Gilbert v. Gulf Oil Corporation , 153 F.2d 883 ( 1946 )

AUGUSTUS N. HAND, Circuit Judge

(dissenting).

I think that the rule of forum non-con-veniens may be applied in cases brought in the United States Courts, whether the jurisdiction be founded on diverse citizenship or may arise for other reasons, except where Congress has prescribed a different rule. This result seems to be implicit in the opinions of both majority and minority in Baltimore & O. R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222, and Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104, and to follow explicitly from the opinion of Justice Douglas in Williams v. Green Bay & Western Railroad Co., January 7, 1946, 66 S.Ct. 284, 290. See also Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. Indeed, the final paragraph of the opinion in Williams v. Green Bay & Western Railroad Co. discussed whether the maintenance of that suit in the Southern District of New York was to be regarded as “vexatious or oppressive” in view of the availability of witnesses there and of the presence in that district of most of the defendant’s directors and of its corporate records, transfer and minute books. Therefore the question before us is simply whether in the present case the District Judge was justified in concluding that the maintenance of the action in the Southern District of New York, rather than in the Virginia District in which the plaintiff resided and the alleged tort occurred, was unduly burdensome to the defendant. I cannot see that anything is involved in the case at bar but the determination of whether the bringing of the action in New York was vexatious. While Judge Leibell in declining jurisdiction and granting the defendant’s motion to dismiss the complaint attempted to apply the New York rule of forum non-conveniens the issue was not one of substantive law but of procedure in the federal courts so that under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the New York decisions were pertinent only as instructive precedents and not as pronouncements of rules of law binding on the United States courts. Nevertheless the New York rule of forum non-conveniens in an action in tort like the present would not seem to differ from that of the federal courts for it cannot be supposed that in either jurisdiction a distinction would be made between personal torts and tortious injuries to property like those asserted in the case at bar. See Murnan v. Wabash R. Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Wedemann v. United States Trust Co., 258 N.Y. 315, 179 N.E. 712, 79 A.L.R. 1320; Gregonis v. P. & R. C. & I. Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R. 1. In the circumstances I think Judge Leibell exercised sound judgment in holding that under the rule of forum non-conveniens the jurisdiction of the Southern District Court was not properly invoked. Indeed the reasons which impelled his decision were the same that in Davis v. Farmers Co-operative Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996, moved the Supreme Court even to deny jurisdiction in actions against railroads brought in districts remote from those in which the torts were committed and in which the plaintiffs did not reside, on the ground that they would involve unreasonable burdens upon interstate commerce.

The affidavits show that some three hundred and fifty claimants having property stored in plaintiff’s warehouse reside in or about Lynchburg, Virginia, where the fire caused by defendant’s alleged negligence occurred. Defendant’s affidavits also say that the Jennings-Watts Oil Co., whose driver delivered the gasoline for the defendant to the plaintiff’s warehouse, has its business in Lynchburg; that various persons, including firemen, police officers and other municipal employees, who will be necessary witnesses in respect to the plaintiff’s gasoline storage and dispensing plant and its conformity with the local laws and ordinances, and the condition of the truck which delivered the gasoline are there; and several engineers and expert witnesses for the defendant reside in and about Lynchburg. The only answer of the plaintiff to these affidavits which would seem to have any importance is that some of the witnesses are scattered because of war conditions and their testimony can only be obtained by deposition; but there is no indication of how many of these witnesses there are and there is likelihood that they will be relatively few now that hostilities have ceased. The suggestion that the plaintiff will bring witnesses to New York gives the defendant no assurance that it can obtain those it needs without being compelled to rely chiefly on depositions. If there was ever a case where an effective defense was likely to be prevented and the plaintiff would be given undue advantage by a trial in New York I think this is one. The maintenance of the suit in the Southern District would be vexatious, inconvenient and wholly unnecessary and the order declining jurisdiction should be affirmed.