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

  • Oral Argument – January 08, 1964
  • 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 —

    Morton Hollander:

    The — the —

    Byron R. White:

    — would that Mr. Hollander?

    Morton Hollander:

    All of the other defendants in — in response to — to your earlier question, all of the corporate defendants, Eastern, General Motors and Lockheed stated at page two of their reply brief, state that the transferee district is required to apply the law of the transferor district.

    William J. Brennan, Jr.:

    What is the conflict (Inaudible)

    Morton Hollander:

    Including its conflict through.

    It’s exactly what they say including its choice of law rules.

    This is on page two of their reply brief and they cite a — a host of cases.

    Now the — the district judge — the district judge went into this problem.

    It’s not that he cavalierly brushed aside the — the problem of potential prejudice resulting to the plaintiffs as a — if the transfer were effective in a — a very comprehensive, a very well reasoned opinion.

    He goes into detail with respect to this problem and takes into consideration both of the factors that I had mentioned, namely the potential unlimited liability of the United States.

    He takes into account the rule of law upon which the corporate defendants rely, namely that the transferee forum takes the case in it’s entirely with all of the legal incidents surrounding it and just as if it had been tried in the transferor forum.

    He also points out, the district judge that the — all — the case hasn’t been adjudicated so far as liability is concerned.

    It maybe that — it maybe and we have reason to believe that there will be no ultimate determination of liability on the merits as against some, if not, all of the defendants.

    So that the question as to how much the plaintiffs will recover depends on a —

    William J. Brennan, Jr.:

    I don’t follow that.

    Why will there not be a determination against some of the merits?

    Morton Hollander:

    It may be that the district judge trying the case under the Tort Claims Act against the United States and the jury trying the case against the corporate defendants will conclude that there has been no showing of actionable negligence.

    The Court will remember that this was somewhat unusual accident, the basic claim of negligence is against all of the defendants is that the engines on this Lockheed were negligently designed so that they were conducive to bird ingestion and that the United States Government somehow should’ve cleared the airways of — of birds before the plane took off.

    Now, it may be — it may be that the — the defendants will be able to convince the judge and the jury respectively that there was no negligence in which event, all of these broad questions is to transfer, applicability of the damages recoverable in Pennsylvania as opposed to those in Massachusetts will never become pertinent in this litigation.

    The district judge also noted that the specific question as to whether or not Kilberg will be followed by the Pennsylvania courts was in active litigation in the Pennsylvania state courts.

    And he thought and I think quite — quite correctly, that it would be appropriate for him to stay his hand and defer any ruling on the damage questions until the State Supreme Court had spoken.

    William J. Brennan, Jr.:

    And this is on the premise as you suggest that the Pennsylvania conflicts will really have to be applied by the Massachusetts court if the transfer goes full?

    Morton Hollander:

    That was his — that was his — that was his plain view.

    Now, of course, this question was not passed on by the Court of Appeals.

    It was not — the parties do not directly touch on it in their briefs.

    Our record was not designated with the view to developing all the record we designated for the — for this Court after the petition for certiorari was granted, it was not developed along the line they’re focusing on this point.

    If it had been, we would have included in our — in the record an opinion handed down by the district judge after the opinion which is included in the record.

    He was asked to amend his transfer order and in denying the motion to amend, he said that this question as to whether or not the transferee forum is required to follow that law of the transferor forum including the choice it brought.

    He said that it was not clear in his mind — it was not — there — there was a conflict of authority, but he did continue to say, it would appear to this district judge that the conflict of laws, rules of the transferor district would govern the trial of these cases in the transferee district.

    This is — in his opinion, immediately after his original opinion granting the transfer.

    Morton Hollander:

    He also want — he also felt that the damage question does present some — some delicate — some very difficult questions as to constitutional objections to the carry over of Pennsylvania public policy if it ultimately — it should be determined that the Pennsylvania would follow Kilberg.

    The defendants had raised for example the question as to whether or not the Full Faith and Credit Clause, the Full Faith and Credit Clause requires a Pennsylvania court to apply not only the — that part of the Wrongful Death Act of Massachusetts that creates the cause of action for wrongful death.

    William J. Brennan, Jr.:

    But how long do they (Inaudible) this conflict problem as a federal question?

    Morton Hollander:

    Well —

    William J. Brennan, Jr.:

    As a — lay — laying aside for the moment the Full Faith and Credit Clause.

    Although I think (Voice Overlap) —

    Morton Hollander:

    — I think it’s a question this Court know and ultimately will have to furnish some guideposts to the lower courts and —

    William J. Brennan, Jr.:

    Well, what’s the nature of — well how — how does it — how was it made a federal question, do you know?

    Perhaps it is, I can — I can see the argument is based on the Full Faith and Credit Clause.

    Otherwise —

    Morton Hollander:

    The plaintiffs — the plaintiffs of course raise a constitutional question too in the sense that they claim that a — that they’re — that their clients are deprived of the equal protection of — of the laws unless a Pennsylvania resident who fortuitously is killed in a neighboring state has the benefit of the same compensatory damage theory of liability —

    William J. Brennan, Jr.:

    But my question doesn’t go to your position, the United States position but the position of the others.

    Morton Hollander:

    Yes.

    Well as I say, so far as the United States is concerned, this — this question has — has no materiality at all.

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    I think —

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    Well, most of the — most of the cases that we cite or at least all of the cases that are cited by the corporate defendant actually imposes a condition for transfer or they are – they are premised on the notion that there is such a federal conflict through all — that’s part and parcel of the statutory authority to effect the transfer and —

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    It would be entirely — it would be entirely reasonable.

    It would be entirely reasonable to fashion such conflicts rule on the basis of the transfer authority vested in the District Courts under 1404.

    Now, I think in these circumstances and in view of these problems, the presence of the constitutional question of the fact that the state courts were going to pass on the problem the fact that the district judge thought that the transferee forum was bound by the law of the transferor forum, the fact that the United States as exposed to unlimited liability, all of these considerations it seems to me make it perfectly clear what the — that when the district judge, nevertheless effected the transfer, he was not acting in such a fashion that it could be properly said he was abusing his discretion.

    Indeed, when this question of applicability of — some supposed Pennsylvania Kilberg rule to the cases, if the cases have been transferred to Massachusetts.

    When this question was the sole question which formed the basis for an attack on the district judge’s transfer order by certain of the plaintiffs involved in this litigation, they filed petitions for mandamus with the Court of Appeals limiting themselves just to this one question concerning which my remarks this morning had been addressed, the substantial prejudice resulting from the transfer or the possible prejudice resulting from transfer.

    When that was the only ground raised in a petition for mandamus in the Court of Appeals for the Third Circuit, the panel, a very distinguished panel, Judges Biggs, Chief Judge Biggs and Judge Goodrich and Judge Hasty, when they were considering only that contention, they denied mandamus and implicit in their rejection was the view by the Court of Appeals for the Third Circuit that there had been no abuse of discretion committed by the District Court so far as the substantial prejudice argument resulting from the transfer to Massachusetts was concerned.

    It was only after additional, additional plaintiffs raised, they might have been brought argument requirement namely that they’re failure to have a sort appointment as administrated in Massachusetts before they filed suit in Philadelphia, they argued that that precluded the transfer because their failure to seek (Inaudible) administration in Massachusetts prevented the Massachusetts forum from ever becoming a district in which the actions might have been brought.

    It was only after the additional plaintiffs raised that particular question or contention in their petitions for mandamus in the Court of Appeals that the Court of Appeals decided to reexamine the issue and then came forth with the opinion that we had thought was the one principally involved on this petition for certiorari.

    The Court of Appeals of course in that opinion held that is a result that they might have been brought requirement and the district judge was precluded from effecting a transcript.

    We think that — and it might have been brought requirement restrictive interpretation of 1404 (a).

    The — the consequences are — and in truth, disastrous so far as that litigation is concerned.

    Morton Hollander:

    A — a single airplane accident has a — given rise to as many as 60 or 70 different suits just against the Government in about 19 or 20 different District Courts.

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    The —

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    Well it — there of course on this record, there’s been no showing of — there’s been no showing that the plaintiffs are in any way impecunious or unable to defray the costs of this litigation.

    I don’t think the question of relative cause is important Mr. Justice Goldberg there.

    I don’t think that it’s the sole criteria and there are after all many additional far reaching considerations.

    One of which I think turns on the effective functioning of the federal judiciary.

    It — it seems to me to be unseemly to have 19 district judges particularly in view of the tremendous congestion in so many of Metropolitan areas to have 19 different district judges.

    Going over the same law, the same facts with respect to the same accident of — where it would be — and I think it was the principal beneficial purpose of Section 1404 (a) as well as the rules authorizing consolidation where it would be obviously desirable in — in view of the — the need for conserving the time and effort of — of federal judges to gather these cases together in one district even if some plaintiffs in some situation are put to some additional expense —

    William J. Brennan, Jr.:

    Well the —

    Morton Hollander:

    And —

    William J. Brennan, Jr.:

    (Inaudible) some are actions going out of this Act are already pending in Massachusetts.

    Morton Hollander:

    Over 114 Your Honor.

    William J. Brennan, Jr.:

    Right.

    Now, would the purpose of this transfer be to consolidate these actions in a single action with all of those pending in Massachusetts?

    Morton Hollander:

    Well, to — actually in — in — or in actual practice, after these cases have been transferred if the District Court’s order is reinstated, the district judge usually will select the test or composite case for trial or —

    William J. Brennan, Jr.:

    Well, what — well what puzzles me about this is, if — if the choice of law, if Pennsylvania’s choice of law will go with these cases to Massachusetts, it certainly is going to be a separate problem for whatever a Massachusetts judge tries these cases.

    Morton Hollander:

    Oh yes.

    William J. Brennan, Jr.:

    So the problem, he’s going to have to deal with —

    Morton Hollander:

    With respect —

    William J. Brennan, Jr.:

    — in the cases in Massachusetts.

    Morton Hollander:

    Yes.

    But I don’t think it’s a — a problem that — be too difficult for a district judge —

    William J. Brennan, Jr.:

    Well — well —

    Morton Hollander:

    — or even a jury to cope with.

    William J. Brennan, Jr.:

    Well, why — why not if — if the Pennsylvania laws and the uncertain state which tell us it is, why should a Massachusetts district judge have to wrestle with the uncertain, the Pennsylvania law?

    Isn’t they — Pennsylvania district judge at least — until he better qualify to do that?

    Morton Hollander:

    Not — not in an area where the — not in an area where the Pennsylvania Supreme Court has not yet spoken.

    In fact where everything that it has said seems to be entirely inconsistent with the application —

    William J. Brennan, Jr.:

    Well, certainly the Massachusetts judge have — has no advantage does he over the Pennsylvania District Court as to what is the state of Pennsylvania law?

    Morton Hollander:

    No, not unless they should as they may very well be forthcoming in the interim before final adjudication of liability if that contingency is ever realized unless they should be forthcoming in the interims some clear expression formulation have used by the Pennsylvania Supreme Court.

    Byron R. White:

    So, your — your point — you do have two or three points in what you’ve said in the — one in — just a — just a — but for reasons of economy of judicial manpower, it might be —

    Morton Hollander:

    Yes.

    I — I —

    Byron R. White:

    (Voice Overlap)

    Morton Hollander:

    I myself think it outrageous for so many cases to be tried in so many district — different District Courts —

    Byron R. White:

    It’s a legitimate consideration under 1404?

    Morton Hollander:

    Well I — I would certainly think that if the interest of justice, a criteria under 1404 (a) means anything, it certainly gives this Court sufficient latitude to take that factor of economy of judicial effort and time into consideration.

    Byron R. White:

    But —

    Morton Hollander:

    Because if you don’t — if you don’t, you really forestall all the litigants who properly are waiting to have their cases tried and adjudicated in that particular busy court.

    You force them to — you deny them — you deny them justice by forcing additional delays on them.

    Byron R. White:

    Well, how would — you say they would pick a test case and try it out and the rest of them would be settled?

    I suppose they could (Voice Overlap) —

    Morton Hollander:

    Well, it may — that may — that may —

    Byron R. White:

    — based on that — well why wouldn’t the same thing happen if — if the — if the cases were transferred.

    Some case was bound to be tried firstly and then — and have a result.

    Morton Hollander:

    And that’s — that’s a — it’s a possibility.

    The likelihood of all of the cases — of all the cases being effectively wrapped up and terminated though, I think depends in larger degree on the extent to which a particular District Court has power and jurisdiction to adjudicate all of the cases.

    Byron R. White:

    Has a — any — are there any cases pending in New York?

    Morton Hollander:

    No, Mr. Justice White.

    Not so far as I know.

    Tom C. Clark:

    (Inaudible)

    Morton Hollander:

    I think the only two jurisdictions of — are Massachusetts where there are 114 and those that are involved in Pennsylvania, approximately —

    Tom C. Clark:

    (Inaudible) I could see that Massachusetts passing (Inaudible) at this point and that the Supreme Court did not pass upon it in the interim which is unlikely (Inaudible)

    Morton Hollander:

    Well —

    Tom C. Clark:

    Do you know of any cases (Voice Overlap) —

    Morton Hollander:

    There are — there are.

    Yes, Your Honor.

    I mean, there are — there are cases actually now pending in the Pennsylvania courts arising out of this disaster.

    Byron R. White:

    Some of them have to be transferred?

    Morton Hollander:

    No.

    They’re in the state courts Your Honor.

    No, they cannot be transferred and I suppose that it will be necessary for the — for the Pennsylvania Supreme Court to reach out and — and decide that issue.

    And of course I —

    Tom C. Clark:

    (Inaudible) the interim, the inconvenience to the plaintiffs to that extent.

    Morton Hollander:

    I’m sorry, I didn’t quite —

    Tom C. Clark:

    (Inaudible) they’ve already employed attorneys, had they not?

    Morton Hollander:

    Oh yes, they’ve brought —

    Tom C. Clark:

    (Inaudible)

    Morton Hollander:

    Yes, that — that’s a — it will — will be necessary for either their present attorneys in Philadelphia to retain a — a counsel up in Massachusetts over the plaintiffs to get themselves additional attorneys.

    Tom C. Clark:

    How about the – (Inaudible)

    Morton Hollander:

    More courts dealing with these issues?

    Tom C. Clark:

    Well —

    Morton Hollander:

    It might, I think it would — I think it would work havoc.

    I think it’ll be — can create — even more chaotic conditions than are now being experienced.

    It would defeat, I — I think it would defeat entirely the beneficial purposes of 1404 (a) as well as consolidation.

    Tom C. Clark:

    (Inaudible) your argument was that to get more (Inaudible).

    You had them straight out, didn’t you?

    Even two (Inaudible) you have two courts (Inaudible)

    Morton Hollander:

    Well, a — a court having all of the cases in its — in its lap should be able to device some practical procedures so as to select a single case per trial, have a group of working attorneys selected so that it won’t be necessary for there to be 60 serving in different — different — 60 or 70 different attorneys raising objections with respect to every question.

    These — we had somewhat similar experience in the Texas City disaster litigation where there were literally hundreds of plaintiffs but it — under proper rules laid down by the district judge, these — the problems are very workable.

    Tom C. Clark:

    It took a long time in deciding that (Inaudible)

    Morton Hollander:

    It certainly didn’t take any longer Your Honor than it will to decide these cases because the plaintiffs are — were allowed to run up to the Court of Appeals to get review of an interlocutory transfer order.

    The cases started in 1960.

    The district judge transferred the cases about a year and a half later.

    Still a year later, the Court of Appeals decided the cases should stay in Massachusetts and Philadelphia.

    Today, four years after the accident and approximately three and a half years after the suits were filed, we’re still troubled by the question as to where the cases should be tried, not whether any of the defendants were negligent and if they were, how much would the damages be.

    But we haven’t — has yet solved the question as to where these cases should be tried and that factor I think — that factor I think is of extreme importance with respect to — in the — in the question I had set in my opening remarks, I did want to address myself to and that is whether or not the writ of mandamus is at all available in the Court of Appeals to challenge and to upset a District Court transfer order.

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    The District judge in Massachusetts is waiting for this Court to decide whether he’s going to have all of the cases as Judge Van Dusen ordered or whether he should go ahead and try just the 114.

    That’s entirely understandable because he’s afraid that if he goes ahead even with pretrial, the transferred cases, if they ultimately are transferred, the lawyers in those transferred cases will contend that they’re not bound at all by any of the pretrial orders of proceedings because they had opportunity to participate.

    Now, if —

    — reach the question of the District Court’s discretion then, is that it?

    Morton Hollander:

    No.

    The Court of Appeals —

    Suppose you —

    Morton Hollander:

    — they’re not — not this time Your Honor, although as I point the night before, I think that Goodrich, Biggs and Hasty did reach that question and they decided there was no abuse of discretion but this panel consisting of Judge Staley and Judge Forman and District Judge Lane, they said in their opinion that they are not touching any question of abusive discretion.

    They’re not —

    Suppose — supposing you prevail in this case, what should be the disposition?

    Morton Hollander:

    I — I think — I think in the — the — I think the interest of orderly administration of justice actually dictate in a case of this sort even though the Court of Appeals in the second go-round did not reach, although as I say, I think in the first round, they did reach this question.

    I think that rather than sending this case back to the Court of Appeals with an opportunity to them to go again into this problem.

    I think the case should go back to Judge Van Dusen with an instruction to reinstate his transfer order and then after these case has had been finally adjudicated, if there is any prejudice at all resulting or that will have resulted to the plaintiffs because of the transfer, then I think they can challenge the interlocutory transfer order and any prejudice flowing from it.

    They can challenge it as the traditional federal policy against the piecemeal appeals indeed requires them to challenge it after — after a final adjudication of liability, after a complete wrap up in disposition of the case by means of a final judgment, it will still be open to them to challenge it.

    Your view on mandamus is not accepted but your view on the merits of this case is accepted.

    Morton Hollander:

    Well, I think that that —

    What should be the disposition?

    Morton Hollander:

    I think that that would — I think that we would ask this Court in that event to reinstate the district judge’s transfer order.

    And not to send it back to this panel to review the question of discretion?

    Morton Hollander:

    Well, that’s of course the other alternative.

    I — I myself think that it — it would just mean adding another or two or three years delay to this — to this case, the situation where the — as I said the case has been pending for over four years and the courts don’t know — the District Courts don’t know themselves where it’s to be tried.

    I think that the —

    Tom C. Clark:

    (Inaudible)

    Morton Hollander:

    Massachusetts?

    No, Mr. Justice Clark, and the reason for that is that that Massachusetts’ district judge is reluctant to go ahead and try these cases and in the event that this Court reinstates or in event the District Court’s transfer order is ultimately upheld or reinstated, it would be necessary for him to go through extensive pretrial and perhaps trial procedures because if pretrial and trial procedures through which he would now go through with respect to the 114 cases now pending would of course not be binding on the plaintiffs in the Massachusetts cases.

    Tom C. Clark:

    (Inaudible) to the liability which is the same (Inaudible)?

    Morton Hollander:

    It depends of course on how the liability question is adjudicated.

    I’m quite confident that the plaintiffs in Philadelphia would not feel themselves bound by any adjudication of no liability in Massachusetts.

    Tom C. Clark:

    I don’t mean that, I think of — by the implications to the trial judge having had to experience at the trial on — on liability.

    There’s a 114.

    Tom C. Clark:

    Would — when this file came up here, they’re disposed of pretty quickly than the (Inaudible).

    So it appeared to me, if you have 114 people here who are waiting, four years (Inaudible).

    Morton Hollander:

    Yes, Your Honor.

    Tom C. Clark:

    Because five people trying to contest your defense where it could be from another jurisdiction, that would be —

    Morton Hollander:

    Well, I — I — it’s — it’s more than five of course Your Honor.

    And actually there are — there were 55 cases originally in Philadelphia.

    There are actually 37 cases that were ordered transferred by — by —

    Tom C. Clark:

    Only five here, aren’t they?

    Morton Hollander:

    Your Honor, no there are — well, those five cases referred to the five captions in the Courts of Appeals but there are 37 different civil actions in the District Court that — that were ordered transferred.

    There are complicating considerations because this is not going to be tried to a judge so far the corporate defendants are concerned though there have to be jury trials of course so far as the —

    Tom C. Clark:

    That would be true anyway if Pennsylvania law is different from Massachusetts law, you’d have to have a jury determination (Inaudible).

    Morton Hollander:

    Well, I — I would suppose that the questions could go to the jury or with special instructions with respect to Pennsylvania residents if it should turn out that Kilberg is adopted in Pennsylvania in the meanwhile that the Massachusetts — that ceiling is not — I — I think it’s entirely workable.

    I don’t — I don’t —

    Tom C. Clark:

    (Inaudible) to the jury, wouldn’t it?

    (Inaudible) as to what the plaintiff is doing and get $20,000 (Inaudible).

    Morton Hollander:

    Well, I — I have no personal experience but I — it would seem to me that under proper instructions a jury should come up with the — with the correct result otherwise its verdict could be set aside.

    (Inaudible) in review the question of discretion, what’s the citation in its opinion?

    Morton Hollander:

    They had no opinion Your Honor.

    They issued an order denying the petition for mandamus where the petition for mandamus was based exclusively —

    That the —

    Morton Hollander:

    — on the — it’s in the record at —

    Yes, but that doesn’t necessarily indicate that there was any review.

    In fact it was indicated to the contrary, the review of the — the District Court’s discretion just indicates procedural point, it was deciding in your favor at that point.

    Morton Hollander:

    I’m not quite sure I understand (Voice Overlap) —

    I thought you said — I thought you said —

    Morton Hollander:

    — you mean by the procedural points.

    — that on the question of discretion which the second panel of the Court of Appeals did not reach —

    Morton Hollander:

    Yes, Your Honor.

    — that that had already been reviewed by an earlier panel of the Court of Appeals.

    Morton Hollander:

    Yes, Your Honor.

    Morton Hollander:

    That is my point that the first Court of Appeals —

    Denying mandamus.

    Morton Hollander:

    — Biggs, Goodrich and Hasty had before it a petition for mandamus alleging abuse of discretion, alleging substantial prejudice that would possibly result if the Kilberg rule were ultimately adopted in Pennsylvania.

    Notwithstanding those assertions, that panel refused to grant —

    Grant the mandamus.

    Morton Hollander:

    — the petition for mandamus and I think implicit in that refusal is a value judgment by the Court of Appeals that if that’s all you’re complaining about, you don’t have enough to trigger us to grant the extraordinary writ of mandamus.

    When they might have been broad argument was raised, the picture was entirely different so far as the thinking of the Court of Appeals was concerned because then — then they did grant — grant mandamus but on an entirely different panel.

    What’s the citation to that earlier disposition?

    Morton Hollander:

    The order denying —

    The order denying —

    Morton Hollander:

    The petitions for mandamus —

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    — are set forth at page 49 and page 50.

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    There were two separate orders denying those.

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    We don’t — we don’t.

    We don’t.

    My point is this — my point is this that when that’s the only question in the case, it was improper for the Court to issue mandamus whether it was improper for the Court to issue mandamus because they felt that they were barred by the plaintiff’s failure to invoke the Interlocutory Appeals Act or whether they felt that mandamus was barred because the necessary abuse of discretion.

    Now it seems — seems to be immaterial.

    In both instances, they felt that the district judge — judge’s order should not be set aside on mandamus but that if there — still will be any prejudice or harm resulting to the plaintiffs, the determination of this entire proceedings, the appropriate time to raise the question of the propriety of the transfer is after final judgment has been entered.

    Arthur J. Goldberg:

    (Inaudible)

    Morton Hollander:

    It — it — it — let — let me — let me backtrack just a bit.

    If the Court of Appeals is of the view as it apparently indicated in its opinion in this case that the interlocutory or the failure to exhaust the Interlocutory Appeals Act is not a bar to their issuance of mandamus, I would suppose that it would be entirely proper to imply from the Court of Appeals’ refusal to issue the writ that they were not relying on that ground but that they were relying on the ground that there has been no abuse of discretion.

    The Court of Appeals in this case says that they had earlier ruled that the Interlocutory Appeals Act, that the failure to exhaust the Interlocutory Appeals Act was not at bar.

    If I may Your Honor, address myself to just one aspect —

    Earl Warren:

    (Inaudible) — time, I think you better — we better get the rest from your brief except for questions that we — we asked and I would like to ask you one question.

    You, early in your argument, you started to tell us whether there was anyway in which the plaintiffs in these cases could be prejudiced by the transfer order and then you were diverted I think by questions that were asked.

    Is there any way by which these people might be prejudiced as a result of this order?

    Morton Hollander:

    I don’t think so Your Honor and as I say, the district judge did not think so and all of the corporate defendants take the position that the law to be applied in the transferee forum will be precisely the same as the law that would’ve been applied had the cases stayed in Pennsylvania.

    (Inaudible)

    Morton Hollander:

    The law of Pennsylvania?

    The law that Pennsylvania was —

    Hugo L. Black:

    (Inaudible) the same law which control (Inaudible) was tried in Pennsylvania, now what law would that be?

    Morton Hollander:

    Well, my remarks of course are directed to the troublesome question as to the damage issue because obviously —

    Hugo L. Black:

    But I just — I don’t want to (Inaudible) any longer but what law, you didn’t’ — you don’t state what law, the law of Pennsylvania or the law of Massachusetts?

    Morton Hollander:

    The — the law of Massachusetts gives these plaintiffs the right to maintain along —

    Hugo L. Black:

    I understand that.

    Which law would’ve controlled if it — if it go with — to Massachusetts, the law of Massachusetts or the law of Pennsylvania?

    Morton Hollander:

    Oh, the law of Pennsylvania Your Honor.

    That’s our whole point that the —

    Hugo L. Black:

    Is that what you say (Voice Overlap) —

    Morton Hollander:

    Oh yes, Your Honor.

    And that’s what the district judge said in that quotation on —

    Hugo L. Black:

    — I wasn’t sure which position you were taking.

    Morton Hollander:

    Oh no, that’s our position.

    Byron R. White:

    Do you really mean (Inaudible) that the same law will apply aside from Massachusetts as would’ve applied if it was decided in Pennsylvania, that’s what —

    Morton Hollander:

    Yes.

    Byron R. White:

    — you mean that the–

    Morton Hollander:

    Yes — yes Your Honor.

    Byron R. White:

    And if it were tried to Pennsylvania, it may be that the Massachusetts law would apply.

    Morton Hollander:

    That — that may very well be the ultimate determination of the Pennsylvania —

    Byron R. White:

    Maybe it would unless the Pennsylvania courts —

    Morton Hollander:

    Right.

    Byron R. White:

    — followed the New York Kilberg case.

    Morton Hollander:

    Yes, and that’s why I say there’s no prejudice —

    Byron R. White:

    — your answer is not that the law of Pennsylvania would apply if it’s tried in Massachusetts.

    Morton Hollander:

    Well the laws of Pennsylvania including the Pennsylvania’s conflict, the choice of the rules proposition —

    Byron R. White:

    — and if that is not —

    Morton Hollander:

    It’s — its — its entire Pennsylvania law including its conflicts rules.

    Byron R. White:

    (Voice Overlap)

    Morton Hollander:

    I’m sorry I misled you.

    Byron R. White:

    The answer is, you don’t know what law would apply if it transferred.

    Morton Hollander:

    Not yet.

    No, Your Honor.

    Thank you very much.

    Earl Warren:

    Mr. McConnell.

    John R. McConnell:

    Good morning Your Honors and with permission of the Court as Your Honors know, I am here on behalf of the respondent plaintiffs to ask Your Honors to affirm the judgment of the Court of Appeals which held in effect that these actions maybe tried in Philadelphia where they were commenced.

    The precise question of law to be decided in this case as I see it is whether or not a District Court Judge has the power as a matter of law to transfer an action to another District Court in which it could not have been commenced because of lack of capacity of the plaintiffs.

    We advance to Your Honors three reasons why this question should be answered in the negative and the decision of the Court of Appeals affirmed, they are these – First, the decision of the Court of Appeals was in accordance with the express intent of Congress as construed by prior decisions of this and other courts.

    Secondly, the decision of the Court of Appeals is in accordance with the policy of the states and the federal government as embodied in the rules of civil — Federal Rules of Civil Procedure.

    And thirdly, that decision should be affirmed because to reverse it would be to work grave prejudice to the substantive rights of these plaintiffs.

    Now, if Your Honors will permit me before referring to those arguments in detail, I would like to make a brief reference to the facts.

    In all of these cases, we have as plaintiffs, fiduciaries who lived in the Eastern District of Pennsylvania.

    Each one of them was appointed fiduciary by an Orphans Court in Pennsylvania.

    Each one of them represents a decedent who also lived in Pennsylvania and whose estate will be administered under the laws of Pennsylvania.

    Each one of those decedents was a resident of Pennsylvania and started on this journey from Pennsylvania.

    Now, if I may allude for one moment to — a particular one of these cases, the case of Mrs. Frankenfield.

    She is typical.

    She happened to be a client of mine.

    She came to me under these circumstances and asked me to take her case.

    I agreed to do so.

    I recommended that suit be commenced in the United States District Court for the Eastern District of Pennsylvania because I learned that each of the defendants involved — each of the defendants involved that I thought she had an action against did business in the Eastern District of Pennsylvania.

    She agreed.

    That was done.

    Now, at this point in a small parenthesis, I would like to submit to Your Honors, I do not think it’s fair to describe that conduct as forum-shopping.

    That was a natural and normal thing for a — a Pennsylvania fiduciary to do with respect to suits against the corporate defendants doing business in Pennsylvania.

    Byron R. White:

    Why did he choose (Inaudible)?

    John R. McConnell:

    Because of diversity of citizenship.

    Byron R. White:

    Well, I guess (Inaudible) you could sue it in a state court.

    John R. McConnell:

    We choose the federal court to answer Your Honor specifically because the federal court in Philadelphia —

    Byron R. White:

    (Inaudible) that much is forum — that’s forum-shopping.

    John R. McConnell:

    Maybe, I guess.

    If you want to call that forum-shopping, it’s fair to say that, but we have as Your Honor very well knows, there are many other excellent reasons for bringing suit in the federal courts where there’s diversity of citizenship.

    William J. Brennan, Jr.:

    (Inaudible)

    John R. McConnell:

    Yes, sir.

    And —

    Byron R. White:

    Condition of the docket?

    John R. McConnell:

    Condition of the docket which in the federal courts in Philadelphia is a year shorter than in the court of common pleas.

    Byron R. White:

    Three or four or five years.

    John R. McConnell:

    Yes, sir.

    Four years and — and in addition to that, there are other reasons.

    The — all the cases in — in the District Court of — of Philadelphia are consolidated whereas we have separate courts of common pleas in Philadelphia which leads to many complications.

    Byron R. White:

    The only thing is that when you choose the federal court, you choose more (Inaudible).

    John R. McConnell:

    That thought never occurred to me at that time and I don’t think that would’ve occurred to any — not to any of the plaintiffs at that time.

    (Inaudible)

    John R. McConnell:

    Because —

    (Inaudible)[Luaghter]

    John R. McConnell:

    I agree with Your Honor but if we passed that point, then my opponent say that forum-shopping is a thing which this Court should — should account on the negative side in deciding this case.

    Now, I don’t think it should but in any event, this wasn’t forum-shopping it seems to me.

    In the same parenthesis, I’d like to say this.

    I do not think it’s fair to say that when we took this action, we failed to qualify as ancillary fiduciaries in Massachusetts.

    It seems to me that the word failure implies a duty.

    I didn’t notify the Prime Minister of Australia that I was going to make this argument this morning and I don’t I think I failed to.

    I could be said to have failed to notify him because I had no duty to notify him.

    And in this case, I stress this point because 50% of a government’s brief is built around the word “we failed to qualify” as ancillary administrators in Philadelphia.

    We have — in Massachusetts, we had no duty to do so and therefore, I think any consideration or failure in that regard ought to dropout of any consideration of this case.

    Now, having commenced these suits, the defendants made a motion to dismiss and that motion was considered by the — Judge Van Dusen, the District Court Judge and the motion was granted.

    We applied to the Court of Appeals for a writ of mandamus because the judge had not certified this was a — and a — eligible for interlocutory appeal and we could find nothing under the rules which suggested it would be proper to make a motion that he so certified.

    Your Honor knows that the interlocutory — if Your Honors know that the Interlocutory Appeals Act provides that it cannot be used unless the District Court judge certifies that it is an appealable question under the Interlocutory Appeals Act.

    John R. McConnell:

    He didn’t do that.

    There is no precision — procedure whereby we could ask him to do that so that’s why we chose a writ of mandamus.

    And thus the question became in the Court of Appeals, did the Court exceed his power in transferring these cases to a district in which they might not have been brought.

    Therefore, the — we get the first legal question and Your Honors have to consider.

    Might these cases had been brought in the District Court of Massachusetts, what’s the test?

    If these plaintiffs had brought these actions in the District Court of Massachusetts and the defendant had moved to dismiss under the Federal Rule of Civil Procedure 17 (b), the Court must — was required to dismiss them for this reason.

    Rule 17 (b) as these defendants would have argued in Massachusetts says that the capacity to sue shall — I’m just quoting only that much of it as it applies to our case, capacity to sue shall be determined by the law of the court of the state in which the court sits.”

    Therefore, the Massachusetts district court judge would have looked to the law of Massachusetts under that rule to determine whether or not we had capacity to sue.

    We had not qualified, it never — there was no reason for us to qualify as ancillary administrators up there and the law of Massachusetts is very clear that a foreign fiduciary may not bring an action in the State of Massachusetts and if he does his action without a qualification up there, if he does, his action should be dismissed.

    So there is no doubt about what these cases could not have been brought in Massachusetts and the Court of Appeals for the Third Circuit so found.

    Our opponents, the Government concedes that they would have had that defense in Massachusetts, but they — but all of the defendants attempt to circumvent that conclusion by saying, “Well, if we had tried, we could’ve qualified up there.”

    Now, as a matter of fact if Your Honors please, qualification of an ancillary administrator in Massachusetts requires much more than a ministerial act.

    It requires application to the probate court in Massachusetts which will — after due notice of 30 or 15 days, depending upon whether it’s a — a — an executor or an administrator which is applying, it requires application to the Court which will consider the appointment of the ancillary administrator and will normally follow a certain list of priorities which are — in — in making these appointments which are rather strictly followed.

    The list of priorities in Massachusetts is, first, the widow or the husband; secondly, next of kin, thirdly, creditors, fourth, the public administrator. Some of our plaintiffs do not come within any of those categories.

    In any event, cases cited in our brief show you that the Massachusetts court in this situation does not always appoint those who are otherwise ostensibly qualified, but appointment — ancillary appointment in Massachusetts is a matter addressed of the discretion of the court.

    So I say to Your Honors and our brief will elaborate this, there is very grave doubt whether or not — even if we had applied, we would’ve qualified in these cases.

    In addition to that fact Your Honor, we had no — we never — there was no reason for us to try, if Your Honor please.

    And if one more went — before I get to that one.

    In — in addition to the facts that I’ve just indicated, these suits which we’re now considering were commenced with — some of them were commenced with only a few weeks of the expiration of the 1-year-statute limitations.

    One of them was commenced on the very last day that suit could’ve been commenced.

    Now, in Massachusetts, we are required by law to advertise our application for letters of — ancillary letters up there for either 15 or 30 days.

    So that there wasn’t time to do the things required up there before the statue of limitations expired.

    But in any event, Your Honors have told us clearly in the case of Hoffman versus Blaski that the test as to whether or not a — an action could’ve been brought in the transferee district is not to be applied as of the time of transfer — the application for transfer, but rather the test is to be applied as of the time the suit is commenced.

    That was the square holding in Hoffman versus Blaski as Your Honors will recall and this is detailed in my brief.

    So the only proper test in this case is, were these plaintiffs qualified to bring this action in Massachusetts as of the day they commenced them in Pennsylvania and there is no room for argument, they were not.

    Byron R. White:

    If a — what if the statute of limitations is — in Massachusetts had already run at the time he wanted to bring the suit in Pennsylvania?

    Could you then say it could not have been brought in Massachusetts?

    John R. McConnell:

    Would I — in other words — first of all, what conflicts law would be applied.

    Byron R. White:

    No.

    John R. McConnell:

    Pennsylvania can’t —

    Byron R. White:

    (Voice Overlap) I just want to —

    John R. McConnell:

    Yes.

    Byron R. White:

    I just want to know whether or not you — if the statute of limitations had run already in Massachusetts in the time you brought this suit, would say that you could have brought your suit in Massachusetts?

    John R. McConnell:

    We could not have brought this suit anywhere at — in Pennsylvania or Massachusetts after the expiration of one year, we could not have.

    Byron R. White:

    (Inaudible) Well, why one year?

    John R. McConnell:

    Because Massachusetts’s statute of limitations is one year and so is Pennsylvania’s incidentally.

    Byron R. White:

    Well let’s — let’s assume that Pennsylvania’s was longer then, that’s what I want — that’s what I want to get at.

    Do you think that you could not have brought the suit?

    John R. McConnell:

    As Your Honor knows this, the conflicts of law question in this situation is in the state of flux —

    Byron R. White:

    (Voice Overlap)

    John R. McConnell:

    — but to answer you directly, I think the answer is no.

    Byron R. White:

    Is there a conflict of law, I want to know whether the expiration of the statute of limitation means that you can’t bring the suit.

    John R. McConnell:

    I think we could not.

    I think it does mean that.

    Byron R. White:

    It couldn’t win it but could you bring it?

    John R. McConnell:

    Oh, we could’ve started the suit certainly but it could’ve been — it was subject —

    William J. Brennan, Jr.:

    In other words, (Voice Overlap) —

    John R. McConnell:

    — to the defense of the statute of limitations, yes sir.

    William J. Brennan, Jr.:

    Doesn’t — doesn’t prevent you bringing the suit.

    John R. McConnell:

    Oh, I didn’t understand the thrust of your question.

    I agree.

    The statute of limitations did not prevent us bringing the suit.

    Byron R. White:

    So that in this — so that in such a situation — in such a situation on the statute of limitations where it has already expired in the suggested transferee district, a district judge could not order transfer on the condition the defendant would not (Inaudible) statute of limitations.

    John R. McConnell:

    They have done that.

    Byron R. White:

    Oh, I know but they couldn’t (Voice Overlap) —

    John R. McConnell:

    I don’t think they have a right to do that.

    Byron R. White:

    That would be a problem.

    John R. McConnell:

    I don’t think they have a right to do that.

    Byron R. White:

    Because if it — could’ve been brought in the first place.

    John R. McConnell:

    That’s correct.

    John R. McConnell:

    No, they say they couldn’t do that.

    I don’t think they ought to be permitted to do that because I don’t think this what — where it might have been brought, permits any qualification by the District Court judge.

    And in addition to that, I doubt very much whether — well, I guess if they require a stipulation on this file of record, it would bind.

    Byron R. White:

    Yes.

    John R. McConnell:

    But I don’t think that under our present law, the District Court of the transferee jurisdiction cannot decide the law and then believe that the transferee District Court is bound by that decision.

    There is no — that may well — perhaps that should be the law but until this Court says so, that’s not the law now.

    Byron R. White:

    But the — the matter of capacity in Massachusetts is something that — to be — it had to be raised.

    If it isn’t raised in a certain time (Inaudible) in the case —

    John R. McConnell:

    Yes, although the Massachusetts law — the Massachusetts law now, a recent amendment permits the defendants to raise it at any time including the trial and if they raise it at trial and we’re not qualified, we’re done.

    Byron R. White:

    Would get you unqualified?

    John R. McConnell:

    Not — you have to advertise for 30 or 14 days before you can begin to qualify and if they raise it at trial, it’s too late.

    Byron R. White:

    But if that — you mean they — you mean they would — they would dismiss the suit?

    They wouldn’t give you 14 days to qualify?

    John R. McConnell:

    Chief Justice (Inaudible) Supreme Court of Massachusetts says that the law isn’t settled in this Commonwealth and that the Administrator appointed in another jurisdiction is not thereby qualified to maintain an action under our death statute.

    Now —

    William J. Brennan, Jr.:

    Incidentally Mr. McConnell —

    John R. McConnell:

    Yes sir.

    William J. Brennan, Jr.:

    Under some death statute, my recollection is this — through my own (Inaudible) limitation is a matter of a condition to bring the suit not merely a defense.

    Is that problem involved with the Massachusetts’ statute here?

    John R. McConnell:

    That question was not involved in this case.

    All of these cases were commenced within the statutory period.

    William J. Brennan, Jr.:

    — was just thinking — I was just wondering, notwithstanding a year, the statute it elapsed, if it’s a matter of defense, this might have a bearing, you know, you had to go through a procedure to getting ancillary administration, it might have a bearing on whether or not for the purposes of the rule the action might have been brought.

    John R. McConnell:

    That’s right sir and I’ll be frank to say, I could — an analysis of the law relating to the problem, the conflicts of law problem in these transfer cases involving the statute of limitations would take longer than it would take to argue this case.

    William J. Brennan, Jr.:

    Well, they don’t have (Voice Overlap) —

    John R. McConnell:

    And that — and there’s a problem there but we don’t have that problem in this case.

    William J. Brennan, Jr.:

    It’s a waste of time and (Inaudible).

    John R. McConnell:

    Now, I have indicated that the — up to this point of — it discussed what the statute says and the test by which that statute is to be applied.

    Now, let me consider the — the construction of that statute as construed by other courts.

    In the first place up to this point, I’ve pointed out that Hoffman versus Blaski requires the applications that were vindicated up to now.

    Has this exact problem ever been considered before, not by this Court?

    John R. McConnell:

    This Court has never considered exactly the set of circumstances involved on this case, but it has — the same set of circumstances namely, a fiduciary with the problem of capacity to sue has been considered in other situations.

    In the case of Felchlin versus American Smelting for example cited in our brief, exactly this situation was considered and the Court held that it could not be transferred because the plaintiffs lacked capacity to sue.

    I know very well that those decisions in no way bind this Court and yet I think it’s significant that other judicial minds having considered this problem have reached the same conclusion.

    And no other court having considered this problem has reached the opposite conclusion and so I feel confident in saying that the — the — this construction for which — which was reached by the Court of Appeals for the Third Circuit is correct.

    I also have said to Your Honors that the second reason why this — the judgment ought to be affirmed is because it is in importance with the policy of the federal government and the law of the state as exempt — as embodied in Rule 17.

    There are very good reasons why the states provide that foreign fiduciaries should qualify before they bring a suit.

    For one —

    (Inaudible) transfer though, they enter a federal statute.

    John R. McConnell:

    No sir, on my position and — I would say it sir is that the federal statute 1404 (a) and Rule 17 (b) control the situation and by Rule 17 (b) which says that capacity shall be determined by the law of the state in which the court sits.

    By that rule, this Court has said, our test will be the law of the state.

    And there are very good reasons for such a rule and such a policy, where the states have said, certain plaintiffs may not sue, the United States would not want to circumvent the policies of those cases by saying, “Well in our case, in our courts, you can sue anyway.”

    It is an honest matter of fact Mr. Justice Harlan, that if we have started these suits in Massachusetts, they would’ve been dismissed beyond any question.

    Why therefore should we have — would regard them as actions which could’ve brought up there now, when we bring them in another district?

    Byron R. White:

    What about the (Inaudible)?

    John R. McConnell:

    Yes sir.

    But in Hoffman versus Blaski, you said it didn’t make any difference at all whether the defendants would be willing to waive their defense.

    This Court said that in Hoffman versus Blaski that the test was whether or not the plaintiffs had the right to bring the action without — yes, that was (Inaudible), yes sir, (Inaudible).

    Now, if Your Honor please, I come to the third and the point which — which are upon — which our opponents have relied the most.

    They say to Your Honors, consider the consequences of a decision in accordance with the — with precedent in this situation.

    They say, consider the consequences this would have on the administration of the federal courts because it would mean that fiduciary cases could not be transferred under 1404 (a).

    I think if we’re going to look at the considerations that they suggest, the practical results which will follow from an affirmance of this decision, we have to look at them all.

    And I think the first consequence we ought to look to is the consequence to the plaintiffs.

    This is not — this is not a — a multiple litigation as far as Mrs. Frankenfield is concerned.

    She has one case and to her, this is a single case.

    As a fiduciary, it’s far easier and far cheaper for her to bring the suit in the district where the defendants did business with her rather than to go up some place up to Massachusetts.

    And in that connection Your Honors may recall, this is one of the shortest plane distance you could get.

    If we’re considering rules for plane cases, remember Philadelphia to Boston if you don’t think it’s very far, it is not the normal — is not the average I mean to say, plane trip.

    So that this is the minimum if you’re considering inconvenience to the plaintiffs, but that these plaintiffs are not —

    Potter Stewart:

    I didn’t understand that.

    I don’t understand —

    John R. McConnell:

    It will be —

    Potter Stewart:

    — your point, I heard what you’re saying.

    John R. McConnell:

    Yes, it will be a great inconvenience to Mrs. Frankenfield to have to conduct her case up in Boston, but that is a short plane trip.

    In the average plane crash case, the fiduciary will have to go much further than from Philadelphia to Boston.

    And if Your Honors are considering the rule by this test, you ought to bear in mind that these cases may involve fiduciaries going from San Francisco to Philadelphia for example.

    In other words, this is a minimum case on that aspect.

    Now, if we’re going to consider the consequences of the decision here, let’s consider it’s affect on the witnesses.

    The trial judge did an odd thing in this respect.

    He counted up the number of witnesses which the defendants could call, not would call, which they could call, who lived in the vicinity of Boston and he found there were 66.

    And he counted up the number of witnesses who’d — eye witnesses who didn’t live in the vicinity of Boston and found there were 17.

    And he said, “That shows that it’s more convenient for the witnesses that this case be tried in Boston.”

    He overlooked the fact that there were — in our — I represent 28 different estates and there’s seven admiralty case — 23 different estates and there’s seven admiralty cases.

    In our cases, there are 30 plaintiffs who will be witnesses and if we allow them only one other witness on damages, that makes 60 plus the 17, would make 77 witnesses will have to go up to Boston as against — at the very most and it wouldn’t be that much, 66 coming down to Philadelphia.

    Arthur J. Goldberg:

    (Inaudible)

    John R. McConnell:

    Damages, yes sir.

    Arthur J. Goldberg:

    (Inaudible)

    John R. McConnell:

    That’s right and the — opportunity for advancement and so forth.

    Now, that is leaving out of any account expert witness whom you might call and other fact witnesses.

    Well, who would tip the balance still further?

    And if Your Honor please, it was suggested to you by my opponents that all of these — that the issue in this case is going to be the birds into the engine.

    That maybe the issue but we really don’t know the other issues that will be involved in the case because we have not been permitted to pursue discovery in this case through all these years.

    The Circuit Court or the District Court, the Court of Appeals and this Court has ruled that we may not pursue discovery while this preliminary litigation is in progress.

    So we don’t really know what the issues are going to be and therefore, we don’t know where the witnesses are going to come from.

    Now, let me get now down to the real heart of the case and the one which was discussed to the greatest length yesterday.

    A part from this inconvenience to witnesses and to the party’s plaintiff, what about the grave impairment of the de — of the plaintiffs’ substantive rights?

    Here’s the situation on that aspect of the case as I see it.

    As Your Honors know, under Klaxon versus Stentor, a District Court must apply the conflicts rule of the state in which it sits.

    Now, in Massachusetts as you know, there’s a limitation of damages in this action of $20,000.

    In Pennsylvania there is no such limitation and there is very strong constitutional — there is very strong Pennsylvania policy embodied in two places in its Constitution indicating that Pennsylvania would not enforce a limitation of that kind within the State of Pennsylvania.

    Judge Van Dusen has indicated correctly that this question has not recently been decided in Pennsylvania.

    John R. McConnell:

    There are old cases in which the court has refused to enforce penalties.

    Your Honors know that the conflicts law on this point is in the state of flux.

    The old rule was that the damaged law of the site of the injury would be the law applied.

    But under the redraft of the restatement which has not yet been adopted and in fact, maybe isn’t even published yet.

    And under the Kilberg case and the Pearson case, it is evident that the law is changing so that someday in the not too distant future, the conflicts of law rule is going to be the law of damages will apply which is the law of the state having the most contacts with the event.

    Pennsylvania has not recently passed on that point but because of its constitutional policy, I believe that the best probabilities are that Pennsylvania would adopt the so-called Pearson conflicts rule.

    That means then that a District Court sitting in Pennsylvania under Klaxon versus Stentor obliged to follow the conflicts of law rule of Pennsylvania, would have to consider what Pennsylvania Supreme Court would decide on this question.

    If we send this case up to Massachusetts, the Massachusetts Court will do what?

    Which conflicts of law rule will he apply?

    Under Klaxon versus Stentor, this point is not decided and as Your Honors know better than I, there are cases each way on this point.

    They’re cited in our brief. Some cases say that transferee court should apply the conflicts of law rule of the state of the transferor.

    Other cases say that the transferee court should apply the conflicts of law rule of the state in which it sits.

    This is uncertain therefore, —

    Byron R. White:

    Let’s assume for the moment —

    John R. McConnell:

    Yes.

    Byron R. White:

    — the rule they have said, if this Court had settled —

    John R. McConnell:

    Yes —

    Byron R. White:

    — the question that the —

    John R. McConnell:

    Yes.

    Byron R. White:

    — conflict law of the transferor or —

    John R. McConnell:

    Yes.

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Right.

    Now, if you don’t —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Yes.

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Alright now, unless you do —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Yes, I’d like to address myself to that.

    John R. McConnell:

    First, note that if you don’t settle that there is grave hazard in our going to Massachusetts and it’s not settled unless you settle it in this case.

    Now, if we do go to Massachusetts, I mean if it is settled, we do go to Massachusetts and this Court directs the Massachusetts court in the sense to follow the federal rule and apply the conflicts of law rule of the transferor state, then the District Court judge would decide what to do, would decide that it was Pennsylvania law that applied therefore that in our cases the limitation would not apply and then what would he do?

    Would he submit our cases to the same jury that would decide the — the Massachusetts residence cases and tell them that for your neighbors, you find the limitation of $20,000 and for us, for the Pennsylvania strangers, there is no limitation?

    Do you not believe Your Honor that our case would be at jeopardy and hazard under that situation?

    Now you may say to me, “He can solve that problem by saying, we won’t try these cases before the same jury, we’ll try them before separate juries.”

    And I —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Yes and I say to Your Honor, if that’s the case, why go up to Massachusetts?

    If we’re not consolidating these cases to save time, why go up there?

    That’s why you — that’s why the Government ostensibly puts us to all these trouble and expense for the sake of consolidation for trial.

    It’s the only possible theory.

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    But convenience can only occur —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Convenience can only occur and if justice is involved that can only be done in consolidation for trial.

    If the idea — the idea they seem to have is —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    It will sure, that’s where the witnesses — where the effect — it shows on the witnesses.

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    It — when they want to consolidate, they want to consolidate so they can bring the witnesses in once.

    You see, but if we’re going to have to have two trials —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    Well as I’ve said to Your Honor, there are more witnesses in Pennsylvania than there are in Massachusetts.

    Now, that — remember what we said, first of all, this point is not settled, so that if you send us up there now without settling that point, we are in double danger.

    If you do settle that point and incidentally as a member of the Bar, I hope you will because this — the better rule is that the transferee court were to apply the conflicts law rule of the transferor state and the bench in part needs to be in enlightened on that need to be —

    Byron R. White:

    (Inaudible)

    John R. McConnell:

    It necessarily follows if Your Honor please, but that’s another reason for affirming the decision of the Court of Appeals.

    If you let these cases be tried in Pennsylvania, we don’t have to go through this extremely complicated business.

    This — the very complication is to the prejudice of the plaintiffs in these cases.

    There’s no problem as far as we’re concerned if we stay in Pennsylvania.

    John R. McConnell:

    Now, I say — I would like to say one thing at the end and then stop.

    If Your Honors please, I hope — I feel that my duty to my clients to say this, this is not an academic question.

    We are not engaged in an academic exercise.

    I represent 28 different plaintiffs and the captions and complaints show that at least 17 of these plaintiffs are widows who lost their husbands and bread winners in this case and a number of them have a number of children under five years of age that they’re going to have to raise.

    When I say to Your Honors that transfer to Massachusetts is in mitigation of their substantive rights, that’s a lot nice phrase.

    It floats very trippingly from the tongue. But if you translate that into Anglo-Saxon, that is the difference between $20,000 and $200,000 to a widow who has young children to raise.

    So I say, if you’re going to consider extraneous circumstances such as the convenience of the Government or the courts, let’s remember that the convenience of the courts in the process of litigation necessarily is secondary to the rights of the individuals and this is the Court that establishes that.

    And therefore, if Your Honor please, I urge you to affirm the decision of the Third Circuit and — and let this case end here and these cases be tried in Philadelphia.

    Thank you.

    (Inaudible)

    John R. McConnell:

    I believe that the — it is correct that under the right of mandamus, a Court of Appeals may not be asked to review and exercise of discretion.

    I think the law is clear on that. If one uses the writ, an application to writ of mandamus, the Court of Appeals is confined to considering whether or not the District Court judge exceeded his power as a matter of law.

    I think that explains both of the decisions of the Court of Appeals in this case.

    I think they had to dismiss the application for writ of mandamus where they were asked to review the exercise of discretion by the —

    (Inaudible)

    John R. McConnell:

    Without considering it because under writ of mandamus, you can’t consider exercise of discretion.

    You can only consider questions of law.

    That’s why when he got to our application for writ of mandamus they did consider the question of law.

    (Inaudible)

    Hugo L. Black:

    Do the question involved in this which was discussed in some length (Inaudible), do you say that the (Inaudible) whether a case was tried in the federal court in one state or another state, whether under the substantive laws, she’ll get $200,000 or $20,000?

    John R. McConnell:

    Yes sir.

    I think under Klaxon and Stentor, the exact holding was that the forum must apply the conflicts of law rule of the state in which it sits.

    Hugo L. Black:

    But there are 10 many other cases that would indicate that a case should not be decided under substantive law.

    It should not be determined on the basis of which court it accidentally got in.

    John R. McConnell:

    Yes sir, that’s — I say, there are questions in cases involving motions to transfer under 1404 (a) and a transfer — the cases are divided on whether or not the — I don’t think they should be but they are divided on whether or not the transferee court will apply the law of the state.

    You see, when the transferee court sits to consider this case, it reads, Klaxon versus Stentor.

    Klaxon versus Stentor says a court must follow the conflicts of law rule on the state on which it sits.

    And naturally, the District Court judge and the transferee court says, I’m sitting in Massachusetts, therefore, under Klaxon and Stentor, I have to consider Massachusetts law.

    Hugo L. Black:

    (Inaudible)

    John R. McConnell:

    It’s an —

    Hugo L. Black:

    (Inaudible) for consideration that — of the idea that there might be something else besides conflict of laws, formulas that had been devised, reconsidered in this and that is whether you will have a law, system of law in which the substantive rights of the same parties vary as much as you say they would vary here according to whether they were tried in the federal courts of one state or the federal court of another state.

    John R. McConnell:

    Well, in one sense the Pearson case establishes that that is so.

    That is — most necessarily be so.

    If the modern conflict of rural rule is followed that a — the State of Pen — that the state will not apply and a — limitation of the jurisdiction in which the accident occurred and I might say Your Honor, I think that’s entirely proper from a social point of view.

    There are only —

    Hugo L. Black:

    (Inaudible) — to be considered, I haven’t heard it argued.

    Everything, the facts has been talked about here are the conflicts of law.

    Erie and Tompkins maybe bad or maybe good, may have been wrong in deciding on a constitutional basis and may have been right, but the constitutional basis on which it rested for us by reason of the accident to which federal — to which court the case was be tried in, are these substantial rights should not be determined under — except to general law under different laws so that people living right across one street from another — from the other might have a — one of them might win and one might lose.

    What you’re arguing — what is — one of the things involved here, maybe it shouldn’t be and maybe it has nothing to do with it, it comes to my mind every time the suggestion is made that just depends on which federal court this is tried was to how much damages can be recovered under the law?

    John R. McConnell:

    Under that thinking if Your Honor please, should it make any difference to these plaintiffs that they brought their suit in a District Court in Pennsylvania, when if they had brought them in the Court of Common Pleas, they would not have been subject to a limitation?

    Why should they be subject to that limitation just because they brought their case in the District Court in Philadelphia?

    Hugo L. Black:

    Can I ask you a question —

    John R. McConnell:

    Yes.

    Hugo L. Black:

    — what state law are these rights of these parties to be determined?

    John R. McConnell:

    Well, we think under the federal view that law of Pennsylvania.

    Potter Stewart:

    Your opponents agree with that?

    John R. McConnell:

    Well, he said he did.

    Potter Stewart:

    Yes, he certainly did very, very unambiguous.

    John R. McConnell:

    That’s it.

    Potter Stewart:

    There’s no — no argument about that.

    William J. Brennan, Jr.:

    (Inaudible) depends on whether the law of Pennsylvania applies the law of Massachusetts because they actually happened in Massachusetts.

    John R. McConnell:

    And that has not yet been decided.

    William J. Brennan, Jr.:

    I know it hasn’t but (Voice Overlap) —

    John R. McConnell:

    And as you —

    William J. Brennan, Jr.:

    — that could result no matter where you try it and you’re being limited to $20,000.

    John R. McConnell:

    Yes, it’s possible but in all fairness, I think there’s no doubt that the reason why we’re here is because our — the possibilities —

    William J. Brennan, Jr.:

    I’m sure you are.

    The — the only thing that (Inaudible)

    John R. McConnell:

    Yes sir.

    William J. Brennan, Jr.:

    Is the fight over how much damages you can get if you can prevail.

    John R. McConnell:

    And by the test of the law therefore, to send this to Massachusetts would be in litigation of our rights and therefore transfer should be refused.

    And that’s why I say this is not an academic question Your Honor.

    This — the decision in this case will be keenly felt by many people for years to come —

    Potter Stewart:

    When I was — if you —

    John R. McConnell:

    — in this case.

    Potter Stewart:

    What if you stayed in the United States District Court of Pennsylvania and that court after canvassing the state law, including the — including the state conflict of law — law decided that that required a limitation of $20,000 in these cases.

    At the end of it, we couldn’t — this Court couldn’t do anything about it.

    John R. McConnell:

    If the —

    Potter Stewart:

    As a matter of — if the District Courts construing Pennsylvania law.

    John R. McConnell:

    If the Court of Appeals for the Third Circuit decides that Pennsylvania law would apply and if that is a final judgment, we have had everything we asked for.

    Potter Stewart:

    Now what — why — why is more likely that the — that the Massachusetts Federal Court would construe the Pennsylvania law against you than it — than is if the Pennsylvania Federal Court would?

    John R. McConnell:

    In the case of Gulf Oil Corporation versus Gilbert, Your Honors pointed out the considerations which should be given weight on these matters.

    And one of them that you pointed out was that it’s better for the local judge to determine local law. And this Court knows that it always prefers to have law decided by local judges.

    This is what you said in the Gulf Oil case.

    There is an appropriateness too in having the trial of a diversity case in the form that is at home with the state law must govern the case, that’s Pennsylvania in this situation rather than having the court in some other forum, Massachusetts, untangled problems in conflict of laws.

    That’s our case, our position.

    Potter Stewart:

    Well, I understand that but why is it more of — that maybe better as a matter of jurisprudence but why is that — follow that it is more favorable to you or to your — or to your chances of — of convincing the Court that the $20,000 limitation should’ve — shouldn’t apply to your plaintiffs.

    John R. McConnell:

    Because we think — to answer Your Honor precisely, we think that this will be clearer to a Court of Appeals judges for the Third — Third Circuit for example that Pennsylvania would apply its own law in this situation than it would be to a Massachusetts judge who has been trained and has grown up and lived under the rule that — of the older conflicts rule, (Inaudible), and the limitation there.

    Hugo L. Black:

    (Inaudible)– if Massachusetts could, if the suit were filed in Massachusetts, constitutionally apply its law by reasons of the contract so as to render a judgment for 200 — for $20,000 only and while Pennsylvania by reason of its conflict, could constitutionally apply its laws so as to give $200,000 —

    John R. McConnell:

    I do believe that those decisions would be —

    Hugo L. Black:

    That is your answer I would suppose or at least one answer to the suggestion (Inaudible) in Erie and Thompson.

    John R. McConnell:

    Yes sir, that’s correct.

    I’m grateful to Your Honors for the attention you’ve given me.

    Thank you.