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VANDUSEN v. J.C. PENNEY COMPANY

August 21, 1962

DORA H. VANDUSEN, PLAINTIFF,
v.
J.C. PENNEY COMPANY, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

This matter is before the court on defendant's motion to transfer this cause of action to the United States District Court for the District of Arizona, sitting at Phoenix, in accordance with 28 U.S.C.A. § 1404(a).

On April 2, 1962, the plaintiff filed her complaint in the Garland County Circuit Court. Summons was served on defendant, J.C. Penney Co., on April 4, 1962, and the defendant's petition for removal to this court was filed April 23, 1962.

In paragraph numbered I of the complaint the plaintiff alleged:

    "On or about the 12th day of April, 1960, the
  plaintiff was shopping in one of the retail
  department stores of the defendant in the City of
  Mesa, Arizona. As the plaintiff approached one of the
  display counters of the defendant, she stepped on a
  slippery cellophane wrapper together with dirt, sand
  and other debris which caused her to fall violently
  to the floor. As a result of this fall, caused by the
  negligence of the defendant, the plaintiff has been
  seriously, painfully and permanently injured."

In paragraph numbered III the plaintiff alleged:

    "The defendant was negligent at the time of the
  accident in permitting the said cellophane wrapper,
  dirt, sand, and other debris to remain on its floor
  and in failing to

  cause the said debris to be removed when it knew, or
  should have known, in the exercise of due care, that
  said debris was a hazard to its business invitees
  walking through the aisles of its store."

Then followed allegations of the various personal injuries which the plaintiff claims that she received at the time, and that said personal injuries were proximately caused by the negligence of the defendant.

On April 23, 1962, the date on which the petition for removal was filed, the defendant filed its answer and denied the allegations contained in paragraph I as above set forth, and specifically denied that it was guilty of any negligence, or that the plaintiff fell as alleged and that she received any personal injuries as a result of a fall in the store of defendant located in Mesa, Arizona, or any other place.

In the motion to transfer, the defendant alleged that on April 12, 1960, it was and is now operating a store in the City of Mesa, Arizona; that on the date the plaintiff claims she received the injury she was a resident of Maricopa County, Arizona, and resided at 1757 East Second Street in the City of Mesa; that the defendant is subject to a suit in the United States District Court for the District of Arizona, sitting at Phoenix.

The motion by reference included the discovery depositions of the plaintiff and her husband, Raymond Elmer Vandusen, taken on June 13, 1962, in Hot Springs, Arkansas. Attached to the motion are the affidavits of nine employees of the defendant, all of whom stated under oath that they did not see the plaintiff fall; did not personally know her; and that, in fact, no one fell in the store on or about April 12, 1960. In other words, all nine of the employees have sworn that no accident involving any customer or any other person in the store was witnessed by any of them during the month of April, 1960.

In the affidavit of Elton C. Hussey, who was on April 12, 1960, manager of the store, and had been for eleven years, it is stated that he was not present in the store on April 12, 1960; that he was away from March 30, 1960, to May 1, 1960, on a trip to Japan.

Mr. Hussey further states:

    "That on or about November 11, 1961, upon receipt
  of a letter from plaintiff's attorney concerning the
  alleged accident, he immediately questioned employees
  who were employed during the month of April, 1960,
  and all persons so questioned denied any knowledge of
  any person by the name of Dora H. Vandusen, or any
  knowledge of any customer having a fall or other
  accident during the month of April, 1960;"

The plaintiff opposes the motion to transfer on the ground that she is still suffering severe pain and discomfort "from the effects of the injury received on defendant's business premises in Mesa, Arizona, and to require her to journey to Mesa, Arizona, would aggravate her suffering; that her husband, Raymond Vandusen, who witnessed the accident herein, is employed at Radio Station KAJI, Little Rock, Arkansas, and subject to twenty-four (24) hour call six days a week, would have to accompany her to care for and assist her; that if it becomes necessary for her husband to make an extended trip to Arizona it will result in great hardship or possibly loss of his employment; that if such loss of employment should ensue plaintiff would lose her only reliable means of support since she is not able to fully support herself since the injury received on defendant's premises in Mesa, Arizona."

Counsel for the parties have served and submitted briefs in support of their respective contentions. The defendant contends that under the admitted facts it is entitled to have the case transferred to the District of Arizona for trial in Phoenix, which city is located near Mesa where the injuries are alleged to have been received.

The doctrine of forum non conveniens did not originate in federal but in state courts. Nevertheless the federal courts, including the Supreme Court, ...


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