Paramount Pictures, Inc. v. Rodney, U.S. District Judge (Two Cases). Interstate Circuit, Inc. v. Rodney, U.S. District Judge (Two Cases)
186 F.2d 111
3rd Cir.
1951
Check Treatment

*1 Ill employ- contrary. But the testimony to the discharge obligation to er under no replacements to substitute in order Board Relations Labor strikers. National Co., supra. Mackay Telegraph Radio & fact not request union was Judges, McLaughlin, Circuit Hastie and approval unconditional, imposed dissented. em- upon the as a condition of the union also, D.C., See 10 F.R.D. 201. the unfair ployer. is to noted that Mackay practice to exist in labor found discrimination in the reinstatement

case was union

of certain because of their strikers the statute

activity. Such a violation of charged instant case. or- request for enforcement order

der is denied. The decision and complaint Board and the are set aside

is dismissed. PICTURES, Inc. al. v. et

PARAMOUNT Judge, RODNEY, U. S. cases); (two et al. CIRCUIT, al. Inc. et

INTERSTATE Judge, RODNEY, U. S. District cases). (two al. et 10174—10177.

Nos. Appeals Court of

United States Third Circuit.

Argued June

Reargued Oct. Dec.

Decided 5,1951. Jan. Amended

As 26,1951. Denied March Certiorari

ofWrit

See *2 Roy Washington, C., Sher,

Robert E. D. McDonald, City (Hastings, W. New York Stockly, Wise, Del., Wilmington, Walz & Southerland, Potter, Wilmington, Berl & Del., Richards, Layton Finger, Wilming- & Arsht, ton, Del., Morris, Steel, Nichols & Wilmington, Del., Layton, Caleb S. Wil- mington, Del., Wright, George and Jos. Worsham, Dallas, Tex., brief), Irion on the petitioners. Arnold, Washington, Thurman D. C. Del., (Killoran Brunt, Wilmington, & Van Arnold, Porter, D. Washington, Fortas & Dallas, C., Thompson, Goldberg, Meek & Tex., brief), respondent. on the BIGGS, MA- Judge, and Chief Before McLaughlin, RIS, Goodrich, ica- HASTIE, LODNER, Cir- STALEY Judges. cuit BIGGS, Judge. Chief question presented The by the cases bar is whether the United States District Court for the District of on a Delaware defendants, motion made op all of the posed by plaintiffs, has the un der Section of Title 28 United Annotated, States Code an appropriate United States court in Texas two suits1 based on laws of the United The States. trial court concluded that it lacked authority F.Supp. transfer the actions.2 89 278. We disagree. damus this court. We a rule two suits instituted issued Realty, v. Para to show cause. Answers were are Tivoli Inc. filed below fully questions Pictures, Inc., involved have been mount Civil Action No. argued. 1077, and Adelman Paramount Pic appeals perfected tures, The defendants also No. A de Action Civil precautionary scription in view measure of the actions be found Court, report opinion v. Beneficial Industrial Loan Cohen of the District Corp., F.Supp. 93 L. ed separate per A Ed. 1528. curiam for the did not decide whether opinion disposing appeals is filed parties, in the interest venience of concurrently with the in the in justice, should be transferred. eases cases. stant petitions for man- defendants filed “For the trict 1404(a) states that Court in trial Texas.”3 The witnesses, interpreted convenience may- justice, a district the doctrine of conveniens interest of non prohibits other dis- which civil action to a suit un- the dismissal of * * *

trict where it have been less there is a more convenient forum Act, Clayton brought.” may Section 12 the where it be recommenced and main- 6 tained,4,5, 22, provides -suit un- by 15 that a limiting and statute the corporation phrase against der antitrust laws “might brought”, re- have may brought only in the district fused transfer. inhabitant “also in which it is an but Ship In Neirbo v. Bethlehem may trans- district wherein it found or Corporation, 165, building 167- 308 U.S. “all in such business”, acts and that 168, 60 84 held L.Ed. it was S.Ct. of which cases served that the of the federal courts to inhabitant, or is an corporation] [the adjudicate granted by controversies is Con Cf. Section wherever it be found.” gress by and cannot be conferred con Act, Clayton 4 of the 15 U.S.C.A. § parties, sent of place whereas defendants, There are fourteen judicial authority is to be exercised relates suit, identical in each ac Delaware only litigants to the convenience of incorporated tions. Ten were in Dela subject disposition. to their A venue stat ware; four, in New York. The trial court gives “personal privilege” to a ute de only concluded that defendants were nine fendant which he assert or waive at transacting business in Texas and there Casualty his election. Commercial Ins. Co. only venue could fore be laid in that State Co., v. Consolidated Stone 278 U.S. as to them under 12 of Moreover, 49 S.Ct. L.Ed. 252. 73 Act. It also found that five defendants non conveniens doctrine not inhabitants of could not be means than that a re no more there, found and did not transact business “ imposition upon jurisdiction sist its * * * an and that the actions could not jurisdiction even when that is authorized consequently brought originally have been by Corp. a general venue Gulf Oil all of the Dis- -statute. would seem as much basis for stated, The trial court “There is no question conclusion five defendants re- that all fourteen defendants are transacting properly ferred to were business in suable in this [Delaware] dis trict”, concluded, Texas as for conclusion that said, as we have corporations four New York were trans- five defendants did not transact acting business Delaware. In the F.Supp. business in Texas. See 89 page view that we take cases at bar 279. The court cited Mebco Real unnecessary ty Holding it is to determine this fact Co. v. Warner Bros. Pic tures, Inc., issue. D.C.N.J., F.Supp. 45 340 Theatres, and Westor Inc. v. Warner Gilbert, 4. See Oil Gulf 330 U.S. Pictures, Inc., D.C.N.J., Bros. 41 F. 501, 506-507, 67 S.Ct. Supp. compare Py 757. But Giusti v. Industries, rotechnic 9 F.2d 150 5. The trial treated the Reviser’s 351. No reference was made to United 1404(a), appended *4 an|I 1948, 29, March the dates on brought and, liter matter could have been the actions the District were commenced in ally, “might brought”,7 by been have Delaware, main- °I and could been have plaintiffs against defendants objection if had been tained in Texas no Moreover, if court in Texas. timely The difference made to the venue. brought, have maint suits could phrase “might between the have been ained8 there had been -seasonable brought” of and that em defendants, objection by the to the venue ployed opinion, be “could now 12 process for service of under Section and brought”, no more than one of tense Clayton made of the Act could have been grammar, imperfect subjunctive as have been wherever subjunctive. compared pluperfect to the non Even if doctrine found. forum Surely Congress effect did not intend the precise applied conveniens be important of an remedial statute to turn required by Oil v. Gulf conditions 9 upon grammar. rule tense or 506-507, 839, 501, Gilbert, 67 S.Ct. put our decision on the We do 1404(a) was (and 1055 Ryan Fergu ground Judge advanced Court), those Supreme

not then before D.C.S.D.N.Y., Company, son Ford v. Motor instant circum conditions are met Ryan F.Supp. Judge 89 45.10 Both and viz., court would have stances: the Texas Ferguson “brought” The facts in the were ease it 7. As to wliere a suit very “brought” to those the trial argued similar before terms that the actions, pending Delaware synonymous. “A and suit “commenced” when, assuming arguendo porate cor five of the that is com it law Goldenberg Murphy, defendants do not transact busi 308 menced”. v. Ferguson case, In ness in Texas. jurisdiction L.Ed. U.S. 686. Rule on the anti was also based U. Civ.Proc. 28 Fed.Rules laws, held, view trust and that “A civil action S.C.A. states complaint filing of the consent of the defendants to commenced Michigan, forum, sued in the transferee the court.” “ ** * necessary that it was not that compare v. See General Inv. the transferee forum be Ry. Co., 260 U.S. Lake 261, & M. Shore every one of a number defend as to 272-278, L.Ed. ants transfer be ordered.” before very raised similar issues Judge Ryan say, went on to “Such in removal case. [authorizing possible, transfer] is result statutory condition if the is construed Jiffy In Co. v. Stewart-War Lubricator requiring Corporation, the transferee to be as ner congressional least one venue as to at was it said case; in multi-defendant purpose enacting defendants such “ * ** fairly broadly it said a situation can be brought grant that the have been action convenience of for the F.Supp. justice, sense.” there in venue See witnesses, in the interest disposition pages 49. Of. whether dismissal under doctrine application for mandamus forum non conveniens would have been Judge Ryan, sub nom. Ford Motor Co. appropriate not.” See also United Ryan, Cir., 182 F.2d 329. Of. Mc De E. I. DuPont Nemours & States v. Carley Co., F.Supp. D.C.W. Foster-Milburn Co., D.C.D.C., F.Supp. 643, disposi- D.N.Y., persons of the defendants of the Judge risdiction Rodney seem to take having sub- they as will treated nullity where Section consent is a to venue there jurisdiction if think that con- mitted 1404(a) is themselves concerned. objection. We under be no sent effect seasonable given is to be the same provi- under ceive of no reason view receive 1404(a) as would sup- why candid-voiced other cannot sions of Section 1406 venue statute. We to be express deemed pose intended consent should not be could have of venue problem potent an actor in the drama as otherwise. Bear in mind that no objection.11 process puling in con- as no seasonable presented service suits private nection with civil urged It has been that the Act, we irrespective de power, has Court indicated, wherever authorizes service the Dela consent, fendants’ a defendant found. Service stated suits to Texas. This is ware no connection with venue. has “might ground they the broad Finally issue and in conclusion on this that a brought” in the sense there provisions Sec- we call to the attention jurisdiction of court in Texas has provides for (a) tion 1406. Subsection would ac and therefore matter *5 has been transfer of a case in which venue cept complaint a filing of a in such the in any to wrong laid in district the though might later fail suit even the suit brought. which the could suit or objection if to venue were made if emphasize provisions of subsec- We the upon for the defendants reason service however, that noth- (b), tion which state accept nor not had. neither chapter 87, Chapter in ing venue reject not here this contention for we are “ * * * 28, impair juris- shall Title of the upon the extent called to delimit matter diction of district court of has con 1404(a) which Section interpose involving party who does not de ferred district courts. The timely objection and sufficient ven- support fendants’ consent is sufficient to adjudge contro- If ue.” Accordingly the extent transfer here. in versy parties be between the power of a of the district court whether brought, which no matter suit 1404(a) a case under Section to a district or properly laid in that district venue not, ju- be deemed to have will to which defendant not consent does application bring parties of the for mandamus

tion in additional and he treated Judge Knight, against enlarging nom. Fos- sub statute 5 venue Cir., Knight, scope 2 181 ter-Milburn Co. v. 12 Judge Ryan’s Act, disagreeing F.2d 949. in- terpretation City National See also United States v. of the National Lines City Lines, is a Though 69 decision. sought parties the issue in which no additional statute extended was whether Section to be States as United non, City conveniens the doctrine of in the National Lines defendants brought by opinion Judge suit civil in our suit and therefore stipulation Ryan right aspect There was a United States. on this nonetheless, conclude, not to raise the venue the defendants matter. We presently question transferee forum. The Su- issue in the before us was not preme City decided that the case Court in the National case focus Lines Inferentially sup- Supreme transferred. Court. before the Ryan’s Ferguson Judge ports have not referred to the decision 11. We Judge Company, supra. Motor v. Ford Appeals for of the Court the Fifth Rodney, considering the motion to Realty in Tivoli Co. v. Interstate Circuit Circuit, the actions with which we are 155, reversing D.C., F.2d concerned, pointed presently out F.Supp. 93, the reason that- it is for City States National since United v. presented irrelevant to the issues brought by was a civil suit Lines being cases, not instant States, Sherman United 5 of decision, viz., time at the in effect Act, would Anti-Trust 18, 1948. on March permitted the States United justice. principles in cases is in the interest The for later determination leave Mc squarely present expressed Cf. in this the issue. conclusions Co., give right Carley D.C.W.D. will not Foster-Milburn v. disposition forum, N.Y., F.Supp. 643, choose their privilege and the heretofore degree by plain- application mandamus exercised at least to some Judge contrary puts sub Foster-Milburn tiffs. On the decision Knight, nom. our Cir., impartial hands of an 181 F.2d 949. federal tribunal Knight, determination as to the suits of is not complained order can best be tried. or appealable under Section 1291 necessary We assume that will not Anno 28 United States Code writ, application to issue the unless well settled general tated. “The rule is made, certiorari be that the court be- change refusing granting that an order low will refusing the vacate the order express appealable of venue is not proceed transfer and will consider ly Jiffy statute.” Lubricator so made of convenience Corporation, 'Co. v. Stewart-Warner justice witnesses and in the interest of is interlocu F.2d order whether the should causes transferred disposition tory and there is no “final here Texas. right in of a not an claimed which is and does gredient of cause of action HASTIE, Judge, with Mc- Circuit whom require consideration with it.” Cohen LAUGHLIN, Judge, joins (dis- Circuit Corp., 337 Beneficial Industrial Loan U. senting). 546-547, L. pointed As was out Ford Judge McLaughlin Ed. 1528. and I think the dis- Ryan, Cir., *6 182 F.2d correctly Motor v. trict court construed Section 1404 “ * * * probably the order would (a) of the new Code. Judicial appeal judg on final he incorrectible [after hardly Section, Congress In has said that (cid:127)ent], petitioners for show that in the interest of justice convenience and .a different result would have been reached may any “a district court civil had been The Del the suit transferred.” any to or action other district division to district court has refused exer aware might it brought”. where have authority of cise its to determine issues 1404(a). The district judge justice and convenience raised respondent here, is acting pe- who duty it do Ex 1404(a) when is its to so. to transfer tition civil antitrust suits from parte Peru, of Republic U.S. District of Delaware to the Northern 1014; Evap Roche S.Ct. of District had decide whether Ass’n, orated Milk S.Ct. U.S. Northern District of Texas was a district 87 L.Ed. 1185. The Delaware place “might where suits have n possesses power to transfer the brought”. A way reasonable obvious (cid:127)causes but has refused to exercise that determining of this was see whether possess power it it not because believes does some other statute had desig- proper remedy. is the it. Mandamus Cf. places litigation nated where of this Elg, 307 U.S. Perkins v. might brought. be inquiry sort Such an appropriate The writ 83 L.Ed. 1320. is as reference to antitrust suits leads di- compel the exercise discretion as it rectly provision abuse is to correct Cf. discretion. Act, which is 22 of Title Eisenlohr, Inc., Kalodner, Webster 15 of the United States Code Annotated (cid:127)Cir., throughout so designated and will be this therefore, necessary, for opinion. provides “Any It will be This section ** n districtcourt to consider whether trans- under suit the antitrust laws appropri- against corporation may of the Delaware suits to an fer be brought not in Texas judicial ate district will serve the con- only district whereof it is inhabitant, any venience witnesses and an but also district only judicial brought not busi- or transacts it found wherein ** inhabitant, but district is an whereof it learned district *.” To the ness found also in wherein it district the Northern had concluded that judge who business; process all transacts re- or Texas of these met none cases served such reading it that a quirements, seemed inhabitant, or it of which it an wherever is conjunction with Section this section may be can found." problem. solved find 1404(a) reasoning. fault in no this determinants This section states as hand, to us that On the other it seems person criteria of venue the normal rejecting 15 as de- Section 22 corporation. For al over power finitive the limits of, corporation “an inhabitant” this court suits under in a “found” in or “transacts business” empowers holding that the latter statute state, original normally it litigation a district court to transfer process for district court a district deems such district whatever if the court ex within state. 2 The relevant brief, just and In action convenient. ception authori to this rule is the restricted holding concluding phrase court is that the ty extraterritorial service surplusage. <ofSection concluding in the of Sec contained clause tion 22. But we read that clause as re Logically, district where action n stricting “such extraterritorial personam “might brought” have been requirement cases” as are within the place can mean preceding provision of the that suit (cid:127)original proceeding, place or a n defendantwas where, least, corporation authority to the amenable “transacts a cor business”. 3 We believe court,1 or both. We are unable to poration be entitled to would extra any other find construction reasonable attempted territorial service give which language would substantial n effect. The quashed upon a showing that phrase under construction is did not transact from state given treated as surplusage unless it is one n ofthe Thus, had issued. summons wheth suggested Appar- meanings. above “a er ently, problem [where suit] believes *7 brought” precisely terms is viewed in that, by reasoning be avoided here even proper generally to in of venue or more if venue all does lie in conceptions power clude of to of court authority the amenable to subject authority, defendants to its (cid:127)of there. We think that district court incorporates concept doing and in so is conclusion mistaken. power to excludes Texas Both personal venue and these cases. corporation over a defendant in antitrust n suitsare properly approached through Sec- brief, mean- In states the tion 22 of Title 15 which reads as follows: concluding ingful limitations to which the phrase And 1404(a) corporation. “District refer. which to sue rejected, as once limitations are these “Any suit, action, proceeding or under them, a rejecting think is we corporation laws corporation may A transact Knight, business 1. Of. Foster-Milburn Co. yet 1950,181 not be within state F.2d 949. process court there. of a district With is the Such common rule. law Restate transacting conception of ment, (1934). of Conflict §§ Laws Scophony States v. stated United given This rule is full effect the lim Corp., 1948, U.S. imposed itations of dis L.Ed. more limited 92 provision contrast 4(d) (f) trict courts Rule and process upon service Federal Rules of Com Civil Procedure. 4(d) corporation (3), Rule Federal pare Orange the decision of this Rules of Civil Procedure. Rayherst Theatre Amusement Corp., Cir., 1944, receiving' puted section, provision 1404(a) substantial that under this vague for meaningless, proper left too forum must be venue.4 at least practical application. again, supports our anal- analogy Here ysis of 1404(a). Whatever merit there be as a mat- concerning *8 are sal. Plaintiffs ilarly prop- of limiting transfers to districts privilege of choice ing normal Particularly noteworthy their is Sec- er venue. At the proper venue. of among districts 28 which authorizes tion of Title respect time, are directed has same courts judge in which a suit of a district places which of enumeration legislative improperly brought to transfer been appropriate for the deemed could have litigation to a district where it has types litigation. of trial of think it not be dis- various brought. will been We very special meaning Moore, of this section in 4. Professor Jamos W. question, Supreme emphasized Code, of the tes- Court on the revision sultant value of the reviser’s notes as an the House tified before Subcommittee hearings proposed holding on the Code aid construction. provides for that Section Gilbert, 1946, 330 U. Gulf Oil proper venue”. of the “to the case 506-507, 67 S.Ct. Congressional Service, 80th U.S.Code Realty, 1055; Inc., Tivoli v. Interstate p. (1948) Cong., 2d Sess. Inc., Cir., 1948, Circuit, Collett, 1949, parte denied 334 U.S. certiorari In Ex 92 L.Ed. 1762. L.Ed. 1207 where prevailed contention, it has in makes un- these cases of the unmindful We not necessary majority court for of the our position of support principal of the point, although the pow- even to consider this judicial brethren, of the existence that suggests it of the court place in controversy adjudicate a er to decided, point not Since the merit. shall improper defendant summarily. we state our on it object7 is a basis venue, defendant place improper finding ques- We think review of the in conduct how the we do not willing. But see required is neither nor in this tion been instituted suit has a defendant after proceeding. acting petition We are on a might have “it the forums add to for writ of mandamus. Once it has been meaning normal brought”. In the been concluded that the cor- district court was 1404(a) di- language of words this 1404(a), in rect its construction of who is con- judge the attention rects gone appropriate far in we have as as to the situation sidering a transfer acting upon present petition. Certain- was instituted. when suit existed by beginning ly argued that aside, would not be Other it considerations these cases filed present special after suit was in Texas business circumstances which should Delaware, present defendants employ cause us to refuse to the discretion- pres- place ary where the Texas a writ of have made mandamus to review the find- brought”. We “might been ing that certain ent suits defendants were not trans- present to waive ob- acting tender do see how business in Texas. contend- not is not can have jection judge arbitrarily to venue Texas ed that acted language of We think the finding effect. greater making such a but rather that he pre- on Title takes was mistaken of interrelat- conclusion meaning in the though petitioners cise fact and ed law. And warrant IS, there is neither complain Title so that finding, now of that of them each enlargement dependent question occasion sign- nor whose relation to Texas is parties during the the conduct of ed and filed in the District Court course of a lawsuit. Northern Texas as one of the papers stay support an action to one Finally, argued at bar it has present Delaware actions a state- IS assuming Section even conceding: Tex- ment “That had not transact- controlling, Northern District of Texas; place transacting defendants not is a where all ed and is business be “found” or “transact business” agent, are to representative that it has no or em- therefore, might have and, that these suits Texas; ployee in that it cannot found record, But on the there. Texas; that it is not domiciled Texas ex- concluded and made to the venue of a Fed- certain plicit finding District court or court in eral Texas.”8 transacting be found nor were neither impossible impressed by find it to be We are asked to exam- in Texas. they plea wrong so now that their finding if we should set aside this ine and discretionary should use then correctly that the district conclude judge who in writ to reverse the exercise language 1404(a). construed *9 judgment agreed has of his best with them. brings the statute Our construction reasons, deny For these we would of the issue thus consideration us to the writ. However, which the construction raised. peals Shipbuilding the Fifth Circuit concluded Bethlehem 7. Neirbo Co. v. not be Corp., it would restrain proceeding 167; 1406(b). from with the Dela litigation ware now us. before large Relying in measure this ab Realty, Inc., v. Interstate Cir Tivoli relationship these de between sence Inc., supra, cuit, note 6. Ap the Court of fendants Notes Scophony Corporation, States v. 333 U. U.S.C.A., 28 as an inter- authoritative 68 S.Ct. 92 L.Ed. 1091. pretation, citing Na- United States v. complaints, defendants’ affidavits City Lines, 78, 81, tional 69 and an affidavit filed counsel 955, 959, S.Ct. L.Ed. 93 but plaintiffs seem to raise issue of fact is more than a mere codification. purview Scophony within the de parte Collett, Ex is also a revision. cision as whether the five defendants 55, 56-72, 944, 959, U.S. transacting referred to were L.Ed. 1207. in Texas. This issue could have been taking resolved provisions of oral tes 6. The are timony. applicable brought Cf. Frederick & Hart Co. v. to civil actions Recordgraph Corporation, Cir., 169 laws. United antitrust v. Na- States supra. City Lines, F.2d 580. the instant there On record tional n. adjudicate Gilbert, 501, 507, 839, had power to controver U.S. sies and would had L.Ed. aI1 By joining mo- defendants. of Déla suits tion t0 transfer the defendants have waived based, said, on the ware objection and have to Texas venue an7 adjudicate laws. Jurisdiction a Texas submit themselves a£ree<l court- on such controversies was conferred all Therefore, embracing suits United States district courts Sections subject same matter same U.S.C., 1940 41(8) (23) of Title brought could now and maintained ed., now into covered Section 1337 re they Texas- could have Indeed vised Annotat Title 28 States United Code Texas on November embracing ed. Suits identical

Notes

notes reviser’s implicit ter of policy, in view proper are also its indicative of that a district construction.5 state Those notes court should be free transfer cases accordance “Subsection was drafted in (a) according justice with- and convenience conveniens, doctrine forum non restrictions, out technical think we permitting transfer to a more convenient Congress expressed or has not embodied forum, proper. though even the venue is policy 1404(a). If such example pro- As an such a of the need of had been intention we vision, see & R. Co. v. Baltimore Ohio phrase concluding think the of Section 1404 6, 86 Kepner, U.S. (a) would been omitted. But that prosecuted was L.Ed. phrase give was included we should Employer’s Liability Federal Act in New according substantial effect to its tenor. York, although accident occurred analysis think suffices to sustain employee resided in Ohio.” judge. How- 1404,Historical and Revision Notes. C.A. § ever, reinforcing con- the extent that sig- explanation it is In the of this useful, they siderations are not lack- were written nificant that when these notes ing. technique dismissing a suit because helpful One and often familiar aid was another forum more convenient statutory construction afforded refer- employed only the more convenient statutory language of un- similar ence proper forum was also venue for suit.6 meaning controverted used in some con- Moreover, problem of Baltimore comparison. permits useful This text which Kepner mentioned Ohio Railroad v.Co. approach illuminating here. power notes, was the lack the reviser’s type particular even actions of Throughout Chapter 87, to dismiss of which Sec- This if was not convenient. the forum part, tion find references background suggests places brought orig- where suits limiting one forum is inally more than or to which suits be transferred. that with- revision text the Code disputed is not these sections 1404(a) substitutes They in this context Section af- directions as to venue. for a more power of transfer a broad support ford some for the construction dismis- pre-existing language restricted 1404(a) as sim- similar in Section prevented from abus-