case. He "shipped out" of this district and obtained his sea-going employment in this district. He, for these and other reasons, visited Philadelphia frequently, living only as far away as New Jersey. By coincidence he was represented by the same law firm as represents the plaintiff in the present case. We might well suspect that he too sought the services of able and specialized counsel not available to him in the district in which he resided. Convenience-wise, that case probably involved less than one hundred miles. Notwithstanding, the Court held that plaintiff "had not brought himself within the provisions of the Suits in Admiralty Act concerning the place of suit ". (p. 580).
Suits involving injured minor seamen represented by a guardian have, on several occasions, come before the courts on the question of venue and in each instance it has been held that it is the residence of the minor which is determinative of proper venue and not the residence of the guardian. Horzepa et al. v. Dauski, D.C., 40 F. Supp. 476 (1941); Untersinger v. United States, D.C., 74 F. Supp. 155; 2 Cir., 172 F.2d 298; D.C., 87 F. Supp. 532; 2 Cir., 181 F.2d 953; Paschal v. North Atlantic and Gulf S.S. Co. Inc., D.C., 95 F. Supp. 293 (1950).
While the Court in the Horzepa case appears to have grounded its conclusion on the finding that the injured minor was the "real party in interest", other courts have reached the same conclusion, without specific reference to the "real party in interest". When Congress grounded venue upon the residence of the "suing" party it must have had in mind the party or parties ultimately benefitting from the suit and not a technical "party" to the suit selected and chosen for collateral reasons, whatever they may be, in districts having no other connection with the litigation. In any event, the venue decisions involving injured minor seamen support our conclusion in the instant case.
Moreover, if we chose to apply the "real party in interest" theory, we face the fact that in Jaffe v. Philadelphia & Western R. Co., 3 Cir., 180 F.2d 1010, an "administratrix" was held to be the "real party in interest" where, as here, the lawsuit was the only asset. However, in McSparran v. Weist, 3 Cir., 402 F.2d 867, 876, Jaffe was overruled. Thus, any proper application of the "real party in interest" theory lends no support to plaintiff's case.
Plaintiff contends that there are distinctions between a guardian for a minor and an administrator of an estate in that the latter actually takes title to portions of the estate and the former does not. But, these distinctions were discussed at length in McSparran v. Weist, supra, and found to be without a difference (p. 875).
Plaintiff further contends that defendants' motion constitutes a "collateral attack" upon the decree of the probate court. This theory, followed in Mecom v. Fitzsimmons, 284 U.S. 183, 52 S. Ct. 84, 76 L. Ed. 233, was heavily relied upon in Jaffe, now overruled in McSparran and held in McSparran to be insufficient to save an administrator appointed to create or manufacture diversity.
While there are distinctions and differences between administrators and guardians and distinctions and differences between "jurisdiction" and "venue", it is evident that they have something in common. This led the McSparran court to a discussion of cases involving both guardians and administrators and led to the same result as to both. We cannot find sufficient differences between a minor guardianship and a deceased's estate to reach the conclusion urged by the plaintiff. An injured minor acting through his guardian should have choices of venue at least equal to those of an estate acting through an administrator and we do not believe that Congress intended otherwise.
Citing McSparran v. Weist, supra, and Groh v. Brooks, 3 Cir., 421 F.2d 589, defendant urges, loosely stated, that just as those cases dealt with "manufactured" jurisdiction so here we deal with "manufactured" venue. To the contrary, plaintiff contends that the appointment of Terrence Martin as administrator was to obtain counsel in this district, that jurisdiction is already vested in this Court and that McSparran and Groh have no application to questions of venue. As already indicated, "jurisdiction" and "venue" do have something in common. Additionally, one of the motives back of "manufactured" diversity to obtain Federal "jurisdiction" may in many instances have been the same as the motive back of the appointment in the instant case, namely, representation by counsel unusually skilled in Federal personal injury litigation. Here again, McSparran and Groh appear to have something in common with the instant case and forced to do so, we might well conclude that this case involves "manufactured" venue of a sort. But we are not forced to do so and need only find what has been admitted to conclude that venue is improperly placed in this district. Venue, like jurisdiction, is determined by statute. Statutory and legislative intent cannot be defeated by individual and personal motives not falling within the statutory limitations. It is not the sovereign's consent to be sued which is in issue here, but its consent to defend in this district. From the beginning the defendant has vigorously objected to venue in this district and, unlike similar cases found in the reports, no waiver exists.
We thus face defendants' motion to dismiss or in the alternative to transfer. We will not dismiss for the reason that jurisdiction properly rests in the Federal Courts. Falciani v. United States, D.C., 87 F. Supp. 482 (1949). Therefore, transfer is inevitable but for the fact, once again, that this case has something in common with McSparran v. Weist, supra. Dealing, as we are, with a case of first impression, we must, in the language of the McSparran court, recognize that it is "our construction of the statute which determines" whether venue exists or not and that we may not follow "the unrealistic theory that the law has always been what the latest case for the first time declares it to be" (402 F.2d p. 877). In so doing we go beyond the considerations afforded the plaintiff by the McSparran court because here no previous ruling has been reversed or overruled. True, a transfer would not, on the surface, appear to impose an undue hardship upon the plaintiff estate. On the other hand, it may impose hardships of which we are unaware.
Therefore, we shall enter an order transferring this suit to the Northern District of California, but shall stay the effect of said order for a period of thirty(30) days to afford counsel an opportunity, if they so desire, to file with the Court a petition, motion or other appropriate pleading relating to resulting hardship, if any, and to show cause why this opinion should, as to this case, receive prospective application only.