Shutte v. Armco Steel Corporation

Decision Date14 August 1970
Docket NumberNo. 18753.,18753.
Citation431 F.2d 22
PartiesNancy SHUTTE, Administratrix of the Estate of Richard K. Schutte, Deceased, Petitioner, v. ARMCO STEEL CORPORATION (Defendant and Third-Party Plaintiff). ACE DORAN HAULING & RIGGING COMPANY, a corporation (Defendant), v. TIPPINS MACHINERY COMPANY, Inc., a Pennsylvania corporation (Third-Party Defendant), and Belger Cartage Service, Inc., a foreign corporation (Third-Party Defendant), Respondents, Honorable Edward Dumbauld, United States District Judge, Nominal Respondent.
CourtU.S. Court of Appeals — Third Circuit

John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, Pa., for petitioner.

Edward A. Mihalik, Weis & Weis, Pittsburgh, Pa., for respondents.

Before McLAUGHLIN, STALEY and ADAMS, Circuit Judges.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This matter is before the court on plaintiff administratrix's petition for a writ of mandamus. Petitioner requests us to direct the nominal respondent, a district court judge, to vacate his order of February 16, 1970, transferring this diversity action, pursuant to 28 U.S.C.A. § 1404(a), from the Western District of Pennsylvania to the Western District of Missouri at Kansas City.

I

The use of the mandamus power conferred on this court by the All Writs Act, 28 U.S.C.A. § 1651, can be the indicated remedy to correct an erroneous transfer. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267 (3 Cir. 1962); 2 ALR Fed. 573. As Professor Moore has commented:

"Rulings as to the legal meaning of § 1404(a) have generally been made in prerogative writ proceedings and the consensus of opinion is generally to the effect that such procedure is warranted in a proper case." 1 Federal Practice, § 0.147, 1968 (1964).
* * * * * *
"Circuits have recognized that their power of review by a prerogative writ includes the situation where there is a clear abuse of discretion." Id. at 1969.
II

Section 1404 of the Judicial Code, Title 28 of the United States Code, reads, in pertinent part, as follows:

"(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district * * * where it might have been brought." (Emphasis supplied.)

The transfer order in this instance simply recited that it was the district court's conclusion that "* * * such transfer is appropriate for the convenience of parties and witnesses in the interest of justice, in light of the circumstances of the case." No mention was made of Subsection 1404(a)'s limiting provision to the effect that a transfer is authorized by the statute only if the plaintiff had an "unqualified right" to bring the action in the transferee forum at the time of the commencement of the action; i. e., venue must have been proper in the transferee district and the transferee court must have had power to command jurisdiction over all of the defendants. Van Dusen v. Barrack, supra; Hoffman v. Blaski, supra. Prior to ordering a transfer the district court must make a determination that the suit could have been rightly started in the transferee district. Jones v. Valley Welding Supply Company, 303 F.Supp. 9 (W.D.Pa.1969). If there is a "real question" whether a plaintiff could have commenced the action originally in the transferee forum, Leyden v. Excello Corporation, 188 F.Supp. 396 (D.N.J.1960), it is evident that he would not have an unqualified right to bring his cause in the transferee forum.

The district court's transfer order neither reflects a determination that venue and in personam jurisdiction were proper for this case in the Western District of Missouri, nor even intimates that the limiting provision of Subsection 1404(a) was considered by the court. Needless to say, the entry of an order which does not enunciate sound prerequisite determinations motivating a district judge to order a transfer in any particular litigation renders this court a disservice. In addition, since the district court did not hold the requested hearing in the matter, we do not have the benefit of a transcript which would facilitate our review of its exercise of discretion in this situation.

III

Our necessary de novo review of the relevant factors before us leads to the unmistakable conclusion that although venue could have been had in the Western District of Missouri wherein the alleged tortious conduct complained of took place, 28 U.S.C.A. § 1391(a), there is a very real question whether plaintiff could have obtained jurisdiction in Missouri over co-defendant Ace Doran Hauling & Rigging Company, an Ohio corporation. Ace Doran's position is that the plaintiff's action against it is not transferable.

Rule 4(e), Fed.R.Civ.P., provides that plaintiff herein, in attempting to bring defendant Ace Doran before the United States District Court for the Western District of Missouri would have to obtain service of process in accordance with the state long-arm statute. Defendant Armco Steel is actively engaged in business in Missouri's Western District, and was servable there.

Missouri does have a long-arm statute, enacted by the legislature in 1967, Sections 506.500-520 Vernon's Annot.Mo.Statutes, which might possibly subject Ace Doran to in personam jurisdiction in the transferee forum. However, when this matter was before the court below the legality of that statute had not been adjudicated, and there were strong doubts as to its validity. As to this, both sides rely on a law review article analyzing the statute "Expanding Permissible Bases of Jurisdiction in Missouri: The New Long-Arm Statute," 33 Mo.L.Rev. 248 (Spring 1968). The author of that article suggested the following doubts:

"Exactly how far the statute authorizes Missouri courts to extend jurisdiction and yet remain consistent with the requirements of due process is an open question. * * * Unfortunately, the effort to liberalize jurisdiction over nonresidents may be frustrated by the overly conservative interpretation given to International Shoe by the Missouri courts in the past." At 251.

With substantial doubt cast upon the validity of the then new Missouri long-arm statute it is impossible to accept...

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