588 F.2d 93 (5th Cir. 1979), 78-3633, In re Fireman's Fund Ins. Companies

Docket Nº:78-3633.
Citation:588 F.2d 93
Party Name:In re FIREMAN'S FUND INSURANCE COMPANIES, Petitioner.
Case Date:January 02, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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588 F.2d 93 (5th Cir. 1979)

In re FIREMAN'S FUND INSURANCE COMPANIES, Petitioner.

No. 78-3633.

United States Court of Appeals, Fifth Circuit

January 2, 1979

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Charles W. Franklin, Daniel J. Dziuba, Baton Rouge, La., for petitioner.

Roy C. Cheatwood, New Orleans, La., for respondent.

On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Louisiana.

Before RONEY, GEE and FAY, Circuit Judges.

BY THE COURT:

Petitioners seek issuance of a writ of mandamus ordering the district court to recall an order transferring this action to the United States District Court for the District of New Jersey. The action was brought under the Miller Act, 40 U.S.C.A. § 270b, in the Eastern District of Louisiana by Fireman's Fund Insurance Companies, the assignee of a subcontractor, against the primary contractor, Frank Briscoe Company, Inc., and its surety, Travelers Indemnity Company. The dispute arose out of the construction of a 250-bed Naval Hospital in New Orleans, Louisiana. Defendants, Briscoe and Travelers, moved to transfer the action to New Jersey based upon the following provision in the subcontract which provided that venue of any dispute was to be laid in the County of Essex, State of New Jersey:

If the Sub-contractor shall institute any suit or action for the enforcement of any of the obligations under this agreement, the venue of such suit or action shall be laid in the County of Essex and State of New Jersey.

Taking this provision into account as well as the fact that Briscoe's principal place of business was located there, the district court held that the transfer was proper under 28 U.S.C.A. § 1404(a). The decision of the district court being correct, we deny the petition for writ of mandamus.

Section 1404(a) provides:

For the convenience of parties and witnesses, in the interest of justice, a district

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court may transfer any civil action to any other district or division where it might have been brought.

Because of the unambiguous phrase "any civil action," it has been held that this section applies not only to the general federal venue provisions, E. g., 28 U.S.C.A. § 1391, but also to special venue statutes within Title 28 and elsewhere in the Federal Code. See, e. g., Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949) (applies to F.E.L.A.); United States v. National...

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