171 F. Supp. 718 | W.D. Pa. | 1959
Plaintiff, a resident of Tennessee, brought an action against defendant, a corporation having a principal place of business within this judicial district, to recover damages for personal injuries alleged to have been sustained as a result of defendant’s negligence in loading steel ón a tractor trailer. Plaintiff alleges that due to defendant’s negligence, the steel shifted and struck the cab of the tractor which he was operating. He alleges that the accident occurred near Erlanger, Kentucky.
Pursuant to § 1404(a), 28 U.S.C.A., defendant moves to transfer the action to a district Court “whose jurisdiction encompasses Erlanger, Kentucky, the situs of the accident.” As grounds for the transfer, defendant asserts that “all of the witnesses to the accident” reside in or are from the vicinity of Erlanger, and that it will be prejudiced unless it has available the Non-Resident Motorist Statute of Kentucky (Ky.Stat. 188.020).
A “Statement of Facts” and “Argument” was filed by each counsel, but neither party submitted affidavits, offered proof or requested a hearing. No particulars were submitted concerning the witnesses or a suggested unnamed third party who might be solely or jointly responsible.
It is well settled that the burden of overcoming plaintiff’s venue privilege is upon defendant.
An appropriate order will be entered denying the motion to transfer.
. Chicago, Rock Island & Pac. R. Co. v. Hugh Breeding, Inc., 10 Cir., 1957, 247 F.2d 217, 226; Id., 10 Cir., 1956, 232 F.2d 584; Davis v. American Viscose Corporation, D.C.W.D.Pa.1958, 159 F. Supp. 218; McKinney v. Southern Pacific Co., D.C.S.D.Tex.1957, 147 F.Supp. 954; Velez v. Lykes Bros. Steamship Co., D.C.S.D.N.Y.1956, 142 F.Supp. 612; National Steel Corp. v. Maryland Casualty
. Section 1404(a), says Judge Learned Hand, “ ‘presupposes at least two forums in which the defendant is amenable to process.’ ” Foster-Milburn Co. v. Knight, 2 Cir., 1950, 181 F.2d 949, 952-953.