*1 Here the officers could easily have effect- Beasley’s ed building, arrest as he left the CORPORATION, SKIL
if, moment, at agents had facts Plaintiff-Appellant, within knowledge their they and of which reasonably had trustworthy information al., MILLERS FALLS COMPANY et sufficient prudent to warrant man in Defendants-Appellees. believing Beasley possession was in narcotics. Beck v. No. 75-2291. S.Ct. But in- United States Court of Appeals, stead accomplishing then, the arrest Sixth Circuit. Government now justify seeks to entry apartment into the building, the search of Argued March 1976. Carriger’s apartment, and subsequent his Decided Aug. arrest building as incident to Beas- by Supreme Certiorari Denied ley’s purpose arrest. If the of the day’s 13, 1976. Dec. activities had been to Beasley arrest it See S.Ct. 653. would have simple been a matter for the officer to Beasley arrest when the officer
saw him leaving apartment building
with the shopping bag that now contained
“something.” But is clear from the
record purpose that the day’s activi-
ties was not to arrest Beasley but instead to
discover who his source was.
Under circumstances, we believe that
the government agent violated the Fourth
Amendment entering apartment
building, and entry was not legally
permissible probable because cause did not
exist for the And, arrest Beasley. any
event, the may Government proba- not use
ble cause to arrest Beasley as a springboard
to search apartment and arrest another
person whom the Government did not have
grounds to believe was involved in narcotics
transactions. Because the appellant could
not have been convicted without the evi-
dence obtained as a result of the unauthor- entry,
ized it follows that the convictions
must be reversed.
Reversed. *2 Fleming, McDougal, J. Hersh &
Clarence 111., Scott, Chicago, Swartzbaugh, Marc L. Cleveland, Carter, M. Charles Chica- 111., plaintiff-appellant. go, for Baldwin, Egan, Egan, Walling Richard J. Fetzer, Dill, Merkel, Campbell, M. & Reese Zetzer, Cleveland, Ohio, for defend- Dill & ants-appellees. PHILLIPS, Judge, Chief and
Before ADAMS,* Judges. WEICK and Circuit WEICK, Judge. interlocutory appeal This is an from an order of the United District Court States a denying the Northern District of Ohio (Skil) Corporation motion Skil to remand infringement patent action the District Illinois, previ- in Northern which had Court ously transferred the case Ohio 1404(a). provisions under the of 28 U.S.C. case is one of several The transferred during protracted have which been filed litigation between and Lucerne Prod- Skil ucts, (Lucerne), patentees Inc. who competing switches and manufacturers of litiga- tools. portable used on electric This pending has been in various courts tion with filed not in Ohio since cases Dis- but also in the Southern and New York and the District of Con- trict of necticut. years cases have shuttled be-
Over of Northern Ohio tween the District Courts and in a Illinois retransfer and forum, controversy over choice of been no on the result there has trial litigation. phases of the Various merits have litigation the transfer been considered Judges Green Lambros by District by Judges Will Hoffman This is fourth which our Illinois. court has entertained.1 history litigation is detailed order, copy Judge Hoffman’s transfer appended “A”. hereto Exhibit which * Products, Adams, Corp., Judge, Inc. v. Skil 441 F.2d 1. Lucerne United The Honorable Arlin M. Circuit, 1971); Corp. Cir. Skil v. Lucerne for the Third States Court of ’ Inc., 72-1282; Products, Corp. Lu- sitting designation. No. Products, Inc., No. 73-1738. cerne banc; rehearing action in the en particular it denied motion Skil’s Illinois several stay
Northern District for a pending certiorari to the Su- Lucerne had in- customers. of Lucerne’s preme Rehnquist Court. Mr. Justice denied customers, permitted and was demnified its a similar stay. motion for a was as a defendant. Skill also to intervene Following entry of the transfer order against Lucerne then plaintiff in an action Hoffman and the decision of the *3 District of pending in the Northern Circuit, Judge Seventh Lambros of 69-461, which raised the same issues No. C vacating Ohio entered an order Judge Hoffman sua patent validity. previous his own remand order in Skil v. action transferred to sponte ordered this Lucerne, 69-461, No. C and consolidated of Ohio so that the Northern District that case with the being case transferred with action could be consolidated Skil’s Illinois, 74-121, from Northern No. C for all against Lucerne. pretrial proceedings. copy A of the Order the transfer order Upon entry the Skil appended hereto as Exhibit “B”. Emergency Petition for a Writ filed an then Skil moved to remand Case No. C in Mandamus and Prohibition the Court of Illinois, again 74-121 to which motion was Circuit, seeking for the to Seventh Judge denied. Lambros certified the case Judge Hoffman’s order. vacate The basis interlocutory appeal, for an which was of the attack was that the record did not granted by panel of this Court. the court show that transferee had defendant, venue as to each that one of the Judge Skil contends that Lambros erred principal place have a defendants did not failing in to remand this case to the North- business in Northern and that there- ern District of since the Illinois Judge power was without fore Hoffman power District Court lacked the to transfer 1404(a). order the transfer under The § the case to the Northern District of Ohio. petition with a brief and attachments there- relies the Skil case of Hoffman v. pages, supplemen- to consisted of 123 and a Blaski, S.Ct. appendix tal was filed. Lucerne filed an (1960), by a decision a divided 80-page response. court, 1404(a) which held that a transfer § Judges Kiley, Sprech- and Stevens can be made to a District in case, er considered the merits of the as which the could have originally following evidenced the order entered on brought complying the action while December 1973: the venue process and service of statutes. This matter is before the court on the argues Skil that the record does not show communication, filing by each of a that the Northern District of Ohio is a required by Sep- this court’s order of defendants, proper venue as to all and 6, 1973, advising tember the court of the the therefore Illinois District Court lacked disposition of the in No. 73-1738 power 1404(a) under to transfer docketed in the United Court of States case Northern District of Ohio. Appeals for the Circuit. On consid- Sixth plaintiff’s emergency peti- eration of the precisely very This is same issue tion for prohibition writ of and manda- that the Seventh Circuit considered and de mus, thereof, in support memorandum against cided in the mandamus Skil and supplemental appendix August prohibition brought action in that Court joint 1973 and of respon- answer of to set aside this transfer. It is thus August dents filed clear that the decision of the Seventh Cir be, petition It is ordered that said judicata cuit Skil is res on the issue hereby (App. the same is DENIED. I at validity Judge of the Hoffman’s order of 255) transfer, and we are bound the decision. writ, petition denying Circuit denied In Seventh Skil’s Seventh Circuit did rehearing for and another ground not base its decision on the not view a mandamus action differs from the prohibition were mandamus interlocutory ap review an The order entered standard of appropriate remedies. peal. change not permit any not This distinction does by the Seventh Circuit does argued in result in this case. Skil the Sev such narrow construction. Hoffman lacked enth Circuit apply the rule that we must argues power transfer the case because Circuit’s spite of the of Blaski Seventh correct, been the Seventh Blaski. Had Skil decision, because that case required have been issue Circuit would Court affirmed a remand order Sev- writ, denying By writ. spite of the fact enth Circuit have decided that necessarily Circuit must prevent action to transfer mandamus power had Hoffman Fifth Circuit. had been unsuccessful in the the District Court in Ohio case because Blaski, Fifth action was In Circuit’s properly could exercise over merits judicata as to the held res testing jurisdic action. standard for *4 the Circuit never transfer because Fifth tion not differ in a mandamus action does party opposing the reached the merits. appeal.3 in an from the standard used leave file merely transfer had moved for would not have refused to Seventh Circuit mandamus, petition a writ of and the a had Hoffman lacked issue the writ Here, Fifth denied the motion.2 Circuit power case. We should to transfer the petition, filed a the Seventh a of never assume that court concurrent petition merits the and 'considered the of jurisdiction neglected perform duty, its petition, reviewing the denied relief after clearly its particularly when order shows thereof, in the support tnfe memorandum performance. is the proper full Mandamus joint and the an- supplemental appendix in remedy when a transfer has been ordered respondents. swer\of legal of limitations of violation Barrack, 1404(a). Van Dusen v. 376 of Skil is U.S. § further contention 3, 805, a 11 945 of writ 615 n. 84 S.Ct. L.Ed.2d that Circuit’s denial Seventh Picard, (1964); v. prohibition binding and is not Johnson & Johnson 282 of mandamus 1960).4 on this because the standard of re- F.2d 386 Cir. Court represented by unduly narrow technical 2. Skil first to this Court that under- petition ‘juris- for writ of standing in Blaski what constitutes a matter of of Circuit, in the Fifth which denied mandamus diction’.” According petition (Skil 20). brief at to the power Although the a court to transfer a (363 Supreme facts as Court U.S. stated 1404(a) hinges upon case § under venue stat- 1084) at no was filed 80 S.Ct. such utes, problem to one we do not consider the belatedly because to file was leave denied. venue, rather but one of recognized reply (at in its brief this distinction transferee court to hear the transferred case. 4), page argued note but that the distinction As in Blaski: “The transferee stated courts is immaterial. acquired jurisdiction over could have these ac- courts, only properly brought if in those tions is an ex- 3. The dissent asserts that mandamus validly transferred thereto under remedy or if traordinary only drastic used in situa- (363 1089.) 1404(a).” power. judicial usurpation U.S. at 80 S.Ct. at prevent tions required, ruling Surely does not that a Court in a The Seventh Circuit was mean remedy only proceeding egre- petition, can mandamus the mandamus to consider whether jurisdictional gious power violations while overlook- usurped court its transferor power. ing usurpations more mundane properly the transferee court could whether extraordinary emphasizing Even nature acquire jurisdiction. mandamus, Supreme v. Kerr Court 4. See the recent also decision - -, U.S. United States Products, Thermtron Inc. Hermans- Court in -, 2124, 48 725 L.Ed.2d “ dorfer, U.S. (1976), to be noted that mandamus was ‘used (1976), that wherein the Court held lawful to confine an inferior court to a exercise attacking method mandamus was compel prescribed jurisdiction of its or to it to of a removed from a state duty a remand order case authority its do exercise its when it is ” court a District Court for reasons not autho- so’ also [citations omitted]. The Court noted rized the removal that “we have not limited the use of mandamus statutes. accept ruling trict court should as the that this Court can- Finally, Skil contends it, law of the case for and there should be Circuit’s order as not consider except no further under judicata because to do so would conflict res Blaski, impelling found in most and unusual circumstanc- with some curious dictum5 Moore, (IV at 340 n. 1084. The es. J. Federal Practice U.S. S.Ct. (2d 1974) why 110.404(8) three reasons the Fifth ed. listed at 531-32 [foot- judicata: res omitted]) Circuit’s order was not *5 courts, having When three federal one coor- challengeable only by writ of certiorari Court, jurisdiction dinate with this have the which Skil did not seek. objection rejected considered the same Furthermore, the Circuit must nec Skil, reason by to transfer raised we see no essarily power-of-transfer have the decided applying to avoid law-of-the-case doctrine merits, explained issue on the above. practice. as a sound rule of While we Finally, the Seventh Circuit’s order was not might willing depart applying us, issued in the before was case but issued the defendants law-of-the-case if one of action, Hoffman, separate Corp. in a Skil there ex- objecting was to transfer because No. 73-1697. Thus none of the reasons for to him in the trans- ists no venue as denying judicata the effect of res in Blaski district, have such a case feree we do not present here. already was before the before us. Skil Alternatively, the order of the Sev Court in Northern Ohio as a in anoth- refusing enth Circuit to set aside patent raising er case the same issues of mandamus the transfer order had the effect validity, which case has been consolidated establishing validity the of the transfer with the transferred case. Lucerne had order as the law of the case.6 As Professor agreed indemnify its customers who Moore states: original defendants in the trans- were
[Sjuppose
reality
the district court orders a
ferred action. Thus Lucerne is in
target
pat-
transfer of the action.
If this order is
the sole
of Skil’s attack on
appellate
then reviewed
court on
ent in both lawsuits. We see no reason to
merits, sustained,
doctrine,
applying
and the transfer
avoid
the law-of-the-case
effected,
allowing
litigate
validity
accordingly
thereby
the transferee-dis-
question
737, precluded
5. The
whether the Fifth
order
Circuit’s
F.2d
or
Hoffman
the Sev-
denying
petition
a motion for leave to file a
remanding
enth Circuit from
that case.” 363
binding
of mandamus was a
determination
writ
U.S. at
reasonable time there OF ILLINOIS DISTRICT NORTHERN FOR THE DIVISION EASTERN tice; dispatch of court business efficient in a manner tice” is sometimes better fairly approximating “jus- than a tardy CIVIL ACTION No. 72 C disposition may approximate more SKIL CORPORATION, (Id. some theoretical ideal.
nearly Plaintiff, 409) at 0.404[1] 1404(a), legislative history found FALLS MILLERS COMPANY, v. COMPANY MANUFACTURING Notes, states that sec- ROCKWELL in the Reviser’s WEN INC., PRODUCTS, with the tion “was drafted in accordance Defendants, It was non conveniens.” doctrine of forum LUCERNE INC., PRODUCTS, patent intended to afford vehicle never Intervenor. involving litigation to cases shuttle ORDER Courts in patents same between District Circuits, resulting in a battle over different forum, arid delaying indefi- choice came The above matter before a trial on the merits. nitely July 1973 on “Motion *6 delay in litigation has resulted unreasonable 21, Corporation under Rule Federal Rules reaching patent in the merits of the dis- Procedure, Benjamin of Civil to add Mr. H. two which have been con- pute. The cases Party-Defendant” upon as a Matthews Lambros, Judge by District solidated by par- briefs memoranda resolution, origi- for were filed ripe
remain ties and it further in connection therewith July 11, (respectively) Illinois nally in on appearing following to that the Court 16, (No. 68-C-1290) and November circumstances, constituting a mat- facts and 70-C-2858). (No. Lambros was of sig- ter of record before as describing correct in the situation “cha- of such nificance to the Mo- determination otic”; certainly and the has to tion: time come purpose in good be served to we see no mutuality par- approving of the rule In forum-shopping by permitting necessary estop- continue Skil to establishment of ties is suing litigant searching customers in pel against lost an earlier Lucerne’s who had for and litigation, Supreme disap- brought patent Court hope not be them could that one of repeated litigation proved “[p]ermitting Ohio, thereby gaining another fo- to Northern supply long of unrelated as as same issue proceedings rum, expedited could be which in Blonder-Tongue out”. Labor- defendants holds proceedings Northern sought Ohio if the atories, University Inc. of Illinois Although unpromising. Skil claims appeared Foundation, U.S. infringer, separate it is is a customer each Similarly, (1971). once patent is not liable if Lucerne clear that of device Skil had sued the manufacturer could be infringement, of its customers none litigation, and the suit is the basis of this which found liable. in the Northern District had been docketed 11, 1968, colleague in July Corporation, recog- a cor- “Our Ohio likewise
On
poration of Delaware and the
here-
propriety
retaining
nized the
(sometimes
referred to hereinafter
companion
suit there as a
case to
“Skil”)
against Lucerne
filed an action
by
the suit
Lucerne and Slater Electric
Products, Inc.,
corporation
and the
Ohio
acknowledged
Inc. The
there
Court
(sometimes
intervenor
in the case at bar
par-
would be more convenient for the
“Lucerne”)
hereinafter referred to as
in the
ties and witnesses to have the action tried
Northern District of
Eastern Divi-
rather than in Illinois and further
Ohio
sion,
as Civil Action No. 68 C
which
noted that his sole motivation for re-
action related inter alia to the Gawron Pat-
turning the case to Illinois was to avoid
ent,
3,209,228.
U.S. Patent
guessing
second
another District Court
Judge;
thus he allowed this Court to rule
6, 1969, Judge
On June
Hubert L. Will
relating
prior
the Motions
to the
Sum-
ordered that Civil Action 68 C
in its
mary Judgment.
The District Court
entirety, be transferred to the U.S. District
Judge acknowledged
willingness
his
Court for the Northern District of Ohio
re-accept jurisdiction over the entire liti-
(Eastern Division), which transfer was
gation after
this Court ruled on those
by
made
Clerk
the Court on June
support
motions and even went so far in
1969 and
subsequently
the cause was
dock-
litigation
properly
his belief that
eted
the Ohio
as No.
C 69-461.
belonged
grant
in Ohio as to
certain mo-
Shortly after the
Order
Transfer was
parties
tions of the
conditioned
entered,
the U.S.
Court handed
litigation
return of the
to that Court.
Lear,
Adkins,
down its
Decision
Inc. v.
pro-
“We see no new elements in these
561 Division, the case of Skil Court, Eastern in 69-461, the United States Products, al., Division, Inc. et Corporation Eastern v. Lucerne District of Northern 69-461, Complaint Civil proceeding connection C Amended enjoined Skil 70 C 2858. In the Order No. 70 was dismissed without Action Action C 2858 Civil Lambros, fol- its own party the Court stated as to bear costs prejudice, each of lows: on November 1972. es- which Lucerne in action
“The other Corporation Skil On November enjoin proceed- Skil from to sence seeks in the civil action United plaintiff, filed a pending the Northern ing presently for the Dis- District Court States Illinois, namely, Corpora- Skil District of Division, against trict of Eastern Company Manufacturing tion v. Rockwell Falls Rockwell Manufac- Company, Millers Products, Inc. v. Prod- Lucerne and Wen Compa- Tool turing Thor Power Company, ucts, Inc., Action 70 C 2858. Civil Products, Inc., Action 72 ny and Wen Civil essentially are raised there issues Company was 2854. Power Tool C Thor raised in the instant law- same as those by agreement. Mil- subsequently dismissed Further, is in Lucerne essence suit. an indemnified cus- Company lers Falls was in that in interest suit. real of on Motion Lu- tomer of Lucerne and in such situation law clear that cerne, Products, granted was Inc. Lucerne essentially the the issues wherein Rule 24 F.R.C.P. to under leave intervene parties, the Court same as well as February 7, acquiring jurisdiction should be al- first Judge Lambros is- February On proceed lowed to with without interfer- Opinion and Order sued a Memorandum subsequent- under suits ence from courts 29, 1972 Restrain- amending February ly Carbide & Carbon Chemical filed. See Skil, officers, its ing enjoin so Order as to Industrial Corp. v. United States Chemi- any attorneys or other agents, employees, Cir., cals, Inc., 1944); 140 F.2d proceed- its behalf from persons acting on Specialty Milwaukee Co. v. Mercoid Gas Corporation Millers ing in the case of Skil (7th Cir., 1939); Corp., 104 F.2d Co., 2854 in the North- Falls Case No. 72 C Co., In Georgia re Power F.2d ern District Illinois. of (5th Cir., 1937). was the “Since this Court first one original Restraining respect With issues, jurisdiction over the inas- acquire took an February Skil Order jurisdiction will seriously much as its Appeals for the appeal the Court interfered with if the other impeded and Restraining Order Sixth proceed, ir- permitted action is since for Appeals upheld by was the Court will result to reparable injury Lucerne Sixth Circuit: engage multiple discovery forcing it to Products, Corporation v. Lucerne Skil simultaneously, proceedings inasmuch as 72-1282, (C.A. Inc. No. af- 6-Cause injured by granting Skil will not be 24, 1972) April firmed injunction granting and since the petitioned certiorari to Unit- for result injunction will in the vast however, certio- ed States effort, savings judicial time 10, 1972. was rari denied on October request grants Lucerne’s for in- Restraining respect With to the Amended junctive relief.” 13,1973, February dated Order Action The cause in Civil No. 70 C 2858 the Court Monday, came trial on November on for *8 the District Circuit, appeal which Sixth Court, but for the before this counsel own Motion. later dismissed on Skil’s Court plaintiff having represented the Court entered 28,1973, Judge Lambros On June proceed by was unable to Restrain- Amended dissolving an Order restraining order issued on reason of the 13, February ing Order the United dated February States action, Civil proceeding in this of for the District District Court for the States District Court Northern Dis- Judge Lambros further Action 72 C Ohio, trict of Eastern Division. 69-461 ordered Action C transferred Civil to the Northern District of Illinois. plaintiff’s pending That the Motion under Rule 21 of the Federal Rules of Civil Proce- Lucerne has taken an from such Benjamin H. dure for Leave to Add Mat- Court, which action the Ohio party-defendant, thews as a is referred to July appeal was docketed 1973 in the of Eastern Divi- the Northern District Appeals Court of Sixth Circuit as sion, might for such action as that Court Appeal No. 73-1738. its discretion see fit to enter. exer- There should be no obstacle to the hereby That the Clerk of the Court cise of this Court’s discretion under 28 ordered forthwith and directed to H jurisdic- 1404 insofar as venue and U.S.C. § case 72 includ- entire file this C since Lucerne is manufac- tion is concerned motions, ing pleadings, discovery all tran- and in- turer of the accused structures scripts, and related documents to Clerk demnifier the other defendants and is of of the United District Court for the States party the real in interest and has exercised Northern District of Eastern Division. litigation full control of the in both 70 C Chicago, day at this 31st Dated 2858 and 72 C 2854 with the full consent July, 1973. defendants, approval and of the other Mil- /s/ J. Company, lers Falls Rockwell JULIUS HOFFMAN Manufactur- Products, ing Company and Inc. Wen Hoffman, Julius J. Senior United States District Court placed The matters at issue virtue of Motion, plaintiff’s considering and EXHIBIT "B" potential Benjamin role of H. Matthews as party-defendant, if he should be added as STATES DISTRICT COURT UNITED party, pursuant spirit this Court to the NORTHERN DISTRICT OF OHIO EASTERN DIVISION 28 U.S.C. for the convenience of the witnesses, parties, and the interest of C 69-461 No. justice, clearly then obligated would consider the propriety transferring SKIL CORPORATION, INC., cause to the Northern District of Ohio. Plaintiff, Therefore, give effect to the initial determination and transfer orders of LUCERNE PRODUCTS, INC., Will, taking past notice of the actions Defendant. of the Northern District of Ohio and the Sixth Circuit Court relative to ORDER litigation this series of involving the Gaw- (Received April 1975) 3,209,228, ron Patent U.S. Patent No. to- gether personal experience with this Court’s LAMBROS, DISTRICT JUDGE suits, with two related causes Nos. Civil Upon motion of the defendant and in Action 70 2858 C and Civil Action 72 C view of the transfer to this Ski! action, subsequent both filed to the initial Products, Inc., Corporation, Inc. v. Lucerne considering C the relative in- 74-121, (formerly designated No. C Case terests of patent each in the Gawron Illinois), No. 72 Northern District C litigation, recognizing propriety but the Court’s order of June 1973 transfer- consequence granting pend- the Motion ing this to the Northern case District of ing in the action at bar: Illinois is vacated. With the arrival of the Adjudged It is Ordered and Chicago litigation in this and in view
That action 72 2854 be above-styled C of the fact that case was case, prior initiated entirety transferred in its to the United transfered reten- *9 moved that the cases course. Once seems of this case tion Judge Illinois. Lambros 42(a), this is consoli- be remanded to case to Rule Pursuant motion, question of his but the pre- all that C 74-121 for denied with Case No. dated was Illinois certified denial of remand to proceedings. trial Court, pursu- of this panel and another him IT SO ORDERED. IS 1292(b), and is now to 28 ant U.S.C. § D. LAMBROS /s/ THOMAS interlocutory appeal. us an before Thomas D. Lambros United States A.
DATED: 4/15/75
to
arguments addressed
this Court
appear, superficially,
what
to
may
involve
ADAMS,
Judge (dissenting).
Circuit
to the
the same issue that was addressed
first,
today:
questions
Two
confront us.
result, my colleagues
a
Circuit. As
Seventh
whether,
of res
the doctrines
because of
by appli-
decide this troublesome case
would
case,
is
of the
the Court
judicata
law
judicata (or,
of res
cation of
doctrines
conducting
independent
an
from
foreclosed
specifically,
estoppel)
collateral
more
presented by the
of the issue
determination
law
case.
second,
and,
the Ohio
whether
appellant;
agree
I am unable
with such a formu-
subject-
assumed
properly
district court
problem. Underlying
either
lation
that is
jurisdiction over the lawsuit
matter
doctrine,
case,
judicata or law of
is
res
interlocutory
foundation of the
assumption
the Seventh Circuit has
that
appeal.
is
already decided the same issue that
now
was initiated
particular
This
action
view,
In
my
us.3
fundamental
before
part
is
Corporation (Skil) in
but it
lacking
in this situation.
condition
patent infringement
litigation,
complex
aof
these cases
Hoffman’s
involving the
the intervenor
activities
Circuit, but
to Ohio was before the Seventh
shuf-
(Lucerne), that has
Lucerne Products
question
posed to the
Cir-
was
Seventh
of Illi-
Northern District
fled between the
petition
a writ of
cuit on
for
mandamus.
District of Ohio
nois and
contrast,
presented
question
In
to this
July,
on his
eight
In
years.
the last
by way
interlocutory appeal.
of an
motion,
Judge Hoffman ordered
own
Consequently,
legal standards which
Illinois to
so
case transferred from
the decision in
Cir-
governed
Seventh
the relat-
it could be consolidated with
significantly
cuit are
different
peti-
patent
infringement cases. Skil
ed
control
standards which are to
our determi-
the Court of
for the Seventh
tioned
nation.
prohibition
for a writ of
and manda-
issue is
of error
Before
Court the
one
prevent
the transfer to Ohio on the
mus
make an
show,
law: Did the
district court
as
Ohio
that there was no record to
ground
re-
denying
law
the motion to
1404(a)
Hoff-
error
of.
required
28 U.S.C. §
uphold-
Blaski,2
thereby
these cases to
“might
the action
have mand
v.
man
venue to
ing
in the first instance.
the transfer of
Ohio?
brought” in Ohio
been
wheth-
briefing, the
Circuit was
Although there was extensive
issue before
Seventh
“exceptional circumstances
without
er there existed
Circuit denied
pow-
amounting
judicial ‘usurpation
opinion.
Moore,
1970);
(6th
writ
of mandamus.
IB J.
Feder
1. Referred
hereafter
Cir.
(2d
0.405[3],
ed.
¶ ¶
Practice
0.443[l-2]
al
” er’
justify
that would
the invocation of
suggested
It has
been
“extraordinary remedy”
such an
as a writ
judi-
the bounds of his
Hoffman exceeded
of mandamus.4 As the
has
transferring
authority
cial
the law suit.
reiterated,
recently
remedy
“The
of manda-
personam
disputes
No one
that he had an in
mus,
one,
only
is a drastic
to be invoked
jurisdiction.
an in rem
base for
Such
extraordinary situations.”5 It is not a sub-
regardless of whether
bases existed
interlocutory appeal,6
stitute for an
but
properly granted.
transfer was
The statu-
rather a tool “to confine an inferior court to
requirement
1404(a)
tory
of section
con-
prescribed jurisdic-
a lawful exercise of its
jurisdiction
cerns the
of the court to which
tion
compel
authority
or to
it to exercise its
not,
the action is transferred and
as the
duty
when it is its
to do so.”7
asserts,
majority
jurisdiction
majority
decision is constructed
Therefore,
ordering
court
the transfer.
if
proposition
that when the Seventh Cir-
Judge Hoffman transferred the case to a
cuit
denied the
for a writ of man-
district in which there was no venue as to
damus,
necessarily
reached the merits of
parties,
one of the
he committed an error of
question
transfer-of-venue
and deter-
jurisdiction.8
law —but he did not exceed his
mined that the district to which the action To hold otherwise would be tantamount
had been transferred was one in which it
ruling that mandamus is available whenev-
Thus,
brought originally.
could have been
er a
claims that a case was transfer-
according
majority,
mandamus would
red to a district other than one “where it
have issued if the transferee district had
9
might
brought.”
have been
a result
Such
venue,
not been a
one for
and under
would conflict
principles
with established
view,
incorrect transfer
the Illi-
mandamus,
regarding the writ of
since the
nois district court would have amounted to
writ
should be available
in “extraordi-
usurpation
judicial
power. This rea-
addition,
nary situations.”10 In
it would
soning
not, however,
does
withstand close
most,
many,
make
perhaps
transfers under
analysis.
Will,
90, 95,
Bros., Inc.,
439,
4. United States v.
389
(2d
1966);
U.S.
88 S.Ct.
365 F.2d
445
Cir.
269,
(1967), citing
facturers, monetary want a will re- of them in order to
ment each damages fully. its
cover Court Van opinion should caution us
Dusen v. Barrack22 too re-
against reading Hoffman v. Blaski Nonetheless,
strictively. the determinative case was
aspect of the Continental Grain suits, one of which
existence of identical 616-24, Corp., 22. 376 U.S. Ferri v. United Aircraft
21. See (D.Conn.1973). F.Supp. notes 1. The Fifth Circuit’s order was interloc- analysis, we need Under the law-of-the-case utory; not find that reconsideration of the Seventh merits; beyond power, our but 2. Not on the Circuit’s decision it “would we need consider whether 3. entered in the same case as the Sev- apply . wise to the law-of-the- [be] enth Circuit’s decision Blaski. practice.” case rule of doctrine as a sound improper While it would be for us to Id. at 534. question applicability of those reasons sufficiently law of the is a case [The] Blaski, to the facts in we must conclude depar- permits flexible doctrine inapplicable those reasons But in the clearly ture where warranted. proceeding upon peti A facts before us. main there should be adherence to separate tion for a writ of mandamus is a important prior ruling, for it is action, not an Skil’s lawsuit. subject to type of issue involved be not Therefore, the Seventh Circuit’s order was 9) (Id. 532 n. perpetual litigation. at interlocutory, disposition, but a final