The opinion of the court was delivered by: KLOEB
Plaintiffs move this Court for an order transferring this case to the United States District Court for the Western District of Pennsylvania, at Pittsburgh, under the provisions of Judicial Code, Section 1404(a), Title 28 U.S.C.A., which reads as follows: '(a) 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.'
Plaintiffs set up six grounds for their motion, the latter five of which were well known to plaintiffs at the time that the original complaint was filed in this Court on October 5, 1948. These latter five grounds are as follows:
'(2) Each and all of the plaintiffs above named reside in the Western District of Pennsylvania and are citizens of the State of Pennsylvania;
'(3) All the transactions set forth in the amended complaint herein occurred in the Western District of Pennsylvania, and at no place outside of said district, in which said district the defendant itself and its agents and employees were present at the time of the occurrence of the injuries complained of.
'(4) All the witnesses, over ten in number, whom plaintiffs will offer in support of the allegations of the amended complaint reside in the Western District of Pennsylvania, and all the witness to be injuries complained of in the amended complaint reside is said district.
'(6) Plaintiffs and each of them is wholly without means to pay the expenses of bringing said witnesses from the Western District of Pennsylvania, to the City of Toledo, for attendance upon the trial of the above entitled cause.'
After the filing of the complaint in this Court and obtaining service, an amended complaint was filed on January 4, 1949, and an answer was filed by the defendant company on January 13, 1949.
On April 15, 1949, counsel were notified by the Clerk of Courts of the assignment of the case for trial on May 9th, and in the same notice they were asked to prepare and file trial briefs not later than April 21st, and they were advised that a pre-trial conference would be held on April 22d, at 10 o'clock a.m.
When the case was called at the pre-trial conference on April 22d, counsel for plaintiff notified the Court and counsel for the defendant for the first time that, a few minutes previously, they had filed with the Clerk of Courts the motion for transfer of the case, and it seems that this was the first notification that counsel for defendant had had that plaintiffs intended to file such a motion.
The Court felt impelled at the time to dismiss the motion on the ground that it was untimely filed and proceed with the pre-trial conference, to be followed by the trial of the case. However, because the Court's study of the case had acquainted him with the fact that the principal plaintiff was a minor who had sustained serious injury, he felt that it would be more advisable to proceed with some caution in the disposition of the motion. Thereupon, counsel were requested to comply with the rule of the Court that requires written argument to be filed in due course in support of an in opposition to the motion. No attempt was then made to proceed with the pre-trial conference and the assignment of the case for trial on May 9th was vacated.
At the same time, the Court learned for the first time that a similar complaint to the one filed in this Court had been filed in the United States District Court for the Western District of Pennsylvania, at Pittsburgh, a few days after the complaint was filed in this Court, and that that case was resting on an undetermined motion filed by defendant for dismissal of the complaint on the ground that service of process had not and could not be had upon the defendant.
In their memorandum filed in support of their motion, plaintiffs are very frank in the statement of their position. On page 7, we find the following: ' * * * The objective to be attained by the statute is trial in that forum which will best serve the ends of justice and convenience and to make the ultimate selection of that forum independent of the vagaries and uncertainties of the service of process. That this concept is an innovation plaintiffs concede readily. * * * '
On page 8, we find the following: 'From this view- and that is the fair intendment of the statute's clear and unmistakable language- a plaintiff may bring his action in any venue permitted by statute and where he can obtain jurisdiction over the person of the defendant and then apply for transfer of the cause to that district which ...