HIRAM WALKER INCORPORATED v. Serr

• Decision Date: 17 November 1967
• Docket Number: Civ. A. No. 43993.
• Citation: 277 F. Supp. 3
• Parties: HIRAM WALKER INCORPORATED, Petitioner, v. Harold A. SERR, Director, Alcohol and Tobacco Tax Division, Internal Revenue Service, Two Penn Center Plaza, Philadelphia, Pennsylvania, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

277 F. Supp. 3

HIRAM WALKER INCORPORATED, Petitioner, v. Harold A. SERR, Director, Alcohol and Tobacco Tax Division, Internal Revenue Service, Two Penn Center Plaza, Philadelphia, Pennsylvania, Respondent.

Civ. A. No. 43993.

United States District Court E. D. Pennsylvania.

November 17, 1967.

J. B. H. Carter, and Barry E. Hawk, Philadelphia, Pa., James H. McGlothlin, and Richard A. Brady, Washington, D. C., for petitioner.

Philip Wilens, U. S. Dept. of Justice, Washington, D. C., for respondent.

MEMORANDUM AND ORDER

JOHN W. LORD, Jr., District Judge.

This is an action for a preliminary and permanent injunction. Petitioner seeks to enjoin the Director of the Alcohol and Tobacco Tax Division of the Department of Internal Revenue from issuing administrative subpoenas pursuant to any special investigation of petitioner Hiram Walker and from taking any action pursuant to any such subpoenas already issued, pending final disposition on appeal of this Court's denial of enforcement of similar administrative subpoenas. On July 13, 1967, this Court denied the Director's request to enforce subpoenas issued under the Federal Alcohol Administration Act. 27 U.S.C.A. § 202(c). This Court concluded that the Director did not have any statutory authorization to issue such subpoenas. Serr v. Sullivan, 270 F.Supp. 544 (E.D.Pa.1967). Harold A. Serr, Director of the Alcohol and Tobacco Tax Division, appealed this Court's adverse ruling to the Court of Appeals for the Third Circuit and that appeal is still pending. Serr v. Sullivan, Nos. 16908-14, 3rd Cir. 1967.

Subsequent to the filing of his appeal, Harold A. Serr, acting under the purported authority that this Court had ruled he does not possess, has continued to issue administrative subpoenas in the continuing investigation of Hiram Walker. Serr had issued an administrative subpoena to Michael A. Miller, the manager of a retail liquor store in Detroit, Michigan and caused it to be served. This subpoena was returnable on Wednesday, November 8, 1967, at 10:00 A.M. in Detroit, Michigan, and the Director's intention was to demand and attempt to force compliance with this subpoena in order to advance the investigation of Hiram Walker.

On November 7, 1967, this Court entered a temporary restraining order against the attempted enforcement or further issuance of such subpoenas. This order was not entered ex parte. On November 15, 1967 an extensive hearing was held on petitioner's motion for an injunction.

Respondent, Harold A. Serr, was served by certified mail in Washington, D. C., on November 9, 1967 at 3:17 P.M., five hours and seventeen minutes beyond the original time set by this Court. Such service, while not meeting the letter of this Court's order, is adequate.

The sole defense advanced by the Director against any injunction in the present action is that this Court lacks venue. The Director contends that the only possible source of venue in this district stems from the venue provisions of 28 U.S.C.A. § 1391(e) and that this section does not authorize petitioner's suit before this Court. This is the only point discussed and developed in the Director's brief, which is totally silent on the matter of the propriety of entering an injunction were venue established in this district. A determination of whether this Court has proper venue over this action under § 1391(e) admittedly would be difficult. Compare Consolidated Sun-Ray, Inc. v. Steel Ins. Co. of America, 190 F.Supp. 171 (E.D.Pa.1961) and Abbott Laboratories v. Celebrezze, 228 F. Supp. 855 (D.Del.1964), aff'd per curiam, 352 F.2d 524 (3rd Cir. 1965), cert. dismissed, sub. nom., Abbott Laboratories v. Gardner, 387 U.S. 136, 156-157, n. 20, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). See also, 1 Moore's Federal Practice ¶ 0.142 7 at 39 (1967 Supp.). However, the § 1391(e) issue need not be resolved, since this Court has ancillary jurisdiction over the present action. An injunction pending the outcome of the appeal of Serr v. Sullivan, presently pending before the Third Circuit Court of Appeals will be entered.

Ancillary jurisdiction has been recently described as follows:

Once a court has obtained jurisdiction of a cause of action, it is entitled to retain the action and to grant complete relief as to any matter which is incidental thereto, even though the court may not have had jurisdiction over such auxiliary matter if it had been asserted as an independent cause of action. Under this principle, it is not necessary to find an independent jurisdictional basis for the injunctive aspect of the case. Sheridan v. United Brotherhood of Carpenters and Joiners, Local 626, 191 F.Supp. 347, 353 (D.Del.1961).

In Sheridan, plaintiff had been suspended as the union's business agent. He instituted suit under the federal labor statutes to determine the validity of the suspension. During the pendency of the litigation the union had scheduled an election of a temporary business agent. The...