Minnesota Mining and Manufacturing Company v. Platt

• Decision Date: 20 April 1965
• Docket Number: No. 14725.,14725.
• Citation: 345 F.2d 681
• Parties: MINNESOTA MINING AND MANUFACTURING COMPANY, a Delaware corporation, Petitioner, v. Hon. Casper PLATT, Chief Judge, United States District Court, Eastern District of Illinois, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

345 F.2d 681 (1965)

MINNESOTA MINING AND MANUFACTURING COMPANY, a Delaware corporation, Petitioner, v. Hon. Casper PLATT, Chief Judge, United States District Court, Eastern District of Illinois, Respondent.

No. 14725.

United States Court of Appeals Seventh Circuit.

April 20, 1965.

John T. Chadwell, Chicago, Ill., Robert Z. Hickman, Danville, Ill., John L. Connolly, St. Paul, Minn., Glenn W. McGee, Chicago, Ill., Chadwell, Keck, Kayser, Ruggles & McLaren, Chicago, Ill., of counsel, for petitioner.

Raymond P. Hernacki, Chicago, Ill., George R. Kucik, Cheverly, Md., William H. Orrick, Jr., Asst. Atty. Gen., Robert

B. Hummel, Attorney, Department of Justice, Washington, D. C., for respondent.

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

We now consider a second petition for mandamus filed in this court by Minnesota Mining and Manufacturing Company, a Delaware corporation, for the issuance of a writ of mandamus directed to Chief Judge Casper Platt of the United States District Court for the Eastern District of Illinois, respondent, ordering him to vacate his order of June 30, 1964 which again denied petitioner's motion to transfer the criminal action pending before him entitled United States v. Minnesota Mining and Manufacturing Company, No. 61-73-D, and ordering him to transfer said cause to the district court for the District of Minnesota, or, in the alternative, directing him either to comply with the mandate of this court or to reconsider the motion in the light of proper criteria of the "interest of justice" under Criminal Rule 21(b).¹

Following a review of our prior decision, 314 F.2d 369 (1963), the Supreme Court, 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), noted that the government had not challenged our striking of a finding by the district court that it "would be more difficult to get a fair and impartial jury in the Minnesota District than in the Eastern District of Illinois." The Supreme Court noted that Judge Platt represented in his answer that this issue "was but one of a number of factors". It added, at 245, 84 S.Ct. at 772, that it was our function "to determine the appropriate criteria and then leave their application to the trial judge on remand," and that extraordinary writs are "`to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)." (Italics supplied for emphasis.)

The court said that the fact that Minnesota is the main office of petitioner may be considered with reference to such factors as the convenience of records, officers, personnel and counsel. Therefore, it becomes important that we ascertain whether on remand, the district court gave consideration to such factors and whether, in so doing, it exercised its authority lawfully or abused it. In so doing, we make no findings of facts and make no factual reference except where there is substantial evidence of some fact material to the performance of our functions and the purpose of a writ of mandamus.

The original record, which essentially remained unchanged at the remand hearing, showed and now shows no witnesses on the merits are in the Eastern District of Illinois, no connection (except statutory venue) between that district and the issues created by the indictment, and no significant saving in cost or any other elimination of hardship or augmentation of convenience that could result to anyone from trying the case in Danville. The record as now supplemented shows that of 99 potential government witnesses, none of them lives in the Eastern District of Illinois. Current train and plane schedules again demonstrate the vastly superior accessibility, and therefore convenience, of the Twin Cities of Minnesota, as compared to Danville, for all witnesses. Docket conditions in both districts continue to be current, with the Eastern District of Illinois having a larger average case load per judgeship than does the Minnesota district.²

A more complete recital of the foregoing and other relevant facts is appended in footnote.³

Neither at the original hearing in the district court, nor upon remand, did the government offer any evidence to refute the foregoing facts. Government counsel took the position that the disruption of business, the inconvenience that would accrue to petitioner through a trial at Danville, and its expense should not be considered by the court because of the size of petitioner. The government actually filed a brief in the district court arguing that respondent should "consider the size of defendant * * * in deciding the motion to transfer". In its brief to the district court the government asserted:

"Since the defendant has created the issue concerning the impact of the additional expense of trial in Danville, and since this Court accepted said issue, and the Supreme Court has also accepted it for purposes of this case, it is rather late in the day for this defendant to now claim that your Honor must disregard its size and its income and pretend that this defendant is in the same position as an individual defendant. * * *"

The government also submitted that the court

"* * * should consider the great size and financial strength of defendant Minnesota Mining and Manufacturing Company in evaluating the impact of any added expense resulting from trial in Danville."

We find no basis for adding the size of petitioner to the criteria which were clearly approved by the Supreme Court when it remanded this case. We recognize that there are cases holding that financial weakness of a defendant in a case brought in a jurisdiction other than its home location justifies a transfer to the home district, as admitted by government counsel herein. However, we cannot agree that it is conversely true (as government counsel successfully argued before Judge Platt) that the financial strength of a defendant in such a case is a reason for rejecting its argument that proof of substantial added expense calls for transfer.

The burden of the government's argument is that petitioner is a "giant corporation" and, regardless of how a trial on the merits might end following a large expenditure by petitioner in its defense, it must still foot the bill.⁴ Thus, even if petitioner should win a verdict and a judgment on a trial at Danville, it would be penalized the additional costs (assumed by the government to be $100,000), most of which it would have no right to recover. This strange outcome would be justified by government counsel solely upon the theory that the "situation is different".

On remand, Judge Platt's treatment of this situation was limited to the expression of an equivocal opinion that "interruption of the business and expense of defendant have been overemphasized". This language indicates something less than a fair consideration of salient parts of petitioner's case on remand. We feel, however, that these were important criteria and it was the judge's duty to consider them. He could not ignore or insufficiently weigh or consider them even if he thought they were over-emphasized.

We feel it proper to add that, in the consideration of this case, the element of size, if permissible as applied to petitioner, should also have been considered as to its adversary, the government, with its well-known overwhelmingly superior size. We really have here a David and Goliath contest. "David" maintains that it has proved by proper criteria, that, in the interest of justice, the case should be transferred to Minnesota. "Goliath" seeks to prevent that transfer. We believe that the size and power of neither of the parties is relevant in this matter.

As to the docket conditions in Minnesota and the Eastern District of Illinois, on remand the district court did not disagree in any way with our statement in footnote 3 of our prior opinion (314 F.2d 369, 375) that "* * * a division of the cases pending in the Eastern District of Illinois between the two judges of that district would reveal a considerable case load for both of them." Instead he considered a certificate by the clerk of his court which however was limited to cases pending in Danville to the exclusion of those pending in other parts of the same district. Of significance in this case is the condition of the docket in the Eastern District of Illinois as compared with the District of Minnesota — not the condition of the docket in only a part of the Eastern District of Illinois, i. e. Danville, as compared with the District of Minnesota. Judge Platt refused to recognize this condition.

Judge Platt, in his answer to the rule to show cause filed herein, has submitted a brief the last argument of which sums up his position "that the appropriate disposition of the matter was charted by Judge Finnegan * * * in dissent" in Chicago R. I. & P. R. R. v. Igoe (1955), 220 F.2d 299, in which the Supreme Court denied certiorari, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735. Obviously the dissenting opinion was not correct.

We now hold that Judge Platt, on remand, instead of exercising his prescribed jurisdiction and authority, pursuant to the criteria determined by this court and authorized by the Supreme Court, abused his discretion as pointed out in this opinion and that therefore he did not comply with the mandate of this court upon remand. He did not reconsider the motion of petitioner to transfer in the light of proper criteria and the interest of justice under federal criminal rule 21(b).

In his brief before us, respondent squarely takes the position that mandamus cannot be used to control his decision on a rule 21(b) motion, as asked by petitioner, although he assumes the validity of the extraordinary writ of mandamus as an appropriate means of reviewing his decision on a transfer motion under said rule. He argues that he had discretion in...