United States v. 23 GROSS JARS, ETC.
| Decision Date | 25 October 1949 |
| Docket Number | Civ. No. 26659. |
| Citation | 86 F. Supp. 824 |
| Parties | UNITED STATES v. 23 GROSS JARS, MORE OR LESS, OF ENCA CREAM et al. |
| Court | U.S. District Court — Northern District of Ohio |
Don C. Miller, District Attorney, Cleveland, Ohio, for plaintiff.
Edwin P. Griffiths, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Gottfried, Ginsberg & Guren, Cleveland, Ohio, for defendants.
This is a libel brought under favor of 21 U.S.C.A. § 334, Federal Food, and Drug, and Cosmetic Act, for the condemnation of the product and advertising matter in the caption of this memorandum. Originally the action was commenced in the Western District of Pennsylvania. Morton Products, Inc., whose principal place of business is in this division, intervened as claimant of the goods and petitioned that Court to remove this action to this district. The Court allowed the motion and the action was transferred here. The Government objected at all times to the removal and now has filed a motion to remand the action to the court of original jurisdiction.
Apparently this action was removed to this district under favor of Section 1404, Title 28 U.S.C.A. If that section applies, the action was properly transferred and the Government's motion must be overruled.
The pertinent part of 1404(a) is as follows: "* * * A district court may transfer any civil action to my other district where it might have been brought."
It is true that under Supreme Court decisions this action would be covered by the phrase "any civil action", but, by the clear and unambiguous words of the statute, such civil action cannot be transferred to a district where the action could not originally have been started.
This libel having been brought under favor of 21 U.S.C.A. § 334, the articles may be condemned "in any district court of the United States within the jurisdiction of which the article is found". Since the articles were found in the Western District of Pennsylvania this action only could be commenced in that district. It could not, under Section 334, have been brought in this district. Since this is so and since Section 1404 (a) may only be used to transfer actions to districts where they could have been brought, it follows that section 1404(a) could not be used to transfer this action here.
It should also be noted that Section 1404(b) provides for transfer of in rem actions. However, the revisers' notes show that this section, 1404(b), was meant to apply only to removal of causes between divisions within districts and not to removal of actions between districts. Section 1404(b), therefore, can have no application to this action.
Since Section 1404(a) does not apply, the special venue section of 21 U.S.C. A. does. This section allows removal in this type action to district courts "of reasonable proximity to the claimant's principal place of business." This phrase has been interpreted to...
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Clinton Foods v. United States
...it is clear that it may not be transferred from that district under the provisions of 28 U.S.C.A. § 1404(a). United States v. 23 Gross Jars etc. Enca Cream, D.C., 86 F.Supp. 824; United States v. 11 Cases etc. Ido-Pheno-Chon, D.C., 94 F.Supp. 925; United States v. 91 Packages etc. Nutrilite......
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United States v. 353 CASES, ETC.
...Cir., 188 F. 2d 715; United States v. Reid, D.C.E.D. Ark., 104 F.Supp. 260; United States v. 23 Gross Jars, More or Less, of Enca Cream, D.C.N.D.Ohio, 86 F.Supp. 824. The statute, 21 U.S.C.A. § 334, "(a) Any article of food, drug, device, or cosmetic that is adulterated or misbranded when i......
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United States v. Reid
...Co. v. Steckler, 7 Cir., 188 F.2d 715; Wilson v. Kansas City Southern R. Co., supra; U. S. v. 23 Gross Jars, More or Less, of Enca Cream, D.C.Ohio, 86 F.Supp. 824. While we are convinced that this case should be remanded, we are of the opinion that in the interest of orderly procedure there......
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Fettig Canning Co. v. Steckler, 10324.
...the same view of the instant question as did the respondent. A well reasoned opinion with which we agree is that of United States v. 23 Gross Jars, etc., 86 F.Supp. 824, 825, in which the court stated: "This libel having been brought under favor of 21 U.S.C. A. § 334, the articles may be co......