In re Josephson

• Decision Date: 23 December 1954
• Docket Number: No. 4854.,4854.
• Citation: 218 F.2d 174
• Parties: In the Matter of Emanuel JOSEPHSON, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

218 F.2d 174 (1954)

In the Matter of Emanuel JOSEPHSON, Petitioner.

No. 4854.

United States Court of Appeals, First Circuit.

December 23, 1954.

Herbert B. Ehrmann, Boston, Mass., with whom Marvin Sparrow and Goulston & Storrs, Boston, Mass., were on brief, for petitioner.

Arthur M. Gilman, Swampscott, with whom George A. McLaughlin, Walter H. McLaughlin and Charles S. McLaughlin, Boston, Mass., were on brief, for John A. McGuire et al., intervenors.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

We have before us a petition asking for a writ of mandamus (1) directing Hon. Charles E. Wyzanski, Jr., a judge of the United States District Court for the District of Massachusetts, to vacate an order entered April 23, 1954, under authority of 28 U.S.C. § 1404(a), transferring a suit then pending before him to the United States District Court for the District of New Mexico, and (2) directing Judge Wyzanski to deny the motion for transfer made by defendants in such suit.

The case began by the filing in the United States District Court for the District of Massachusetts of a complaint in the nature of a typical minority stockholder's derivative suit, charging various breaches of fiduciary duties which the defendant directors owed to their corporation. This complaint was filed by the present petitioner, Emanuel Josephson, described as a citizen of New York and a shareholder in New Mexico Potash & Chemical Company, Inc., a New Mexico corporation "with its principal office and a usual place of business" in Lowell, Mass. It was stated to be filed on behalf of the named plaintiff and all other stockholders of the corporation "similarly situated who might desire to join in the suit and contribute to the expenses thereof." Named as defendants were the New Mexico corporation and three individuals, John A McGuire, Max J. Cohen, and Catherine M. Kennedy. The three individual defendants were described as being each a citizen of Massachusetts and a director of defendant corporation. It was further alleged that the individual defendants collectively hold a controlling stock interest in the defendant corporation, which was subject entirely to their domination and control. Federal jurisdiction was stated to be based upon diversity of citizenship and the fact that the matter in controversy exceeded $3,000 exclusive of interest and costs.

Service of process in Massachusetts was made upon all of the defendants. The district judge found that McGuire, Cohen and Kennedy were each domiciled in Massachusetts.

A motion under 28 U.S.C. § 1404(a) was filed in the district court by the defendant corporation and by defendants Cohen and Kennedy seeking to have the case transferred to the United States District Court for the District of New Mexico, or, in the alternative, to the United States District Court for the Northern District of Texas, Dallas Division. Defendant McGuire did not join in the motion to transfer, but a formal offer was filed in the district court on behalf of all four defendants that, in the event of the transfer of the case as requested, "the personal appearance of all of the defendants herein will be entered in this forum now, or in the forum to which the cause may be transferred", and further that all of said defendants waive "any question of venue or of the jurisdiction of the court to which said action is removed over the defendants or either of them." Also, counsel for defendants undertook, in the event of transfer of the case to New Mexico, to enter an appearance there for two related corporations "if their presence as a party hereto is necessary or desirable, in order to enable the court to fully and effectually enforce any lawful decree entered herein." (At the oral argument before this court, counsel for the defendants added the assurance that the individual defendants would make themselves available as witnesses in New Mexico if desired.) After hearing on the motion to transfer, the district judge granted the same in the exercise of what he conceived to be the discretion confided to him by 28 U.S.C. § 1404(a) and entered the order of transfer now sought to be reviewed in this mandamus proceeding. A memorandum filed by the district judge explains his reasons for concluding that it would be for the convenience of the parties and witnesses and in the interest of justice to transfer the cause to the District of New Mexico. 121 F.Supp. 83.

It is conceded by petitioner that the order of transfer is not a "final decision" within the meaning of 28 U.S.C. § 1291. Jiffy Lubricator Co., Inc. v. Stewart-Warner Corp., 4 Cir., 1949, 177 F.2d 360, certiorari denied, 1950, 338 U.S. 947, 70 S.Ct. 484, 94 L.Ed. 584; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, certiorari denied, 1950, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624; Clinton Foods, Inc. v. United States, 4 Cir., 1951, 188 F.2d 289. Also, the order of transfer is obviously not one of those exceptional classes of interlocutory orders immediately appealable to the courts of appeals under 28 U.S.C. § 1292. Therefore the order in question is not now reviewable by us on appeal, in the exercise of our ordinary appellate jurisdiction.

Consequently, petitioner asks us now to review this unappealable order by the device of an extraordinary writ under the so-called all writs section of the Code, 28 U.S.C. § 1651(a), reading: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Petitioner filed with us a motion for leave to file a petition for a writ of mandamus or alternative writ. We granted such leave to file, and issued to the district judge an order to show cause why a writ of mandamus should not be issued as prayed. Of course the district judge is really only nominally the respondent in such a proceeding. We granted leave to the defendants in the minority stockholder's suit to intervene in the present proceeding and to file a brief and present oral argument in opposition to the petition and in support of the action of the district judge.

Though the district judge has not, so far as appears, entered a formal stay of his order of transfer, pending the disposition of this mandamus proceeding, we understand that the papers in the case are still physically in the office of the Clerk of the District Court for the District of Massachusetts; and therefore there is no suggestion that the present proceeding before us has become moot by the actual transfer of the case to the District of New Mexico in execution of the order. Cf. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866, 868; Hart & Wechsler, The Federal Courts and the Federal System (1953) p. 981, note 8.

This court has had occasion recently to set forth what it regards as the very decided limitations upon its authority under 28 U.S.C. § 1651. In re Chappell & Co., Inc., 1 Cir., 1953, 201 F.2d 343; In re Previn, 1 Cir., 1953, 204 F.2d 417. We adhere to what we said in those cases. Contrary to the view which seems to have been occasionally taken, or at least sub silentio assumed, in other courts of appeals, we do not think that 28 U.S.C. § 1651 grants us a general roving commission to supervise the administration of justice in the federal district courts within our circuit, and in particular to review by a writ of mandamus any unappealable order which we believe should be immediately reviewable in the interest of justice.

28 U.S.C. § 1651 does not refer specifically to a writ of "mandamus". But no doubt there are occasions when a court of appeals under the all writs section may issue to a lower court an order, perhaps loosely designated as a writ of mandamus, in aid of its statutory appellate jurisdiction the exercise of which might otherwise be frustrated by unauthorized action of the district court. See McClellan v. Carland, 1910, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762. But such a writ or order is not the same as the ancient prerogative writ of mandamus, familiar to the English common law, issuable only by the King's Bench in its exercise, in the name of the king, of the general supervisory power over all inferior jurisdictions and officers. See Smith v. Jackson, 1825, Fed.Cas.No. 13,064, 1 Paine 453, 455. As the Court pointed out in Kendall v. United States ex rel. Stokes, 1838, 12 Pet. 524, 620, 9 L.Ed. 1181, the writ of mandamus, as it is used in the courts of the United States, "cannot, in any just sense, be said to be a prerogative writ, according to the principles of the common law." See also the discussion of the common law writ by Chief Justice Taney, dissenting, in the same case, 12 Pet. at page 628 et seq.

The first Congress did undertake to confer upon the Supreme Court of the United States a general supervisory power over the inferior courts, so far as this power was exercisable through a writ of mandamus in its historic function. In § 13 of the Judiciary Act of 1789, 1 Stat. 81, the Supreme Court was empowered, among other things, to issue "writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." Marbury v. Madison, 1803, 1 Cranch 137, 2 L.Ed. 60, held this attempted grant of power to the Supreme Court to be unconstitutional, in part only, i. e., in so far as it purported to authorize the Supreme Court to issue an original writ of mandamus addressed to an officer of the United States, such as the Secretary of State. As so applied, the Court thought that the Congress was attempting to enlarge the categories of cases in which the Supreme Court had original jurisdiction beyond those specified in the Constitution. Chief Justice Marshall recognized that the Congress could define the exercise of appellate jurisdiction by the Supreme Court and provide that that...