Ellicott Mach. Corp. v. Modern Welding Co., Inc.

• Citation: 502 F.2d 178
• Decision Date: 12 August 1974
• Docket Number: No. 74-1805,74-1805
• Parties: ELLICOTT MACHINE CORPORATION, Appellee, v. MODERN WELDING COMPANY, INCORPORATED, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 178

502 F.2d 178

ELLICOTT MACHINE CORPORATION, Appellee, v. MODERN WELDING COMPANY, INCORPORATED, Appellant.

No. 74-1805.

United States Court of Appeals, Fourth Circuit.

Argued July 23, 1974.

Decided Aug. 12, 1974.

David F. Albright, Baltimore, Md. (J. Snowden Stanley, Jr., and Semmes, Bowen & Semmes, Baltimore, Md., on brief) for appellant.

J. Frederick Motz, Baltimore, Md. (Francis D. Murnaghan, Jr., Baltimore, Md., on brief) for appellee.

Before CRAVEN, BUTZNER and FIELD, Circuit Judges.

CRAVEN, Circuit Judge:

A contract dispute between Modern Welding Co., Inc. (Modern), a Kentucky corporation, and Ellicott Machine Corp. (Ellicott), a Maryland corporation, led to the filing of the complaint in this case by Ellicott in the United States District Court for the District of Maryland. The complaint, filed on September 7, 1973, asserted in personam jurisdiction under the Maryland long-arm statute. Subsequently on September 13, 1973, Modern filed a complaint in the circuit court of Daviess County, Kentucky, based in large part on the same transactions about which Ellicott complained in the instant case.

On October 4, 1973, Ellicott removed Modern's suit to the United States District Court for the Western District of Kentucky. Ellicott's motion to quash service of process or, alternatively, to transfer to the District of Maryland was denied by Chief Judge Gordon on November 12, 1973. Ellicott filed its answer in the Kentucky case on November 27. An order of Chief Judge Gordon on January 4, 1974, set the case for pretrial conference in June 1974 and for trial in September 1974.

On November 20 Modern moved in the Maryland case to dismiss the complaint, quash service of process, or transfer the case to the Western District of Kentucky. Ellicott responded on November 30 by a motion to enjoin Modern from further prosecuting the Kentucky action. Judge Miller denied Modern's motions to dismiss and to quash on December 5, 1973, deferring to act on the remaining two motions until further briefs were received from the parties.

In an opinion and order of April 23, 1974, Judge Miller denied Modern's motion to transfer while granting Ellicott's requested injunction. A trial date of October 15, 1974, was set. Subsequent motions by Modern to alter, amend, or reconsider and to suspend injunction pending appeal under Fed.R.Civ.P. 62(c) were denied and this appeal followed. ¹ We reverse.

We are not unsympathetic with Judge Miller's viewpoint, supported by many cases, that the plaintiff (Ellicott) is ordinarily entitled to choose its forum, ² and that, other factors with respect to change of venue being equal, the case ought to be tried in the district court in which it was first filed. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Indeed, from our review of the asserted jurisdictional facts we are inclined to think that Chief Judge Gordon should have granted Ellicott's motion to transfer the Kentucky case to Maryland in order to honor the principle that a plaintiff may ordinarily select his forum unless there are factors of convenience sufficiently important to the parties and the court to occasion denying him that choice. ³

Although we appreciate Ellicott's insistence that it ought not be denied its right to choose to litigate the matters in dispute in the District of Maryland, we think another, more important principle dictates denial of relief to Ellicott. Ellicott asked the district judge in Kentucky to exercise his discretion in granting or denying a motion for change of venue under 28 U.S.C. 1404(a). It is well settled that the decision of a district judge on a motion for change of venue under section 1404(a) is not appealable as a final judgment. ⁴ The reason for the rule is a growing recognition that 'it will be highly unfortunate if the result of an attempted procedural improvement is to subject parties to two law suits: first, prolonged litigation to determine the place where a case is to be tried; and, second, the merits of the alleged cause of action itself.' All States Freight v. Modarelli, 196 F.2d 1010, 1011-1012 (3d Cir. 1952). ⁵

What Ellicott has effectively done is appeal from one district judge to another. Worse, because relief was obtained by injunction, an otherwise unappealable decision on venue has now been brought up on appeal. In ruling against Modern's motion for transfer to the Western District of Kentucky, Judge Miller in effect reassessed the convenience factors which had already been considered, albeit impliedly, by Judge Gordon in his November 12 order denying Ellicott's motion to transfer to Maryland. The first-to-file principle relied upon by Judge Miller is a rule of sound judicial administration, but it must yield in the face of the historic policy of the federal courts, expressed in 28 U.S.C. 1291, that appeal will lie only from 'final decisions of the district courts' and then only in the courts of appeal.

Viewed in terms of comity and judicial economy, the same result obtains. We fully agree with the assessment of Chief Judge Lumbard in his dissenting and concurring opinion in National Equipment Rental, Ltd. v. Fowler, 287 F.2d 43 (2d Cir. 1961), a case remarkably similar on its facts to the situation now before us. National and Fowler were also involved in a contract dispute. National filed suit first in the Eastern District of New York. Fowler answered and notice of a pretrial conference was sent to all the parties. At this point Fowler filed a complaint, based upon the same contract, in the Northern District of Alabama. After denial of National's motion to quash, it moved the Alabama court to stay the action and transfer the case to New York. The motions were denied and the Alabama case was set for pre-trial conference. At this point, National returned to the New York court where the first action had been filed and sought to enjoin the Alabama case from proceeding further and to have that case transferred to the Eastern District of New York. Upon this scenario of procedural maneuvering, Chief Judge Lumbard commented:

The technical rules controlling the application of the doctrine of res judicata may indeed prevent it from applying here since the Alabama order was merely interlocutory, but the principles supporting the rule are surely applicable to the decision made in this case by the district court in Alabama. National chose to present to the Alabama court its contention that the entire action be concluded in the Eastern District of New York. It then had the opportunity to urge that court to stay its own proceeding because of the priority-of-action rule and other considerations. There is no basis in the record for presuming that the court in Alabama did not weigh all these elements in passing on the motions, which called for an exercise of the court's discretion. Nor is there any showing made in this court or below that such discretion was abused, even assuming arguendo that it would be proper for this court to consider such a claim. What the majority affirms, therefore, is a procedure which grants the plaintiff two federal forums in which to present the very same contentions addressed to the court's discretion. If he prevails in either of the two, he is given the relief he desires.

287 F.2d at 48. Neither do we perceive, on the basis of the record before us, any basis for presuming that the Kentucky court failed to consider properly the elements of convenience inherent in the disposition of a transfer motion, including the first-to-file principle. Even if we did, we have no power to effect a remedy. That power lies with the United States Court of Appeals for the Sixth Circuit, either through mandamus or upon appeal from a final judgment. Ellicott voluntarily chose to present its claim of statutory forum non conveniens to the Kentucky court. For reasons of the non-appealability of interlocutory orders, respect for the judgment of coordinate federal courts, and the preservation of judicial resources, as well as those of the party who would otherwise be 'forced to rebut the same arguments in two proceedings before different courts,' 287 F.2d at 48, a party seeking the exercise of a district court's discretion is...