Arrowhead Co. v. The Aimee Lykes, 88

Decision Date28 November 1951
Docket NumberDocket 22149.,No. 88,88
Citation193 F.2d 83
PartiesARROWHEAD CO., Inc., et al. v. THE AIMEE LYKES et al.
CourtU.S. Court of Appeals — Second Circuit

The admiralty libel in personam was filed in the court below. The district judge, purporting to act under 28 U.S.C.A. § 1404 (a), on motion of respondent ordered the action transferred to the United States District Court for the Southern District of Alabama.

Lawrence W. McKeown, New York City, for libelants-appellants.

Terriberry, Young, Rault & Carroll, New Orleans, La., Tompkins, Boal & Tompkins, New York City (Benjamin W. Yancy, New Orleans, La., and Arthur M. Boal, New York City, of counsel), for respondents-appellees.

Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.

FRANK, Circuit Judge.

1. The order is not final within the meaning of 28 U.S.C. § 1291.1 Nor is it the kind of interlocutory order made appealable by 28 U.S.C. § 1292, for it does not determine the rights and liabilities of the parties.2

2. But, in appropriate circumstances, we may treat an appeal as a petition for a mandamus writ.3 Yet if no more than an "abuse" of discretion is involved, and the order directs a transfer,4 we have held that we will not entertain such a petition, for it must be addressed to the court of appeals for the circuit which includes the transferee district.5

If, however, the district court lacked all power to order a transfer, so that its order is a nullity, we will issue a writ of mandamus.6 But we think that here there was no such lack of power. 28 U.S. C. § 1404(a) relates to "any civil action"; see Ex parte Collett, 337 U.S. 55, 58, 69 S. Ct. 944, 959, 93 L.Ed. 1207; United States v. National City Lines, 337 U.S. 78, 81, 83, 69 S.Ct. 955, 93 L.Ed. 1226; cf. 28 U.S.C. § 1333.7

Appeal dismissed. Treating it as a petition for a writ of mandamus, the petition is dismissed.

4 If a district judge refuses to order a transfer, and, in doing so, "abuses" his discretion, we will issue a writ. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329.

5 Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra. In that case, the writer of the present opinion dissented; he still believes that decision wrong — see Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766 — but will abide by it until his colleagues are ready (as now they are not) to overrule it.

7 It is perhaps arguable that § 1404(a) does not apply to an in rem proceeding because it could not have been brought in the transferee district. But we need not and do not pass...

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17 cases
  • Goldlawr, Inc. v. Heiman
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 21, 1961
    ...the transfer. See Hoffman v. Blaski et al., 1960, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254, by implication; Arrowhead Co., Inc. v. The Aimee Lykes, 2 Cir., 1951, 193 F.2d 83. Goldlawr, operating a theatre in Philadelphia, sued Select, UBO, the individual defendants and others not involve......
  • Hartland v. Alaska Airlines, s. 72-2531
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 2, 1976
    ...occasionally done so, United States v. O'Connor, 291 F.2d 520 (2d Cir. 1961) (appointment of special master); Arrowhead Co., Inc. v. The Aimee Lykes, 193 F.2d 83 (2d Cir. 1951) (transfer under 28 U.S.C. § 1404(a) appeal treated as petition but mandamus denied); Magnetic Eng'ring & Mfg. Co. ......
  • Romag Fasteners, Inc. v. Fossil, Inc.
    • United States
    • U.S. District Court — District of Connecticut
    • October 24, 2013
  • United States v. O'CONNOR
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 5, 1961
    ...Practice (1953 ed.) p. 93; cf. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866; Arrowhead Co. v. The Aimee Lykes, 2 Cir., 1951, 193 F.2d 83. Whatever the reasons for requiring a formal petition addressed to the judge may have been in the three cases cited, ther......
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