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KISKO v. PENN CENT. TRANSP. CO.

February 6, 1976

Eugene J. KISKO, Plaintiff,
v.
PENN CENTRAL TRANSPORTATION COMPANY et al., Defendants



The opinion of the court was delivered by: MUIR

 On February 15, 1975, Plaintiffs Kisko, Babcock, Snyder, Vonsik, and Whitmyer, while in the performance of their duties for their employer, Penn Central, were riding in a taxicab driven by James Long and owned by Charles Long, individually and t/d/b/a Long's Taxi Service. The trip originated in Renovo, Pennsylvania and was to terminate in Buffalo, New York. Near Holland, New York, the taxicab was involved in a collision with a vehicle driven by Gary Horning. Babcock, James Long, and Horning were killed in the accident. Kisko, Snyder, Vonsik, and Whitmyer were injured. *fn1"

 Whitmyer and Snyder each sued Penn Central in the United States District Court for the Western District of New York in two separate actions based upon the provisions of the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. Vonsik sued Penn Central, Charles Long, individually and t/d/b/a Long's Taxi Service, and the personal representatives of James Long in the same Court based upon the law of agency and negligence. Kisko then filed the above-captioned FELA action against Penn Central which has, in turn, lodged a third-party Complaint against Charles Long and the administratrix of James Long. *fn2" Currently pending before this Court is Penn Central's motion pursuant to 28 U.S.C. § 1404(a) for transfer of the above-captioned case to the United States District Court for the Western District of New York. *fn3" Although no brief has been filed with respect to this motion by the third-party Defendants, the motion is vigorously opposed by the Plaintiff Kisko. The motion will be granted.

  As is the case with nearly all motions, the burden of persuasion is on the movant. However, the case law suggests that because a plaintiff's choice of forum is to be afforded paramount consideration in the determination of a transfer request, this burden is something more than a mere preponderance of the evidence. Shutte v. Armco Steel Corporation, 431 F.2d 22 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871, 27 L. Ed. 2d 808 (1971); Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Since the passage of 28 U.S.C. § 1404(a), the showing required of a movant to support his request for a change of venue has been substantially reduced from what it was when the only method for achieving such a transfer was to invoke the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 30-31, 75 S. Ct. 544, 99 L. Ed. 789 (1955); All States Freight v. Modarelli, 196 F.2d 1010 (3d Cir. 1952). The principle of forum non conveniens was a judicial response to the misuse of otherwise proper venue by plaintiffs who sought to harass their adversaries by forcing trial at the most inconvenient of places, Gulf Oil Corporation v. Gilbert, supra, 330 U.S. at 507, 67 S. Ct. 839, and had potentially drastic consequences for the plaintiff. If the forum was found by the Court to be inconvenient, the case was dismissed and the plaintiff was at the mercy of the applicable statute of limitations governing in the forum which eventually was determined to be appropriate. All States Freight v. Modarelli, supra, at 1011. In contrast, transfer pursuant to § 1404(a) does not effect a dismissal of the case and, therefore, does not expose a plaintiff to the possibility that his cause of action will be time-barred. Given this significant difference between the consequences of granting a forum non conveniens motion on the one hand and a motion to transfer on the other, § 1404(a) has been regarded as more than a mere codification of the doctrine of forum non conveniens. Cf. Norwood v. Kirkpatrick, supra; Ex parte Collett, 337 U.S. 55, 69 S. Ct. 944, 93 L. Ed. 1207 (1949); Jiffy Lubricator Company, Inc. v. Stewart-Warner Corporation, 177 F.2d 360, 362 (4th Cir. 1949). Although the factors governing forum non conveniens motions as enunciated in Gulf Oil Corporation v. Gilbert, supra, and the importance of the plaintiff's choice of forum have not been eliminated as considerations in a § 1404(a) transfer request, the movant's burden has been reduced and the court's discretion expanded from what they were during the reign of forum non conveniens principles. Norwood v. Kirkpatrick, supra; Kilpatrick v. Texas & P.R. Co., 337 U.S. 75, 69 S. Ct. 953, 93 L. Ed. 1223 (1949).

 In determining the instant motion for transfer, the Court may properly consider only those facts which are undisputed or are a matter of record in the form of affidavits, depositions, stipulations, or other documents. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-757 (3d Cir. 1973). Mere allegations cannot be taken as proof of the facts alleged in support of the motion. Mayberry v. Maroney, 529 F.2d 332 (3d Cir. 1976). Consequently, because supporting documentation is lacking, the Court will not consider Penn Central's contention that many material and potentially unwilling witnesses reside beyond the subpoena power of this Court. However, for the purposes of this motion, the following are undisputed, supported by the present record or subject to judicial notice:

 1. Kisko has chosen to file this action in this Court, although he could also have filed it in the United States District Court for the Western District of New York.

 2. The location of this Court is significantly nearer to Kisko's residence and to the offices of his attorneys than the location of the proposed transferee court.

 3. Three civil cases which arise out of the same accident as the above-captioned case were pending in the United States District Court for the Western District of New York when this action was instituted.

 5. Many of the individuals who will testify in the three actions pending in the Western District of New York will be asked to testify in this case.

 6. The transferee forum is less than 250 miles from this Court and is 188 miles from Plaintiff's residence.

 7. The Plaintiff resides in Renovo, Pennsylvania, 56 miles from Williamsport, Pennsylvania, which is the place nearest his residence in this district for holding Court.

 8. The physicians and surgeons who treated Kisko after the accident, live in New York, the seat of the proposed transferee court.

 Given the foregoing, the overriding factor which militates in favor of the motion for transfer is the potential for avoidance of duplicative litigation. The Court is in complete agreement with those cases which have found the presence of a related case in the transferee forum to be a powerful reason to grant a change of venue. See Blanning v. Tisch, 378 F. Supp. 1058, 1061 (E.D.Pa. 1974) and cases cited therein. The interests of justice as well as the convenience of the parties and potential witnesses are not served when a federal case nearly identical to three other cases pending in a nearby federal jurisdiction is allowed to proceed separately. This Court cannot, of course, say with absolute certainty that, upon transfer, this case will be ...


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