Van Dusen v. Barrack

PETITIONER: Van Dusen
RESPONDENT: Barrack
LOCATION: New York Supreme Court Appellate Division, First Department

DOCKET NO.: 56
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 376 US 612 (1964)
ARGUED: Jan 08, 1964 / Jan 09, 1964
DECIDED: Mar 30, 1964

Facts of the case

Question

Media for Van Dusen v. Barrack

Audio Transcription for Oral Argument - January 08, 1964 in Van Dusen v. Barrack

Audio Transcription for Oral Argument - January 09, 1964 in Van Dusen v. Barrack

Earl Warren:

56, the Honorable Francis L. Van Dusen, et al., versus Roberta Barrack, et al.

Mr. McConnell, you may -- or are you -- you were arguing next, are you Mr. --

Morton Hollander:

Yes.

Earl Warren:

Mr. Hollander, you may proceed.

Morton Hollander:

I'm going to present the additional argument on behalf of the petitioner.

Earl Warren:

Yes.

Morton Hollander:

And may it please the Court.

Before I get into my principal point, which will be that it was improper for the Court of Appeals to invoke its mandamus power in this case for the reason that -- that there was a remedy available under the Interlocutory Appeals Act and the plaintiffs, the respondents here, failed to seek relief under that Act.

And for the further reason that the district judge, in passing on this transfer motion, in no way act that in excess of his statutory prescribed jurisdiction and for that reason, his decision on the transfer motion was not a controllable by mandamus.

Before I reach those reasons with respect to my main point, I would like to advert to the question the Court was exploring yesterday afternoon.

That is the question as to whether, first, there will any substantial prejudice resulting to the plaintiffs as the result of the transfer of this case from Pennsylvania to Massachusetts and whether or not that prejudice effect, if the contingency of prejudice materializes whether that factor by itself constitutes the type of abusive discretion that should've precluded the district judge from effecting the transfer.

I would like to say with respect to that point preliminarily that so far as the Government, so far as the United States is concerned, that problem has no -- no relevance at all.

The Unites States is exposed to liability for compensatory damages irrespective of any state statutory ceiling on wrongful-death actions.

Under the Tort Claims Act, this Court in the Massachusetts' Bonding case held that the federal government cannot avail itself of the limits of liability under the Massachusetts' law even with respect to a death occurring in Massachusetts.

And the district judge realized this and -- and noted this in his opinion, and noted that that if there ever should be ultimate liability adjudicated as against the Unites States, the United States, whether the case is tried in Pennsylvania or in Massachusetts and irrespective of whether or not the Pennsylvania Courts accept or reject Kilberg, the potential liability of the United States is -- is unlimited.

That is it will be based on compensatory damages suffered by the plaintiffs.

Byron R. White:

You're speaking for yourself and you're speaking for the United States and not some other party?

Morton Hollander:

We're speaking -- my argument is being presented on behalf of all of the petitioners, but I do want to point that that one of the petitioners here is the United States.

The United States is one of the four or five defendants.

William J. Brennan, Jr.:

(Voice Overlap) -- but the other petitioners were -- are not --

Morton Hollander:

No, they're not --

William J. Brennan, Jr.:

Well --

Morton Hollander:

Here, they --

William J. Brennan, Jr.:

They're involved with the Massachusetts Bonding decision?

Morton Hollander:

No.

They're not involved with the Massachusetts Bonding case.

William J. Brennan, Jr.:

But what's your personal view Mr. Hollander whether the transfer would carry them when it comes to (Inaudible)?

Morton Hollander:

I think it will.

Judge Van Dusen thought it would and he said so.

Byron R. White:

Do you have any cases other than this one that --