MEMORANDUM OPINION ON MOTIONS OF DEFENDANT TO DISMISS FOR LACK OF JURISDICTION OR IN LIEU THEREOF TO QUASH PROCESS AND TO TRANSFER CAUSE OF ACTION
NIXON, District Judge.
These two separate cases, being considered together on these Motions by
In order to fully understand the positions of the parties in support of and in opposition to these motions it is necessary to review in some detail the history of the protracted litigation which "hatched" these suits. The plaintiff in Civil Action No. 4478, Hyde Construction Company, Inc., hereinafter referred to as "Hyde" is a Mississippi Corporation domiciled in Jackson, Hinds County, Mississippi. The plaintiff in Civil Action No. 4524, Vardaman S. Dunn, is a resident citizen of Jackson, Hinds County, Mississippi and a practicing attorney at law, who during the periods of time hereinafter referred to, was acting as attorney of record for Hyde in its litigation against the defendant, Koehring. The defendant in both actions, Koehring Company, hereinafter referred to as "Koehring" is a corporation organized and existing under the laws of the State of Wisconsin with its domicile and principal place of business located at Milwaukee, Wisconsin. The parties agree that Koehring was licensed to do business in Mississippi on January 9, 1964 and that it appointed the C. T. Corporation System as its resident agent for service of process in accordance with Mississippi law;
The plaintiff, Hyde, during the times referred to herein was engaged in the construction of public roads, dams, levees and spillways, and the defendant, Koehring, was in the business of manufacturing and selling construction equipment of various types, including concrete mixing and processing plants. In the latter part of 1959 Hyde was awarded a contract with the United States for the construction of a spillway for Keystone Dam on the Arkansas River in the State of Oklahoma and the performance of this contract required the acquisition and installation of a large concrete mixing and cooling plant for production of the necessary concrete to perform the construction work. On February 5, 1960, a contract of sale and purchase was entered into between Hyde as purchaser and Koehring as manufacturer and seller for the required mixing and cooling plant. In this sales contract Koehring gave certain guarantees concerning the operation of the plant and its production capacity. On September 27, 1961 Hyde filed suit in the United States District Court for the Southern District of Mississippi against Koehring for recovery of damages for breach of the above contract, alleging malfunction of the concrete mixing and cooling plant.
Koehring filed a Motion to Dismiss the above action for lack of jurisdiction and moved to transfer the cause to the United States District for the Northern District of Oklahoma. From an Order of the United States District Court for the Southern District of Mississippi denying the Motion to Dismiss and the Motion to Transfer, Koehring appealed to the United States Court of Appeals for the Fifth Circuit which reversed the
The above suit in the Chancery Court of Hinds County began on March 11, 1964 after Koehring had appeared generally and answered the Complaint therein and had utilized the process of that Court for gathering evidence by prepounding interrogatories to Hyde. The Chancellor overruled the defendant's Motion for a Continuance. In the meantime, Koehring took what is alleged by plaintiffs in these cases to be the first step constituting an abuse of process, namely, on March 11, 1964 it applied for and obtained a restraining order from the Oklahoma District Court which purported to command the state court parties and their attorneys to refrain from proceeding with the trial of the suit in the Chancery Court. This Order was served as a Writ of Injunction. Despite the service thereof on the parties within the State of Mississippi, the Chancery Court and the plaintiffs ignored the Temporary Restraining Order. The trial in the Chancery Court of Hinds County, Mississippi was concluded on March 25, 1964, when Hyde was awarded a judgment against Koehring for over $486,000.00. This Decree of the Chancery Court was affirmed in part and reversed in part by the Mississippi Supreme Court which rendered judgment in favor of Hyde against Koehring in the sum of $409,560.61 plus 6% interest thereon from April 1, 1963.
On March 12, Koehring petitioned the Oklahoma U. S. District Court to cite the plaintiffs herein, Hyde and Dunn, for contempt; and that Court issued an Order directing both of the plaintiffs, Hyde and its attorney, Dunn, to appear before the Federal Court in Tulsa, Oklahoma on March 14, 1964 to show cause why they should not be found in contempt of court and punished therefor. Process issued pursuant to this show cause order and was served on both plaintiffs within the State of Mississippi by United States Marshals. At the contempt hearing, other counsel briefly appeared for Hyde, but Dunn did not appear. The Court nevertheless entered findings holding Hyde and Dunn in civil contempt and on that same date signed an "Order of Arrest" directed to the United States Marshal commanding the arrest of plaintiff herein, Vardaman S. Dunn. and his transportation forthwith before the United States District Court for the Northern District of Oklahoma in Tulsa, Oklahoma. This Order was received by the United States Marshal in Jackson, Mississippi on March 16, 1964 on which date it was served on the plaintiff, Dunn, who was arrested in Jackson and released only when an Order and Writ of Habeas Corpus was issued by United States District Judge S. C. Mize for the Southern District of Mississippi in order that Mr. Dunn might continue with and conclude the Chancery Court trial in progress. Plaintiffs further allege that since the above mentioned processes did not succeed in interrupting and delaying the state court trial of the above controversy, which they were intended to accomplish, that the defendant Koehring in order to "delay or completely frustrate
The United States District Court for the Northern District of Oklahoma entered a judgment denying the Motion by Hyde to dissolve the injunction issued which restrained it from enforcing its judgment against Koehring obtained in the Mississippi State Courts. On Appeal by Hyde to the Court of Appeals for the Tenth Circuit the lower court's injunction was dissolved, the judgment for civil contempt was vacated and the case remanded for further proceedings.
The U. S. District Court in Oklahoma entered a judgment finding the defendant
Plaintiffs contend that despite the final adjudication by the U. S. Court of Appeals for the Tenth Circuit on January 24, 1968, the injunctive order was wrongfully procured by Koehring and thus invalid. They also allege that Koehring promoted, encouraged and actually participated in a subsequent criminal prosecution of Hyde in Cause No. 14,324 in the United States District Court for the Northern District of Oklahoma which was a criminal contempt action based upon wrongful procurement of the restraining order against the Mississippi Courts and in which Koehring sought and claimed entitlement to the levy of a criminal fine to be made payable to Koehring which in effect amounted to the misuse and abuse of criminal processes of the Federal Courts for the wrongful collection of an alleged civil debt which was known to be invalid. This action was finally dismissed by the Oklahoma District Court on March 4, 1969.
These two cases were filed by the plaintiffs Hyde and Dunn against the defendant Koehring. The Motions filed in both of these cases by the defendant to Dismiss for Lack of Jurisdiction will be first discussed by this Court. Both plaintiffs instituted these suits by filing Declarations in the Circuit Court for the First Judicial District of Hinds County, Mississippi. After removal thereof by the defendant, each plaintiff filed an "Amended Complaint". In their declarations filed in the State Court, both plaintiffs predicated jurisdiction of the Mississippi courts on the basis of Section 5309-234, Miss.Code of 1942, Rec., by serving the Secretary of State of the State of Mississippi. In their "Amendments to Complaint" filed in these two cases both plaintiffs further contend that this Court has in personam or territorial jurisdiction over the defendant Koehring on the following additional bases: (1) that the tort which is the basis of this cause of action was committed by the defendant in whole or in part in the State of Mississippi against a resident thereof and thus the defendant has appointed the Secretary of State of the State of Mississippi as its process agent under and pursuant to Section 1437, Miss.Code of 1942, Rec., the "Long Arm Statute";
The question to which this Court now addresses itself is whether it has in personam or territorial jurisdiction over the defendant in either or both of these cases under the provisions of Sections 1437 and 5345, "The Doing Business Statute",
It should first be noted that Section 1437 is inapplicable to any act of the defendant Koehring between the periods of January 9, 1964 and September 12, 1968 because of the fact that this statute refers, in the following language, to nonresident persons, firms, partnerships, or foreign or other corporations, "not qualified under the Constitution and laws of this State as to doing business herein * * *" (Emphasis supplied). Therefore, in considering whether in personam or territorial jurisdiction has been acquired in these cases over the defendant, Koehring, it is necessary for this Court to consider only acts, if any, of the defendant Koehring within the State of Mississippi which either constitute a tort, performance of any contract in whole or in part, or the "doing of business" within the State of Mississippi. At the same time, Section 5345, the "Doing Business Statute" requires as a prerequisite to the acquisition of territorial jurisdiction over a nonresident or foreign corporation that it be "found doing business in this state" and if so, it apparently may be subjected to jurisdiction of the State of Mississippi "whether the cause of action accrued in this state or not."
The defendant Koehring is a foreign corporation organized and existing under the laws of the State of Wisconsin, with its domicile and principal place of business located at Milwaukee, Wisconsin. As stated above, it domesticated itself by qualifying to do business in the State of Mississippi on January 9, 1964 and immediately did business herein until September 12, 1968 when it formally and legally withdrew from this State and revoked the appointment of C. T. Corporation System as its agent for service of process, all in accordance with Section 5309-234 of the Miss.Code 1942, Rec.
In order to ascertain whether Koehring has been and is doing business within the State of Mississippi since September 12, 1968 it is necessary to look to the evidence before the Court consisting of affidavits, answers to interrogatories, and contracts entered into between the defendant and resident distributors with whom it deals within the State of Mississippi. The affidavit of Vincent R. Peterson, Vice President for Finance of Koehring Company, discloses that Koehring has not maintained any office or telephone listing or lease space for storage or otherwise and has had no designated agents or employees residing within the State of Mississippi during the period of time subsequent to September 12, 1968; further, Koehring has maintained no stock or goods, has had no bank account in Mississippi and has not had any directors meetings, company meetings or employee meetings of any kind therein. Its activities or contacts within the State of Mississippi have been as follows: each month one or two of its employees from as many as four of its divisions visit Mississippi to assist distributors with Koehring products and assist in the repair thereof; it has ten distributors within the State of Mississippi, most of which were its distributors prior to its withdrawal; it has no subsidiaries within the State of Mississippi; since September, 1968 its equipment sales in Mississippi up to August 16, 1969 amounted to $979,149.00; its repair services amounted to $4,500; and its income from repair services, $201.00; two of its divisions have had certain equipment in Mississippi including harvesting equipment valued at approximately $3,000 on loan to Mississippi State University, a $95,000 dragline on loan to a contractor in Vicksburg for use while a similar machine was being repaired,
In addition to the above, the defendant has produced copies of 12 of its written agreements with Mississippi companies acting as distributors of Koehring equipment which are variously called "Sales and Service Agreement" and "Distributors Agreement". In order to determine whether Koehring is "doing business" in Mississippi under such circumstances as to vest in this Court jurisdiction over it, the Court must look closely to the contracts entered into between the defendant manufacturer, Koehring, and its Mississippi distributors, because these contracts are very important on the issue now being considered. Jarrard Motors, Inc. v. Jackson Auto & Supply Co., Inc. and Lott, 237 Miss. 660, 115 So.2d 309 (1959). Each case in which in personam or territorial jurisdiction is challenged must be decided upon its own peculiar facts. Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 175 So.2d 185 (1965); Jarrard Motors, Inc. v. Jackson Auto & Supply Co., Inc., supra. The contract between Schield Bantam Division of Koehring Co. and Allied Equipment Co., which is fairly typical of the contracts in question, provides, among other things, the following: Koehring fixes the territory within which Allied may sell its products; fixes the prices to be paid by Allied for its equipment and reserves the right to change the prices without notice; Allied agrees to pay all taxes which Koehring may owe to the State of Mississippi or any city by reason of the manufacture or sale of equipment covered in the agreement; Allied agrees to maintain such stock of machines and parts as Koehring may determine to be adequate; Allied agrees to maintain a place of business suitable to Koehring; Allied agrees with Koehring to display, demonstrate and maintain and service Koehring products; Allied must maintain an adequate staff of salesmen and mechanics; Allied shall advertise Koehring products, however Koehring does not control or prescribe the method of advertisement as in Jarrard; Allied must maintain mailing lists of customers of Koehring products; it must keep records of the names and addresses of the owners of Koehring equipment and make such lists available to Koehring; it must confirm, in writing, all sales of Koehring machinery; it shall inspect and start all Koehring equipment and instruct purchasers in its use; it requires Allied to field service and check all new Koehring equipment in its territory and file written reports thereon with Koehring; it requires Allied to provide the service and shop facilities and render service to the satisfaction of Koehring; it requires Allied to sell products warranted precisely as Koehring directs and is not liable if Allied otherwise warrants; it limits Allied's right to sell Koehring products unless the sale is to a customer who has a permanent office in Allied's assigned territory or the customer first puts the machine to use in the territory assigned to Allied; it requires Allied to furnish complete financial statements and maintain satisfactory sales records, and reserves the right to require Allied to show adequate proof of insurance coverage.
In the absence of Mississippi jurisprudence defining the specific measurement of the Mississippi "Long Arm" Statute, and defining the term "Doing Business" within the State, this Court would probably hold that Koehring is subject to in personam or territorial jurisdiction of this State based on the recent leading decisions in this field. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Eyerly Aircraft v. Killain, 414 F.2d 591 (C.A.5, 1969). It is necessary however not only to determine whether the defendant has sufficient contacts within Mississippi to satisfy due process, which this Court here finds to be the case, but to also apply state law in the determination of this question, since a Federal Court in a diversity case is required under the doctrine of Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to give these statutes in question the same construction as does the highest court of the State of Mississippi. Eyerly Aircraft v. Killain, supra, 414 F.2d at p. 598 fn. 9; Walker v. Savell, 335 F.2d 536, 540 (C.A.5, 1964).
It is well established that unless a nonresident corporation is found to be doing business within the State of Mississippi within the meaning of Section 5345 and/or 1437, process upon it cannot be effected under either secs. 1437, 1866 or 5346 of the Miss.Code. In Alabama, Tennessee and the Northern Railroad Co., et al. v. Howell, 244 Miss. 157, 141 So.2d 242 (1962), the Mississippi Supreme Court, in considering the effect and meaning of process statutes in the State of Mississippi as they related to Foreign corporations, stated:
The Mississippi Court then states, quoting from Arnett et al. v. Carol C. & Fred R. Smith, Inc., et al., 165 Miss. 53, 145 So. 638:
In the Alabama, Tennessee case the Court further held that the jurisdiction conferred upon courts by Section 5345 only embraces foreign corporations doing business in the State of Mississippi. Thus Sections 1866, 5345 and 5346 must be read together and this reading leads to the inescapable conclusion that effective process under all of these statutes presupposes a factual determination that the foreign corporation is doing business in the State of Mississippi. Likewise, Section 1437 must also be read with Section 5345 in a situation where no authorized agent of a foreign corporation can be found in this State.
It is necessary therefore for this Court to determine whether the defendant corporation is or was at the crucial time "doing business" within the State of Mississippi, within the meaning of Sections 1437 and 5345 of the Miss.Code, because if it is or was not, then no process statute, including sections 1866, 1437 or 5346, confers in personam or territorial jurisdiction of this Court over it.
It is first necessary to examine Section 1437 of the Miss.Code subsequent
Either the jurisdictional arm of section 1437 as amended is not as long as it appears in its "legislative sleeve" or the Mississippi Supreme Court has shortened it by "judicial surgery" to a length shorter than the permissible constitutional reach. In view of the fact that it is not necessary for this Court in this diversity case to engage in "rational divination" on this question because of the clear decisions of the Mississippi Supreme Court establishing the
Neither the mere fact that Koehring, the manufacturer of equipment, sold its products to Mississippi distributors or wholesalers, nor the fact that Koehring had employees on an average of 17 to 18 per year visiting within this State to give assistance to distributors in the sale of equipment manufactured by it and to help repair and adjust this equipment, standing alone, would compel a finding that it is or was "doing business" within the State of Mississippi under the provisions of sections 1437 or 5345. See Lee v. Memphis Publishing Co., supra; J. R. Watkins Co. v. Flynt, 220 Miss. 871, 72 So.2d 195 (1954); North American Mortgage Co. v. Hudson, 176 Miss. 266, 168 So. 79 (1936); Livestock Services, Inc. v. American Cyanamid Co., supra; Walker v. Savell, supra. Furthermore, comparing the contracts entered into between Koehring and its distributors in Mississippi, the provisions of the typical one which is set out hereinabove, do not quite equate those found by the Court in Jarrard Motors, Inc. v. Jackson Auto & Supply Co., Inc. and Lott, supra to have given Jarrard almost absolute control over the method and manner of doing business by its distributors and thus lead to the inescapable conclusion that Jarrard was doing business in the State of Mississippi. However, this Court finds and is of the opinion that taking into consideration all of the above stated various activities which Koehring has engaged in and is engaging in in the State of Mississippi, including the fact that it has 10 distributors herein, sells a considerable amount of equipment to them, sends an average of 17 to 18 employees into Mississippi each year to give assistance to distributors in the sale of equipment manufactured by it and to help repair and adjust this equipment, has several pieces of its equipment operating in the State of Mississippi, has a great volume of sales almost equal to or exceeding those prior to the time it "withdrew" from Mississippi, extends and secures credit within this State, and its contracts with its distributors does give it a considerable amount of control over their activities, all taken together, lead this Court to the inescapable conclusion that Koehring is doing and has been doing business in the State of Mississippi since September 1968 within the meaning of the law, although this Court recognizes that its maintaining or defending any action or suit, including the present suit, shall not be considered as transacting business in Mississippi. Sec. 5309-222, Miss.Code, 1942, Rec.; Century Brick Corp. of America v. Carroll, supra. The United States Supreme Court, in McGee v. International Life Insurance Company, supra, which recognized the increasing trend of the Courts to hold a nonresident liable locally under the interlocking activities of enterprises in doing business in the various states, stated:
Having determined that the first criterion for conferring jurisdiction over nonresident corporations laid down in Mladinich v. Kohn, supra, has been met, that is, that Koehring "has purposefully [done] some act or consummate[d] some transaction in the forum state", and thus has done business in
Therefore, this Court finds that it is without in personam or territorial jurisdiction over the defendant Koehring in both of these cases under the provisions of Sections 1437, 5345 of the Miss.Code and their complementary process statutes, Sections 1866 and 5346.
The final basis on which plaintiffs in these two cases base their contentions that this Court has acquired personal or territorial jurisdiction over the defendant Koehring by service of process on the Secretary of State is that stated in their original declarations filed herein, namely, that while Koehring is not now qualified in Mississippi, it was so
The general rule as stated in 86 C.J.S. Torts § 25, p. 940 is as follows:
This same rule is stated in the Restatement of Conflict of Laws, sec. 377, p. 454 as follows:
In the note to the above sections, an illustrative situation was set out as follows:
More specifically, in 72 C.J.S. Process § 124 is the following passage relative to abuse of process:
In 1 Am.Jur.2d, Actions, Sec. 88, p. 617 we find the following:
In Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346, the Mississippi Supreme Court stated:
See the following in 1 A.L.R.3d 948, 953:
The questions before this Court in connection with the applicability of Section 5309-234 are: (1) whether this statute requires that the causes of action giving rise to this suit must have its origin or genesis within the State of Mississippi during the period that the defendant was licensed to do business in Mississippi, namely, between January 9, 1964 and September 12, 1968, or whether it suffices that it came into being during said time, regardless of where the alleged action accrued or where the injury was suffered; and (2) if the accrual within this State is required, whether the acts which constitute the abuse complained of accrued or had their effect, in whole or in part, upon the
In order to resolve the first question, it is necessary to carefully read the applicable statute and to consider its history, which involves any amendments thereto, as well as its construction by the Courts of the State of Mississippi and Courts of other States construing similar statutes. The language of Section 5309-234 is identical with Paragraph 119(d) of the Model Business Corporation Act and reads, in part, as follows:
The defendant contends that the wording of Paragraph (d) of this statute requires that the cause of action or the actions giving rise to this suit must have their genesis or origin or accrue within the State of Mississippi, whereas plaintiffs contend that this statute confers in personam or territorial jurisdiction in Mississippi Courts over foreign corporations for any act which accrued during the time that the corporation was qualified to do business in the State of Mississippi, regardless of the geographical area in which the action accrued or the acts giving rise to the action had their effect. The intent of the Mississippi legislature to broaden jurisdiction over foreign corporations after withdrawal is, in the opinion of this Court, clearly reflected by the enactment of Section 5309-234 in 1962, because the earlier statute, Section 5349, provided that a withdrawal should not affect any claim or suit or demand "arising out of the fact that the corporation * * * transacted business therein * * *" Thus, under the earlier statute which was superseded by the present one, the cause of action had to arise out of business transacted in the State of Mississippi, while the new statute merely requires that it arise in the State while the corporation was qualified to do business therein. This Court is impressed by plaintiffs' contention that the absence or omission from the requirement in the statute that the cause of action arise "out of" or "from", business or activities of the corporation in Mississippi is significant, and by their further argument that the cause of action in this State arose when plaintiff first had a right to institute an abuse of process action herein.
In Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, which involved a venue question which depended on the words "county where the cause of action may occur or accrue * * *" the Mississippi Supreme Court stated the following:
This Court is of the opinion that the key or vital words in the statute are "during the time", and that in order for the Courts of Mississippi to acquire jurisdiction
The Illinois Supreme Court in Strong v. Lewis, 204 Ill. 35, 68 N.E. 556 held:
This Court therefore is of the opinion that section 5309-234 Miss.Code was enacted to prevent a corporation from withdrawing from the State of Mississippi after a citizen of this State had a right to sue the corporation, and that jurisdiction conferred upon a foreign corporation through the provisions of this statute is predicated upon the fact that the cause of action accrue during the time that the corporation was qualified to do business within the State of Mississippi, regardless of the origin or genesis of the acts which gave rise to the cause of action, that is, whether or not they accrued or had their effect within or without the State of Mississippi.
Nevertheless, assuming that section 5309-234 requires as a prerequisite to the acquisition of jurisdiction over a foreign corporation, that the alleged abuse of process must have occurred or "accrued" within the geographical limits of the State of Mississippi, this Court is of the opinion and finds that at least some of the acts which it is alleged constitute an abuse of process, did accrue or did affect both plaintiffs within the geographical limits of the State of Mississippi. It must be remembered that
In Lowry v. International Brotherhood, 220 F.2d 546 (C.A.5, 1955), the Fifth Circuit held:
In the case of Boulevard Airport v. Consolidated Vultee Aircraft Corp., 85 F.Supp. 876 (D.C.Pa.) the Pennsylvania statute in question provided that upon withdrawal of a foreign corporation and the issuance of a Certificate of Withdrawal process could be served on the Secretary of the Commonwealth against the corporation "in an action upon any liability or obligation incurred within this Commonwealth, before the issuance * * *" (Emphasis supplied). Plaintiff
This same Pennsylvania statute was involved in the case of Sunbury Wire Rope Mfg. Co. v. United States Steel, 18 F.R.D. 13 (C.A.3) rev. 230 F.2d 511. Sunbury, a Pennsylvania manufacturing corporation brought suit against nonresident corporations, including Roebling Securities Corporation, charging that defendants had participated in a conspiracy and restraint of trade which had destroyed plaintiff's Pennsylvania manufacturing business. Roebling, a New Jersey corporation had qualified in Pennsylvania during the time of the alleged conspiracy but had since withdrawn prior to suit. Suit was brought in Pennsylvania and service was had on the Secretary of the Commonwealth. The Court of Appeals adopted the holding of the District Court that a cause of action under the antitrust laws arises at the place where plaintiff suffered the damage, and held that suit was for a liability incurred within Pennsylvania before the withdrawal. The Court stated:
Based upon the above, this Court finds and is of the opinion that it has territorial or in personam jurisdiction over the defendant Koehring in both of these cases under the provisions of Section 5309-234 of the Miss.Code, and therefore, the Motions to Dismiss filed by the defendant in both cases based on lack of territorial jurisdiction, or in the alternative to quash process, will be overruled.
The next question which must be decided is that raised by the Motions to Transfer filed by the defendant in both of these cases in which it seeks transfer of these causes of action to the United States District Court for the Northern District of Oklahoma.
The defendant's Motions in these two cases is predicated on the provisions of Section 1404(a), Title 28 U.S.C.A., which provides:
The criteria to be considered in a Motion for a Change in Venue has been set forth and examined in numerous cases, including the leading case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The factors enumerated in Gilbert and its progeny have been incorporated in an extensive annotation to the Fifth Circuit Court of Appeals opinion in Time, Inc. v. Manning, 366 F.2d 690 (C.A.5, 1966) found in an excellent recently published American Law Reports edition dealing exclusively with Federal questions. 1 A.L.R. Fed. 15-215. It thus becomes encumbent upon this Court to examine these criteria in light of the facts herein presented.
In the instant case, the plaintiffs chose to bring this action in the Southern District of Mississippi. Unless strongly outweighed by other factors, the plaintiffs' choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, supra, at 839. The importance of this consideration is well expressed in the case of Time, Inc. v. Manning, supra, 366 F.2d at page 698, the Court stating:
Both plaintiffs, Hyde and Dunn, are domiciled and reside in the forum in which this suit was brought. This factor certainly deserves consideration in determining a motion for transfer and has been frequently emphasized by courts in denying such a motion.
The defendant states that in order to properly defend in this cause the live testimony of Judge Allen E. Barrow, Senior United States District Judge for the Northern District of Oklahoma is essential. Judge Barrow, it is averred and the record so indicates, signed the major portion of the process, writs and other documents complained of in this suit; he presided over the major portion of all hearings held in Oklahoma including the civil action between Hyde and Koehring (Cause No. 5911), the criminal action against Dunn, (Cause No. 14,375) and the criminal action against Hyde Construction Company (Cause No. 14,324); he cited Hyde and Dunn for contempt of court, and he signed the order of dismissal of the criminal actions against Hyde and Dunn, in light of the decision by the Tenth Circuit Court of Appeals. The defendant further lists as necessary witnesses: John Imel, the United States Attorney for the Northern District of Oklahoma from 1961 to February of 1967, who was in charge of, and actively participated in, all criminal proceedings against Hyde and Dunn; Larry McSoud, United States Attorney since February 1969 and prior to such time Assistant United States Attorney under Imel, who actively participated in all criminal proceedings prior to February 1969 and has been in charge of subsequent matters connected with the criminal prosecution of Dunn; Hubert A. Marlowe, Assistant U. S. Attorney who participated in the contempt proceeding and criminal prosecution of Dunn; Robert Santre, also an Assistant U. S. Attorney, who did considerable work in the appeal of Dunn to the Tenth Circuit Court of Appeals; and finally Villard Martin, Jr., defendant's leading trial counsel in Oklahoma in the civil case of Hyde v. Koehring Co., who actively participated in a number of hearings germane to the instant case.
On the other hand, plaintiffs list the following witnesses who will possibly be used, the live testimony of each being necessary for the presentation of both cases; R. W. Hyde, Jr., President of the plaintiff corporation, who is intimately familiar with the effects of the defendant's alleged torts upon his company; Vardaman S. Dunn, plaintiff herein and trial counsel for Hyde in the Chancery Court of Hinds County, Mississippi and the Mississippi Supreme Court, and also counsel for Hyde in the proceedings in the District Court in Oklahoma, the Tenth Circuit Court of Appeals and the U.S. Supreme Court, and who further represented plaintiff in the District Court in Wisconsin and before the Court of Appeals for the Seventh Circuit, thus being familiar with all the alleged acts and torts committed by the defendant; Judge Charles Clark, recently appointed to the United States Court of Appeals for the Fifth Circuit, who, as a partner in the firm of Cox, Dunn and Clark, represented plaintiffs before the U.S. District Court in Oklahoma, The Tenth Circuit Court of Appeals, the U.S. Supreme Court, the U.S. District Court in Wisconsin and the Court of Appeals for the Seventh Circuit, thus having first hand knowledge of many occurrences and conversations relating to the action; William H. Cox, Jr., a partner in the firm
This Court is convinced, upon a careful study of the affidavits and briefs in support thereof, that the testimony of most of the witnesses listed by both parties would be material and their live testimony would certainly be preferable over depositions. The inconvenience of defendant's witnesses coming to Mississippi for trial would be no greater than the inconvenience of plaintiffs' witnesses going to Oklahoma for trial. While Judge Barrow, the U.S. Attorneys in Oklahoma and defendant's counsel could be classified as "key" witnesses for the defendant, Judge Clark, Chancellor Stennett, local attorneys associated with or having knowledge of the prior proceeding, and the various public and court officials residing in Jackson, deserve the same classification as witnesses for the plaintiffs. Nor should the interest of the parties Hyde and Dunn, particularly when their testimony is vital to the case, be ignored, but is an important consideration as heretofore mentioned.
Likewise, the availability of evidence and the expense of procuring its production is a factor to be considered.
The conflict of laws principles of the state where the action is brought are determinative of which state substantive law is to be applied. Mullinax Engineering Co. v. Platte Valley Const. Co., 412 F.2d 553 (C.A. 10, 1969); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Uncertainty in the forum state's conflict of laws rules weighs against transfer.
The relative congestion in the respective Court dockets has also been considered on a Motion for Transfer.
A final consideration on a Motion for Transfer is the place where the events upon which an action is founded occurred. The defendant contends that this is an action for misuse or abuse of process issued by the U.S. District Court in Oklahoma and that none of the conduct complained of occurred in the forum state. The plaintiffs respond that the
Based upon the above, this Court finds and is of the opinion that the Motions of the defendant filed under 28 U.S.C. sec. 1404(a) to Transfer these cases to the United States District Court for the Northern District of Oklahoma should be and will be overruled.
The plaintiffs shall present their Orders to this Court in conformance with the foregoing opinion within the time and in the manner prescribed by the Rules.
(b) All civil actions for the recovery of damages brought against a nonresident of the State of Mississippi may be commenced in the county in which the action accrued or where the plaintiff then resides or is domiciled, except as otherwise provided by law. Service of process may be had in any county of the State where the defendants, or any of them, may be found, except when elsewhere provided by law for service upon the Secretary of State.
(c) The provisions of this act as they apply to an accrual of a cause of action will be in full force and effect as to any such accrual if the cause of action accrued either before or after passage of this act."