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DETRICK v. BALTIMORE & OHIO R.R. CO.

August 20, 1971

Leo D. DETRICK,
v.
The BALTIMORE & OHIO RAILROAD COMPANY


Edward R. Becker, District Judge.


The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is an action brought under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1964), to recover damages for personal injuries allegedly sustained by the plaintiff on three separate occasions while working for the defendant railroad. Presently before us is defendant's motion to transfer the action to the United States District Court for the District of Maryland, pursuant to 28 U.S.C. § 1404(a) (1964). For the reasons hereinafter stated, the motion will be granted.

 The facts adduced from the complaint are as follows. Plaintiff is a resident and citizen of Ridgely, West Virginia. Defendant is incorporated under the laws of Maryland with its principal place of business in Baltimore. Plaintiff's three separate injuries all occurred during 1968 at the defendant's roundhouse in Cumberland, Maryland. Plaintiff alleges that: (1) on or about February 1, 1968, while employed by defendant as a pipefitter, he was removing the filter from the side of the jeep door of a locomotive when the filter broke, causing him to strike his arms and sustain personal injury; (2) on or about September 16, 1968, he was engaged in hooking a certain filter shield when, due to defendant's negligence, he was struck on both hands and sustained serious injury; and (3) on or about October 7, 1968, he was engaged in securing a filter in its housing when he slipped and fell by reason of a negligently maintained condition inside the engine and as a result suffered injury to the back, brain and nervous system.

 In its motion, with supporting affidavits which are uncontroverted, defendant sets forth that eight persons whom it presently knows to be witnesses in the case (three eyewitnesses who are employees of the defendant and five medical witnesses who have treated the plaintiff) all reside some 218 miles or more from Philadelphia, in or near the District of Maryland. *fn1" With one exception, they are within its subpoena reach, and all are beyond the subpoena power of this Court. Defendant asserts that all of these witnesses are necessary to its presentation of the case at trial, that it intends to call them if plaintiff does not, and that the expense of bringing them to Philadelphia would be great and would entail an untoward loss of time, particularly on the part of the physicians. Defendant's counsel has also represented to the Court that discovery is incomplete, and that it may result in other witnesses from Maryland being required to testify.

 From the pleadings and oral argument, it is clear that the only connections that this case has with the Eastern District of Pennsylvania are that plaintiff's attorneys are located in Philadelphia, and that plaintiff has chosen this Court as his forum. In view of the settled principle that plaintiff's choice of forum is entitled to great weight (see infra), plaintiff asserts that the facts of this case do not support a change of venue. In his brief, he alleges that: (1) the factual circumstances of each of the accidents are not complex; (2) the issues of liability are not substantial; (3) the "likelihood is that the railroad will be compelled to admit liability"; and (4) the fact that the defendant's witnesses are located outside the subpoena range of this Court is irrelevant, since "the defense will probably concern itself with the production of routine inspection reports of the equipment involved in the accidents." Defendant, however, does not concede that the factual circumstances of the case and the nature of its liability defense is simple or routine; it also does not concede liability on any of the three claims. In addition to the foregoing, plaintiff alleges that the doctors will "probably" be called by plaintiff as his witnesses and thus the defendant will not be inconvenienced.

 28 U.S.C. § 1404(a) provides for a change of venue in certain circumstances:

 
"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."

 Construing the doctrine of forum non conveniens, from which § 1404(a) arose, the Supreme Court noted in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947):

 
"The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment." Id. at 507, 67 S. Ct. at 842.

 In Gulf Oil, the Court listed the relevant criteria to be applied to transfers of venue for forum non conveniens : (1) relative ease of access to sources of proof; (2) availability of unwilling witnesses to service of subpoena; (3) cost of attendance at trial by willing witnesses (comparative distances to forum); (4) relation of community in which courts and jurors are required to serve to the occurrences at issue in the litigation; (5) accessibility of the premises involved in the litigation to view by the jury; and (6) relative congestion of court dockets and prospects for earlier trial.

 It is, of course, well settled law that unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, supra at 508, 67 S. Ct. 839. In order to invoke the doctrine of forum non conveniens, the defendant is required to show more than a limited degree of added convenience in trying the case in a different jurisdiction. Naughton v. Pennsylvania R.R., 85 F. Supp. 761, 763 (E.D. Pa. 1949). The circumstances of the case must establish such hardship on the defendant as would amount to vexatiousness or oppression if the court refused to relinquish its jurisdiction. Williams v. Green Bay & W.R.R., 326 U.S. 549, 554, 66 S. Ct. 284, 90 L. Ed. 31 (1946). A federal court exercises broad discretion in considering motions to transfer. Norwood v. Kirkpatrick, 349 U.S. 29, 31-32, 75 S. Ct. 544, 99 L. Ed. 789 (1955). Under the F.E.L.A., the right granted a plaintiff to choose a forum for the action is a substantial right, and although the action is not immune from an application of forum non conveniens, a railroad must unequivocably and definitely spell out a clear case of inconvenience and show a strong case for transfer. Skultety v. Pennsylvania R.R., 91 F. Supp. 118, 121 (S.D.N.Y. 1950).

 There are a plethora of cases dealing with § 1404(a), and defendant relies upon a number of them to support a change of venue. The ones which we consider to be the most apposite are Rogers v. Baltimore & O.R.R., 219 F. Supp. 598 (W.D. Pa. 1963); Hostetler v. Baltimore & O.R.R., 164 F. Supp. 72 (W.D. Pa. 1958); Carbeck v. Baltimore & O.R.R., 160 F. Supp. 626 (E.D. Pa. 1958); and Rhoton v. Interstate R.R., 123 F. Supp. 34 (E.D. Pa. 1954).

 In Rogers v. Baltimore & O.R.R., supra, an F.E.L.A. action was transferred from the Western District of Pennsylvania, sitting at Pittsburgh, to the Northern District of West Virginia, sitting at Clarksburg. The operative facts were that plaintiff's decedent resided in Grafton, West Virginia, where the accident occurred, 100 miles from Pittsburgh and 17 miles from Clarksburg. There were no eye-witnesses to the accident, but plaintiff's fellow crew members, who were to testify as to the defendant's operations, resided in Grafton and in Fairmont, West Virginia, which are close to Clarksburg but 100 miles and 92 miles respectively from Pittsburgh. Four doctors who treated plaintiff and would testify resided in Clarksburg, and the parties required the presence of the records and record custodians from ...


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