MacNeil Bros. Company v. Cohen

Decision Date03 March 1959
Docket NumberNo. 5453.,5453.
Citation264 F.2d 186
PartiesMacNEIL BROS. COMPANY et al., Plaintiffs, Appellants, v. Wallace M. COHEN, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Angus M. MacNeil, Somerville, Mass., on motions of appellants.

Phillip Cowin, Boston, Mass., on memorandum of appellee in opposition to motions of appellants.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

PER CURIAM.

We have before us a somewhat unusual motion — to say the least — filed by Angus M. MacNeil, Esq., on behalf of appellants, asking us to transfer the case to the United States Court of Appeals for the Second Circuit or for some other circuit.

Since this appeal is from various orders of the United States District Court for the District of Massachusetts, it may be wondered how the United States Court of Appeals for the Second Circuit could have any statutory jurisdiction to review such a final decision of a district court not within the Second Circuit. See 28 U.S.C. §§ 1291, 1294(1). There is no provision of law permitting such a transfer, similar to 28 U.S.C. § 1404(a), under which a United States District Court is authorized, for the convenience of parties and witnesses, in the interest of justice, to "transfer any civil action to any other district or division where it might have been brought."

It seems that for some years there has been litigation pending in the state courts of Massachusetts, initiated by a suit brought by MacNeil Bros. Company against State Realty Company, seeking redemption of certain real estate in Greater Boston from the operation of a mortgage. Behind State Realty Company is said to be the law firm of Fox, Orlov & Cowin. Being unable to obtain what MacNeil conceives to be "justice" in the state courts, he has indefatigably, and so far unsuccessfully, sought to transfer the subject matter of the suit to a federal forum. See MacNeil Bros. Co. v. Justices of Superior Court, 1 Cir., 1957, 242 F.2d 273, certiorari denied 1957, 355 U.S. 805, 78 S.Ct. 48, 2 L.Ed.2d 49; Handy Cafe, Inc. v. Justices of Superior Court, 1 Cir., 1957, 248 F.2d 485, certiorari denied 1958, 356 U.S. 902, 78 S. Ct. 561, 2 L.Ed.2d 580; MacNeil Bros. Co. v. Forte, 1 Cir., 1958, 253 F.2d 500; Matter of MacNeil Bros. Co., 1 Cir., 1958, 259 F.2d 386; MacNeil Bros. Co. v. State Realty Company of Boston, Inc., 1 Cir., 262 F.2d 364. In our system, it must be realized that it is not the function of federal courts to entertain all litigation designed to right alleged injustices inflicted in the state courts. It was in MacNeil Bros. Co. v. Forte, supra, 253 F.2d 500, that we had occasion to say:

"Appellant is represented by Angus M. MacNeil, Esq. MacNeil is a chronic litigant in state and federal courts, either in his own name or on behalf of corporations he controls. Our patience with him has just about become exhausted because of his repeated wasting of our time in defaults in cases which ought to be recognized as hopeless by any competent lawyer."

It appears that the present case was begun on July 11, 1957, by the filing of a complaint, based on diversity of citizenship, in the United States District Court for the District of Maryland. In this complaint MacNeil Bros. Company and eight other Massachusetts corporations, plus Angus M. MacNeil individually, were named as plaintiffs. The sole defendant was Wallace M. Cohen, Esq., alleged to be a resident of Maryland and to have a usual place of business in Washington, D. C. It was asserted in the complaint that during the period involved Cohen was a partner in the law firm of Fox, Orlov & Cowin, and fully liable for the tortious conduct of his co-partners.

The district court in Maryland, 158 F. Supp. 126, made an order under 28 U.S. C. § 1404(a) transferring the case to the District of Massachusetts. In making this order Chief Judge Thomsen stated as follows:

"If the action is not dismissed, it should certainly be transferred to the District of Massachusetts under 28 U.S.C.A. § 1404(a), for the convenience of parties and witnesses and in the interests of justice. However, I cannot fairly deliver to a brother judge this prickly plant which sprouts new motions every few days without first considering the motion to dismiss.
"The complaint is confusing, especially in its allegations of various proceedings in the State Courts of Massachusetts; however, the motion to dismiss refers to these and other proceedings in the Massachusetts courts, and the parties agreed that in passing on the motion to dismiss I should consider a great many judgments, decrees and orders, copies of which were marked for identification. After reading those documents, I am satisfied that a proper ruling on the motion to dismiss requires a consideration of many questions of Massachusetts law and practice, with which this court is unfamiliar, but which would be familiar to a judge of the District Court for the District of Massachusetts. I have reluctantly concluded, therefore, that I should transfer the case to that court at this time."

What appears to be bothering Angus M. MacNeil, Esq., is that the defendant Cohen is now a partner in the Washington law firm of Landis, Cohen, Rubin & Schwartz. In the present motion it is asserted that "James M. Landis of Rye, N. Y. is in interest in the disposition of this case and a judgment rendered against the defendant herein would of necessity warrant a judgment of substantial amounts against said James M. Landis." The motion proceeds to set forth the undoubted fact that James M. Landis was formerly Dean of the Harvard Law School; that while serving in that capacity, one of his subordinates, as a Lecturer on Law, was the present Chief Judge of the First Circuit; that by reason of this association the Court of Appeals for the First Circuit has been prevented "from rendering a fair and impartial decision on matters of great concern to said Landis and his partners"; that the actions of this court in previous cases were motivated by "the purpose of prejudicing the cases against said Landis and his associates when the Court realized the seriousness of the said cases." Just how this could be so remains a mystery to us, since not until the present motion was filed was the Court made aware of any alleged connection of James M. Landis with this case.

At any rate, and ignoring for the moment the contemptuous and scandalous allegations in this document, it is to be noted that there is no statutory provision applicable to the court of appeals similar to 28 U.S.C. § 144 authorizing a party to file an affidavit of prejudice against a judge sitting in the district court. In 28...

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  • Morgan v. Kerrigan
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 14, 1976
    ...Motions to disqualify judges have frequently been denied even in cases far stronger than this case. See, e.g., McNeil Bros. Co. v. Cohen, 264 F.2d 186, 188--89 (1st Cir. 1959); Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278 (D.C.Cir. 1948); Darlington v. Studebaker-Packard ......
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    ...Cir. 1965), cert. denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966). 288 See note 275 supra. See also MacNeil Bros. Co. v. Cohen, 264 F.2d 186, 189 (1st Cir. 1959); Weiss v. Hunna, 312 F.2d 711, 714 (1st Cir.), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963); Shad......
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    ...the particular judge,' ... with review limited to abuse of the discretion thus confided.") (citations omitted); MacNeil Bros. Co. v. Cohen, 264 F.2d 186, 189 (1st Cir. 1959) ("[W]hether a member of a court of appeals should disqualify himself because in his opinion he is so related or conne......
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    ...897, 66 L.Ed.2d 827; accord, General Electric Co. v. Byrne, 7 Cir. 1979, 611 F.2d 670, 672 (per curiam); MacNeil Brothers v. Cohen, 1 Cir. 1959, 264 F.2d 186, 187 (per curiam) The Corrugated Container case did not involve an order transferring a case under § 1404(a); it involved a contempt ......
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