author: CEREZO, District Judge.

text:
    Amparo FIGUEROA-OLMO, et al., Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Counterclaimant and Third-Party Plaintiff, v. PUERTO RICO HIGHWAYS AUTHORITY, Evelester Noriega De Cortez, the conjugal partnership constituted by Evelester Noriega de Cortez and Dr. Gilberto Cortez Figueroa; ABC Insurance Company and XYZ Insurance Company, Third-Party Defendants. Milagros Contreras MERCED, Plaintiff-Counterdefendant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Counterclaimant and Third-Party Plaintiff, v. PUERTO RICO HIGHWAYS AUTHORITY, et al., Third-Party Defendants.
    Civ. Nos. 82-2518CC, 82-2828CC.
    United States District Court, D. Puerto Rico.
    Sept. 3, 1985.
    As Amended Sept. 11, 1985.
    Antonio Gnocci-Franco, O’Neill & Borges, Hato Rey, Puerto Rico, José E. Fernández-Seín, Santurce, Puerto Rico, Ernesto Rodríguez-Suris, San Juan, Puerto Rico, Miguel Giménez-Muñoz, Old San Juan, Puerto Rico, Frederick Auld, Puerto Rico Highways Authority, San Juan, Puerto Rico, for defendants.
   ORDER

CEREZO, District Judge.

Before us are the objections to the Magistrate’s Report and Recommendation concluding that the estate had been accepted “purely and simply” by the adult plaintiff heirs and under “benefit of inventory” by the minor plaintiff heirs. Plaintiffs’ opposition rests on what they consider were procedural and substantive errors. Procedurally, they contend that the issue of the acceptance of the estate could not be decided via a Rule 56, Fed.R.Civ.P., motion because it was merely a fragment of a claim and this rule was not designed for this type of adjudication. They argue, alternatively, that since the acceptance of an estate involves an element of intent, summary judgment is not the appropriate mechanism to determine it. As to the application of the substantive law, their arguments acquire some complexity since they appear to have developed somewhat inconsistently with the passage of time and between reply and reply. It was first argued that the pleadings construed by the Magistrate as claims on behalf of the estate were really claims for “loss of future inheritance” which were later eliminated after discovering that this type of claim had been rejected by the supreme court in Zurkowski v Honeywell, Inc., 112 DPR 271 (1982) (translation pending publication). Then they argued that in view of the supreme court’s rejection of the claim for loss of future inheritance the pleadings could not be construed as an acceptance for plaintiffs could not claim something out of nothing. Later on they maintained that these pleadings were really claims made individually by the heirs as dependents of the deceased for loss of income. They also argued alternatively, apparently in response to defendant’s signaling of another claim which did not fit into the loss of future inheritance argument/the loss of the truck’s value/that these claims were merely acts of administration made only to preserve the estate. Finally, they pleaded equity, for if the estate is deemed accepted purely and simply they might end up accepting more liabilities than assets. We find plaintiffs’ objections to the Magistrate’s conclusions to be without merit and adopt the Report and Recommendation with the following additional findings, observations and conclusions of law.

Although some courts have disfavored the use of Rule 56, Fed.R.Civ.P., for the exclusive purpose of adjudicating portions of claims or defenses which may not be ripe for adjudication, see e.g.: Mendenhall v. Barber-Greene Co., 531 F.Supp. 947, 948 (N.D.Ill.1981), we believe that a wooden application of that doctrine to the particular situation before us is unwarranted and would serve to defeat the very purposes of the rules in securing a just, speedy and inexpensive determination of every action. Rule 1, Fed.R.Civ.P. The issue of the acceptance of the estate, although technically part of defendant’s counterclaims and third-party action against the heirs for contributory negligence, is a threshold, dispositive element which if ruled upon may either dispose of these claims partially or entirely or establish their feasibility and permit the parties to better evaluate the possibilities of reaching a fair settlement and avoiding the expense of a trial. In this case the acceptance issue is not a minor issue that depends on other unripe elements of the claim. It is such an independently conceived and important issue that Puerto Rico law establishes a special action by a decedent’s creditors which is exclusively designed to make the heirs either accept or reject the estate within thirty days to define their status as soon as possible. See: P.R. Laws Ann., Sections 2786 and 2787 Articles 958 and 959. In terms of judicial economy, the Supreme Court of Puerto Rico has said that the action to compel the acceptance or repudiation of an inheritance need not be filed independently in a separate action but may be considered as included within an action for collection of monies by the creditors of the deceased against the latter’s heirs. See: Banco Comercial de P.R. v. Garcia, 51 PRR 712, 716 (1937). Thus, the fragmentation of a claim and the unnecessary ruling on unripe issues allegedly involved in such misuse of Rule 56 is not present here, as was suggested by plaintiffs. It is also important to note that Westinghouse’s motion for partial summary judgment is not an isolated request raised at the early stage of the litigation. Instead, it is the result of the gradual development and refinement of the Rule 12 Fed.R.Civ.P. arguments for dismissal of the claim of contributory negligence initially brought forth by plaintiffs themselves. This issue surfaced when plaintiffs claims that Westinghouse’s counterclaim and third-party actions for contributory negligence had to be dismissed because Puerto Rico tort caselaw held that the relatives in their individual capacity were not responsible for their decedent’s negligence and when they abruptly changed their strategy by dropping the heirs’ claims on behalf of the estate. To rebut this argument and in defense of its claims for contributory negligence, defendant then contended that these claims were directed only at the heirs in such capacity and not against plaintiffs’ individual capacity. When in the midst of this exchange, plaintiffs radically changed their complaint without informing the parties or the court of their changes, Westinghouse was practically forced to focus its defense to the Rule 12 motion on the issue of acceptance which it had apparently assumed had already been established given plaintiffs’ initial filings. After arguing the matter extensively and examining the record, it is reasonable to say that the acceptance issue is best resolved by partial summary judgment. In a sense, the matter is merely a continuation of the major issues raised by plaintiffs through their Rule 12 motions which were incorporated to their answers to the tendered counterclaims and third-party complaint. Resolution of the acceptance issue was a byproduct of the contributory negligence issues raised by plaintiffs in their Rule 12 motion. The fact that plaintiffs were notified of Westinghouse’s request for partial summary judgment and were given ample opportunity to respond to it, see: Condon v. Local 2944, United Steelworkers, etc., 683 F.2d 590, 593-94 (1st Cir.1982), ... would be sufficient to consider that their Rule 12 motion was in fact converted by their own argumentation and reference to extraneous materials into a motion for summary judgment by way of Rule 12(a) and (c)’s provision, see: Slevin v. Pedersen Associates, Inc., 540 F.Supp. 437, 438, n. 2 (S.D.N.Y.1982). In this context, a decision on the acceptance of the estate could be construed merely as an exercise of the faculty permitted by Rule 56(d) which provides for the issuance of orders specifying the facts which are not controverted and can be determined as established for purposes of trial. In any event, a straightjacket application of the rules ignores over two years of extensive motions, memoranda and exhibits, unnecessarily leaves the case at a standstill only to reach the trial stage without any insight on a threshold and complex issue that is ripe for adjudication. Cf: Wetherhill v. University of Chicago, 548 F.Supp. 66, 67, n. 3 (N.D.Ill.1982). Discarding the efforts made to clarify and define this issue is inconsistent with the purpose of the rules. See gen.: Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); Hartley & Parker, Inc. v. Fla. Beverage Corp., 348 F.2d 161, 163 (5th Cir.1965).

The fact that an element of intent may be present in an issue does not necessarily preclude it from being adjudicated summarily. As noted in Hahn v. Sargent, 523 F.2d 461 (1st Cir.1975), cert. den., 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754:

State of mind is difficult to prove and great circumspection is required. where summary judgment is sought on an issue involving state of mind. Poller v. Columbia Broadcasting System, 368 U.S. 464 (1964). But that does not mean that a party against whom summary judgment is sought is entitled to trial simply because he has asserted a cause of action to which state of mind is a material element. There must be some indication that he can produce the requisite quantum of evidence to enable him to reach the jury with his claim.

Hahn, at 468. When confronted with a duly supported motion for summary judgment, the oposing party cannot rest on the pleadings or on arguments made in motions and memoranda. See e.g.: Saunders v. National Basketball Ass’n., 348 F.Supp. 649, 654 (N.D.Ill.1972). It must file counteraffidavits or other documents to refute the movant’s papers and, at least, raise a controversy of fact. See e.g.: Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985 (1st Cir.1983). In the present case plaintiffs' have cleverly argued why their initial claims and answers to interrogatories cannot be taken as an acceptance of the estate. They have yet to file a simple affidavit where any of these contentions are made. Their attorney’s arguments are not enough to create an issue of fact on their real intention in filing such specific claims and later ratifying them under oath.

As the Magistrate noted, in Puerto Rico an inheritance may be accepted “purely and simply,” which entails agreeing to pay for the decedent’s debts even with one’s resources if those of the estate are insufficient. See P.R. Laws Ann., Title 31 Section 2780. The inheritance may also be accepted under benefit of inventory which would limit the estate’s liabilities up to the assets of the inheritance id. or it may be repudiated. Title 31 Sections 2771-2775. A pure and simple acceptance may be express or implied id. at 2781. An express acceptance is one made in a public or private instrument and an “[ijmplied acceptance is one made by acts which necessarily imply a wish to accept, or acts which no one should have a right to execute in the capacity of an heir.” Id. The Civil Code provides that acts of mere preservation or provisional administration of the inheritance are not acts of implied acceptance if performed without assuming the title and character of heir. Id. Once the acceptance is made it is irrevocable, id. at section 2779, and the Code mandates that “[acceptance or repudiation of the inheritance cannot take place either partially, for a certain period, nor conditionally.” Id. section 2773. In González v. Marrero, 55 PRR 812 (1940) the Supreme Court of Puerto Rico ruled that a party’s appearance as heir in a suit to recover property of the estate (a claim for personal injury) was an implied pure and simple acceptance of the estate. The Supreme Court of Spain has also ruled that the mere filing of a complaint for eviction on behalf of the estate was an implied acceptance of the inheritance; Judgments of March 13, 1952 and April 17, 1959.

In the present case, some pleadings specified that they were being made on behalf of the estate to recover a right belonging to the estate and in their capacity of heirs. They stand out from the rest of the pleadings which made specific claims individually on behalf of each of the plaintiffs. The caption specifically described certain plaintiffs as heirs suing on behalf of an estate. In the case of the decedent Francisco Figueroa’s heirs, the acceptance is even more patent for, aside from making the abovementioned claim, they also claimed to recover the value of the truck, an allegation which still stands for it was not eliminated as were the other loss of income claims. The loss of income claims on behalf of the estate were not filed and quickly withdrawn. They remained for nearly six months, were reincorporated in a later amendment and ratified by sworn answers to interrogatories by the plaintiffs. Some of these answers still have not been changed. To argue that these were claims for loss of future inheritance inserts language which is not in the complaint. This argument carries with it the acceptance that the claims were made as heirs for who else but they could recover upon such a claim. To argue that they were really claims made in their individual capacity for their economic loss as dependents of the deceased is to ignore the clear language of the pleadings which sets forth claims made individually as dependents for loss of economic support side by side with separate claims made by plaintiffs as heirs for loss of income on behalf of the estate. Likewise, to allege that these claims were “acts of mere preservation, or provisional administration” is at odds with the urgent and provisional nature that characterize these acts and with the law’s caveat that they not be performed assuming the title and character of heir. Id. at 2781. See: III, F. Puig Peña, Tratado de Derecho Civil Español, Tome V., pp. 379-385. If these acts were merely to preserve the estate, why were they expressly undertaken as heirs? Nor is there an explanation on why the stated purpose of interrupting the limitations period, could not be achieved through other, less compromising, methods or why, if these were provisional measures, does the claim of the heirs of Figueroa for the value of the truck still remains.

Finally, plaintiffs’ resort to equity to shield them from the consequences of their acts is not convincing. Although the Supreme Court of Puerto Rico has stated that the principle of civil law equity, equidad, should permeate the law, that court has also said that one must be cautious in substituting subjective notions of equity for the clear mandate of the law when the law provides remedies and regulates a specific situation. See: Jack’s Beach Resort v. Cia. Turismo, 112 DPR 344, 350 (1982). The Civil Code expressly provides that resort to equity will only be had if there is no law applicable to the situation. P.R. Laws Ann., Title 31 Section 7. See: Finlay v. R. Fabian & Co., 24 PRR 140, 147 (1916).

The law regulating our situation stems from ancient principles of Roman inheritance law incorporated in a systematic and comprehensive set of statutes and chapters in the Civil Code which provide more than sufficient remedies for plaintiff’s predicament. No one “forced” the inheritance on plaintiffs. They could have repudiated it, named an administrator to evaluate its worth or accepted it under benefit of inventory. The Civil Code even provides remedies after acts of implied or express acceptance have been made. The law, although establishing that the acceptance or repudiation is irrevocable, only sanctions the voluntary and free act of acceptance. P.R. Laws Ann., Title 31 Section 2771. “Acceptance of an inheritance can be impugned if they are tainted by any of the defects which annul the consent____” Id. Section 2779. These defects are enumerated in Article 1217 which states that “[cjonsent given by error, under violence, by intimidation, or deceit shall be void.” P.R. Laws Ann., Title 31 Section 3404. However, none of the heirs have raised this argument and the protection of this statute nor have they affirmed, under oath, that they were somehow misled by error, deceit, intimidation or force into making the claims and giving the sworn answers mentioned before. Their only argument is that the claims could not be construed as an acceptance since they were claims over something that did not exist for the law did not permit such a claim. Although Spanish commentator Federico Puig-Peña believes that an error as to the inheritance’s composition, as distinguished from an error on the value of the inheritance, may in certain circumstances consist in the error contemplated by the Code, see P.R. Laws Ann., Title 31 Sections 3405; II, Puig-Peña, Tratado de Derecho Civil Español, Tome V, p. 233 (“si el error no recae sobre la estricta valoracion, sino sobre la 'composicion de la herencia,’ entonces podrá admitirse un temperamento revisorio, siempre, naturalmente, que concurran estas dos circunstancias: que el error sobre la composicion afecte a elementos esenciales del complejo hereditario y que el error producido lo haya sido a causa de representaciones asentadas en base seria para creerlo”), plaintiffs’ argument that they were claiming something that they did not have a right to is far from the tainted consent exception recognized by the Code. Yet even were we to refine the equity defense by examining the applicability of these articles, the absence of sworn statements indicating the contents of this defense so as to enable the court to evaluate its contours and, at least, create an issue of fact, prevent us from considering this matter. If their attorneys simply interpreted erroneously the law and filed claims which were not permitted, the end result being that some plaintiffs heirs could respond with their own resources for the liabilities of their decedent, is a matter best left to plaintiffs and their attorneys. As the record now stands plaintiffs have failed to show, in the manner required by Rule 56, the existence of a single genuine issue of fact on the meaning of their acts which were considered by the Magistrate and are considered by this Court to be acts “which no one should have a right to execute except in the capacity of an heir.” Title 31 Section 2781.

We, therefore, hold that plaintiffs Gregorio Figueroa and Lucia Olmo, the legal heirs of Francisco Figueroa-Olmo have accepted the latter’s inheritance purely and simply; plaintiff Zoraida Báez-Cabán, the adult legal heir of Luis Báez, has accepted the latter's inheritance purely and simply and plaintiff Tomás Navarro-Flores, the legal heir of Jesus Encarnacion, has accepted the latter’s inheritance purely and simply.

As to the remaining issue regarding the minors’ acceptance through their parents, we agree with the Magistrate that the law in Puerto Rico deems that acceptance as made under benefit of inventory.

With respect to plaintiffs’ motions to dismiss the counterclaims and third-party complaints we adopt the Magistrate’s Recommendation that they should be and they are hereby DENIED. We consider defendant’s amended claims and the assertions in its memoranda as to its intention of suing only the heirs as a voluntary dismissal of the claims against all plaintiffs in Civil 82-2518 and third-party defendants in Civil 82-2828 who are not heirs of the decedent. The tendered counterclaims and third-party complaint so amended are ORDERED filed. As to those plaintiff-heirs who are minors, the counterclaim and third-party complaint against them is DISMISSED, without prejudice. Captions in future filings shall reflect these changes.

SO ORDERED.

      . Our reference to plaintiffs is to those in Civil 82-2518 only, for the other plaintiff, Milagros Contreras, has not opposed any of these rulings or recommendations.

      . It should be noted that Zurkowski was a certification from this court on the question of whether non-dependent heirs could recover loss of income and not really on the question of the viability of a claim for loss of future inheritance. The federal, as well as the supreme court, recognized that the claim for loss of future inheritance had been rejected by the Supreme Court since 1961.

      . It is interesting to note that in Banco Comercial, since the court found that the complaint was an action against defendants as heirs for debts of the deceased, it also interpreted said pleadings as containing the action to compel acceptance or repudiation and defendant’s failure to answer it was construed as a failure to make the necessary manifestation within the specified time. Thus', even failing to raise the defense of nonacceptance in a complaint against the heir for the debts of the estate may be construed as an implicit acceptance of the inheritance. The Supreme Court of Spain also construed the failure to repudiate the inheritance in an action against the heirs for the decedent’s debts as an implied acceptance. Judgment of July 1, 1952.

      . The driver and owner of the truck that collided with the trailer.

      . It should be noted, as was recognized by professor González-Tejera in his work, Derecho Sucesoral Puertorriqueño, Vol. 1, p. 152, that the heirs in Gonzalez v. Marrero could not have been making the claim for wrongful death on behalf of their son because at that time no such cause of action existed. It was only after Vda. de Delgado v. Boston Ins. Co., 99 PRR 693 (1971), that the right of the heirs to bring a cause of action for the pain and suffering of their decedent was recognized. Technically speaking, the court in Gonzalez considered the mere filing of the claims as heirs on behalf of the estate as an act of acceptance even though at that time they were not legally entitled to what they claimed.

      . If it should turn out that plaintiffs were somehow misled by their attorneys, the conflict of interests problem would have to be re-examined. If this were the situation we would suggest plaintiffs’ attorneys seek voluntary disqualification.


source: Caselaw Access Project

license: Public Domain

text:
    Amparo FIGUEROA-OLMO, et al., Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Counterclaimant and Third-Party Plaintiff, v. PUERTO RICO HIGHWAYS AUTHORITY, Evelester Noriega De Cortez, the conjugal partnership constituted by Evelester Noriega de Cortez and Dr. Gilberto Cortez Figueroa; ABC Insurance Company and XYZ Insurance Company, Third-Party Defendants. Milagros Contreras MERCED, Plaintiff-Counterdefendant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Counterclaimant and Third-Party Plaintiff, v. PUERTO RICO HIGHWAYS AUTHORITY, et al., Third-Party Defendants.
    Nos. Civ. 82-2518CC, Civ. 82-2828CC.
    United States District Court, D. Puerto Rico.
    Sept. 3, 1985.
    As Amended Sept. 11, 1985.
    Víctor Rodon-Elizalde, Rafael E. GarciaRodon Oscar González-Badillo, Hato Rey, P.R., for plaintiffs.
    Antonio Gnocci-Franco, O’Neill & Borges, Hato Rey, P.R., José E. Fernández-Seín, Santurce, P.R., Ernesto Rodríguez-Suris, San Juan, P.R., Miguel Giménez-Muñoz, Old San Juan, P.R., Frederick Auld, San Juan, P.R., for defendants.
   OPINION AND ORDER

CEREZO, District Judge.

A traffic accident m which four persons lost their lives when the truck they were riding in collided with a trailer that was crossing a highway near the outskirts of metropolitan San Juan is the subject of the present consolidated actions for damages brought by forty relatives of the deceased against the owner of the trailer, Westinghouse Electric Corporation (Westinghouse). Federal jurisdiction is premised on diversity of citizenship between plaintiffs, residents of Puerto Rico, and defendant, resident of Pennsylvania, for a claim in excess of twenty-seven million dollars. Presently before us are sundry motions to review, oppose or adopt an Opinion and Order issued by Magistrate Arenas on July 30, 1984 regarding the possibility that joint representation of all plaintiffs, except for Milagros Contreras Merced, by the law firm of Naveira-Rodon may pose a conflict of interest situation. Another set of motions addresses the Report and Recommendation issued on September 28, 1984 in which the Magistrate recommends that Westinghouse’s partial motion for summary judgment be granted and that plaintiffs’ motions to dismiss the counterclaim and third-party complaint be denied. The Westinghouse motion requested that these plaintiffs who are also heirs of the deceased and who have filed claims as heirs on behalf of the estate be declared to have implicitly accepted the • inheritance. In a well-documented Opinion and Order the Magistrate determined that there existed the possibility of a conflict of interest, but that it could be surpassed if the attorneys involved made a full disclosure to their clients and these accepted being jointly represented by them.

Before determining whether the Magistrate’s ruling on the conflict of interests matter is correct, it is necessary to consider the procedural and factual framework of this case. In the original complaint filed on October 19, 1982 and in the first amended complaint of November 18, 1982 those .plaintiffs who also were heirs of the deceased made claims as representatives and on behalf of the estates of their respective decedents. In the consolidated action filed by Milagros Contreras-Merced, Civil 82-2828, Westinghouse filed a counterclaim on January 31, 1983 to set-off the percentage of negligence that could be attributed to her deceased husband, one of the passengers riding in the front seat of the truck that collided with its trailer. In this same case, Westinghouse filed a third-party complaint against all forty plaintiffs in Civil 82-2518 for contributory negligence and to set-off whatever amounts it may be ordered to pay plaintiffs in proportion to the degree of negligence that may be attributed to the decedents. The third-party action also included Evelester Noriega-deCortez, her husband Dr. Gilberto Cortez-Figueroa and their conjugal society and the Puerto Rico Highway Authority as possible tortfeasors. Third-party defendants (plaintiffs in Civil 82-2518) acknowledged receipt of the third-party complaint. Meanwhile, the plaintiffs in Civil 82-2518 filed answers to interrogatories during the first week of March 1983 where those who were also heirs of the deceased answered, under oath, that they were making claims on behalf of the estate. On March 21, 1983, plaintiffs in Civil 82-2518 filed a second amended complaint which incorporated by reference all their previous claims on behalf of the estate but increased the amount of damages of several of them from the hundred thousands to the millions. The ehange was apparently requested and granted in a previous status conference before Magistrate Castellanos. On March 25, 1983, Civil 82-2828 was consolidated with Civil 82-2518. On April 12, 1983 plaintiffs in Civil 82-2518 filed an informative motion stating that they had misnumbered the paragraphs of their complaint, that they wished to increase the amount of damages and that in order to dispel any confusion they tendered a second amended complaint which included these changes, with correctly numbered paragraphs.

A close review of this second amended complaint reveals that it is more than a simple amendment of the amount of damages and a numerical correction. The claims on behalf of the estate were dropped and the caption was changed to eliminate the reference to plaintiffs as representatives of the estates. Plaintiffs in Civil 82-2518 now claimed only in their individual capacities for their own suffering and for loss of financial support, in the case of those who were dependents of the deceased. None of this was explained in the informative motion filed on April 12, 1983. Westinghouse answered the second amended complaint on April 18, 1983 and asserted counterclaims for set-off on the contributory negligence of plaintiffs’ decedents. On April 28, 1983 it also filed a third-party complaint against the other third-party defendants in Civil 82-2828, the Cortez and the Puerto Rico Highway Authority, based on the same claims asserted in their third-party action against them in Civil 82-2828. The tendered complaint was ordered filed on April 21, 1983.

On May 2,1983 those who were plaintiffs in Civil 82-2518 and third-party defendants in Civil 82-2828 filed a motion to dismiss Westinghouse’s third-party complaint in Civil 82-2828 and on May 10 a motion to dismiss Westinghouse’s counterclaims in Civil 82-2518. Both motions were based on the same grounds. Thereafter, the parties continued to argue both motions on identical grounds but in dual filings which in turn were photocopied so that the dual filings could be made in each of the two consolidated cases. The end result is a record approximately twenty inches high.

The ground for dismissal of the counterclaims is that under Puerto Rican law a victim’s negligence cannot be attributed to a claimant. Westinghouse countered saying that its claims were only against those plaintiffs who are also legal heirs of the decedents. Westinghouse contends that these heir-plaintiffs implicitly accepted their decedent’s estate, with its assets and liabilities, by filing the initial complaints and in their sworn answers to interrogatories reasserting their claims on behalf of the estate. This argument triggered a motion by Westinghouse seeking partial summary judgment on the issue of the acceptance of the estate. In the midst of this, Westinghouse raised the possibility of a conflict of interests due to the joint representation of plaintiff heirs and non-heir plaintiffs. This brought on a burst of activity that added inches to the file of these consolidated cases.

Westinghouse’s main concern with the joint representation of plaintiffs is that there are opposing interests and positions among them which could require independent counseling. It has called our attention to copies of several statements and a report by a district attorney in the criminal case brought against the driver of Westinghouse’s trailer in which this driver was exonerated that allegedly point to the decedents’ negligence as the possible cause of the accident. Given the possibility of negligence of the deceased, Westinghouse contends that non-heir plaintiffs should have the opportunity to present a case against the other plaintiffs who are heirs of the driver or of the passengers in the truck for their part in causing the accident while the heir plaintiffs should have the opportunity to litigate among themselves the other decedents’ negligence in order to reduce their own and protect their compensation instead of resting their entire case against Westinghouse. It understands that this problem arose from the moment that all these plaintiffs with potentially conflicting interests sought advice from this law firm and this single firm made all the decisions on how to channel their claims. It understands that these considerations prevent plaintiffs’ attorneys from representing all of them without violating the prohibition against conflict of interests in the representation of a client. The attorneys for plaintiffs in Civil 82-2518 have consistently sustained that there is no actual or potential conflict of interest. They urge that before filing the complaint they made an extensive investigation of the case and concluded that Westinghouse was solely liable for the deaths of their clients’ relatives. They argue that no conflict could possibly arise for the right to set-off between joint tortfeasors only accrues when the tortfeasor pays the victim. They also believe that discovery thus far supports their initial conclusion that all the evidence points to Westinghouse as the only party responsible for the accident.

The Magistrate found that, although no actual conflict of interest had yet surfaced since no determination has been made on the possible causes of the accident, a potential conflict did exist which required action by the court. The Magistrate did not adopt the remedy of instant disqualification suggested by Westinghouse, and, based on federal caselaw interpreting the American Bar Association ethics standards, understood that if plaintiffs’ attorneys made a full disclosure to their clients of the possible conflicts involved and they consented and desired to continue being represented by them, then disqualification would not be necessary. Plaintiffs’ attorneys objected to such disclosure and consent for no finding was made on the existence of an actual conflict or even a potential one. They objected also to the Magistrate’s not imposing sanctions on Westinghouse’s attorneys for raising an issue as frivolous as this one, considered as a mere dilatory tactic intended to damage their professional reputation. Westinghouse objected to the Magistrate’s ruling as based on mistaken ethics guidelines. It contends that Local Rule 33-IVB mandates that he follow the position adopted by the Supreme Court of Puerto Rico which requires disqualification even if the client’s consent is obtained. On December 20, 1984, without abandoning their position that no potential or actual conflict of interests exist, plaintiffs’ attorneys filed several copies of identical unsworn statements, in Spanish, signed by their clients which were'translated as follows:

CERTIFICATION

I, the undersigned certify that today, September 19, 1984, I met with Atty.’s Víctor Rodon Elizalde and Miriam Naveira de Rodon, who are some of our attorneys as Plaintiff in case number 82-2518, 82-2828 before the Federal District Court for the District of Puerto Rico. Attorneys Rodon and Naveira de Rodon explained to me thoroughly and in detail of the possibility that a conflict of interests could arise between the Plaintiffs members of the different estates (sucesiones) of the deceased in the accident object of this case, who are represented by the same attorneys. After amply discussing the matter related with the possibility that a conflict of interests might arise, the effects and consequences related with the same, I have freely and spontaneously consented to continue with our present legal representation in the case. At San Juan, Puerto Rico, today, September 19, 1984.

Westinghouse contends that these statements do not constitute the full disclosure and informed consent required by the Magistrate.

We agree with the Magistrate’s ruling that the discovery of a potential conflict of interest during the course of the litigation does not necessarily result in automatic disqualification. The attempt by the law firm to comply with the Magistrate’s Opinion and Order is, however, insufficient.

According to Rule 72(a), Fed.R.Civ.P., the Court will modify or set aside any portion of a Magistrate’s order found to be clearly erroneous or contrary to law. Westinghouse’s argument against the Magistrate’s order rests on the premise that when the Court approved former Local Rule 33-IVB’s language that “The Code of Professional Responsibility adopted by this Court is the Code of Professional Responsibility adopted by the Supreme Court of the Commonwealth of Puerto Rico, as amended from time to time by that state court ...” it also accepted to be bound by whatever remedy and application of that Code the Supreme Court used in a particular disciplinary proceeding before it. The manner in which the Supreme Court of Puerto Rico applied its disciplinary code was, of course, useful precedent in our own interpretation of that code’s application to a particular situation before us, but it is essential to understand that the primary responsibility for supervising the conduct of the attorneys who practice before this court lies precisely with this forum. This authority stems from the Court’s inherent power to control and supervise the proceedings and the attorneys who practice before it. See: In Re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 160 (3d Cir.1984); Kevlic v. Goldstein, 724 F.2d 844, 847 (1st Cir.1984); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir.1976); Glover v. Libman, 578 F.Supp. 748, 750 (N.D. Ga.1983); Triplett v. Azordegan, 421 F.Supp. 998,1001 (N.D.Iowa, 1976) and former Local Rule 33-XII. Although reference to how the supreme court, of a district where the federal court sits, applies its code of professional conduct is helpful, see: Unified Sewerage Agency, etc. v. Jelco, Inc., 646 F.2d 1339, 1342 at n. 1 (9th Cir. 1981), the resolution of problems of this nature which may arise in a federal case is a matter of federal law entrusted to the discretion of the federal district court. See: Cord v. Smith, 338 F.2d 516, 524 (9th Cir.1964). Cf. Black v. State of Mo., 492 F.Supp. 848, 874-75 (W.D.Missouri, 1980) (court rejected Advisory Committee of Missouri’s Bar recommendation as to ethical problem before the court because final resolution of the matter lies with the court entrusted to supervise the attorneys practicing before it). We respect and duly consider the interpretations of the Supreme Court of Puerto Rico of the Canons of Ethics of Puerto Rico, but believe that former Rule 33-IVB did not mandate that we follow blindly each opinion rendered by that court on the kind of remedy that a particular ethical violation before it required. In any event, Westinghouse’s argument has lost whatever persuasive force it may have had with the adoption of the new Local Rules for this District which became effective on November 1, 1984. New Local Rule 211.5(a) refers attorneys who practice before this Court to the Model Rules of Professional Conduct adopted by the American Bar Association on August 2, 1983. Although the Magistrate did not specify that he was basing his remedy on these Model Rules, his decision is consonant with them. It should be noted that the Model Rules themselves, as stated in the Preamble, “are rules of reason /that/ do not exhaust the moral and ethical considerations that should inform a lawyer for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.” This flexible approach allows the court to exercise its disciplinary powers more appropriately than would a knee-jerk approach compelling automatic disqualification on the mere possibility of a conflict. Such an approach might well encourage the filing of frivolous motions for disqualification for dilatory purposes. As stated by Judge Markey in State of Ark. v. Dean Foods Products Co., Inc., 605 F.2d 380, 383 (8th Cir.1979):

Disqualification in spasm reaction to every situation capable of appearing improper to the jaundiced cynic is as goal-defeating as failure to disqualify in blind disregard of flagrant conflicts of interest. Between those ethical extremes lie less obvious influences on the interest of society in the orderly administration of justice, on the interest of clients in candid consultation and choice of counsel, and on the interest of the legal profession in its reputational soul.

Id. at 383. See also: Corn Derivatives Litigation, 748 F.2d at p. 160; International Business Machines Corp. v. Levin, 579 F.2d 271, 279 (3d Cir.1978); Woods v. Covington Cty. Bank, 537 F.2d 804, 809 (5th Cir.1976); Glover, 578 F.Supp. at 750; Freschi v. Grand Coal Venture, 564 F.Supp. 414 at 417 (S.D.N.Y.1983).

According to Model Rule 1.7(b), disqualification of counsel on grounds of potential conflicting interests in multiple client representation in the same lawsuit is not automatic but may depend on whether the clients agree to being so represented after having been informed of all the risks and disadvantages involved. See e.g.: Unified Sewerage Agency, etc., v. Jelco, Inc., 646 F.2d 1339, 1347-50 (9th Cir.1981). See gen.: Moore, Conflicts of interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 Tex.L.Rev. 211 (Oct. 1982); Developments in the Law—Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244 (1981). The premise behind this pragmatic approach is to safeguard a person’s right to hire a particular attorney of certain expertise who may not be affordable except by the joint resources of various litigants who team up as plaintiffs or as defendants. Id. and Conflicts of Interest: A Trial Lawyers Dilemma, 1981, A.B.A. Section of Litigation, 109. Parties also have a right to control their litigation in light of whatever interests they consider more important and worthy of litigating. See: Moore, supra at 226-40 and Developments, supra at 1303-04. Cf: United States v. Bradshaw, 719 F.2d 907, 911 (7th Cir.1983) (the constitutionally protected right to conflict-free counsel in criminal cases may be waived if the defendant consents to joint representation). However, the right to be represented by a particular attorney is not an unfettered one. Even informed consent may be insufficient to prevent disqualification, if it is not obvious to the court that the attorney will be able to represent all clients adequately, see e.g. Sapienza v. New York News, Inc., 481 F.Supp. 676, 680 (S.D.N.Y. 1979) or if the court believes no waiver may cure the damage to the integrity of the judicial process that such joint representation will cause, see: Bohack Corp. v. Gulf & Western Industries, Inc., 607 F.2d 258, 263 (2d Cir.1979); Shadid v. Jackson 521 F.Supp. 85, 90 (E.D.Tex.1981); In Re Asbestos Cases, 514 F.Supp. 914, 920 (E.D.Va. 1981). The court may also examine the circumstances surrounding the consent to determine if it was truly voluntary and informed. See e.g.: Dunton v. County of Suffolk, 729 F.2d 903, 908 (2d Cir.1984). It has also been held that if the conflicts of interest involve abuse of confidential information from the client rather than the mere possibility of disloyalty in advocacy during a litigation, the client’s consent might be insufficient. See: Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 229 (7th Cir.1978). If the simultaneously represented clients’ interests are or become actually opposed or directly adverse, then disqualification should be ordered. See e.g.: U.S. Fid. & Guar. Co. v. Louis A. Roser Co., 585 F.2d 932, 939 (8th Cir.1978), and also: Developments, supra at 1292, Conflicts of Interest, supra at 108. But see: Moore, supra at 222 n. 46 and Developments, supra at 1307 n. 7 (it makes no difference whether the conflict is actual or potential, the fact that it is only potential may have been the result of how the attorney handled the case). Our circuit has cautioned that it is “more important that unethical conduct be prevented than that defendant have an unfettered right to counsel of its choice.” Kevlik, 724 F.2d at 849.

In the situation before us, where the possible conflict arises within the context of an ongoing proceeding in which the parties’ rights are yet to be established, the shaping of the conflict’s profile will necessarily turn on the legal and strategical feasibility of the claims or defenses that, if raised, will create the actual adverse positions among plaintiffs. See Moore, supra at notes 11 and 25. For example, in Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197 (4th Cir.1978) the court reversed a ruling that a potential conflict existed in the joint defense by the United States attorney of the government and several air traffic controllers involved in an air crash because different legal positions as to the controller’s personal liability could be raised. The circuit court considered that the alleged potential conflict was practically nonexistent since the applicable law would not support a finding of personal liability on the controllers. The court also rejected the district court’s conclusion that the disclosure and consent were tainted because they were made through the same attorney with the alleged conflict. Id. at 1202. On the other hand, in Dunton, 729 F.2d 903, the appellate court found that the state of the law did support the potential for conflicts of interest in the joint representation of a police officer personally and the county where he worked. Since Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) held that municipalities may be held liable for civil rights violations, the court found that the interests of a municipality and its employee may be in conflict. As examples of possible conflicts the court expressed that “a municipality may avoid liability by showing that the employee was not acting within the scope of his official duties, because his unofficial actions would not be pursuant to municipal policy. The employee, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties.” Id. at 907. In Dunton the circuit court found that disqualification was necessary because the county and police officer’s attorney had in fact partaken of a trial strategy against the police officer’s interests which resulted in a finding of personal liability on him. In the context of personal injury cases and joint tortfeasors, the possibility for potentially conflicting representations has been recognized, particularly in two-vehicle accidents where one attorney represents the driver and the passenger of one of the vehicles involved. See i.e.: Woodruff v. Tomlin, 616 F.2d 924 (6th Cir.1980) (in a legal malpractice suit, court held district court erred in refusing to permit jury to consider whether failure to advise passenger and driver clients represented jointly of possible actions against each other could be inadequate representation); Tadier v. American Photocopy Equipment Co., 531 F.Supp. 35, 37 (S.D.N.Y. 1981) (conflict in representation of driver in accident case in federal court by father-driver and daughter-passenger as plaintiffs and of the daughter and the estate in a state action against the father was considered to have been surpassed by client’s informed consent); Weinberg v. Underwood, 101 N.J.Super. 448, 244 A.2d 538 (1968) (court found that defendant’s counterclaim for contributory negligence created a potential conflict in the defense of plaintiff’s driver and passenger requiring disqualification of plaintiff’s counsel and separate new attorneys for each one); Jedwabny v. Philadelphia Transportation Company, 390 Pa. 231, 135 A.2d 252 (1957) (same attorney could not represent passenger and driver of vehicle when driver was joined by defendant as an additional tortfeasor); and In Re Shaw, 88 N.J. 433, 443 A.2d 670; Matter of Thornton, 421 A.2d 1 (D.C.App.1980) (disciplinary proceedings against attorneys representing passenger and driver in two car collision cases for failing to recognize conflict of interests in representing both). Nevertheless, there are conflicting views on this type of situation. See Moore, supra, at n. 11.

In the present case, although the potential conflict does depend on a number of contingencies such as the eventual determination of whether the inheritance was accepted, the real financial resources of the estate and the heirs, the degree of contributory negligence, if any, attributed to the deceased and the eventual determination of the “efficient” or legal cause of the accident, it is a reality that under the law in Puerto Rico these conflicting claims and defenses could be raised among plaintiffs. If the estate is accepted the heirs are held responsible for its liabilities and, thus, the non heirs as well as the heirs of the other estates could technically sue the estate for the negligence of their decedent. See P.R. Laws Ann., Tit. 31 Section 2090; Sosa v. Morales, 58 P.R.R. 362, 365 (1941) and cases there cited. (“The personal action which arose in favor of Sosa against Juan Morales Diaz /for illegal attachment/ was not extinguished with the death of the latter, who by legal fiction is still alive, as far as his rights and duties, in the persons of his heirs.”) We are not before a situation where the potential conflict is practically undetectable because the law would not support the possible conflicting positions among the parties. The law does support a conflicting position among them. Whether the facts eventually established heighten or diminish that possibility or whether, as a practical matter, it may be more feasible to sue only the tortfeasor with the most financial resources is another matter.

Plaintiffs’ law firm, however, is mistaken when it ignores or refuses to recognize even the potential for conflict in their legal representation. They have repeatedly stated that they are convinced that all the evidence points to Westinghouse as the sole party responsible. They maintain that they made a thorough investigation of their case before filing it and were convinced of Westinghouse’s sole liability. They contend that subsequent discovery after the case was filed proved their point. However, it verges on the point of temerity to allege that there is no evidence to support even the possibility of negligence on the part of the decedents of plaintiff-heirs when there are documents in the record which reveal that: the accident occurred at an intersection when Westinghouse’s trailer was entering the highway from a side road, the decedent’s truck was totally destroyed—its front part hit the middle side of the trailer, the road was wet, the decedents had just come down from a hill in the highway, the decedents were allegedly going 50 MPH in a 40 MPH zone, they lost control of the truck they were riding in, skidded and hit the side of the trailer when it had already crossed the lanes the decedents were traveling in and was already at the opposite bound lanes and there were four people riding in the front seat of the truck. The fact that the attorneys may have “work-product” confidential affidavits of adverse witnesses changing their initial version does not eliminate the possibility that the jury might believe their initial version and find contributory negligence on the part of plaintiff-heirs’ decedents or, for that matter, fix causation entirely on the acts of one of them and release Westinghouse from any liability, leaving plaintiffs without any remedy at all. The attorneys’ overzealous defense of the ethics issue based on how good they believe their case is and on such technicalities as the point of accrual of the contribution compensation among joint tortfeasors is entirely out of focus and inapposite to the ethical question posed. Although the right to seek reimbursement from a joint tortfeasor accrues when a plaintiff is indemnified, this does not support the position that there can be no conflicts of interest among potential tortfeasor plaintiffs in their defense of the degree of negligence that may be imposed on them before the right to reimbursement accrues and which will determine the amount that will be reduced from their compensation. It could be to the advantage of some of the plaintiff heirs to defend the possible negligence of their decedent by pointing to one of the other decedents instead of resting their ease solely on the evidence against Westinghouse. Reliance on the accrual argument also ignores that conflicting interests may have been present ever since these persons came to the attorney’s office and they determined how the claims should be channeled, i.e.: who would be sued, where and for what claims, etc. The attorneys’ reliance on the possible, vis a vis, actual conflict is also misplaced. The fact that the conflict has not developed into a detectable situation of adversity or injury is no reason for not taking measures to prevent harm to their clients by, at least, recognizing the possibility of the conflicts of interest and disclosing all the risks and disadvantages involved. The heart of the ethics question lies precisely in first recognizing these potentially conflicting interests. Had the potential conflicts been recognized earlier in the litigation and had the attorneys presented their position on continuing joint representation only after making a full disclosure to their clients and receiving their informed consent, substantial hassle and delay could have been avoided. Had the attorneys for plaintiffs devoted less time to ardent arguments- in numerous motions filled with self-serving statements and little, if any, helpful authorities to guide the Magistrate, and had promptly informed their clients of all possible conflicts and risks in joint representation, their “simple tort case” would be on its way to the jury by now.

We find that the Magistrate did not commit error in ruling that, although no actual conflict has been shown to exist, the potential for one is real and requires that plaintiffs’ law firm make full disclosure to their clients and obtain their consent in order to avoid ethical problems and uncalled for complications in the litigation itself.

This brings us to the adequacy of the disclosure and consent statement which has been offered. Plaintiffs’ decision to sue Westinghouse only may be based on sound practical reasons since there is also evidence to support a finding of liability on Westinghouse, the tortfeasor with the most financial resources. It would appear to be a satisfactory approach to join forces against the tortfeasor with the resources to provide compensation. If this was their decision, and there is prima facie evidence to support that this may have been an entirely reasonable strategy, plaintiffs cannot be forced to sue each other nor should we conclude that this was the only way they could have pursued their claims. However, their attorneys’ contention that there is not even the possibility of conflict makes us reluctant to accept at face value the assertions of voluntariness and informed consent.

It is this court’s duty to ascertain whether the consent was voluntary and informed before approving the joint representation, see: Dunton, 729 F.2d at 908; Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir.1981); and gen.: Kevlik v. Goldstein, 724 F.2d at 847. Accordingly, the law firm representing plaintiffs in Civil 82-2518 are hereby ORDERED to submit to their clients the following questions which will be translated if necessary to Spanish and answered under oath by their clients or their legal representatives when applicable. These questions shall be explained to their clients who shall also be told that they have a right to consult an independent attorney, if they so wish, on any doubts that they may have as to the questions themselves or possible conflicting situations. The quéstions to be asked are the following:

1. Are you aware that the passengers or driver who died in this accident could be found by the court or by the jury to have been partially or entirely responsible for the damages caused?

2. Are you aware that you have the option of suing the heirs of any one of the deceased to recover your damages from the heirs as well as from Westinghouse?

3. (Plaintiffs-heirs only) Are you aware that if your decedent is found partially negligent the amount of damages that you may receive will be reduced in proportion to the degree of negligence attributed to your decedent?

4. (Plaintiffs-heirs only) Are you aware that you have the option of trying to prove that the other decedents, as well as Westinghouse, were negligent in order to reduce the amount of negligence that may be imposed on you and thus obtain a higher compensation?

5. Are you aware that you have the option of suing the other plaintiff-heirs that have accepted the inheritance “purely and simply” for the negligence of their decedents and that you can recover not only from the estate but from these plaintiffs’ additional personal property?

6. (Plaintiffs-heirs only) Are you aware that by filing claims for the estate it may be understood by the court that you have accepted the estate with all its liabilities and may be held responsible for the debts of the estate and for the decedent’s negligent acts in this case if proven?

7. Are you aware that if any of the deceased or all of them are found to have been entirely responsible for the accident you will not recover anything?

8. Are you aware that by not suing the other plaintiffs heirs you are abandoning the possibility of obtaining compensation from an alternative source other than Westinghouse should the court find that Westinghouse was not responsible?

9. Have you discussed all of these possibilities with your attorneys?

10. After, considering all of this, is it your decision to continue being represented by the attorneys who have represented you up to now?

Since the record reveals that there are minors, possible mental incompetents and illiterate deaf-mutes among plaintiffs their attorneys shall make the proper arrangements with the pertinent Commonwealth of Puerto Rico authorities to furnish them with the above-mentioned questionnaire and with whatever additional information required by these authorities in order for them to protect the interests of those without the necessary capacity to understand. It will be the attorneys’ responsibility to see to it that all incompetents among plaintiffs are duly represented by the proper authorities and that the consent of all plaintiffs be one based on an objective explanation of all the risks and disadvantages involved. We suggest that the attorneys follow the guidelines for disclosure proposed in Moore, supra at pp. 241-245. The attorneys shall also make all the necessary arrangements to have these sworn answers filed no later than November 1, 1985. The court will hold in abeyance its ruling on whether the attorneys should be disqualified pending the filing of these sworn answers.

SO ORDERED.

      . It should be noted that plaintiffs initially alleged they were all residents of Puerto Rico but later said that some were not. No formal pleading has been made as to the exact residence of these plaintiff^, although the record reveals that some are residents of Texas and Florida. The amended complaint only indicates that defendant corporation does not have a principal place of business in Puerto Rico and does not state whether this is also true as to the other states in which the other plaintiffs reside.

      . There is a pending motion requesting leave to amend the complaint to increase the damages to more than thirty-seven million.

      . This plaintiff was originally represented by the Naveira-Rodon law firm and was included in the caption of the complaint filed on October 19, 1982. However, on November 18, 1982 these attorneys withdrew their representation and informed the court that attorney Harvey Nachman would undertake her representation. On that same date, they filed an amended complaint withdrawing the claims of Milagros Contreras-Merced for she was not mentioned in the pleadings or included in the caption. On November 30, 1982, the court ordered the Naveira-Rodon law firm to continue representing plaintiff Milagros Contreras-Merced until the new attorneys made an appearance. Attorney José Fernández-Seín of the Nachman law firm made a formal appearance assuming Contreras' representation on December 28, 1982. Civil 82-2828, an action filed by said plaintiff on November 12, 1982, was consolidated with this case. The record reveals that plaintiff Milagros Contreras-Merced is the wife of one of the passengers who died. In Civil 82-2518, one of the plaintiffs is the common-law wife of Milagros ContrerasMerced’s husband.

      . Most of the appearances for these plaintiffs have been made by Miriam Naveira-de-Rodon or by Víctor Rodon-Elisalde, Esqs. However, there have also been some appearances by attorneys Oscar González-Badillo and Rafael GarciaRodon. Miriam Neveira-de-Rodon is no longer an attorney in this case due to her appointment as Associate Justice of the Supreme Court of Puerto Rico.

      . Westinghouse’s contributory negligence theory against plaintiffs rests on the assumption that the driver of the truck while speeding on a wet road lost control of the vehicle and collided with the side of Westinghouse’s trailer when the trailer had already crossed the traffic lanes plaintiffs' decedents were traveling on and was already on the opposite bound lanes. As to the passengers, Westinghouse contends that four persons riding on the front seat of a truck hindered the truck driver’s freedom of movement and his ability to control the vehicle.

      . The Cortez third-party defendants are included as possible tortfeasors because they were allegedly traveling next to the decedent’s truck when the accident occurred and prevented the truck from maneuvering. The Puerto Rico Highway Authority is brought in for failing to provide the highway at the intersection where the accident occurred with adequate safety measures.

      . These claims were for the value of the truck destroyed in the accident which was owned by the driver, Francisco Figueroa-Olmo and for loss of income for each of the deceased. They will be discussed in detail when the issue of the acceptance of the estate is explored.

      . The purpose behind Rule 42(a), Fed.R.Civ.P., of avoiding duplicity and inconvenience by consolidating certain type of cases was defeated by the awkward circumstances leading to consolidation in this case. The most appropriate procedural mechanism for plaintiff Milagros Contreras-Merced’s situation, given her sudden disappearance from the initial complaint, would have been to request a Rule 20(a), Fed.R.Civ.P., joinder since her claim arose from the same transaction. See gen.: 7, Wright & Miller, Federal Practice and Procedure, Section 1656. A Rule 42(a), Fed.R.Civ.P., consolidation which permits the joint adjudication of common questions on law or fact was unnecessary and only served to complicate matters given the parties’ artificially different positions in each of the cases and the twin filings required given the separate identity of each case. See gen.: Wright & Miller, supra, Section 2382. We attribute the delay caused by this incident to the common practice of requesting “consolidation" for every situation of similar parties, claims or defenses. The whole matter might have been avoided if plaintiffs’ attorney would have informed the court of their minor dilemma. A simple motion by ContrerasMerced’s new attorneys stating that they either reasserted her original pleadings or wished to modify them would have been sufficient. The fact that one is withdrawing as legal representative of a client during litigation does not justify undoing all previous filings made while one was representing that client.

      . The motion to dismiss the third-party action, however, also contained a procedural challenge to the adequacy of the third-party action to bring forth the compensation claim.

      . Westinghouse explained that it had sued all plaintiffs because it was not sure who were the legal heirs. It did not accept plaintiffs’ pleadings as to who were the heirs because their pleadings as to residence proved to be erroneous. Westinghouse has requested leave to amend its counterclaim and third party complaint to eliminate those parties who it now knows are not the legal heirs.

      . Their filing of May 6, 1985, states that "no conflict of interest exist in this case, nor is there a possibility of a conflict of interests.”

      . Only thirty-eight statements were filed. On the caption of their amended complaint of April 21, 1983, there are thirty-nine plaintiffs. This discrepancy must be looked into and explained.

      . In recent dicta the Supreme Court has disfavored the informed consent approach, see: In Re Carreras Rovira and Suarez Zayas, A-84-7/A-84-6, Opinion of November 7, 1984, 84 JTS 94 at p. 3764 (“In our jurisdiction the client’s autonomy does not extend to the point of permitting the legal representation by an informed and voluntary consent when there exists a possibility of a conflict of interest.... Our canon 21 expressly prohibits it.”) (Our translation.) See also: Sanchez Rodriguez v. Lopez Jimenez, R-84-279, 280 opinion of March 11, 1985, 85 JTS 16 at p. 3877.

      . Model Rule 1.7(b) states:
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

      . We make no ruling on the eventual proof of these matters, we merely point them out as possibilities that should have been considered in plaintiffs evaluation of their case.

      . The injury that an actual conflict of interest in a legal representation may cause and the ensuing liabilities of the attorney to the injured clients and the latter remedies against third parties is another matter. See: Woodruff, 616 F.2d 924 (malpractice); Kagel v. First Commonwealth Company, Iris., 534 F.2d 194, 195 (9th Cir.1976) (conflicts of interest used by clients in proceeding to impugn judgment against them was rejected by the court); Intern. Sound Technicians v. Intern. Alliance, Etc., 611 F.2d 266, 269 (9th Cir.1979) (court rejected claim that settlement was void because of conflicts of interest in legal representation). Our ruling on the ethics question is not preclusive or determinative of any rights which may arise from these attorneys’ conduct. See Sartain v. Sec. Exch. Comm., 601 F.2d 1366, 1375-76 (9th Cir.1979).

      . The Naveira-Rodon attorneys believe theirs is a simple tort action. However, the case involves the deaths of four persons whose forty or fifty relatives are suing for more than twenty-seven million dollars. The conflicting versions as to causation place this case far from a simple tort case. The attorneys' perception of their case concerns us for it reflects on their ability to recognize the potential conflicts of their clients.

      . Plaintiffs indicate in the caption of the amended complaint that many of them are minors. Through motion requesting permission to amend they indicate that plaintiff Maria Luisa Caban was found by the Social Security Administration to be mentally disabled and in one of their statements they indicate that Aida de Jesus being deaf-mute and illiterate signed her statement through the only person who can communicate with her.


author: COHEN, Senior Judge:

text:
    Ann RUTHERFORD, Plaintiff, v. SHERBURNE CORPORATION, Defendant.
    Civ. A. No. 85-0912.
    United States District Court, D. New Jersey.
    Sept. 4, 1985.
    Selikoff & Cohen, P.A. by Robert Eyre, Cherry Hill, N.J., for plaintiff.
    Clapp & Eisenberg, P.C. by Freda L. Wolfson, Newark, N.J., for defendant.
   OPINION

COHEN, Senior Judge:

This personal injury action is before the Court on a motion to dismiss for lack of personal jurisdiction made, pursuant to Fed.R.Civ.P. 12(b)(2), on behalf of the defendant Sherburne Corporation (Sherburne). Alternatively, Sherburne seeks to have this case transferred to the District of Vermont pursuant to 28 U.S.C. § 1404(a). See Schwilm v. Holbrook, 661 F.2d 12, 15 (3d Cir.1981) (transferor court need not have jurisdiction over the defendant in order to grant a § 1404(a) motion). Although the plaintiff opposes both of these motions, she asserts that transfer of venue would be appropriate as opposed to the outright dismissal of her complaint. Plaintiffs Brief at 1464.

For the reasons provided below, we shall deny defendant’s first motion to dismiss, holding that it is amenable to suit in New Jersey, and grant its alternative motion, transferring this case to the District Court in Vermont.

FACTUAL BACKGROUND

Although they have been characterized in diametrically opposing manners by the parties herein, the facts of this case are not in dispute. Plaintiff, a citizen and resident of New Jersey, was injured on February 26, 1983, while skiing at the Killington Ski Area (Killington) in Killington, Vermont. Apparently, she fell and seriously injured herself when her skis caught hold of the chair lift from which she was disembarking. Emergency surgery was performed on her leg and hip and she remained hospitalized in Rutland, Vermont, until March 4, 1983.

Defendant Sherburne owns and operates Killington. It is a Vermont corporation which presently does not have assets, employees or agents in New Jersey. Thus, its assistant treasurer characterizes it as “a local Vermont business with no significant contact with the State of New Jersey.” Affidavit of R. Fenner, 113.

Ms. Rutherford portrays the defendant and its contacts quite differently. Her trip to Killington was organized by; a ski club and a ski shop located in Cherry Hill, New Jersey. Since 1968, she has taken approximately thirty such trips to the ski area. On the trip in question and apparently on those previous thereto, travel and lodging arrangements were coordinated, for a fee, by the ski club. Similarly, plaintiff purchased her weekend lift ticket from Sherburne at a discount rate extended to her New Jersey group.

Of primary importance to our jurisdictional determination is the question of whether Sherburne has purposefully directed its activities at residents of New Jersey. We must inquire, therefore, into its attempts to attract Garden State skiers.

During the ski season in which plaintiff was injured, Sherburne employed at ieast one representative, David Alonso, who visited ski shops and clubs in New Jersey to distribute information about Killington. Sherburne routinely purchases advertising space in at least four New Jersey newspapers: the Newark Star Ledger, the Bergen Evening Record, the Asbury Park Press and the Suburban New Jersey News. Additionally, advertisements about Killington appear in at least two national magazines, Ski Magazine and Skiing Magazine, which are distributed in New Jersey. Finally, approximately 13,000 of Sherburne’s skiing brochures about Killington were distributed in New Jersey during the 1982-83 season.

Sherburne’s solicitations have not been unrequited. Although it does not record the number of its patrons who hale from nearby states, like New Jersey, it does record what it refers to as “car and bus counts,” i.e., the number of buses and cars to visit Killington grouped by the states in which the vehicles are registered. It also estimates the total number of its patrons in each ski season. Thus, in the 1982-83 season, when plaintiff was injured, approximately 695,000 people visited Killington. In the next two seasons, this number rose to 784,800 and then to 820,600. Using these figures in conjunction with defendant’s car and bus counts, plaintiff estimates that over 100,000 New Jerseyans visit Killington annually and account for more business than the residents of any state other than New York and Massachusetts both of which share common borders with Vermont. Thus, plaintiff’s calculations reveal that New Jersey residents consistently generate more business for Killington than residents from Vermont itself.

DISCUSSION

Fed.R.Civ.P. 4(e) provides that service on a nonresident defendant may be effected pursuant to the forum’s relevant statute or rule. New Jersey’s “long arm” provision, Civil Practice Rule 4:4—4(c)(1), directs the Court back to the body of federal law enunciated in International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny, by providing that process may be served in accordance with “the uttermost limits permitted by the United States Constitution.” Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207 (1971). The ultimate question presented by this motion, therefore, is whether the exercise of this Court’s jurisdiction over the defendant would be consistent with the due process of law.

We are the beneficiaries, in this regard, of a recent review of the due process personal jurisdiction inquiry by the Supreme Court. In Burger . King v. Rudzewicz, — U.S. —, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) reversing Burger King v. Macshara, 724 F.2d 1505 (11th Cir.1984), the Court held that a Florida court could permissibly exercise jurisdiction over a Michigan resident who had allegedly breached a franchise agreement with a Florida corporation by failing to make required payments in Florida. Justice Brennan, writing for a six member Court majority, emphasized the need for a “highly realistic” approach. Id. — U.S. at —, 105 S.Ct. at 2185. He noted that the Court had long ago rejected the notion that personal jurisdiction “might turn on ‘mechanical’ ... or on ‘conceptualistic ... theories of the place of contracting or of performance.’ ” Id. (citations omitted). Similarly, in this case, we are not only concerned with the sometimes illusive place of injury, see, e.g., Schwilm v. Holbrook, 661 F.2d 12, 15 (3d Cir.1981), but, instead, with the defendant’s conduct toward New Jersey residents in general and its effect on the plaintiff in particular.

“The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” Burger King, — U.S. at —, 105 S.Ct. at 2181. The Clause preserves “traditional notions of fair play and substantial justice,” see International Shoe, 326 U.S. at 316, 66 S.Ct. at 158, by providing defendants “with some minimum assurance as to where [their] conduct will and will not render them liable to suit.” World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Thus, a court cannot exert jurisdiction over a defendant unless his “conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” Id. In short, the Due Process Clause requires that a defendant have “fair warning” of his amenability to the jurisdiction of a foreign sovereign. Burger King, — U.S. at —, 105 S.Ct. at 2182.

A potential defendant may be said to have been fairly warned in two situations. First, a court may permissibly exercise what has been referred to as its “general jurisdiction” over any defendant who has “maintained continuous and substantial forum affiliations” even if the plaintiff’s claim does not arise out of or is unrelated to those forum affiliations. Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208, 211-12 (3d Cir.1984) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1872 nn. 8 & 9, 80 L.Ed.2d 404 (1984)). Second, a court’s specific jurisdiction may be invoked “when [plaintiff’s] claim is related to or arises out of the defendant’s contacts with the forum.” Id. Only in the latter instance is minimum contacts analysis appropriate. Dollar Sav. Bank, 746 F.2d at 212.

“Case law reveals an occasional failure to distinguish between the requirements for specific, as contrasted with general jurisdiction.” Id. It is uncertain, however, whether this failure is occasionally unavoidable. In many cases, the specific-general distinction seems clear. For example, in Keeton v. Hustler Magazine, 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), the plaintiff’s alleged defamation injury was purportedly caused by photographs and comments that appeared in the very magazines which constituted the defendant’s contacts with the forum. Similarly, in World-Wide Volkswagen, the plaintiff’s personal injuries were related to an allegedly unsafe vehicle which itself constituted the nonresident defendant’s forum contacts. 444 U.S. at 289, 100 S.Ct. at 563. Thus, minimum contacts analysis was appropriate in both cases. Again, in Burger King, — U.S. at —, 105 S.Ct. at 2182, a “specific jurisdiction” inquiry was appropriate because the claim, for breach of contact, obviously, arose out of the defendant’s contacts (contract negotiations) with the forum.

The circumstances under which a general jurisdiction inquiry is required seem less clear. For example, in Helicopteros, the parties conceded that the plaintiff’s wrongful death claim was unrelated to and did not arise out of the defendant’s forum activities (contract negotiations). 104 S.Ct. at 1872-73. Nevertheless, in dissent, Justice Brennan stated unequivocally that although the cause of action did not “formally ‘arise out of’ ” the defendant’s forum contacts, it was “significantly related” thereto. Id. at 1878 (emphasis supplied). In response, Justice Blackman, writing for all of the Court’s other members, suggested that the majority had merely relied on the plaintiff’s concessions regarding the question of whether her claim was' related to the defendant’s contacts. Cf. Fed.R. Civ.P. 12(h)(1) (personal jurisdiction requirement is a waivable right). In fact, the Court noted specifically that it had not decided

the questions (1) whether the terms “arising out of” and “related to,” describe different connections between a cause of action and a defendant’s contact with a forum, and (2) what sort of tie between a cause of action and a defendant’s contacts with a forum is necessary to a determination that either connection exists. Nor do we reach the question whether, if the two types of relationship differ, a forum’s exercise of personal jurisdiction in a situation where the cause of action “relates to,” but does not “arise out of,” the defendant’s contacts with the forum should be analyzed as an assertion of specific jurisdiction.

Helicopteros, 104 S.Ct. at 1873 n. 10.

The Court’s disinclination to decide the above quoted issues stemmed from the fact that the above quoted issues had not been presented in the Helicopteros case. Id. This is not true in the case sub judice. In fact, the issue of whether the plaintiff’s negligence claim arises out of or is related to defendant’s advertisements has been put squarely before this Court by defense counsel’s reliance on two prior decisions from within the Third Circuit.

In Scheidt v. Young, 389 F.2d 58 (3d Cir.1968) (per curiam), the Court of Appeals held that the advertisements of the defendant, a Pennsylvania lodge, in a New York newspaper that was circulated in New Jersey, did not constitute the necessary “minimum contacts.” Thus, a trial court could not constitutionally exercise its jurisdiction over the defendant in the aftermath of a personal injury sustained by the plaintiff at the lodge. Id. at 60. The Court reasoned that the defendant had not purposefully availed itself of the privilege of conducting activities within the forum and, therefore, could not be subject to the forum’s jurisdiction. The opinion, however, predated the “general-specific” jurisdictional inquiry. Thus, its use of minimum contacts analysis (suggesting a specific jurisdiction inquiry) cannot be deemed to be dispositive.

In Collins v. Sherburne Corp., No. 81-287, (D.N.J. June 15, 1981) (oral opinion read into the record), the Honorable Dickinson R. Debevoise was presented with the same issues and the same defendant that are presently before the Court. In Collins, the plaintiff was another New Jersey resident injured at the Killington ski area. Judge Debevoise found that the plaintiff’s cause of action was “not related to the contacts which defendant has maintained with the State of New Jersey.” Id. at 5. Giving no indication that he had been provided with the benefits of diligent discovery efforts, like those of the plaintiff herein, Judge Debevoise further found that the defendant’s “solicitation of New Jersey business [was] not qualitatively different from that in Scheidt v. Young.” Id. at 10. Accordingly, he granted defendant’s motion to dismiss for lack of personal jurisdiction. Respectfully, this Court must disagree with our learned brother.

Unless we deprive these terms of their ordinary meaning, it seems clear that a claim may be “related” to a defendant’s contact with a forum while not “arising out of” the same. The only type of claim that could arise out of an advertisement, for example, would be one in defamation or perhaps for an invasion of privacy. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Certainly, plaintiff’s personal injury did not “arise out of” defendant’s advertisements. Yet, if the plaintiff traveled to Killington to ski in response to Sherburne’s advertisement which appeared in her local newspaper and if she was injured while skiing, it is difficult to imagine how her injury would not be related to the defendant’s solicitations (its forum contacts). Therefore, we find that the plaintiff’s injuries were related to the defendant’s forum activities. Accordingly, we shall next consider whether “the defendant has ‘purposefully directed’ [its] activities at residents of the forum.” Burger King, — U.S. at —, 105 S.Ct. at 2182, and, if so, whether any other factors would render this Court’s exercise of its personal jurisdiction over the defendant unreasonable nevertheless.

As to the defendant’s forum contacts, we believe that this case is readily distinguishable from other “injured-tourist” cases, including Scheidt v. Young, in which courts have rejected the long-arm basis of personal jurisdiction. See Harris v. VAO Intourist, Moscow, 481 F.Supp. 1056, 1064-65 (E.D.N.Y.1979) (collecting cases). Preliminarily, we note, however, that the minimum contacts inquiry must depend on a weighing of the particular facts in a case. Helicopteros, 104 S.Ct. at 1873 (Brennan J., dissenting). Thus, we believe that it would be prudent to resist any “bright-line” pronouncements regarding personal jurisdiction over nonresident defendants in the so-called “injured-tourist” line of cases.

In this case, the defendant collects data which permits it to evaluate the “return” it is reaping from its forum solicitations. In this case, the defendant advertises in four forum newspapers, not just newspapers circulated in New Jersey. In this case, the defendant knows that a substantial number of its patrons, more than from any other noncontiguous state, hale from New Jersey. Notwithstanding the defendant’s physical absence from New Jersey, it cannot be doubted that its commercial efforts are purposefully and, in fact, successfully directed toward residents of New Jersey. It cannot, therefore, reasonably claim to be surprised or offended if its solicitation results in ski slope injuries to New Jersey residents and in litigation in New Jersey. Inasmuch as the defendant has fairly availed itself of the forum’s residents, it “will not be unfair to subject [it] to the burdens of litigating” here. Burger King, — U.S. at —, 105 S.Ct. at 2183.

Finally, we must determine whether any other factors would render exercise of this Court’s jurisdiction over the defendant unfair notwithstanding its forum contacts. Id. Although a plaintiff must make a prima facie showing of compliance with personal jurisdiction requirements, pursuant to Fed.R.Civ.P. 12(b)(2), a defendant who has purposefully directed his activities at forum residents, “must present a compelling case that the presence of [these] other considerations would render [our] jurisdiction unreasonable.” Id. at —, 105 S.Ct. at 2184 (emphasis supplied).

Generally, a court may evaluate the defendant’s “minimum contacts” by focusing on “the relationship among the defendant, the forum and the litigation.” Keeton, 104 S.Ct. at 1479. More specifically, we may consider in this case the following:

“the burden on the defendant,” “the forum State’s interest in adjudicating the dispute,” ... “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” and the “shared interest of the several States in furthering fundamental substantive social policies.”

Burger King, — U.S. at —, 105 S.Ct. at 2184 (citing World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564).

The defendant has been unable to demonstrate any unique or compelling burden that would befall it if it were required to litigate this suit in New Jersey. No legal considerations have been presented in this regard and the defendant’s brochures emphasize the ease with which one may traverse the states which separate New Jersey from Vermont. Moreover, “a defendant claiming [mere] inconvenience may seek a change in venue.” Id. — U.S. at —, 105 S.Ct. at 2185 (emphasis supplied). It seems clear that the plaintiff did not purposefully choose a forum that would place the defendant at a “severe disadvantage” in an attempt to gain tactical advantage. Id. See also Bremen v. Zapata Off-Shore Co., 407 U.S. 1,18, 92 S.Ct. 1907, 1917, 32 L.Ed.2d 513 (1972). The plaintiff merely filed suit in the federal court located wherein she resides.

The interests of the forum in adjudicating this dispute, as well as those of the interstate judicial system, do not engender any particular concerns and certainly do not constitute a compelling case contrary to the exercise of this court’s jurisdiction over the defendant. Each of the litigants could articulate concerns regarding local prejudice but neither can do so with specificity or great conviction. Similarly, the development of substantive social policies is not at issue and considerations of judicial efficiency would only suggest that this Court and present counsel complete their assigned tasks.

For all of the foregoing reasons, we hold that the exercise of New Jersey’s jurisdiction over the defendant would not offend the Due Process Clause. Accordingly, defendant’s motion to dismiss shall be denied with prejudice.

DEPENDANT’S ALTERNATIVE MOTION TO TRANSFER VENUE

The Due Process Clause protects a defendant from being required to litigate in a distant forum with which it has no substantial connection so as to preserve traditional notions of fair play and substantial justice. Because its emphasis is on the relationship between the defendant and a chosen forum, the protections afforded by the Due Process Clause “against inconvenient litigation [are] typically described in terms of ‘reasonableness’ or ‘fairness.’ ” World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. In addition, the Due Process Clause ensures that the “States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” Id.

The operation and protections of the venue transfer statute, 28 U.S.C. § 1404, while related to those of the Due Process Clause, are distinguishable in several respects. Obviously, owing to their constitutional origin, due process protections, while waivable, operate without regard to jurisdictional statutes enacted by Congress. On a more practical level, the due process inquiry emphasizes the extent to which a defendant has created a relationship with a particular forum while § 1404 emphasizes the logistical relationships which exist between both (or all) parties, as well as nonparty witnesses, and competing fora. Accordingly, the Due Process Clause looks to the past and usually to the attempts made by a defendant to do business in a particular area while the § 1404 inquiry looks to the future and seeks to determine where the parties will best be able to present their cases. More specifically, the Due Process Clause ensures that one will not be brought to trial in a particular state, even if his actions have caused some effect there, unless he has had minimal notice or “fair warning” of this possibility. See Kulko v. California Superior Court, 436 U.S. 84, 96, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978) (citing Restatement (Second) of Conflict of Laws § 37 (1971)). Section 1404, on the other hand, seeks to facilitate the optional presentation and evaluation of evidence once trial has begun. Thus, transfers are permitted for the convenience of the parties and in the interest of justice. See, e.g., Weber v. Coney, 642 F.2d 91, 93 (5th Cir. 1981).

In relevant part, Congress has provided that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).

“This provision embodies in an expanded version the common law doctrine of forum non conveniens, under which a court in appropriate circumstances may decline to exercise its jurisdiction in the interest of the ‘easy, expeditious and inexpensive,’ resolution of a controversy in another forum.” Burger King, — U.S. at — n. 20, 105 S.Ct. at 2185 n. 20. “This is not to say that the ... factors [relevant to the forum non conveniens inquiry] have changed or that the plaintiff’s choice of forum is not to be considered, but only that the [court’s] discretion to be exercised [in a § 1404 inquiry] is broader.” Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). Generally, “[t]he moving party must show [that] the ‘balancing of the interests weighs in favor of the transfer. Unless that balance weighs strongly in favor of the defendant, the plaintiffs’ choice of forum should not be disturbed.’ ” Busch v. Sea World of Ohio, 95 F.R.D. 336, 340 (W.D.Pa.1982).

There is no question that this diversity action could have been filed in Vermont. We find further that the defendant has met its burden and demonstrated that a transfer would serve the interests of justice and not merely shift inconvenience to the plaintiff. See Van Dusen, 376 U.S. at 646, 84 S.Ct. at 824. See generally, Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). Accordingly, we shall grant its motion to transfer.

Of primary importance to this decision is the fact that all of the most significant nonparty witnesses reside in Vermont. See Saminsky v. Occidental Petroleum Corp., 373 F.Supp. 257, 259 (S.D.N.Y.1974); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3851. Some of these people are not employees of the defendant and could not be subpoenaed in New Jersey. Included in this latter group are the nurse who rendered first aid to the victim after her accident and one of three persons who operated the ski lift at the time of the accident (who continues to reside in Vermont but is no longer employed by Sherburne). Also included in this Vermont group is the physician who performed emergency surgery on the plaintiff and who, atypically, continues to be plaintiff’s treating physician.

At oral argument, plaintiff’s counsel conceded that there were no fact witnesses or skiing companions from New Jersey who would testify regarding the circumstances of her fall from the ski lift. Conversely, in addition to the testimony of the lift operators, a view of the accident scene could be very helpful to a jury. Of course, it would be impracticable for a jury to view the scene unless this case is tried in Vermont. See Garner v. Jaeger Machine Co., 331 F.Supp. 352, 353 (S.D.Ohio 1971).

The only truly significant factor, which militates against a trial in Vermont, is the plaintiff’s health as it relates to her ability to travel and testify in her own behalf. In her supplemental affidavit, plaintiff maintains that it is difficult for her to travel long distances because she is in constant pain. Additionally, plaintiff contends that the “stress associated with the litigation, including the prospect of the case being transferred to Vermont” might aggravate her neurological problems, which include some unspecified form of epileptic seizures. Plaintiffs Supplemental Affidavit. ¶ 7.

We are, of course, unable to alleviate all of the stress and anxiety associated with litigation. Moreover, plaintiff has been able to make at least eight trips to Vermont to visit her physician, Dr. Holmes, since the accident. Her physical discomforts are similarly undermined by the admission, at oral argument, of her counsel that she continues to engage in cross country skiing.

While the defendant has specifically identified crucial witnesses who would not be subject to compulsory process emanating from this Court, the plaintiff has only generally alluded to “pain and suffering witnesses” who would have to be transported from New Jersey in the event of a Vermont trial. Presumably, these witnesses include an unnamed orthopedic physician, who treated the plaintiff briefly in New Jersey, and one Alba Welding, who is a nurse and a friend of the plaintiff reportedly familiar with her condition. We regret any inconvenience occasioned by our decision to the plaintiff and her witnesses. Nevertheless, it seems very clear that this case should be tried, in the interests of justice, in Vermont.

The Court shall enter an appropriate order.

      . Subsequent to the filing of this suit, Sherburne changed its name to Killington Ltd. Both parties have, for the sake of simplicity, continued to refer to it as Sherburne. Generally, courts ratify any such aspect of detente and we shall do likewise. Hereinafter, references to Sherburne are to the defendant itself, while its ski area will continue to be denoted as Killington.

      . Sherburne no longer maintains records of the number of brochures that it distributes in New Jersey.

      . Defendant objects to plaintiff's extrapolations primarily by asserting that the car and bus counts do not specify the number of passengers in each vehicle or the residence of each passenger. Sherburne maintains, for example, that a Delaware resident may take a train to New Jersey and then a bus from that state to Vermont in order to ski with out-of-state friends. While this is a plausible scenario, we find the hypotheses underlying plaintiff’s estimates to be considerably more likely. We simply believe that the state in which a motor vehicle is registered provides a reliable indication of the residence of its inhabitants. Compare Ehrenzweig, Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws, 63 Colum.L.Rev. 1212, 1245-46 (1963) (suggesting that choice of law inquiry in automobile guest statute cases should depend upon place where car is registered).

      . Justice Stevens wrote a dissenting opinion in which Justice White joined. Justice Powell did not participate in the decision.

      . Judge Debevoise did, however, permit a transfer of venue in order to avoid leaving the plaintiff without any forum for litigation. Id. at 11.

        . We see no reason to give these terms anything but their ordinary meaning. There are no policy justifications that counsel in favor of either a restrictive or a liberal construction. Cf. E.J. Korvette Co. v. Parker Pen Co., 17 F.R.D. 267 (S.D.N.Y.1955) (construing “arises out of’ language in Fed.R.Civ.P. 13(a)). In fact, most decisions interpreting Rule 13(a) or (g) attach special significance to the words "transaction or occurrence” rather than to the "arising out of” language in order to give effect to the policy of avoiding duplicative litigation. See, e.g. Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir.1981).

      . In the case at bar, these factors are considered in order to determine whether the defendant should not be amenable to the forum's jurisdiction notwithstanding a finding that it has established minimum contacts in New Jersey. Conversely, in other cases, these factors may "serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.” Id.— U.S. at —, 105 S.Ct. at 2184.
      In this latter type of case, a court would consider "the plaintiffs interest in obtaining convenient and effective relief.” Id. at —, 105 S.Ct. at 2184. In this case, plaintiff’s interest has been expressed in her forum selection. In fact, her very ability to select this forum instead of the Vermont situs largely completes this aspect of our due process inquiry. See Shaffer v. Heitner, 433 U.S. 186, 211 n. 37, 97 S.Ct. 2569, 2583, n. 37, 53 L.Ed.2d 683 (1977). See also Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 820, 11 L.Ed.2d 945 (1964) (where change of venue is made upon motion of defendant transferee court must apply the law that would have been applied by the transferor court). Again, considerations of simple convenience are addressed below regarding defendant’s request to transfer venue.

      . In her affidavit, plaintiff describes her inability to find a competent physician in the Delaware Valley who was both able to see her promptly and willing to accept her Blue Cross-Blue Shield coverage.

      . It should be recalled that prior to the accident, plaintiff made over thirty trips to Killington to ski.