The opinion of the court was delivered by: LUONGO
There is before me a motion to transfer this case to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a).
This suit seeks to recover damages for the death of Richard Alan Maxlow caused by a fire on September 14, 1969 in premises owned by the defendant, Catherine Leighton, in Avalon, New Jersey. Plaintiff, administratrix of the decedent's estate, is a citizen and resident of Pennsylvania. Defendant, a citizen and resident of New Jersey, is employed in Philadelphia, Pennsylvania, and for that reason was amenable to service of process in this district. Another suit which arises out of the same incident and which seeks damages for the death of Richard Alan Maxlow was instituted by this same administratrix in the United States District Court for the District of New Jersey against Avalon Real Estate Agency, the Borough of Avalon, the Avalon Volunteer Fire Company, and certain officers of the Avalon Fire Department. None of the defendants in the New Jersey suit is subject to service of process in Pennsylvania. The New Jersey suit alleges that the defendants named therein negligently permitted to remain on Catherine Leighton's premises a hazardous condition which contributed to the intensity of the fire which caused decedent's death. Catherine Leighton, defendant herein, has been joined in the New Jersey action as a third-party defendant.
Defendant's first two grounds for transfer merit little discussion. The first ground is that many of the parties and witnesses are from New Jersey and, hence, it would be more convenient to try the case in New Jersey. The distance between Philadelphia, Pennsylvania and Camden, New Jersey
is trivial and one forum is as convenient as the other.
Defendant's second argument, that this case will be controlled by New Jersey law and that it should therefore be transferred to a court more familiar with that law, is also not persuasive. First, it may ultimately be determined that under Pennsylvania conflict of laws rules,
Pennsylvania substantive law will be applicable to some or all of the issues raised. Further, New Jersey law in matters of this kind is not so unlike Pennsylvania's as to pose any special difficulty to a Pennsylvania court. For the same reason, no difficulty would be posed to a New Jersey court applying Pennsylvania law.
The real question in this case is whether the sole remaining ground for transfer, i.e. that there is pending in the transferee district another action, arising out of the same incident instituted by the same plaintiff but against different defendants, is sufficient, in itself, to justify transfer under § 1404(a).
Diligent search by counsel and by the court has failed to disclose any persuasive authority one way or the other, although there are cases from which arguments can be made pro and con.
There are cases, on the one hand, containing statements that pendency of similar actions in a proposed transferee district may be considered as one factor in determining whether a transfer is justified, but it is never of controlling importance. See Bayly Mfg. Co. v. Koracorp Industries, Inc., 298 F. Supp. 600 (D. Colo. 1969); Peyser v. General Motors Corp., 158 F. Supp. 526 (S.D.N.Y. 1958). These cases are not at all persuasive.
In Peyser, the district court concluded initially that the convenience of the parties and witnesses would be seriously impaired if the case were transferred. It was only in a footnote at the conclusion of the opinion that the court noted the pendency of similar actions in the proposed transferee district, and in dictum commented that such a factor was not of controlling importance.
In Bayly Mfg. Co., the district court stated, 298 F. Supp. at p. 603, that
"Pendency of similar actions in the proposed transferee district is a persuasive factor to be considered but it alone is not sufficient to justify a transfer."
The cases cited for that proposition [ Thomson & McKinnon v. Minyard, 291 F. Supp. 573 (S.D.N.Y. 1968); Blue Diamond Coal Co. v. United Mine Workers, 282 F. Supp. 562 (E.D. Tenn. 1968); Cressman v. United Air Lines, Inc., 158 F. Supp. 404 (S.D.N.Y. 1958)], however, lend little support to it. In both Thomson and Cressman, the cases were, in fact, transferred, consequently the comment was dictum. In the remaining case, Blue Diamond Coal, the district court stated that the possibility of consolidation was a strong factor to be considered in determining whether to transfer, but that it was not the only factor to be considered. The court denied the motion because it concluded that plaintiff could be prejudiced if the case were transferred.
There are cases, on the other hand, indicating that transfer solely for the purpose of consolidation is proper, but no case clearly holds that transfer of a simple tort claim is warranted solely to permit a single trial rather than two trials in separate forums.
In General Tire and Rubber Co. v. Watkins, 373 F.2d 361 (4th Cir.), cert. denied, Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 386 U.S. 960, 87 S. Ct. 1031, 18 L. Ed. 2d 109 (1967), the Court of Appeals for the Fourth Circuit held that a court may transfer a case from one district to another to prevent an extravagantly wasteful and useless duplication of the time and efforts of the federal courts by the simultaneous trial of two complex and elaborate cases involving substantially the same factual issues. The instant case and the one pending in New Jersey hardly ...