Paramount Pictures, Inc. v. Rodney, U.S. District Judge (Two Cases). Interstate Circuit, Inc. v. Rodney, U.S. District Judge (Two Cases) ( 1951 )

BIGGS, Chief Judge.

The question presented by the cases at bar is whether the United States District Court for the District of Delaware on a motion made by all of the defendants, opposed by the plaintiffs, has the power under Section 1404(a) of Title 28 United States Code Annotated, to transfer to an appropriate United States district court in Texas two suits¹ based on the antitrust laws of the United States. The trial court concluded that it lacked the authority to transfer the actions.² 89 F.Supp. 278. We disagree.

Section 1404(a) states that “For the convenience of parties and witnesses, in the interest of justice, a district court may-transfer any civil action to any other district * * * where it might have been brought.” Section 12 of the Clayton Act, 15 U.S.C.A. § 22, provides that a -suit under the antitrust laws against a corporation may be brought not only in the district of which it is an inhabitant but “also in any district wherein it may be found or transacts business”, and that “all process in such cases may be served in the district of which [the corporation] is an inhabitant, or wherever it may be found.” Cf. Section 4 of the Clayton Act, 15 U.S.C.A. § 15.

There are fourteen defendants, identical in each suit, in the Delaware actions. Ten were incorporated in Delaware; four, in New York. The trial court concluded that only nine defendants were transacting business in Texas and therefore venue could be laid in that State only as to them under Section 12 of the Clayton Act. It also found that five defendants were not inhabitants of Texas, could not be found and did not transact business there, and that “ * * * the actions could not consequently have been originally brought against all of the defendants in any District Court in Texas.”³ The trial court interpreted Section 1404(a) in the light of the doctrine of forum non conveniens which prohibits the dismissal of a suit unless there is a more convenient forum where it may be recommenced and maintained,⁴, ⁵, ⁶ and limiting the statute by the phrase “might have been brought”, refused transfer.

In Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167, it was held that the power of the federal courts to adjudicate controversies is granted by Congress and cannot be conferred by the consent of the parties, whereas the place where judicial authority is to be exercised relates only to the convenience of litigants and is subject to their disposition. A venue statute gives a “personal privilege” to a defendant which he may assert or waive at his election. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252. Moreover, the doctrine of forum non conveniens means no more than that a court may resist an imposition upon its jurisdiction even when that jurisdiction is authorized by a general venue -statute. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055.

The suits in the District of Délaware are based, as we have said, on the antitrust laws. Jurisdiction to adjudicate such controversies was conferred on all United States district courts by Sections 41(8) and (23) of Title 28 U.S.C., 1940 ed., now covered into Section 1337 of revised Title 28 United States Code Annotated. Suits embracing the identical subject matter could have been brought and, literally, “might have been brought”,⁷ by the plaintiffs against the defendants in any district court in Texas. Moreover, if brought, the suits could have been maintained⁸ unless there had been -seasonable objection to the venue by the defendants, for service of process under Section 12 of the Clayton Act could have been made wherever the defendants could have been found. Even if the doctrine of forum non conveniens be applied under the precise conditions required by Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 91 L.Ed. 1055 (and Section 1404(a) was not then before the Supreme Court), those conditions are met by the instant circumstances: viz., the Texas court would have

had the power to adjudicate the controversies and it would have had jurisdiction of aI1 the defendants. By joining in the mo-tion t0 transfer the defendants have waived an7 objection to Texas venue and have a£ree<l to submit themselves to a Texas court- Therefore, suits embracing the same parties and the same subject matter could now be brought and maintained in Texas- Indeed they could have been brought in Texas on November 6, 1947 an|I March 29, 1948, the dates on which the actions were commenced in the District °I Delaware, and could have been main-tained in Texas if no objection had been timely made to the venue. The difference between the phrase “might have been brought” of Section 1404(a) and that employed in this opinion, “could now be brought”, is no more than one of tense and grammar, the imperfect subjunctive as compared to the pluperfect subjunctive. Surely Congress did not intend the effect of an important remedial statute to turn upon tense or a rule of grammar.⁹

We do not put our decision on the ground advanced by Judge Ryan in Ferguson v. Ford Motor Company, D.C.S.D.N.Y., 89 F.Supp. 45.¹⁰ Both Judge Ryan and Judge Rodney seem to take the position that consent to venue is a nullity where Section 1404(a) is concerned. We think that consent is to be given the same effect under Section 1404(a) as it would receive under any other venue statute. We cannot suppose that Congress could have intended otherwise. Bear in mind that no problem of service of process is presented in connection with private civil antitrust suits for Section 12 of the Clayton Act, as we have indicated, authorizes service wherever a defendant may be found. Service of process has no connection with venue.

Finally and in conclusion on this issue we call attention to the provisions of Section 1406. Subsection (a) provides for transfer of a case in which venue has been laid in the wrong district to any district in which the suit could have been brought. We emphasize the provisions of subsection (b), however, which state that nothing in Chapter 87, the venue chapter of Title 28, “ * * * shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.” If jurisdiction to adjudge the controversy between the parties be in the court in which suit is brought, no matter whether venue be properly laid in that district or not, the court will be deemed to have jurisdiction of the persons of the defendants and they will be treated as having submitted themselves to jurisdiction if there be no seasonable objection. We can conceive of no reason in view of the provisions of Section 1406 why candid-voiced express consent should not be deemed to be as potent an actor in the drama of venue as puling no seasonable objection.¹¹

It has been urged that the District Court has power, irrespective of the defendants’ consent, to transfer the Delaware suits to Texas. This is stated upon the broad ground that they “might have been brought” there in the sense that a district court in Texas has jurisdiction of the subject matter and therefore would accept the filing of a complaint in such a suit even though the suit might later fail if an objection to venue were made or if for any reason service upon the defendants could not be had. We neither accept nor reject this contention for we are not here called upon to delimit the extent of the power which Section 1404(a) has conferred upon the district courts. The defendants’ consent is sufficient to support the transfer here. Accordingly the extent of the power of a district court to transfer a case under Section 1404(a) to a district to which the defendant does not consent we leave for later determination in cases which squarely present the issue. Cf. McCarley v. Foster-Milburn Co., D.C.W.D.N.Y., 89 F.Supp. 643, and the disposition of the application for mandamus against Judge Knight, sub nom. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949.

The order complained of is not appealable under Section 1291 or Section 1292, Title 28 United States Code Annotated. “The general rule is well settled that an order granting or refusing change of venue is not appealable unless expressly made so by statute.” Jiffy Lubricator 'Co. v. Stewart-Warner Corporation, 4 Cir., 177 F.2d 360, 362. The order is interlocutory and there is here no “final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.” Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546-547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528. As was pointed out in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 330, the order would “ * * * probably he incorrectible on appeal [after final judg•ent], for petitioners could hardly show that .a different result would have been reached had the suit been transferred.” The Delaware district court has refused to exercise its authority to determine issues of justice and convenience raised by Section 1404(a) when it is its duty to do so. Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185. The Delaware district ■court possesses the power to transfer the •causes but has refused to exercise that power because it believes it does not possess it. Mandamus is the proper remedy. Cf. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. The writ is as appropriate to compel the exercise of discretion as it is to correct the abuse of discretion. Cf. Webster Eisenlohr, Inc., v. Kalodner, 3 •Cir., 145 F.2d 316.

It will be necessary, therefore, for the ■district court to consider whether a transfer of the Delaware suits to an appropriate district in Texas will serve the convenience of the parties and witnesses and is in the interest of justice. The principles and conclusions expressed in this opinion will not give the defendants a right to choose their forum, a privilege heretofore exercised at least to some degree by plaintiffs. On the contrary our decision puts in the hands of an impartial federal tribunal the determination as to where the suits can best be tried.

We assume that it will not be necessary to issue the writ, unless application for certiorari be made, and that the court below will vacate the order refusing the transfer and will proceed to consider in the light of convenience of the parties and witnesses and in the interest of justice whether the causes should be transferred to a district court in Texas.

1 . The two suits instituted in the court below are Tivoli Realty, Inc. v. Paramount Pictures, Inc., Civil Action No. 1077, and Adelman v. Paramount Pictures, Civil Action No. 1109. A description of the actions may be found in an opinion of the District Court, reported 80 F.Supp. 800.

2 . It did not decide whether for the convenience of the parties, in the interest of justice, the eases should be transferred. The defendants filed petitions for mandamus in this court. We issued a rule to show cause. Answers were filed and the questions involved have been fully argued.

The defendants also perfected appeals as a precautionary measure in view of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. A separate and per curiam opinion disposing of the appeals is filed concurrently with the opinion in the instant cases.

3 . The trial court stated, “There is no question that all fourteen defendants are properly suable in this [Delaware] district”, and concluded, as we have said, that five defendants did not transact business in Texas. See 89 F.Supp. at page 279. The court cited Mebco Realty Holding Co. v. Warner Bros. Pictures, Inc., D.C.N.J., 45 F.Supp. 340 and Westor Theatres, Inc. v. Warner Bros. Pictures, Inc., D.C.N.J., 41 F.Supp. 757. But compare Giusti v. Pyrotechnic Industries, 9 Cir., 150 F.2d 351. No reference was made to United States v. Scophony Corporation, 333 U. S. 795, 68 S.Ct. 855, 92 L.Ed. 1091. The complaints, defendants’ affidavits and an affidavit filed by counsel for the plaintiffs seem to raise an issue of fact within the purview of the Scophony decision as to whether the five defendants referred to were transacting business in Texas. This issue could have been resolved only by the taking of oral testimony. Cf. Frederick Hart & Co. v. Recordgraph Corporation, 3 Cir., 169 F.2d 580. On the instant record there would seem to be as much basis for a conclusion that the five defendants referred to were transacting business in Texas as for the conclusion that the four New York corporations were transacting business in Delaware. In the view that we take of the cases at bar it is unnecessary to determine this fact issue.

4 . See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 91 L.Ed. 1055.

5 . The trial court treated the Reviser’s Notes to Section 1404(a), appended to 28 U.S.C.A., as an authoritative interpretation, citing United States v. National City Lines, 337 U.S. 78, 81, 69 S.Ct. 955, 959, 93 L.Ed. 1226, but Title 28 is more than a mere codification. It is also a revision. Ex parte Collett, 337 U.S. 55, 56-72, 69 S.Ct. 944, 959, 93 L.Ed. 1207.

6 . The provisions of Section 1404(a) are applicable to civil actions brought under the antitrust laws. United States v. National City Lines, n. 5, supra.

7 . As to wliere a suit may be “brought” it may be argued that the terms “brought” and “commenced” are synonymous. “A suit is brought when, in law it is commenced”. Goldenberg v. Murphy, 308 U.S. 162, 168, 2 S.Ct. 388, 389, 27 L.Ed. 686. Rule 3, Fed.Rules Civ.Proc. 28 U.S.C.A. states only that “A civil action is commenced by filing a complaint with the court.”

8 . See and compare General Inv. Co. v. Lake Shore & M. S. Ry. Co., 260 U.S. 261, 272-278, 43 S.Ct. 106, 67 L.Ed. 244, where very similar issues were raised in a removal case.

9 . In Jiffy Lubricator Co. v. Stewart-Warner Corporation, 4 Cir., 177 F.2d 360, 362, it was said that the congressional purpose in enacting Section 1404(a) was “ * * * to grant broadly the power of transfer for the convenience of parties and witnesses, in the interest of justice, whether dismissal under the doctrine of forum non conveniens would have been appropriate or not.” See also United States v. E. I. DuPont De Nemours & Co., D.C.D.C., 83 F.Supp. 233, 234.

10 . The facts in the Ferguson ease were very similar to those before the trial court in the pending Delaware actions, assuming arguendo that five of the corporate defendants do not transact business in Texas. In the Ferguson case, jurisdiction was also based on the antitrust laws, and the court held, in view of the consent of the defendants to be sued in Michigan, the transferee forum, that it was not necessary that “ * * * venue in the transferee forum be proper as to every one of a number of defendants before transfer may be ordered.” Judge Ryan went on to say, “Such a result [authorizing transfer] is possible, if the statutory condition is construed as requiring the transferee forum to be a proper venue as to at least one of the defendants in a multi-defendant case; in such a situation it can fairly be said that the action might have been brought there in a venue sense.” See 89 F.Supp. at pages 48, 49. Of. the disposition of the application for mandamus against Judge Ryan, sub nom. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329. Of. McCarley v. Foster-Milburn Co., D.C.W.D.N.Y., 89 F.Supp. 643, and the disposition of the application for mandamus against Judge Knight, sub nom. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949.

See also United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 959, 93 L.Ed. 1226, in which the issue was whether Section 1404(a) extended the doctrine of forum non, conveniens to a civil antitrust suit brought by the United States. There was a stipulation by the defendants not to raise the venue issue in the transferee forum. The Supreme Court decided that the case might be transferred. Inferentially this supports Judge Ryan’s position in Ferguson v. Ford Motor Company, supra. Judge Rodney, in considering the motion to transfer the actions with which we are presently concerned, pointed out that since United States v. National City Lines was a civil suit brought by the United States, Section 5 of the Sherman Anti-Trust Act, 15 U.S.C.A. § 5, would have permitted the United States to bring in additional parties and he treated Section 5 as a venue statute enlarging the scope of Section 12 of the Clayton Act, disagreeing with Judge Ryan’s interpretation of the National City Lines decision. Though Section 5 is a venue statute no additional parties were sought to be brought in by the United States as defendants in the National City Lines suit and therefore in our opinion Judge Ryan was right on this aspect of the matter. We conclude, nonetheless, that the question presently before us was not in focus in the National City Lines case before the Supreme Court.

11 . We have not referred to the decision of the Court of Appeals for the Fifth Circuit in Tivoli Realty Co. v. Interstate Circuit, 167 F.2d 155, reversing D.C., 75 F.Supp. 93, for the reason that- it is irrelevant to the issues presented in the instant cases, Section 1404(a) not being in effect at the time of the decision, viz., on March 18, 1948.