Opinion
Action by Irene Facen, as administratrix of the goods, chattels and credits of Henry Facen, deceased, against Royal Rotterdam Lloyd Steamship Co., and another, wherein Lottie Barton, as administratrix of the goods, chattels and credits which were of Austin Barton, deceased, moved to consolidate her action pending in the Eastern District of New York against Royal Rotterdam Lloyd Steamship Co. with action by Irene Facen pending in the Southern District of New York. The District Court, Weinfeld, J., held that district court was without authority to consolidate action pending in another district.
Motion denied.
Albert Martin Cohen and Louis I. Rothenberg, Brooklyn, N.Y., for plaintiff Lottie Barton.
Harry H. Lipsig, New York City, for plaintiff Irene Facen.
Thomas F. Keane, Brooklyn, N.Y., for defendants.
WEINFELD, District Judge.
Plaintiff in an action pending in the Eastern District of New York moves in this Court to consolidate her action with one pending in this district. There are different plaintiffs in each action, and while one defendant is common to both, an additional defendant is named only in the Eastern District suit. The basis of the motion is that the claim of each plaintiff arises out of one accident and involves the identical state of facts.
Rule 42(a) of the Federal Rules of Civil Procedure, 28 U.S.C., permits consolidation of actions involving common questions of law or fact only where they ‘ are pending before the court’ . But the Court is without authority to consolidate an action pending in another district with one pending here. Implicit in the plaintiff's motion is the removal to this district of her action pending in the Eastern District. A case may be removed from one district to another upon the ground of forum non conveniens. 28 U.S.C. § 1404(a). But the application must be made in the district in which the case is pending and not in the district to which it is to be removed.
Schwartz v. Kaufman, D.C., 46 F.Supp. 318; 5 Moore's Federal Practice, Second Edition, ¶ 42.02, footnote 11.
The cases cited by the moving party are inapplicable since in each instance the consolidation was of actions pending in the same district.
Motion denied.
Settle order on notice.