Gilbert v. Gulf Oil Corporation
153 F.2d 883
2d Cir.
1946
Check Treatment

*1 period taxes thereon apprise the description sufficient taxed, being world land is concerning what knowledge the exact in absence physical location land. District court We are convinced permissible reached a and that conclusion af- judgment plaintiffs must be

firmed.

Affirmed.

GILBERT OIL v. GULF CORPORATION.

No. Appeals,

Circuit Court Second Circuit.

Feb. AUGUSTUS N.

Judge, dissenting. Gwertzman, Max City, J. plaintiff-appellant. Gibson, S. City Matthew of New York (Archie Gray, Tex., Houston, D. *2 884 the City, Cir., Locker, York on 2 149 F.2d Weiss of New Fred J. York 159 New defendant-appellee. 658, discussing A.L.R. brief), cases; Langfelder Labora Universal N. AUGUSTUS Before tories, 550, 155 293 N.E.2d 56 Judges. CLARK, FRANK, Circuit and tendency A.L.R. 1226. But even there the it; is to limit confined and has been it CLARK, Judge. de “such of which calls for relief Vir- plaintiff, resident In action this the supervision continuing tailed and defendant, Pennsylvania cor- a ginia, sued efficiently handled matter could be more York, for New poration business &Bay nearer home.” Williams Lynch- damages destruction of for the 284, 287, and Western R. an through burg and contents Cir., warehouse below, Frank, J., see 2 dissenting fire resulting explosion and however, Here, 147 F.2d through been occasioned claimed to have application the question have of the by mo- negligence. Defendant defendant’s The claim. ordinary doctrine to an tort venue of as to the tion issues raised appears discussion in Williams case forum, convenience super single be directed to instance of at were located witnesses asserting that the corporation; vision as we read fire. of the destructive near the scene authorizing opinion, nothing in we see it proper, the venue Court found The District expansion the doctrine broad view the court accepted but throughout Certainly the the field of torts. citing relying jurisdiction, refuse opinion of the is restrictive whole tenor F.Supp. precedents. 62 New York state is application. Thus doctrine’s appeal prosecuted from is 291. This main applicability only where stressed its action. dismissal resulting away the defendant’s tenance of suit clearly cor The District Court is oppressive,” and domicile "is “vexatious or ap proper. Since it type venue liti rect it said: “But where is certificates pears had filed sought, that defendant only money judgment gation is both doing of business with for the normally is different. The fact Virginia, York and complicated states of New affairs involves the claim 112 operation 28 U.S.C.A. combined corporation § is not alone a suf foreign Shipbuilding Bethlehem Neirbo Co. v. to decline reason for federal court ficient 153, 84 L.Ed. Corp., 308 U.S. Concluding it.” to decide each makes clear facts,” its the court reverses the “turns on in either proper in courts was suit by the lower of discretion exercise Pennsylvania or York. New Virginia or 59 refusing jurisdiction. D.C.S.D.N.Y., questions de whether while F.Supp. 98, Cir., And 2 147 F.2d 777. carrying on business fendant held, true, It District Virginia, wherein District Western tort the refusal of over located, is clear that service Lynchburg between nonresidents has been ex claims state, and thus to the throughout the runs tensively developed the New Commonwealth, defend Secretary courts, much more so than service, agent ant’s system, jurisdiction may so that be refused at Richmond. Federal District Eastern Employers’ to claimants under the Federal Procedure, 4(f), 28 rule Rules of Civil seq., Liability Act, 45 51 et U.S.C.A. § 723c, upheld in following section U.S.C.A. claimants, foreign Mur equally with other Murphree, Corp. 66 S. Mississippi Pub. 244, 158 R. nan v. Wabash Ct. 242. Douglas N.E. A.L.R. York, & U.S. H. H. question therefore turns doctrine of L.Ed. forum applicability though litigant’s choice in the federal the circumstances conveniens under

non held courts is absolute the statute. recog That doctrine has a here disclosed. Kepner, U. Baltimore O. Co. v. law both federal and local nized ambit L.Ed. super S. the exercise abroad of prevent broadly Though the rule is stated “internal affairs” of a cor vision over claims, though applicable all Guaranty of as tort Rogers v. Trust Co. poration. restricted claims for 77 seems in death; wrongful personal injury Cohen v. Amer to, Co., Cir., been cited F.2d least we have Glass Window ican act, clearly plus interpretation does sional found, judicial (un- other cases. claims,1 spells case), and is said der the apply to contract Neirbo out the result. Moreover, property apply lately to cases of commercial the Court has stressed that nature,2 ex that commentators have district courts so cannot refuse *3 applicability.3 pressed of its wider merely doubt because of difficulties decision. of Moreover, jurisdiction Haven, acceptance 228, Meredith v. 320 the Winter 234, 9; un 64 personal injury 7, seems not v. even Markham Allen, accept 66 courts, S.Ct. 296. But even by quite if we usual the trial Thus, arguendo assume appellate able to that a case of courts.4 this the general may juris elsewhere, sort be sent very a substantial doubt whether we by diction of this be refused the think there has been no showing would of vexa- oppression tion New York courts. to the defendant suf- justify ficient to closing the the doors of clear, however, We are that parties courts here. The affidavits the York law situa should not control this quoted before the are length court tion. is true that in Weiss v. opinion below, F.Supp. 291, 62 293. 292, supra, the York law court looked to New They plaintiff’s show the claim the that light as which the to to extent only eyewitness explosion of the was the manage would interfere with the internal delivery wagon, driver of delivering the corporation. appears ment a to But that plaintiff’s time, to pump at the that us much nearer substantive law—that of York, he will plain- come New to and that supervision question is this —than prepared tiff is bring to “all trial place a claim for enforcement of employees who were and who money damages, and hence much closer any knowledge occurrence,” have as mystic to past that line which we dare not well as the fire officials who investi- later venture tutelage. without state “Neither gated fire. Plaintiff also asserts that ‘procedure’ represents ‘substance’ nor witnesses, engineers certain investigating same invariants. implies Each different fire, are located in De- New York. particular depending upon variables reply questions fendant affidavits problem Guaranty which it is used.” willingness go of witnesses to York, Trust Co. of New York v. York, and only generally, further states 99, 1464, Further, specification persons, and without case, warning the direct “there are numerous witnesses” [material] where the Court considered the issue of the Lynchburg and around intends call. controlling effect of state law as held assurances, In the plaintiff’s face of this expressly the Weiss case and reserved de numerous, reference but unidentified question. cision on that vague justify witnesses is too dismissal. have, therefore, problem We which un- precedents der still seems debat- Defendant also relies on fact Kepner case, able. supra, warned plaintiff seeking recovery for the against par- refusal of losses to his warehouse customers for act; ticular case by congressional controlled whom he is bailee. To this re here the congres- difference is sponds many already scattered 1 Wedemann v. U. Clergue, App.Div. 122, S. Trust Co. of New 750; 65 N.Y.S. 315, 712, 179 N.E. Rederiet Ocean Aktieselskab v. W. A. Ward, Sup., Hutchinson Kirk & 51 N.Y.S.2d 565. 375, 390, Am.St.Rep. N.Y. 85 N.E. 3 Compare 6, 36, citing 909, though provi earlier supra; New York cases as in note 2 authorizing by sion suits nonresidents 1425, 1427-1429. makes no distinction in the subdivision dealing foreign corporations with accepted Thus has been remedy business within the state. Y. Gen may where elsewhere Corporation Law, ConsoLLaws, by limitation, eral c. barred Williamson v. Palm 23, may er, § subd. con 181 Misc. 43 N.Y.S.2d Ran Inc., trasted Inecto, with subd. dle v. 131 Misc. Ascer, unduly De expensive Flammercourt Misc. N.Y.S. in citing, plaintiff, 3 N.Y.S.2d inter convenient Richter alia, Carmody’s Chicago, Go., Practice &I. P. R. 123 Misc. Crocker, App.Div. 245, Smith 43 N. 205 N.Y.S. Murnan v. Wabash Y.S. 4 Ann.Cas. affirmed 162 N.Y. 158 N.E. 600, 57 N.E. and Wertheim v. 54 A.L.R. 1522. 8SG testimony any fer civil action to Lynchburg, and that Pre- brought.” adds necessary. might He where by deposition have been will be trial, liminary as Federal Draft, such Revision form some other Ju- 1404(a). Code, 1391(a), neces- master, dicial seem §§ reference to intro- court question quite But it is issue, another for sary once of' limitation may practical step duce such a whatever liability is settled. But suggestion jurisdiction. plaintiff’s practicability clear that regard, would seem in this policy, This is a matter of federal damage, prove him burden rests appeljate has been for his, and proof will be difficulties exercised 'courts to the “discretion” review op- vexation or little there will be *4 by the trial court. Williams combating that in pression Co., supra; defendant v. Weiss & Western R. 531, Green, proof» Langnes 282 U.S. supra; v. cf. 520, The 542, 243, 541, to considerations If we look de- to admiralty authorizing the court rule scope, we come policy broader of somewhat between actual adjudication cline claims view of the In conclusion. the same to i.e., “inapposite” “foreigners,” aliens, is Meredith admonition of apt ex- Brandéis’ here —to use Justice ex cases, rely on the reasonable cannot we pression conversely that in are its calendars that a state court cuse of in ad- govern equity and did not law cases for accommodations to afford too crowded Paterson miralty. Malting Canada Co. indeed, and, visitors; 'the business if pure 413, Steamships, anyhow, in courts done be must Shipping Co. Charter in power man judicial in saving is Tidy, 281 U.S. Bowring, & Jones Pitts in court to a federal sending a case 1008; Coffey, 400, 74 L.Ed. Juris- Nor, in view Lynchburg. burgh or Admiralty Foreigners in diction Over interpreted, can statute, as now venue on Courts, Robinson 13 Calif.L.Rev. by the interpretation made make the not Admiralty, is 1939, 14-20. Since there accom of, to statutes York courts juris- here the denial sufficient basis Gregonis plaintiff. resident

modate a diction, must be reversed order Co., Reading & Iron Philadelphia Coal & case remanded. 32 A.L.R. 152, 139 N.E. 235 N.Y. have to made, we should to be is If refusal FRANK, Judge (concurring). Circuit trial, solely on convenience justify it place of residence entirely mean seems to to me not clear It seems To witnesses.5 number of greater its discussion Supreme intended diversity in historic forum non conveniens find the doctrine of to trial in & Rail- and restricted Western limited Williams v. Green novel, per wrong apply road, to at the situs Jan. thing startling, change. is one except involving internal haps a those any to restricted, improvements For, if not so innovations affairs. say that to be activity action, brought even if federal then brand of in this defendant, pending draft thus legislatively; made of the residence of the district showing ex Code contains dismissed on a be will of the revised Judicial corporations making ruling resi cuts Such a vexatious.1 plicit provisions districts where purposes deeply.into traditional notions so about venue dents for do I find incorporated jurisdiction of the courts that or licensed federal they are business, Supreme au believe business, difficult to however, shall, court, go I “for so far. the conven Court meant thorizing a witnesses,” arguendo it did. Even on to “trans- assume parties ience of concurring duction becomes the basis of a definite rule Justice Jackson Mr. obviously application law, has Co., less Illinois Cent. Miles sort, 827, 831, where the ultimate case of 86 L. recovery tangible suggests is limited the value of Ed. damages property, than in actions for is whether with issue “the real injuries. personal the Federal Em a cause go Liability may shopping ployers’ had Act if instant been So jury brought judge more fa in a federal district court or a believed Pennsylvania, would find home where defendant than he State of vorable incorporated. de or not this shrewd forum.” Whether For, as- on that pertinent assumption, I concur. as decisions were pro precedents vexatiousness —aris- sumption, degree of instructive moves defendant es in each case where the binding nouncements of rules of law On “inconvenience.” because of to dismiss United Nevertheless States courts. de- Clark, I think by Judge the facts stated non-conveniens rule of forum sufficient made a has fendant here an action tort like the dis- justify showing inconvenience not seem to differ from that missal. supposed for it cannot be either would be distinction personal made and tortious between torts Judge AUGUSTUS injuries property like those asserted (dissenting). bar. See Murnan v. Wabash R. non-con- of forum I the rule think that 158 N.E. N.Y. brought applied may in cases veniens Trust Wedemann v. United States Courts, whether States the United N.E. citizen- on diverse jurisdiction be founded 1320; Gregonis v. P. & R. I. C. except reasons, ship may arise for 32 A.L.R. 1. In N.E. a different prescribed Congress has Judge think circumstances I Leibell implicit in the *5 seems to This rule. result judgment exercised sound in minority in majority and both opinions of under the rule forum non-conveniens Kepner, 314 U.S. Co. Baltimore O. jurisdiction of Southern District Court 86 L.Ed. properly was invoked. Indeed the Co., Central v. Illinois and Miles impelled reasons which his decision were L.Ed. the same that in Davis Co-op Farmers explicitly 1104, and to follow erative U.S. S.Ct. in Douglas opinion of Justice Supreme L.Ed. moved the Rail- &Bay Western v. Green deny jurisdiction against in actions rail 284, 290. January road brought roads in districts remote from Haven, 320 v. Winter also Meredith See in those which the were committed torts Indeed, U.S. reside, plaintiffs and in did not opinion Wil- in paragraph of the final ground they on the un would involve Railroad & Western liams reasonable burdens interstate com maintenance discussed whether Co. merce. New District of in that suit the Southern regarded “vexatious York was to be The affidavits show that some three availability of oppressive” in view of the fifty having hundred proper- and claimants presence in that there and witnesses ty plaintiff’s stored in warehouse reside directors defendant’s of most of the Lynchburg, Virginia, about where records, and transfer its and caused by alleged negli- fire defendant’s question be- gence books. Therefore the occurred. Defendant’s minute affidavits also simply say us is whether Jennings-Watts fore Oil whose justified Judge was the District case gasoline driver delivered for the de- maintenance concluding that plaintiff’s warehouse, fendant to the has its in the Southern District in Lynchburg; business per- that various Virginia District than sons, rather including firemen, police officers and plaintiff resided the al- in which the and municipal employees, who be will occurred, unduly was burden- leged tort necessary respect plain- witnesses to the defendant. I cannot see that some gasoline storage tiff’s dispensing plant anything is involved bar conformity and its with the local laws and bring- determination of whether the but the ordinances, the condition of the truck action New York vexati- ing was there; which delivered the declining Judge Leibell ous. While engineers expert and several witnesses granting the defendant’s the defendant reside and about complaint attempted motion to dismiss Lynchburg. The answer plain- apply the New York rule non- of forum tiff to these affidavits which would seem the issue was one of sub- importance conveniens to have some procedure in law stantive but witnesses are scattered because of war under the so that doctrine Erie testimony conditions can only be Tompkins, R. Co. by deposition; obtained but there is no many the indication how of these witnesses they is likelihood and there there are hostilities now that relatively be few will suggestion ceased. The York bring witnesses will assurance defendant gives the being without it needs obtain those can If depositions. chiefly on compelled rely an effective there was ever prevented and likely be was defense advantage undue given plaintiff would one. I think in New a trial South- the suit maintenance vexatious, incon- District ern unnecessary and wholly venient af- declining jurisdiction order firmed. *6 (AMERICAN) LUMBERMENS

KOSTER CO. al. et CASUALTY MUT.

No. Appeals, Circuit. Second

Circuit Court

Feb.