ITE Circuit Breaker Company v. Becker

• Decision Date: 29 March 1965
• Docket Number: No. 17971.,17971.
• Citation: 343 F.2d 361
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: I-T-E CIRCUIT BREAKER COMPANY, a corporation, Petitioner, v. Honorable William H. BECKER, United States District Judge, Respondent.

343 F.2d 361 (1965)

I-T-E CIRCUIT BREAKER COMPANY, a corporation, Petitioner, v. Honorable William H. BECKER, United States District Judge, Respondent.

No. 17971.

United States Court of Appeals Eighth Circuit.

March 29, 1965.

William H. Curtis, of Morrison, Hecker, Cozad & Morrison, Kansas City, Mo., made argument for petitioner and filed petition for writ of mandamus and prohibition with Martin J. Purcell and James C. Mordy, of Morrison, Hecker, Cozad & Morrison, Kansas City, Mo.

Dick H. Woods, of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., made argument for intervenors. Spencer, Fane, Britt & Browne, Kansas City, Mo., and Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., filed brief in opposition of intervenors, Kansas City Power & Light Co., St. Joseph Light & Power Co. and Kansas Gas & Electric Co.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.

PER CURIAM.

A petition for a writ of mandamus against respondent as district judge has been filed, and the matter is before us on petitioner's application for an order to require respondent to show cause why the writ should not be granted.

The object of the writ sought is to have us direct respondent to vacate an order entered by him transferring two cases, in which petitioner is the defendant,¹ from the Western District of Missouri to the Northern District of Illinois, under 28 U.S.C.A. § 1404(a).

The two cases are part of the "avalanche" of private damage suits, aggregating 1910 in number and involving some 25,600 separate claims, which descended on the federal district courts following a Sherman Act conviction in February 1961, in the Eastern District of Pennsylvania, of manufacturers of electrical equipment for having conspired to fix prices and allocate business in twenty product lines of such equipment.

As of January 14, 1965, the volume of these pending suits had been reduced to 1138 cases involving 13,944 claims. This reduction has been effected primarily as the result of an organized program devised and directed by the Co-ordinating Committee for Multiple Litigation of United States District Courts, which was created by the Judicial Conference of the United States to deal with the extraordinary situation.

Beyond its structural aspects, one of the principal features of the program has been its progressive approach by product lines to the common problems of disposition, such as national discovery, in relation to each substantial category, and its attempt thus to get the cases in a category moved forward generally into dispositional position through likely patterning trial or other termination which might be arrived at by the parties. For a description of the program and its operation see Neal and Goldberg, The Electrical Antitrust Cases; Novel Judicial Administration, 50 A.B.A.J. 621-628 (July 1964 number).

The product line in the two cases here involved is power switchgear assemblies. Petitioner has 105 cases pending against it as to this product line, in 20 separate judicial districts, involving 226 claims. There also are cases pending against petitioner on products other than power switchgear assemblies. In addition, by virtue of its alleged participation in the general conspiracy, petitioner has been made a defendant in suits brought by other parties to recover damages as to products purchased from other manufacturers.

Petitioner admitted before the district court, as it had before the co-ordinating committee, and as it does here, that it has not formulated any program, and indeed that it is without even a suggestion of any plan, for effecting termination of the litigation thus pending against it, either by way of desire to engage in trials, of intention to attempt settlements, or of basis to seek dismissals. What it seemingly wants done is simply to have all of the suits against it left alone.

The first basis on which writ is sought is a charge that respondent's action of transfer was prompted by "petitioner's refusal to settle its electrical antitrust cases, both nationally and locally". The hearing before respondent on the question of transfer affords no color of basis for a charge that he was attempting to bludgeon petitioners into a position of settlement. Nor do the circumstances of the situation into which the cases were transferred lend any support even inferentially to this being the intended object or the necessary consequence of what was done. A group of cases on power switchgear assemblies were pending against petitioner in the Northern District of Illinois and had been set tentatively for trial by that court. Petitioner thus was being afforded the opportunity to go to trial on its cases, and this would be as much true in respect to those which respondent transferred as those which were already there.

But even if respondent had acted with expectation, desire, or motive that his action might be instrumental in forcing petitioner to determine upon some dispositional policy and course as to the cases against it, any such subjective factor would not be entitled to be made the basis for a show-cause order against respondent where his action otherwise came within an exercise of his power and discretion under the statute as to the circumstances of the situation involved.

It is contended, however, as a second basis for seeking a writ that respondent's action of transfer was beyond the scope of his statutory power in that the transfer was made, "in essence, upon the Court's own motion, and Section 1404(a) does not permit a transfer under such circumstances." No reported case has been found in which it has been specifically declared that subsection (a) authorizes a court to transfer a case to another district on its own motion. It can be argued that Swindell-Dressler Corporation v. Dumbauld, 308 F.2d 267 (3 C.A. 1962)...