J. David STERN and Sophie L. Siegel, Appellants, v. SOUTH CHESTER TUBE COMPANY, Appellee

OPINION OF THE COURT

WILLIAM F. SMITH, Circuit Judge.

This appeal is from the dismissal of a complaint in which the only relief sought by the appellant was the enforcement of his statutory right as a stockholder to examine the books and records of account of the corporate appellee and its subsidiaries. Business Corporation Act, 15 P.S. § 2852-308, subd. B. The right is enforceable in an original action of mandamus in the court of common pleas of the county in which the corporation has its principal place of business. 12 P.S. § 1911; Goldman v. Trans-United Industries, Inc., 404 Pa. 288, 171 A.2d 788 (1961). Similar actions are not maintainable in the federal courts because of the limit on their jurisdiction.

Although the writ of mandamus has been abolished by the Federal Rules of Civil Procedure, rule 81(b), 28 U.S. C.A., the procedural relief available in lieu thereof is still governed by the “All Writs Act,” 28 U.S.C.A. § 1651. The statute provides that the federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” (Emphasis added.)

It has been uniformly held in a long line of decisions that a federal court is without authority to issue a writ of mandamus except in aid of its jurisdiction already acquired under an applicable federal statute. Knapp v. Lake Shore Railway Co., 197 U.S. 536, 541-543, 25 S.Ct. 538, 49 L.Ed. 870 (1905); Covington & C. Bridge Co. v. Hager, 203 U.S. 109, 111, 27 S.Ct. 24, 51 L.Ed. Ill (1906); Marshall v. Crotty, 185 F.2d 622, 626 (1st Cir. 1950). There are other cases in point but we see no reason to cite them in this opinion. The relief here sought by the plaintiff is plainly not ancillary to a suit now pending in the district court. The issuance of the writ would not be in aid of the lower court’s jurisdiction; it would simply terminate the litigation.

The appellant argues that jurisdiction having been acquired by reason of diversity of citizenship and a requisite amount in controversy, the district court had authority to issue a writ of mandamus conformably to State practice. This argument is untenable. The jurisdiction of the district courts under § 1332(a) of 28 U.S.C.A. is limited to “civil actions.” ¹ Albanese v. Richter, 161 F.2d 688 (3rd Cir. 1947). An original proceeding in mandamus is not a “civil action” within the meaning of the said statute. Insular Police Commission v. Lopez, 160 F.2d 673, 677 (1st Cir. 1947), cert. den. 331 U.S. 855, 67 S.Ct. 1743, 91 L.Ed. 1863; Marshall v. Crotty, supra. It is a special proceeding in which a court is called upon to exercise its prerogative power. The only such power held by the federal courts is that conferred upon it by the “All Writs Act,” supra, and this is subject to the restrictions of the statute. It was held in Knapp v. Lake Shore Railway Co., supra, that an earlier counterpart of the present statute did not “confer power on the [lower] courts to issue mandamus in an original proceeding.”

We recognize that a federal court may enforce a state-created substantive right, and to do so fashion an appropriate remedy. Cf. Guaranty Trust Co. v. York, 326 U.S. 99, 105-107, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). However, we are not here concerned with the question of remedy but one of jurisdiction. The general jurisdiction of the district courts is limited and defined strictly by statute, in this case by § 1651(a) of Title 28 U.S.C.A., supra. United States ex rel. State of Wisconsin v. First Federal Savings & Loan Ass’n., 248 F.2d 804 (7th Cir. 1957), cert. den. 355 U.S. 957, 78 S.Ct. 543, 2 L.Ed.2d 533. When thus limited and defined it cannot be extended by local statute. “The basic purpose of § 1651, and of its statutory predecessors, was to assure to the various federal courts the power to issue appropriate writs * * * of an auxiliary nature in aid of their respective jurisdictions as conferred by other provisions of the law.” (Emphasis added.) In re Previn, 204 F.2d 417, 418 (1st Cir. 1953). tit seems to me-that -the •issuance_o±„aJwrit..of mandamus in. this., case ..would violate the jilain statutory limitation on the lower court’s jurisdiction.

The judgment of the district court will be affirmed.

FREEDMAN, Circuit Judge, concurs in this opinion.