Philip Carey Manufacturing Company v. Taylor

• Decision Date: 31 January 1961
• Docket Number: No. 14396.,14396.
• Citation: 286 F.2d 782
• Parties: PHILIP CAREY MANUFACTURING COMPANY et al., Petitioners, v. Honorable Robert L. TAYLOR, Judge of the United States District Court, Eastern District of Tennessee, Northern Division, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

286 F.2d 782 (1961)

PHILIP CAREY MANUFACTURING COMPANY et al., Petitioners, v. Honorable Robert L. TAYLOR, Judge of the United States District Court, Eastern District of Tennessee, Northern Division, Respondent.

No. 14396.

United States Court of Appeals Sixth Circuit.

January 31, 1961.

Taft, Stettinius & Hollister, Cincinnati, Ohio, Lederer, Livingston, Kahn & Adsit, Chicago, Ill., Austin, Burns, Appell & Smith, New York City, John M. Gaston, Jr., New York City, for petitioners.

Peyton Ford, Washington, D. C., for respondent.

Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.

CECIL, Circuit Judge.

The Philip Carey Manufacturing Company, Lloyd A. Fry Roofing Company, The Ruberoid Company and Allied Chemical Corporation being four of the defendants in a private anti-trust suit, viz., Leopard Roofing Company, Inc. v. Asphalt Roofing Industry Bureau et al., filed in the United States District Court for the Eastern District of Tennessee, petition this Court for writs of mandamus and prohibition.

The petitioners seek writs directing Judge Taylor, District Judge of the District Court for the Eastern District of Tennessee, to vacate an order entered by him on October 6, 1960, transferring the civil anti-trust action, above mentioned, to the District Court for the Southern District of Mississippi and to prohibit such transfer.

Leopard Roofing Company, Inc. commenced its action in the District Court in Tennessee by filing a complaint on February 4, 1960. Under order of the court an amended complaint was filed March 21, 1960. In this amended complaint fourteen corporations, one trade association organized under the laws of New York and 73 individuals were named as defendants.

The Asphalt Roofing Industry Bureau, the defendant trade association, moved for dismissal for want of jurisdiction on the ground that it is an unincorporated association, under the laws of New York, and did not do business in Tennessee. The court set this motion for hearing on October 12th. On October 4th the plaintiff filed a notice of dismissal of the action as to this defendant and G. S. Bryant, its executive secretary. Prior to filing the mandamus petition, two of the corporate defendants, Johns-Manville Corporation and The Lehon Company were dismissed from the action. On October 6th, the district judge ordered a transfer to the Southern District of Mississippi, under Section 1404(a) of Title 28 U.S.C.

The suggestion of transfer was first made by Judge Taylor in his order of May 26th, assigning the case for a pretrial conference on August 11, 1960. On August 7th, four days before the date for the conference, counsel for plaintiff moved for a transfer to the Southern District of Mississippi. Objections to transfer were made by some of the defendants and the matter was heard by the court on affidavits of the parties and oral arguments of counsel.

At the time the petition was filed in this Court there were twelve corporate and 72 individual defendants. The individuals were officers and employees of the corporations. None of the individuals was served with summons in the Eastern District of Tennessee and it is conceded that none could be legally served there unless he or they voluntarily came into the district. Subsequent to the filing of the petition in this Court, the plaintiff gave notice of the voluntary dismissal of the action as to all of the individual defendants.

In this posture of the case, is it subject to transfer to another district under Section 1404(a), Title 28 U.S.C.? That section provides "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

The question is properly presented in this Court by petition for writs of mandamus and prohibition. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254; La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed. 2d 290; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Johnson & Johnson v. Picard, 6 Cir., 282 F.2d 386.

District Judge Taylor found, in an opinion filed October 6th "It is further of the opinion that, in the interest of justice, plaintiff's motion to transfer should be sustained and the case transferred from Knoxville to Meridian, Mississippi." This is a matter that is largely discretionary with the District Judge. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789; Nicol v. Koscinski, 6 Cir., 188 F.2d 537; L. C. Fuller, Jr., Lumber Co., Inc. v. Anglin, 6 Cir., 244 F.2d 72, certiorari denied 355 U.S. 821, 78 S.Ct. 28, 2 L.Ed.2d 37. We find no abuse of discretion on the part of Judge Taylor in making the transfer. The right to a transfer under the statute is available to a plaintiff as well as a defendant. A plaintiff is not bound by his choice of forums, if he later discovers that there are good reasons for transfer. A judge in his discretion may take this into consideration in determining if a transfer should be granted. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; Shapiro v. Bonanza Hotel Co., 9 Cir., 185 F.2d 777; 1 Moore's Federal Practice 1766, Sec. 145(4.-2).

The sole question involved here is whether this action could have been brought in the first instance in the Mississippi district.

It is conceded that the corporate defendants were properly sued in the Tennessee district and that the action could have properly been brought against them in the Southern District of Mississippi. Sec. 22, Title 15 U.S.C.A.

Because of a number of conflicting opinions in the various circuits on the interpretation of the statute now under consideration, the Supreme Court granted certiorari in the Blaski case, supra. The purpose and meaning of the statute was clarified to a considerable extent. Specifically it was there held that a defendant could not confer jurisdiction on a transferee court by consent. The transferee court must have been an alternative forum wherein the action could have been brought in the first instance.

Notwithstanding the clear statements of the Court in the opinion in the Blaski case, in deciding the issue before it, it does not reach the problem presented by the seventy-two individual defendants in the case at bar. We find no authority directly in point on the question at issue.

Judge Taylor, in his opinion, said: "Since the individual defendants are not before this Court, the question whether they could have been sued in Mississippi is no longer pertinent to the consideration of the motion to transfer." The petitioners claim that because the action could not have been brought against the individuals in Mississippi, in the first instance, it cannot be transferred. It is conceded that none of the individual defendants could have been sued in the transferee court. They were not residents of either the transferor or transferee state. The record indicates that they were apparently made defendants under the mistaken belief that they could be served, as corporations are under Section 22, Title 15 U.S.C.A.

In Ex parte Collett, 337 U.S. 55, 60,...