Technitrol, Inc. v. McManus

• Decision Date: 24 December 1968
• Docket Number: No. 19447.,19447.
• Citation: 405 F.2d 84
• Parties: TECHNITROL, INC., Petitioner, v. Honorable Edward J. McMANUS, United States District Judge for the Northern District of Iowa, Cedar Rapids Division, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

405 F.2d 84 (1968)

TECHNITROL, INC., Petitioner, v. Honorable Edward J. McMANUS, United States District Judge for the Northern District of Iowa, Cedar Rapids Division, Respondent.

No. 19447.

United States Court of Appeals Eighth Circuit.

December 24, 1968.

S. C. Yuter, of Yuter & Spiecens, New York City, for petitioner; James C. Nemmers, of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, Iowa, Laurence B. Dodds, Great Neck, N. Y., and George M. Hopkins, of Newton, Hopkins & Ormsby, Atlanta, Ga., were on the brief with S. C. Yuter, New York City.

Morris Relson, New York City, for respondent (Collins Radio Co.) and filed brief and reply brief.

Before VAN OOSTERHOUT, Chief Judge, and MEHAFFY and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

On September 17, 1968, Technitrol, Inc. (Technitrol), petitioned this court pursuant to 28 U.S.C.A. § 1651 and Rule 21 of the Federal Rules of Appellate Procedure for a writ of mandamus directed to the Honorable Edward J. McManus, District Judge for the Northern District of Iowa, requiring Judge McManus to vacate an order he entered on August 14, 1968, in Technitrol, Inc. v. Collins Radio Company (Collins), denying a motion by Technitrol to remand or retransfer the case to the Northern District of Georgia, Atlanta Division.

This court by order dated September 20, 1968, directed respondents to answer and fixed time for briefing. Briefs have been filed and the mandamus case has been orally argued and submitted to us.¹

The case involved in this proceeding is a complex patent infringement suit commenced by Technitrol against Collins on August 25, 1967, in the United States District Court at Atlanta. Technitrol seeks relief in the form of an injunction and damages. Collins on October 26, 1967, filed a motion in the Georgia Court to transfer the case to the Northern District of Iowa, Cedar Rapids Division, based on convenience and justice under 28 U.S.C.A. § 1404(a), and upon failure to comply with venue requirements under 28 U.S.C.A. § 1406.

The transfer issue was heard and determined in Georgia by Judge Smith after full consideration of extensive affidavits and briefs filed by the opposing parties. A comprehensive order directing the transfer on the ground of convenience and justice was filed on February 1, 1968. In such order, Judge Smith compliments counsel on their thorough and energetic efforts in presenting the questions raised by the motion. He lists the factors to be considered in a § 1404(a) motion, as set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L. Ed. 1055, and other cases, and sets forth his findings with respect to such factors, including a finding reading:

"Accordingly, the strong ties to Cedar Rapids when compared with the tenuous connection with this forum both as to the element of convenience of the parties and the separate element of the interests of justice support the transfer to the Cedar Rapids forum. * * *"

Judge Smith in his order states that the issue of venue in Georgia is hotly contested and that litigation of the venue issue might result in a significant delay and added expense, and that the better course is to remit the parties to a district where there is no doubt as to venue. Judge Smith makes it clear that he is not resting his ruling on the venue ground by stating: "The Court does not deem it necessary to rest this transfer upon that ground and this order should not be construed as a ruling for or against the contention as to improper venue."

Judge Smith further points out that there is a likelihood of a speedier trial in Iowa as the weighted case load there is substantially lower than that in Georgia.

Pursuant to such order, the files in the case were immediately transferred to the Iowa court and received there on February 1, 1968.

No attempt was made by Technitrol to obtain reconsideration of the transfer order, to take an interlocutory appeal from the Georgia order under 28 U.S.C.A. § 1292(b),² nor was mandamus relief sought from the Fifth Circuit.

Technitrol states it had no opportunity to apply to the Georgia court for reconsideration or to the Fifth Circuit for relief because jurisdiction was lost by the immediate transfer of the case out of the circuit. It would appear to be the better procedure to hold up the transfer for a reasonable time pending possible petition for reconsideration or review. We believe that it is highly probable that if Judge Smith had been timely advised of Technitrol's desire to appeal or seek mandamus, he could and would have requested and received a return of the papers from Iowa with an appropriate order of retransfer if such is required. See and compare Swindell-Dressler Corp. v. Dumbauld, 3 Cir., 308 F.2d 267; Panhandle Eastern Pipe Line Co. v. Federal Power Comm., 8 Cir., 343 F.2d 905, 908-909.

In I-T-E Circuit Breaker Co. v. Becker, 8 Cir., 343 F.2d 361, we reviewed by mandamus the validity of an order of transfer in a situation where the case had already been transferred to and accepted by the Illinois Federal District Court.

The Seventh and Fourth Circuits have held that they have no jurisdiction to consider the propriety of an order of transfer made by a district court of another circuit. Purex Corp. v. St. Louis Nat. Stockyards Co., 7 Cir., 374 F.2d 998, 1000; Preston Corp. v. Raese, 4 Cir., 335 F.2d 827, 828. The Second Circuit has held that the writ must be reviewed if at all by the circuit to which the case is transferred. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866, 869-870.

While we have grave doubt whether we have any right to review the validity of a transfer order made by a federal District Court outside the circuit, we deem it unnecessary to resolve such question here. No effort was made to invoke our jurisdiction prior to the September 17, 1968, petition for mandamus. This was more than seven months after the Georgia transfer order. Such an unreasonable delay standing alone is a sufficient basis for our refusal to exercise our discretionary power to entertain the writ so far as it pertains to relief from the Georgia transfer order.

The issue remains whether Technitrol is entitled to the writ of mandamus prayed for which would direct Judge McManus to vacate his order of August 14, 1968, denying Technitrol's motion to remand or retransfer the case to Georgia and whether Judge McManus should be ordered to transfer the case to Georgia.

We shall review the governing law with respect to the circumstances under which a writ of mandamus may be granted. In McGraw-Edison Co. v. Van Pelt, 8 Cir., 350 F.2d 361, this court en banc held that a court of appeals possesses the power to issue a writ of mandamus under extraordinary circumstances to correct a § 1404(a) transfer order. We emphasized, however, that we were not opening the door to any loose issuance of the writ and that the traditional restraint must be exercised by an appellate court in relation to the issuance of any writ:

"The only relief which a party will be permitted to seek in such a situation is against manifest judicial arbitrariness. Unless it is made clearly to appear that the facts and circumstances are without any basis for a judgment of discretion, the appellate court will not proceed further to examine the district court\'s action in the situation. If the facts and circumstances are rationally capable of providing reasons for what the district court has done, its judgment based on those reasons will not be reviewed. Chemetron Corporation v. Perry, 295 F.2d 703, 704 (7 Cir. 1961). Where basis exists for judgment of discretion, the appellate court may not substitute its own discretion for that of the district court." 350 F. 2d 361, 363.

In that case, we held that the record supplied a reasonable basis for the exercise of discretion by the trial court and we denied the petition.

In Evans Elec. Const. Co. v. McManus, 8 Cir., 338 F.2d 952, 953-954, we held:

"Primarily, the `use of the writ of mandamus in aid of appellate jurisdiction both at common law and in the federal courts has been 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 Ass\'n, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L.Ed. 1185 (1943).

"Resort to the writ beyond this use should be permitted only in `extraordinary causes\' — generally speaking, `only where appeal is a clearly inadequate remedy.\' Ex parte Fahey, 332 U.S. 258, 256-260, 67 S.Ct. 1558, 1559, 91 L. Ed. 2041, * * *."

In A. Olinick & Sons v. Dempster Bros., Inc., 2 Cir., 365 F.2d 439, 443-444, the court cites many cases from various circuits dealing with the availability of mandamus, and then states: "What emerges from a review of the cases is a strong sense of appellate reluctance to interfere with the District Court's exercise of its discretion under 28 U.S.C. § 1404(a)." The court goes on to hold that an appellate court should not review the record de novo; that mandamus does not lie to review mere error but only to redress a clear abuse of discretion; that the Second Circuit has never overturned a transfer order for abuse of discretion and that other courts have done so infrequently and then only in the most clear-cut cases.

In Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305, the government obtained a writ of mandamus from the Seventh Circuit vacating an order of the district judge requiring the government to provide defendant with certain information. The Court observes that the parties devoted substantial argument to the propriety of the district judge's order. The Court finds that it is unnecessary to reach such question, stating among other things:

"The peremptory writ of mandamus has traditionally been used in the federal courts only `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

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