Lemon v. Druffel

• Decision Date: 01 April 1958
• Docket Number: No. 13492.,13492.
• Citation: 253 F.2d 680
• Parties: Saunders P. LEMON, Petitioner, v. Honorable John H. DRUFFEL, Judge of the United States District Court for the Southern District of Ohio, Western Division, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

253 F.2d 680 (1958)

Saunders P. LEMON, Petitioner, v. Honorable John H. DRUFFEL, Judge of the United States District Court for the Southern District of Ohio, Western Division, Respondent.

No. 13492.

United States Court of Appeals Sixth Circuit.

April 1, 1958.

Milton H. Schmidt, Schmidt, Effron, Josselson & Weber, Cincinnati, Ohio, for petitioner.

No brief for respondent.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

Petitioner filed an action in the United States District Court for the Eastern District of Kentucky at Catlettsburg, Ky., against the Chesapeake and Ohio Railway Co., under the provisions of the Federal Employers' Liability Act, 45 U. S.C.A. § 51 et seq., to recover damages for serious injuries suffered by him while in the employ of the Railway Company at Ashland, Kentucky. Following the filing of an answer by the Railway Company, petitioner moved to dismiss the action without prejudice. The Railway Company objected, partly on the grounds that the purpose of the dismissal was to enable the petitioner to refile the suit in a court at a more distant point where it would be inconvenient for the Railway Company to produce witnesses and where the jury would be unable to see the premises. The District Judge granted the motion.

Petitioner thereafter filed his action in the United States District Court for the Southern District of Ohio, at Cincinnati, Ohio. The Railway Company moved to transfer the cause to the United States District Court for the Eastern District of Kentucky, at Catlettsburg, basing its motion upon Section 1404(a), Title 28, U.S.Code.¹

Its affidavit in support of the motion stated that petitioner was a resident of Ironton, Ohio, which is approximately eight miles from Catlettsburg, Ky., and approximately 140 railroad miles from Cincinnati, Ohio, that Catlettsburg is approximately four miles from the scene of the accident in Ashland, Ky., that Ashland is about 146 railroad miles from Cincinnati, and that all the material and necessary witnesses, approximately ten in number, reside either in Ashland or Huntington, West Virginia, approximately 160 miles from Cincinnati. The affidavit stated that a number of the witnesses were doctors who attended the plaintiff and who could not be compelled by the railroad company to appear at a trial in Cincinnati.

Petitioner's affidavit in opposition to the motion stated that he went to Cincinnati for examination and treatment for his injuries by an orthopedic surgeon who performed an operation on his spine at Christ Hospital in Cincinnati, and under whose care he was at the time of the affidavit, that he also was attended by another doctor in Cincinnati, and that he would be seriously prejudiced if required to produce his medical witnesses in Catlettsburg. The affidavit stated that all the necessary witnesses for the Railway Company, with the exception of medical witnesses, were employees of the Railway Company and could readily be brought to Cincinnati at the time of trial. The District Judge sustained the motion and entered an order transferring the action to the District Court at Catlettsburg, Ky.

Petitioner now seeks in this Court a writ of mandamus directing the District Judge for the Southern District of Ohio to nullify his order to transfer to the end that the case be tried before a jury in the District Court for the Southern District of Ohio. Jurisdiction is invoked under Section 1651(a), Title 28 U.S.Code, generally known as the All Writs Act, which provides, "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." It is contended that this is an appropriate case for the Court to exercise its power and issue the writ, in that the matter involved lies outside the issues of the case in which the order was made, that unless the order be reviewed and corrected in this proceeding, it can never be corrected without irreparable prejudice to the petitioner, and that the District Judge in making the order acted beyond his power and in abuse of his discretion.

We find no merit in the contention that the District Judge acted beyond his legal power in making the order of transfer. Section 1404(a) specifically confers upon the District Judge the power to make the transfer when in his opinion the conditions stated in the statute exist. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; Barber-Greene Co. v. Blaw-Knox Co., 6 Cir., 239 F.2d 774, 777. Since the action "might have been brought" in the Eastern District of Kentucky, we do not have the kind of case in which a writ of mandamus will issue to prevent the District Judge from transferring the case to a district in which as a matter of law it could not have been brought. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; Shapiro v. Bonanza Hotel Co., Inc., 9 Cir., 185 F.2d 777. Nor do we have the kind of case in which the District Judge, having jurisdiction and authority to act, fails or refuses to do so, under which circumstances mandamus will lie to require him to act, but without directing him which way to rule. United States v. U. S. District Court, etc., 6 Cir., 209 F.2d 575; Paramount Pictures, Inc., v. Rodney, 3 Cir., 186 F.2d 111, 116, certiorari denied 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687; Ex parte Park & Tilford, 245 U.S. 82, 85, 38 S.Ct. 15, 62 L.Ed. 164. The present question goes a step further, in that it involves a situation where the District Judge has acted and made a ruling which he had the legal authority to make, the correctness of which we are asked to review by writ of mandamus.

It is settled that an order granting a transfer or denying a transfer is interlocutory and not appealable. Norwood v. Kirkpatrick, 349 U.S. 29, 33, 75 S.Ct. 544, 99 L.Ed. 789; Littman v. Bache & Co., 2 Cir., 246 F.2d 490; In re Josephson, 1 Cir., 218 F.2d 174, 181; Paramount Pictures, Inc. v. Rodney, supra, 3 Cir., 186 F.2d 111, 116, certiorari denied 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687. Whether it can be reviewed by an application for a writ of mandamus is a question which has received much judicial consideration, with a definite conflict in the authorities. The following cases point up the conflict among the authorities and state the reasons in support of the respective views.

Following the general rule that mandamus should not be used as a substitute for an appeal in order to review a nonappealable order, it was held in the following cases that application for writ of mandamus should be denied. All States Freight, Inc. v. Modarelli, 3 Cir., 196 F.2d 1010; Clayton v. Warlick, 4 Cir., 232 F.2d 699; Carr v. Donohoe, 8 Cir., 201 F.2d 426; Great Northern Railway Co. v. Hyde, 8 Cir., 238 F.2d 852; 241 F.2d 707; 245 F.2d 537, certiorari denied 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77.

The First Circuit, while recognizing the power under Sect. 1651(a), Title 28 U.S.Code, to review an order of transfer in a mandamus proceeding has expressed itself strongly in opposition to the exercise of such power except in really extraordinary situations, the exact nature of which it did not undertake to formulate in advance. In re Josephson, 1 Cir., 218 F.2d 174, 181, 183.

In the Fifth Circuit the power to issue the writ is also recognized, but the exercise of the power is restricted to certain types of cases. The Court has said that in the absence of a failure of the District Court to correctly construe and apply the statute, or to consider the relevant factors incident to ruling upon a motion to transfer, or unless it is necessary to correct a clear abuse of discretion, the Court should not entertain motions for writs of mandamus to direct District Courts to enter or vacate orders of transfer. Ex parte Chas. Pfizer & Co., Inc., 5 Cir., 225 F.2d 720, 723; Ex parte PharmaCraft Corporation, 5 Cir., 236 F.2d 911. See: Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766.

In the Second Circuit and in the Court of Appeals for the District of Columbia, the Court was of the opinion with one judge dissenting in the Second Circuit, that the Court had the power to review the order, the correctness of which was tested by the rule of forum non conveniens, as stated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055; Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 330; Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873, 874. See also: Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866. However, with respect to the applicability of the rule of forum non conveniens, the Ford Motor Co. case and the Wiren case were decided prior to the ruling in Norwood v. Kirkpatrick, supra, 349 U.S. 29, 78 S.Ct. 544, 99 L.Ed. 789, wherein it was held that a transfer under Section 1404(a) involved a broader discretion than previously existed under the rule of forum non conveniens.

In the Seventh Circuit the Court ruled that the order of the District Court denying a motion to transfer was reviewable for abuse of discretion through an application for a writ of mandamus, and reversed the ruling of the District Judge with one judge dissenting. Chicago, R. & I. & P. Co. v. Igoe, 7 Cir., 212 F.2d 378, 381; 220 F.2d 299.

The Supreme Court has recognized the existence of the issue, but found it unnecessary to specifically rule upon it. Norwood v. Kirkpatrick, supra, 349 U.S. 29, 33, 75 S.Ct. 544, 99 L.Ed. 789; Ex parte Collett, supra, 337 U.S. 55, 72, 69 S.Ct. 944, 93 L.Ed. 1207. However, two other cases have some bearing upon the question. In Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 the Court held under the circumstances there existing mandamus against a federal district judge was not an appropriate remedy to vacate a severance and transfer order under Sect. 1406(a). In La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1...