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    NORWOOD v. KIRKPATRICK, 349 U.S. 29 (1955)

    U.S. Supreme Court

    NORWOOD v. KIRKPATRICK, 349 U.S. 29 (1955)

    349 U.S. 29

    NORWOOD ET AL. v. KIRKPATRICK, U.S. DISTRICT JUDGE.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
    No. 337.
    Argued March 4, 1955.
    Decided April 11, 1955.

    1. Under 28 U.S.C. 1404 (a), which provides that "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," the district court has a broader discretion than under the doctrine of forum non conveniens. Pp. 29-33.

    2. 28 U.S.C. 1404 (a) is not merely a codification of the doctrine of forum non conveniens. P. 32.

    3. Three dining car employees who were injured in the derailment of an interstate railroad's train near Dillon, S. C., brought separate suits against the railroad under the Federal Employers' Liability Act in a Federal District Court in Pennsylvania. The defendant filed motions to dismiss or, in the alternative, to transfer the cases to the Eastern District of South Carolina. The District Court denied the motions to dismiss and granted the motions to transfer under 28 U.S.C. 1404 (a). Held: The judgment of the District Court was correct in law and warranted by the facts. Pp. 29-33.

    Affirmed.

    Joseph S. Lord III argued the cause and B. Nathaniel Richter filed a brief for petitioners.

    H. Francis DeLone argued the cause for respondent. With him on the brief was William H. Lowery.

    MR. JUSTICE MINTON delivered the opinion of the Court.

    The three petitioners, dining car employees, filed separate suits in the United States District Court for the Eastern District of Pennsylvania, against the Atlantic Coast Line Railroad Co. They sued under the Federal Employers' Liability Act for injuries received upon the [349 U.S. 29, 30]   derailment of one of defendant's trains near Dillon, South Carolina. The defendant filed motions to dismiss or, in the alternative, to transfer the cases to the Florence Division of the Eastern District of South Carolina. The District Court denied the motions to dismiss and granted the motions to transfer under 28 U.S.C. 1404 (a). *  

    Since the Court of Appeals for the Third Circuit had held, in All States Freight v. Modarelli, 196 F.2d 1010, that the order for transfer was not appealable, the petitioners filed applications for mandamus or prohibition to the district judge in order to require him to set aside his orders of transfer. The Court of Appeals denied the applications, and we granted certiorari. 348 U.S. 870 .

    The cases of the three petitioners present identical questions of law, were consolidated for argument here, and will be disposed of in this opinion.

    The district judge in granting the motions to transfer stated that if he had been free to construe 1404 (a) as he did in the case of Naughton v. Pennsylvania R. Co., 85 F. Supp. 761, he would have denied the transfers because, in his view, it called for an application of the stricter rule of forum non conveniens as recognized in decisions of this Court. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 . But since the Naughton case, the Circuit Court of Appeals for the Third Circuit had held, in All States Freight v. Modarelli, supra, that the district judge had a broader discretion in the application of the statute than under the doctrine of forum non conveniens. The district judge, therefore, followed the rule laid down in the All States Freight case, supra. We think the Court of Appeals correctly rejected the narrower doctrine of forum non conveniens and properly construed the statute. [349 U.S. 29, 31]   As Judge Goodrich, speaking for the court, appropriately pointed out, at p. 1011:

    Judge Maris, who was Chairman of the Judicial Conference Committee on the revision of the Code and approved the text submitted to Congress, sat on the Court of Appeals en banc when All States Freight was decided. And Judge Parker of the Fourth Circuit, consultant to the Advisory Committee, writing for the court in Jiffy Lubricator Co., Inc. v. Stewart-Warner Corp., 177 F.2d 360, 362, also construed the statute as we understand it:

    See also Moore, Commentary on the Judicial Code (1949 ed.), p. 208.

    When Congress adopted 1404 (a), it intended to do more than just codify the existing law on forum non conveniens. As this Court said in Ex parte Collett, 337 U.S. 55 -61, Congress, in writing 1404 (a), which was an entirely new section, was revising as well as codifying. The harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in 1404 (a) for transfer. When the harshest part of the doctrine is excised by statute, it can hardly be called mere codification. As a consequence, we believe that Congress, by the term "for the convenience of parties and witnesses, in the interest of justice," intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff's choice of forum is not to be considered, but only that the discretion to be exercised is broader.

    It is conceded by the petitioners that if the district judge was correct in exercising his discretion to transfer these cases under 1404 (a) without regard to the stringent requirements of forum non conveniens, then the Court of Appeals properly denied the applications for mandamus and prohibition. Since we agree that the district judge correctly construed the statute in evaluating the evidence, we do not find it necessary to detail the facts considered by him in reaching his judgment. It was correct in law and warranted by the facts. [349 U.S. 29, 33]  

    Since we find that the district judge properly construed 1404 (a), it is unnecessary to pass upon the question of whether mandamus or prohibition is a proper remedy.

    The judgment is

    MR. JUSTICE HARLAN took no part in the consideration or decision of this case.

    [ Footnote * ] "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."

    MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, dissenting.

    Under this judgment, Alexander Norwood, who lives in Philadelphia where he filed this suit for damages against the railroad, will have to go to South Carolina if he wishes to prosecute it. Joseph Tunstall and John Smallwood, both of whom live in Washington, D.C., will likewise have to go all the way to South Carolina if they hope to recover any damages against the railroad. All three allegedly suffered permanent injuries when a passenger train on which they were employed was derailed. The derailment, with which the plaintiffs had no connection whatever, is sufficient in itself to support a finding of negligence. See Jesionowski v. Boston & Maine R. Co., 329 U.S. 452 . Despite these circumstances, the district judge deprived Norwood of a trial in his home town, and Tunstall and Smallwood of one within 150 miles of theirs. This Court's decision, sustaining that result, sends the case to South Carolina, perhaps preventing it from ever being prosecuted because of the financial condition of the plaintiffs.

    This is thought justified by an interpretation of 1404 (a) of the 1948 revision of the Judicial Code, 28 U.S.C. 1404 (a). It provides:

    As words on a page torn from the history of our judicial development, this direction is utterly meaningless. How great must be the inconvenience before a judge could feel justified in ordering a transfer? When would it be "in the interest of justice" to do so? It is not difficult to imagine the baffled reactions of our judiciary were this mandate not accompanied by some explanation, were it not preceded by some experience in dealing with pleas to decline suits because of inconvenience and injustice. Compare the groupings of this Court and the remainder of the federal judiciary when confronted with the blank pages presented by the celebrated 301 of Taft-Hartley. See Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437 .

    But, fortunately, the command of 1404 (a) is accompanied by both history and explanation. The Reviser's Notes state:

    The federal courts, in exercising their discretion under this provision, are thus not set adrift on an uncharted sea, to order transfers according to their personal notions of justice. They are explicitly referred to the body of doctrine in Anglo-American law known as forum non conveniens, [349 U.S. 29, 35]   a doctrine which was certainly well developed at the time of the passage of the new Code. Indeed, shortly before the revision was introduced in Congress, this Court handed down two decisions setting forth the considerations which should govern the exercise of the trial judge's discretion. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 ; Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518 . These opinions clearly evinced the attitude with which these matters should be approached, the standard to be applied:

    There was a direct reference to the Koster decision in hearings before the Senate Committee considering the 1948 Code. Hearings before a Subcommittee of the Senate Committee on the Judiciary on H. R. 3214, 80th Cong., 2d Sess. 73-74.

    The basic issue in this case is whether the district judge should exercise his discretion in the light of these opinions, and in the light of forum non conveniens doctrine generally (of which these Supreme Court decisions are a particularization), or whether 1404 (a) expands the range of his discretion to an as yet unstated degree, and removes these decisions and other forum non conveniens cases as guiding precedents. The Courts of Appeals have divided on the issue. With the opinions cited by the majority, compare Ford Motor Co. v. Ryan, 182 F.2d 329; Nicol v. Koscinski, 188 F.2d 537; Wiren v. Laws, 90 U.S. App. D.C. 105, 194 F.2d 873. But see Amalgamated Assn. v. Southern Bus Lines, 172 F.2d 946, 948. The section itself is merely a restatement, in very generalized form, of the considerations thought to govern the question of forum non conveniens. The particular words or their equivalents recur in the cases and literature on the subject. 1 The Reviser's Notes repeat these factors and [349 U.S. 29, 37]   refer explicitly to forum non conveniens. Ordinarily, these considerations, standing alone, would afford cogent grounds for finding that the old doctrine was to continue as the prevailing rule. This Court said as much in Ex parte Collett, 337 U.S. 55, 56 , when it posed the issue:

    We held the doctrine was applicable to such cases.

    But now it is argued that since 1404 (a) has changed the judicial response to the inconvenient forum, providing for transfer rather than dismissal, the trial judge may exercise a broader discretion than was permissible under the old rule. The opinion of the Court, adopting this view, goes far toward assigning to the trial judge the choice of forums, a prerogative which has previously rested with the plaintiff. In so doing, the majority completely ignores the judicial and legislative background of forum non conveniens in cases arising under the Federal Employers' Liability Act.

    Section 6 of the FELA was amended in 1910 to permit suits to be brought "in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time [349 U.S. 29, 38]   of commencing" the action. 36 Stat. 291, as amended, 45 U.S.C. 56. We held that the congressional purpose manifested by this provision precluded the application of forum non conveniens to suits under the Act. Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44 ; Miles v. Illinois Central R. Co., 315 U.S. 698 . Agitation in Congress to limit venue under the FELA culminated in the attempted passage of the Jennings Bill, H. R. 1639, 80th Cong., 1st Sess.; the bill passed the House by a narrow margin, 93 Cong. Rec. 9193-9194, only to die in the Senate. But the 1948 revision of the Judicial Code, characterized by its legislative leaders as a noncontroversial revision and codification, see Ex parte Collett, supra, at 62, was held to overturn the Kepner and Miles decisions and make forum non conveniens applicable to actions under the FELA. In applying 1404 (a) to FELA cases, this Court said in Collett:

    Removal of the "judicial gloss" would merely repeal the Kepner doctrine and thus make FELA suits, along with any civil action, subject to forum non conveniens. This Court asserted just that in Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 383 :

    Again in Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 186 , we said:

    And as late as 1953, JUSTICES JACKSON, BLACK, and MINTON, dissenting in Wells v. Simonds Abrasive Co., 345 U.S. 514, 522 , made this statement:

    None of these cases is even mentioned by the majority. In each is implicit the principle that 1404 (a) embodies the doctrine of forum non conveniens; in each there is the uniform understanding of members of this Court that the language of 1404 (a) is merely a paraphrase of that rule. Instead, the majority applies a variation of the old Jennings Bill, which Congress refused to adopt at the same session in which it inserted 1404 (a) into the new Code. There is certainly nothing even remotely connected with the enactment of 1404 (a) to indicate that when the section and the Reviser's Notes referred [349 U.S. 29, 40]   to forum non conveniens - particularly as articulated in the then-recent Gulf Oil and Koster cases - they meant the Jennings Bill or anything like it. Still the majority adopts a slight modification of that rejected provision.

    Much is made of the fact that there is no legislative record of opposition to the adoption of 1404 (a). This, if true, is explained by the fact that the Reviser's Notes, as well as Congress' refusal to adopt the Jennings Bill, may well have lulled any opposition into a false feeling of security. The statements in Gulf Oil and Koster that the plaintiff's choice could be disturbed only if "the balance is strongly in favor of the defendant" and that this "rarely" is the case, together with the defeat of the Jennings Bill, is certainly sufficient evidence that Congress had no intention of seriously interfering with an FELA plaintiff's choice of forum. In this connection, we note the emphasis in Collett, 337 U.S., at 64 , on the difference between the Jennings Bill and 1404 (a); this is narrowed considerably if we permit a larger discretion in the district judge than was available under forum non conveniens.

    It is said that we must uphold a clear change in the statute made by the Congress. We certainly agree. But the language of 1404 (a), considered against the background of judicial discussion in this area, could mean nothing but the doctrine of forum non conveniens, and the Reviser's Notes state that the purpose of the change was to apply forum non conveniens rules to the transfer of civil cases in the federal courts. The direction of Congress is clear and unmistakable. Our duty is so to interpret 1404 (a), not to expand and enlarge upon it. Changes of this type should be made by the legislative branch. And the fact that Congress has through codification extended a previously recognized procedure to civil cases generally, with one slight change (i. e., transfer rather than dismissal), does not give this Court [349 U.S. 29, 41]   a blank check to recast the underlying law to suit its fancy.

    Concluding that the prior tenets of forum non conveniens apply, embracing the standards laid down in Gulf Oil and Koster, we cannot help but agree with the district judge that his discretion would have been exercised differently in the instant case if he had applied the law of those decisions. Without detailing all the facts here involved, we note that one of the plaintiffs resided in the district where this suit was brought. Under the usual forum non conveniens approach, this would virtually suffice, in and of itself, to preclude a refusal to retain the case for trial. See Blair, supra, at 413; Braucher, supra, at 916-917, 919; Dainow, supra, at 880. After all, the forum non conveniens situation generally envisaged is one involving a foreign cause of action and nonresident parties. See Blair, supra, at 34; Foster, supra, at 53. Apparently but one jurisdiction stands squarely behind the proposition that a court may decline to hear a personal injury suit, brought by a bona fide resident, in order to spare the defendant inconvenience and expense. Williamson v. North-Eastern R. Co., supra. That is the law in Scotland, a jurisdiction long noted for its distinctive doctrines in this area. 2 Forum non conveniens has [349 U.S. 29, 42]   no such impact in this country, and, in fact, Koster may be regarded as an extreme decision in depriving a plaintiff of his home forum. 3 With this the state of the law, both now and in 1948 when the Code was adopted, we certainly should require a more explicit direction from Congress before depriving an injured party of his privilege under the FELA of bringing suit in his own district - at least when the standards of Koster have not been applied.

    The district judge admitted that he had not exercised his discretion in light of Koster and Gulf Oil, the applicable decisions of this Court; he felt bound by a contrary decision of the Court of Appeals. He indicated very clearly that his decision would have been otherwise if he were free to follow the opinions we consider controlling. We should reverse and give the trial judge an opportunity to exercise his discretion under the proper standards.

    The question is one of considerable importance in the administration of the lower federal courts, and, considering the inadequacy of appeal, should be settled in this case if it is to be settled at all in the near future. Every appellate court which has passed on 1404 (a) implicitly recognizes the necessity for settling issues of law under [349 U.S. 29, 43]   the section. Even those courts which have refused relief, expressing the view that mandamus is an inappropriate remedy, have gone on to discuss the merits of the question presented. In re Josephson, 218 F.2d 174; All States Freight, Inc. v. Modarelli, 196 F.2d 1010; cf. Jiffy Lubricator Co. v. Stewart-Warner Corp., 177 F.2d 360. The Court's opinion in this case, by reserving the mandamus issue, follows the same course. We note, further, that the majority of Court of Appeals decisions dealing with 1404 (a) find mandamus appropriate in circumstances less compelling than these. Ford Motor Co. v. Ryan, supra; Atlantic Coast Line R. Co. v. Davis, 185 F.2d 766; Shapiro v. Bonanza Hotel Co., 185 F.2d 777; Wiren v. Laws, supra; Chicago, R. I. & P. R. Co. v. Igoe, 212 F.2d 378; cf. Nicol v. Koscinski, supra.

    I would reverse and direct that the transfer application be determined under forum non conveniens, and particularly the Gulf Oil and Koster decisions. The answer to the majority's contention that this would unduly curtail a desirable reform is simply that this dispute involves not merely "forum shopping," but the whittling away by judicial interpretation of the privileges and benefits of working men under the Federal Employers' Liability Act. The battle over the scope of their rights should be fought out in the Congress - as it was in the case of the Jennings Bill - and not in the courts.

    The Reviser's Notes say that 1404 (a) goes no further than forum non conveniens. That was what Congress acted upon, not the private opinion of some of the members of the Reviser's Committee. These distinguished participants may have thought their reform went beyond Collett. If so, they should have communicated their thought to the Congress where the final responsibility rests.

    Footnotes

    [ Footnote 1 ] See Koster v. Lumbermens Mutual Casualty Co., supra, at 527 ("convenience of the parties and the ends of justice"); id., at 530 ("interests of justice"); Gulf Oil Corp. v. Gilbert, supra, at 507 ("convenience of witnesses and the ends of justice"); Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 423 ("decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents"); National Shawmut Bank v. City of Waterville, 285 Mass. 252, 258, 189 N. E. 92, 95 ("ends of justice"); Universal Adjustment Corp. v. Midland Bank, 281 Mass. 303, 313, 184 N. E. 152, 158 ("ends of justice"); Great Western R. Co. v. Miller, 19 Mich. 305, 315 ("inconveniences and the danger of injustice"); Jackson & Sons v. Lumbermen's Mutual Casualty Co., 86 N. H. 341, 343, 168 A. 895, 896 ("ends of justice"); La Societe du Gaz de Paris v. La Societe Anonyme de Navigation "Les Armateurs Francais," 1926. Sess. Cas. (H. L.) 13, 16, 18, 22 ("the interests of all the [349 U.S. 29, 37]   parties, and . . . the ends of justice"); Logan v. Bank of Scotland, 1906. 1 K. B. 141, 149, 150 ("inconvenience" and "injustice"); Williamson v. North-Eastern R. Co., 11 Sess. Cas. (4th Ser.) 596, 598 ("ends of justice"). These cases and their terminology are covered in Barrett, The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. L. Rev. 1; Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908; Dainow, The Inappropriate Forum, 29 Ill. L. Rev. 867; Foster, Place of Trial - Interstate Application of Intrastate Methods of Adjustment, 44 Harv. L. Rev. 41.

    [ Footnote 2 ] Commentators, though endorsing the wider use of forum non conveniens, have been critical of the decision, Dainow, supra, at 884, n. 73, and have pointed up the civil law basis of its reasoning, Blair, supra, at 21, n. 100. The reasoning in Gore v. United States Steel Corp., 15 N. J. 301, 104 A. 2d 670 (1954), may be consistent with the Williamson result, but that case, decided after 1404 (a) and relying on litigation under that section, involved nonresidents. And dicta to the same effect in Universal Adjustment Corp. v. Midland Bank, supra, 281 Mass., at 315, 184 N. E., at 159, must be read in the context of the litigation before the court: suit by a resident assignee of a foreign claim against a foreign corporation. Compare United States Merchants' & Shippers' Ins. Co. v. A/S Den Norske Afrika Og Australie Line, 65 F.2d 392.

    [ Footnote 3 ] See American Ry. Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S. W. 401; Gamburg v. Ray, 167 La. 865, 120 So. 480; Arizona Commercial Mining Co. v. Iron Cap Copper Co., 119 Me. 213, 110 A. 429; Peters v. Equitable Life Assur. Co., 196 Mass. 143, 81 N. E. 964; Tri-State Transit Co. v. Mondy, 194 Miss. 714, 12 So.2d 920; Gregonis v. Philadelphia & R. Coal & Iron Co., 235 N. Y. 152, 139 N. E. 223; de la Bouillerie v. de Vienne, 300 N. Y. 60, 89 N. E. 2d 15; cf. O'Neill v. Cunard White Star, Ltd., 160 F.2d 446; The Saudades, 67 F. Supp. 820. Even in those cases where the objection is that the suit creates an unreasonable burden on interstate commerce, the fact that suit is brought in the plaintiff's home forum, though it may lack the near-conclusiveness it has in forum non conveniens cases, is nevertheless a fact of "high significance." International Milling Co. v. Columbia Transportation Co., 292 U.S. 511, 520 . [349 U.S. 29, 44]  

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