions, then the plaintiffs might find a relatively greater need for compensatory damage witnesses to testify with regard to the economic losses suffered by individuals. * * *
 
3. "[To] the extent that Pennsylvania laws are difficult or unclear and might not defer to Massachusetts laws, it may be advantageous to retain the actions in Pennsylvania where the judges possess a more ready familiarity with the local laws." Van Dusen v. Barrack, 376 U.S. at 643-647, 84 S. Ct. at 823.

 The Court, however, specifically refrained from commenting on the criteria relied upon by the District Court.

 Generally, we can hardly disagree with Judge Van Dusen's exhaustive and well-considered opinion concluding that a transfer was justified as of April 6, 1962. However, because of the Barrack and Griffith decisions of which he did not have advantage and because of circumstances occurring after 1962, we conclude at this time that these cases should not be transferred to the District Court for the District of Massachusetts. We will add only a brief note to the comments made by Judge Van Dusen ...


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