Larsen v. Switzer
| Decision Date | 15 August 1950 |
| Docket Number | No. 14178.,14178. |
| Citation | 183 F.2d 850 |
| Parties | LARSEN v. SWITZER, Judge of the United States District Court. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Irving H. Green and Chester D. Johnson, Minneapolis, Minn., on brief, for petitioner.
Miller, Davis, Hise & Howland, Des Moines, Iowa, and Warren Newcome, St. Paul, Minn., on brief, for respondent.
Before GARDNER, Chief Judge, and SANBORN and THOMAS, Circuit Judges.
This is an original proceeding brought by petitioner seeking a writ of mandamus commanding respondent to enter an order allowing and permitting petitioner to dismiss without prejudice, upon such terms and conditions as respondent deems proper in the exercise of his judicial discretion an action pending before respondent as Judge of the United States District Court for the Southern District of Iowa in which she seeks to recover unliquidated damages.
Petitioner as Special Administratrix of the Estate of Wayne E. Sanders, deceased, commenced an action in the United States District Court for the District of Minnesota, against Chicago and North Western Railway Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages for the wrongful death of Wayne E. Sanders. Defendant in that action answered, following which petitioner as plaintiff in said action noticed the taking of certain depositions, whereupon defendant in said action interposed a motion to transfer the action to the United States District Court for the Southern District of Iowa. On May 2, 1950, the court entered an order transferring the action to the Southern District of Iowa. Thereafter petitioner moved the District Court for the District of Minnesota to dismiss her action without prejudice under Rule 41(a) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Petitioner's motion to dismiss without prejudice was denied, whereupon she brought proceedings in this court against Honorable Gunnar T. Nordbye and Hon. Matthew M. Joyce, each being a Judge of the United States District Court for the District of Minnesota, whereby she sought to compel respondents in that proceeding to enter an order dismissing the action without prejudice, fixing the terms and conditions thereof. After hearing before this court the petition was denied. Larsen v. Nordbye, 8 Cir., 181 F.2d 765. Petitioner at that time had not moved to vacate the order transferring the action to the Southern District of Iowa. It was suggested during the argument that the District Court for the Southern District of Iowa had probably acquired jurisdiction and that there was at least doubt whether the respondents had jurisdiction to take any further action in said litigation. Petitioner thereafter made a motion before the District Court for the Southern District of Iowa to dismiss without prejudice, which motion was denied, and this proceeding followed.
It is the contention of petitioner that she had an unqualified right to dismiss her action without prejudice and that the only discretion vested in the trial court was that of fixing the terms and conditions upon which such motion might be granted.
While the Federal Rules of Civil Procedure abolished in form writs of mandamus, Rule 81(b), Federal Rules of Civil Procedure, provision is made for the relief formerly available by mandamus. The purpose of a writ of mandamus is not to establish a legal right but to enforce a legal right which has already been established or is conceded, and the right of the petitioner to the performance of the act sought to be compelled must be clear, specific, complete and certain. Kay Ferer, Inc., v. Hulen, 8 Cir., 160 F.2d 146; United States v. Nordbye, 8 Cir., 75 F.2d 744. Mandamus may issue under certain circumstances to compel a judicial tribunal to exercise an existing jurisdiction but it is not to be extended so as to control the discretion and judgment of a tribunal acting within the scope of its jurisdiction. In other words, the writ will not ordinarily issue to direct in what particular way the court shall proceed or decide a particular matter, nor will it issue to correct or reverse a decision already reached where in regular course the decision may be reviewed on appeal. If a court has jurisdiction it may enter a correct or an erroneous decision, but if such decision is made in due course of legitimate jurisdiction, the court will not be compelled, through a writ of mandamus, to undo what it has in the exercise of a conceded jurisdiction done.
In the instant proceeding the trial court did not refuse to act but the complaint is that it acted erroneously. This contention is based upon the theory that the petitioner had an absolute and unqualified right to dismiss her action without prejudice upon such terms as the court might impose. The argument is that the court had no discretion except in the matter of fixing terms or conditions upon which the motion to dismiss might be granted. Under the Federal Rules of Civil Procedure an action other than a class action may be dismissed by the plaintiff even without order of court, by filing a notice of dismissal at any time...
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