Clayton v. Warlick, No. 7148.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPARKER, , and SOPER and DOBIE, Circuit
Citation232 F.2d 699
PartiesBenjamin CLAYTON, doing business under the fictitious name and style of Refining, Unincorporated, Petitioner, v. Honorable Wilson WARLICK, District Judge of the United States District Court for the Western District of North Carolina, Respondent.
Docket NumberNo. 7148.
Decision Date09 April 1956

232 F.2d 699 (1956)

Benjamin CLAYTON, doing business under the fictitious name and style of Refining, Unincorporated, Petitioner,
v.
Honorable Wilson WARLICK, District Judge of the United States District Court for the Western District of North Carolina, Respondent.

No. 7148.

United States Court of Appeals Fourth Circuit.

Argued March 22, 1956.

Decided April 9, 1956.


232 F.2d 700

Charles M. Thomas, Washington, D. C. (John M. Robinson, Charlotte, N. C., and Barron F. Black, Norfolk, Va., on the brief), for petitioner.

James B. Craighill, Charlotte, N. C., for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an application for a writ of mandamus or prohibition to restrain Honorable Wilson Warlick, District Judge for the Western District of North Carolina from entering an order in accordance with an opinion he has rendered, transferring a patent infringement suit from the Western District of North Carolina to the Northern District of Illinois. Plaintiff is a resident of Houston, Texas, and has no place of business in the Western District of North Carolina. The federal court of that district has jurisdiction of the cause under an allegation that the defendant is guilty of infringement and has an established place of business within the district. Defendant is incorporated under the laws of Illinois and has its principal place of business in the Northern District of that state, where its main offices, principal laboratories, main research staff and principal records are located.

232 F.2d 701

The suit for infringement was originally instituted in the Eastern District of Virginia, but upon motion to dismiss or remove being made and, upon the judge's intimating that he would grant the motion, Clayton v. Swift & Co., 132 F.Supp. 154, plaintiff dismissed that suit and instituted one in the Western District of North Carolina. Defendant made a motion there under 28 U.S.C. § 1404(a) to remove the case to the Northern District of Illinois for the convenience of parties and witnesses and in the interest of justice. Affidavits were filed in support of and against the motion, and Judge Warlick filed a memorandum opinion finding the facts and stating that he would grant it. The pertinent facts are set forth in the memorandum as follows:

"It is evident that the trial of the case will be largely technical and will require the testimony of experts as witnesses who are technically trained and who supposedly know what they are talking about. The patent involves certain processes successful in refining vegetable matter. I am told that defendant has been paying royalties to the plaintiff over the whole of the period since the patent was granted to his predecessor in title. The trial will involve the extension of the life of the patent beyond its seventeen year period, and accordingly the proposed rights and the factors that such will likely cover will require a great amount of technical testimony, and obviously will involve many witnesses on both sides and will require much research and likely many tests. This undoubtedly will necessitate the use of the facilities which each side possesses in either the Chicago or the New York area.
* * * * *
"I am therefore of the opinion that to try this case in Charlotte would convenience no one. The witnesses for each side would have to come there. Records would likewise have to be brought along. Each one concerned would travel hundreds of miles and inconvenience after inconvenience would naturally come about. Charlotte, though a grand city, has nothing in common with this trial. Hence I conclude that a more convenient trial of the issues can be had and all parties and witnesses more nearly convenienced and the interest of justice better served, by transferring the cause to the United States District Court for the Northern District of Illinois, Eastern Division. This I consequently do. It is so ordered."

Plaintiff frankly admits that he desires to try his case in this Circuit because of our decision in Proctor & Gamble Mfg. Co. v. Refining, Inc., 4 Cir., 135 F.2d 900. He contends that a contrary view of the patent law controlling a vital aspect of the case is taken by the Court of Appeals of the 7th Circuit, as evidenced by the decision of that court in Weatherhead Co. v. Drillmaster Supply Co., 7 Cir., 227 F.2d 98; and, while admitting that it would be more convenient to the parties to try the case in Chicago, he contends that he has the right to choose the forum and that, in view of the alleged conflict in decision on the patent law between the circuits, it was an abuse of discretion on the part of the District Judge to order the case removed and thus deprive him of the benefit of trying the case in a circuit where the law has been decided in his favor.

As the suit might have been brought in the Northern District of Illinois, there can be no question as to the power of the court to order it removed to that district under 28 U.S.C. § 1404(a), which provides:

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
232 F.2d 702

And it is well settled that an order entered under this statute is an interlocutory order from which no appeal lies. That question was before us in Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 177 F.2d 360, 361, where we said:

"The motion to dismiss must be granted on the ground that the order transferring the case is not a final order from which an appeal lies under 28 U.S.C.A. § 1291. As was said by the Supreme Court in Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, at page 434, 44 S.Ct. 144, at page 147, 68 L.Ed. 371: `It is well settled that a case may not be brought here by writ of error or appeal in fragments, that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction.\'" (citing cases.)

See also Clinton Foods v. United States, 4 Cir., 188 F.2d 289.

What applicants are seeking is to review by application for mandamus an interlocutory order from which Congress has not seen fit to grant a right of appeal. This may not be done. In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a patent infringement suit on the ground that defendant did not reside or have a regular and established place of business within the district. There, as here, a question of venue was involved and, if the interlocutory order was erroneous, a great loss of time and money might result from its not being promptly reversed. We held, nevertheless, that there was no power in this court to review it by mandamus or prohibition, saying:

"It is admitted that the order denying the motions is not a final order and that petitioner cannot appeal from it. See Beury v. Beury, 4 Cir., 222 F.2d 464; E. I. Du Pont De Nemours Co., Inc., v. Hall, 4 Cir., 220 F.2d 514. We think it equally clear that writ of prohibition cannot be used as substitute for an appeal in such a
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49 practice notes
  • MOBIL OIL CORPORATION. v. WR Grace & Company, Civ. A. No. 67-H-424.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 4, 1971
    ...such should be the case, it is worthy of note that forum shopping is not looked upon with favor by the federal courts. Clayton v. Warlick, 232 F.2d 699, 706 (4th Cir. 1956); Chicago R. I. and P. Ry Co. v. Igoe, 212 F.2d 378, 382 (7th Cir. 1954); Polaroid Corp. v. Casselman, 213 F.Supp. 379,......
  • Center Cadillac v. Bank Leumi Trust Co., No. 91 Civ. 7776 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 13, 1992
    ...a district judge on application for transfer ... We have no sympathy with shopping around for forums.'" Id. (quoting Clayton v. Warlick, 232 F.2d 699, 706 (4th The court rejected the argument that a plaintiff's initial right to choose a forum includes the right to choose a particular interp......
  • A. Olinick & Sons v. Dempster Brothers, Inc., Docket 30296.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 8, 1966
    ...Cir.1956), adhered to, 245 F.2d 537 (8th Cir.1957), cert. denied, 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77 (1957); cf. Clayton v. Warlick, 232 F.2d 699, 706 (4th Cir. 1956); Loew's, Inc. v. McGuire, 92 U.S. App.D.C. 319, 205 F.2d 719 (1953), the great majority of recent appellate decisions,......
  • United States v. Estate of Hage, No. 13–16974.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 15, 2016
    ...lease or other grazing use authorization"). See generally 43 C.F.R. subpart 4150 (governing "Unauthorized Grazing Use"). See also West, 232 F.2d at 699 ("[T]he Government is vested with legal title. It must be conceded as well that any license appellees may have had to occupy the lands at t......
  • Request a trial to view additional results
49 cases
  • MOBIL OIL CORPORATION. v. WR Grace & Company, Civ. A. No. 67-H-424.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 4, 1971
    ...such should be the case, it is worthy of note that forum shopping is not looked upon with favor by the federal courts. Clayton v. Warlick, 232 F.2d 699, 706 (4th Cir. 1956); Chicago R. I. and P. Ry Co. v. Igoe, 212 F.2d 378, 382 (7th Cir. 1954); Polaroid Corp. v. Casselman, 213 F.Supp. 379,......
  • Center Cadillac v. Bank Leumi Trust Co., No. 91 Civ. 7776 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 13, 1992
    ...a district judge on application for transfer ... We have no sympathy with shopping around for forums.'" Id. (quoting Clayton v. Warlick, 232 F.2d 699, 706 (4th The court rejected the argument that a plaintiff's initial right to choose a forum includes the right to choose a particular interp......
  • A. Olinick & Sons v. Dempster Brothers, Inc., Docket 30296.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 8, 1966
    ...Cir.1956), adhered to, 245 F.2d 537 (8th Cir.1957), cert. denied, 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77 (1957); cf. Clayton v. Warlick, 232 F.2d 699, 706 (4th Cir. 1956); Loew's, Inc. v. McGuire, 92 U.S. App.D.C. 319, 205 F.2d 719 (1953), the great majority of recent appellate decisions,......
  • United States v. Estate of Hage, No. 13–16974.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 15, 2016
    ...lease or other grazing use authorization"). See generally 43 C.F.R. subpart 4150 (governing "Unauthorized Grazing Use"). See also West, 232 F.2d at 699 ("[T]he Government is vested with legal title. It must be conceded as well that any license appellees may have had to occupy the lands at t......
  • Request a trial to view additional results

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