Ex parte Chas. Pfizer & Co.
Decision Date | 16 September 1955 |
Docket Number | No. 15606.,15606. |
Citation | 225 F.2d 720 |
Parties | Ex parte CHAS. PFIZER & CO., Inc., Petitioner. |
Court | U.S. Court of Appeals — Fifth Circuit |
Ernest P. Rogers, Thomas C. Shelton, Atlanta, Ga., Arthur G. Connolly, Wilmington, Del., Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga. (Thomas Cooch Connolly, Cooch & Bove, Wilmington, Del., of counsel), for petitioner.
Robert B. Troutman, Atlanta, Ga., for respondent.
Before HUTCHESON, Chief Judge, JONES, Circuit Judge, and CHRISTENBERRY, District Judge.
On January 11, 1955, United States Patent No. 2,699,054 covering an antibiotic entitled Tetracycline was issued to Chas. Pfizer & Co., Inc., herein called Pfizer. On the same date Pfizer instituted separate suits in the Atlanta Division of the United States District Court for the Northern District of Georgia, against Olin Mathieson Chemical Corporation, The Upjohn Company, and Bristol Laboratories Inc., who will be referred to herein, collectively, as the defendants, charging infringement of the patent.
A motion was filed in each of the cases by the respective defendants for a transfer of the action under 28 U.S.C.A. § 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."
Affidavits were filed in support of and in opposition to the motion for transfer, briefs were submitted and oral argument was had. The District Judge, Hon. Boyd Sloan, entered an order on March 17, 1955, in each of the three cases, transferring the actions to the United States District Court for the Southern District of New York. 131 F.Supp. 21. From the orders of transfer appeals were taken of which disposition is made by a separate opinion filed this day. 5 Cir., 225 F.2d 718.
The orders of transfer were interlocutory and not appealable. Crummer Co. v. Du Pont, 5 Cir., 1952, 196 F.2d 468, certiorari denied 344 U.S. 851, 856, 73 S.Ct. 91, 97, 97 L.Ed. 662, 665. Pfizer, correctly surmising that the appeals would be dismissed, filed with this Court a Motion for Leave to File a Petition for a Writ of Mandamus directing Judge Sloan to vacate his orders of transfer. In its motion the movant says:
"The principal contention of the petitioner is that the transfer order complained of was entered without any showing that the convenience of the parties and witnesses and the interest of justice would be served by such transfer, or that the actions might have been brought in the Southern District of New York, that it was thus entered without jurisdiction and, indeed, that it was an unwarranted renunciation of jurisdiction, which arbitrarily and unjustifiably deprived petitioner of its right to trials in the forum of its choice."
Judge Sloan has filed herein a response with which he has transmitted copies of affidavits, the deposition of L. H. Conover, the patentee, briefs and a transcript of the oral argument before him. The able District Judge recites in his response that no contention was urged before him that the actions might not have been brought in the Southern District of New York, and that there was proof before him that they might have been brought in that District. We are like minded. The Judge says in his response, and his order shows, that he considered the convenience of parties and witnesses and the interest of justice, and in so doing he carefully weighed and balanced the right of the plaintiff to select his forum, the condition of the Court calendars in the two Districts, and other considerations.
The jurisdiction of this Court is invoked under the following Congressional grant:
"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C.A. § 1651(a).
The doubt that may have at one time existed as to whether § 1404(a) liberalized and extended the doctrine of forum non conveniens has been nearly if not quite put to rest by Norwood v. Kirkpatrick, decided by a divided court April 11, 1955, 349 U.S. 29, 75 S.Ct. 544, 546, 99 L.Ed. ___. There the Supreme Court quoted with approval from the case of All States Freight v. Modarelli, 3 Cir., 1952, 196 F.2d 1010, where Judge Goodrich, speaking for the Court en banc, used these words:
""
The Supreme Court, in comparing § 1404(a) with forum non conveniens said:
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...file the petition for a writ of mandamus." The Court of Appeals of the Fifth Circuit expressed the same view in Ex parte Chas. Pfizer & Co., Inc., 5 Cir., 225 F.2d 720, 721, 722, where the court said: "There is some judicial support for the view that a Court of Appeals has no power under § ......
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United States v. United Air Lines, Inc.
...the prior doctrine of forum non conveniens. Norwood v. Kirkpatrick (1955), 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789; Ex parte Pfizer & Co. (5th Cir., 1959), 225 F.2d 720. The standards to be considered in exercising discretion, as set forth in the statute, are convenience of the parties, con......
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...to weigh and balance the factors which the District Court was required to consider in reaching its decision." Ex parte Chas. Pfizer & Co., Inc., 225 F.2d 720, 723 (5th Cir.1955); see also In re Horseshoe Entm't, 337 F.3d at 435 (Benavides, J., dissenting) ("All necessary facts and factors w......
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...motions for Writs of Mandamus to direct District Courts to enter or vacate orders of transfer under § 1404(a). Ex Parte Charles Pfizer & Co., 225 F.2d 720, 723 (5th Cir.1955). The Fifth Circuit's hesitation to issue writs of mandamus against district court's fact-intensive rulings on motion......