D'Ippolito v. American Oil Company, Docket 32728.
| Decision Date | 08 October 1968 |
| Docket Number | Docket 32728. |
| Citation | 401 F.2d 764 |
| Parties | Solve E. D'IPPOLITO, Edward A. D'Ippolito, William C. D'Ippolito, John B. D'Ippolito, 3rd, Marie Barry, Estate of Frank D'Orio, Dewey Spadoni, Elsie Masciarella and D'Ippolito Oil Company, a body corporate of the State of Delaware, Plaintiff-Appellees, v. AMERICAN OIL COMPANY, a body corporate of the state of Maryland, Atlantic Refining Company, a body corporate of the State of Pennsylvania, California Oil Company, a body corporate of the State of California, Cities Service Company, a body corporate of the State of Delaware, Cities Service Oil Company, a body corporate of the State of Delaware, Gulf Oil Corporation, a body corporate of the State of Pennsylvania, Humble Oil and Refining Company, a body corporate of the State of Delaware, Sinclair Refining Company, a body corporate of the State of Maine, and Sun Oil Company, a body corporate of the State of New Jersey, Defendant-Appellees, and Texaco, Inc., a body corporate of the State of Delaware, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Before FRIENDLY and ANDERSON, Circuit Judges.
The other defendants in this action for treble damages under the antitrust laws have moved to dismiss for lack of jurisdiction an appeal by defendant Texaco, Inc., from an order of Chief Judge Sugarman in the District Court for the Southern District of New York, transferring the action to the District of New Jersey pursuant to 28 U.S.C. § 1404 (a). Plaintiff supports the motion to dismiss. While we granted the motion in open court, it seems desirable to issue this opinion in the interest of eliminating similar appeals in the future.
It is hard to see how any order could be less "final" than one which merely transfers an action for trial from one district to another in the federal judicial system, whether the transferee district is in the same circuit or a different one. Indeed, even an order remanding an action to a state court was held not to be final. Chicago & Alton R.R. Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1875). Hence it was not surprising that only a year after enactment of § 1404(a), the Fourth Circuit held that an order transferring an action was not appealable even though the transfer was to a district in another circuit, Jiffy Lubricator Co. v. Stewart-Warner Corp., 177 F.2d 360 (4 Cir. 1949) (Parker, J.), and this Court speedily agreed, Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 868-869 (2 Cir. 1950) (L. Hand, J.).
Texaco argues that these decisions have been invalidated, in the very context in which they were written — the granting of a transfer outside the circuit — by later cases indicating that Judge Hand may have been mistaken in assuming, 178 F.2d at 870, that the court of appeals of the transferee circuit could review the propriety of the transfer order. See Preston Corp. v. Raese, 335 F.2d 827 (4 Cir. 1964); Purex Corp. v. St. Louis Nat. Stockyards Co., 374 F.2d 998 (7 Cir.), cert. denied, 389 U.S. 824, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967). Texaco says this inability to secure review in the transferee circuit invokes Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221...
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