Gertrude D. Willis v. Weil Pump Company

FRANK, Circuit Judge.

1. In the district court, defendant moved for dismissal of the complaint because of improper venue. Defendant argued thus: Neither party is a resident of New York, and the New York courts will not entertain suits relative to a tort which occurred elsewhere; therefore the district court sitting in New York cannot entertain a suit where jurisdiction rests on diversity of citizenship. We think this contention untenable here for two reasons: (1) The refusal of the New York courts to deal with such a suit is but a state rule of forum non conveniens. Such a rule does not control a federal court, since Congress has explicitly legislated in that field, 28 U.S.C. § 1404 (a), and it involves federal procedure. See Moore, Commentary On the United States Judicial Code (1949), pp. 330-331. Angel v. Bullington, 330 U.S. 183 , 67 S.Ct. 657 , 91 L.Ed. 832 , is not apposite, since there the state had a substantive policy of refusing to grant a deficiency judgment. (2) Moreover, a New York court has held that a foreign corporation, like defendant here, which is licensed to do business in that state, is to have been deemed to be doing business there. Hamilton v. Berwind-White Coal Mining Co., Sup., 60 N.Y.S.2d 561 . Service on defendant and venue were proper. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 , 60 S.Ct. 153 , 84 L.Ed. 167 .

2. Judge Dawson dismissed the complaint because the Tennessee statute of limitations had run. We adopt his opin *262 ion in that respect. Cf. Komlos v. Com-pagnie Nationale Air France, 2 Cir., 209 F.2d 436, 438-439 ; Taylor v. New York Central R. Co., 294 N.Y. 397 , 62 N.E.2d 777 .

Affirmed.