Atlantic Coast Line R. Co. v. Davis

• Decision Date: 16 November 1950
• Docket Number: 13346.,No. 13345,13345
• Citation: 185 F.2d 766
• Parties: ATLANTIC COAST LINE R. CO. v. DAVIS. In re ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

185 F.2d 766 (1950)

ATLANTIC COAST LINE R. CO. v. DAVIS. In re ATLANTIC COAST LINE R. CO.

Nos. 13345, 13346.

United States Court of Appeals Fifth Circuit.

November 16, 1950.

Charles Cook Howell, Jr., Wm. M. Howell, Jacksonville, Fla., Charles Cook Howell, Wilmington, N. C., for appellant.

Evan T. Evans, Jacksonville, Fla., Herbert S. Ogden, Chicago, Ill., for appellee.

Before McCORD, BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

We have for consideration both an appeal and an application for the issuance of the writ of mandamus both of which seek, in substance, to have set aside an order of the District Court for the Southern District of Florida directing the transfer of the case of Flora Davis, Administratrix of the Estate of Calvin Davis, deceased, against the Atlantic Coast Line Railroad Company to the United States District Court for the Southern District of New York.

The facts underlying both of these proceedings are as follows: Flora Davis, as Administratrix aforesaid, instituted in the United States District Court for the Southern District of New York, a suit based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and against the railroad company seeking recovery for the death of her husband while he was in its employ. The Southern District of New York was a permissible venue for the suit. The administratrix, as was her decedent, is a resident of the Southern District of Florida. It was there that the fatal injuries were suffered as the result of the alleged negligence of the railway employer of the decedent, and it was likewise there, or nearby, where all of the witnesses resided. Upon a proper motion made by the defendant to the New York Court in which the proceeding was pending, Judge Bondy, relying upon the ruling in Pascarella v. New York Central R. Co.,¹ was of the opinion that the plaintiff might have an unqualified right to try this action in his Court (because arising under the Federal Employers' Liability Act), but concluded that even if the Court had power to transfer the action, the Court in its discretion would deny "the motion in the interest of justice, assuring a speedy final determination of the case." Following the decision in Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207, the defendant-movant for transfer renewed the motion by an application for a reargument and for an order granting the defendant's motion to transfer the action to the Southern District of Florida. Thereafter upon consideration of Ex parte Collett, supra, "and of the fact that the trial in this district would impose serious inconvenience on the defendant and witnesses, and that the condition of the calendar of this Court makes it likely that this action would be reached for trial sooner in the United States District Court for the Southern District of Florida," the Court granted the motion to transfer and by an order set aside the former order and directed that the cause be transferred to the Southern District of Florida. This was done on September 23, 1949. The case was accordingly transferred and trial begun in the Florida Court on March 10, 1950. The jury failed to reach a verdict and an order was entered declaring a mistrial. The case was again tried beginning June 22, 1950, and again the jury failed to reach a verdict and an order declaring a mistrial was entered. Immediately upon entry of the declaration of the second mistrial, counsel for the plaintiff orally moved the Court for a retransfer of the cause back to New York.² This motion was opposed by the defendant. The Court took the matter under advisement and thereafter, reciting in substance what is stated above, and declaring it to be "in the discretion of this Court and in the interest of justice and pursuant to the provisions of said Section 1404(a)" granted the motion and ordered the cause to be transferred to the District Court of the Southern District of New York. The defendant has entered an appeal from this order in pursuance of which an order superseding the transfer has been granted by the trial Court. The defendant also filed an application for and secured leave to file in this Court an application for the writ of mandamus to require the Court and the Judge thereof who presided in the cause to vacate and set aside the order of transfer. In his answer to the order to show cause, the Honorable District Judge refers to his order of retransfer and further responds.³

At the outset of our consideration of the propriety of the retransfer, we are faced with the question of our jurisdiction either to issue the writ, or to consider the appeal. We think it clearly apparent from the facts stated that this is an extraordinary cause, and that it is of a nature which renders the likelihood of any fair and effective correction of the action of the Court by subsequent appeal, if this should be determined legally necessary, highly improbable, if not impossible.⁴ There is present the question of the construction of section 1404(a) of Revised Title 28 U.S.C.A.,⁵ and whether that section contemplates only one or plural transfers. Our attention has been directed to no adjudication of this question by any Court. In any view, the proceeding here involves determination of whether this section contemplates, or authorizes, in any event, a retransfer as ordered here (to the Court, not where "it might have been brought" but to where it originally had been brought), when in the Court to which once transferred jurisdiction of the cause had been accepted without question, and two trials had, and when such transfer is predicated only upon the grounds relied upon. We have concluded that under the facts of this case this Court has jurisdiction to issue the writ if necessary.

We are of the opinion that the grounds upon which the Court rested his decision ordering the retransfer are so wholly insufficient to support the order and to bring it within the terms of section 1404(a), supra, that the order retransferring the case, in substance, evidences an unwarranted renunciation of jurisdiction, if not also an act beyond the Court's jurisdiction, sufficient to sustain our jurisdiction to issue the writ in aid and maintenance and protection of this Court's appellate jurisdiction. We consider the present case to fall under the provisions of Title 28 U.S.C.A. § 1651(a),⁶ in principle within the rulings in such cases, among others, as McClellan v. Carland, 217 U.S. 268, and citations page 280, 30 S.Ct. 501, 504, 54 L.Ed. 762.⁷ Ex parte Peru, 318 U.S. 578, 583, 63 S.Ct. 793, 796, 87 L.Ed. 1014,⁸ and U. S. Alkali Ass'n v. U. S., 325 U.S. 196, 201, 65 S.Ct. 1120, 89 L.Ed. 1554 and cases cited. This power is tacitly recognized in Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207 and the cases following it of Kilpatrick v. Texas & Pacific R. Co., 337 U.S. 75, 69 S.Ct. 953, 959, 93 L.Ed. 1223 and United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, 959, 93 L.Ed. 1226. Though the Court in each of these cases denied the motion for the writ, the merits of the question were fully considered and discussed, and under the decisions there was no occasion to order the issuance of the writ. The Court of Appeals for the Second Circuit has declared its jurisdiction to issue the writ, in case of only a refusal to transfer in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, certiorari denied 71 S.Ct. 79 and also in Foster-Milburn Co. v. Knight, supra, where it was found that section 1404(a) would not authorize the transfer of the cause.

We turn then to the merits. Considering section 1404(a), supra, in the light of its purpose and its relation to the doctrine of forum non conveniens,⁹ but authorizing transfer rather than dismissal of the suit,¹⁰ it could be reasonably argued that the statute envisions and authorizes, after the plaintiff has made the permissible choice of venue, only one determination thereafter of the venue for trial which will best serve "the convenience of parties and witnesses, in the interest of justice" and that this determination settles the mater. This application of the statute would remove any possibility of shuttling of the cause or of conflict between the several district courts, each of coordinate jurisdiction, which would arise from plural transfers. There is room for wide divergence of conclusion as to what serves convenience and justice. But we need not now determine the precise limitation implicit in the statute, since we are firmly of the opinion that the circumstances here presented are in any event wholly insufficient to authorize the retransfer directed by the Court. The reasons assigned do not...