United States v. 353 CASES, ETC.

• Decision Date: 16 June 1955
• Docket Number: Civ. No. 2682.
• Citation: 135 F. Supp. 333
• Parties: UNITED STATES of America, Libelant, v. 353 CASES, MORE OR LESS, CONTAINING MOUNTAIN VALLEY MINERAL WATER, et al., Mountain Valley Sales Company, a corporation, Claimant.
• Court: U.S. District Court — Eastern District of Arkansas

135 F. Supp. 333

UNITED STATES of America, Libelant, v. 353 CASES, MORE OR LESS, CONTAINING MOUNTAIN VALLEY MINERAL WATER, et al., Mountain Valley Sales Company, a corporation, Claimant.

Civ. No. 2682.

United States District Court E. D. Arkansas, W. D.

June 16, 1955.

Osro Cobb, U. S. Atty., Little Rock, Ark., for plaintiff.

Robert F. Schlafly, St. Louis, Mo., Edward L. Wright, Little Rock, Ark., J. F. Schlafly, Jr., Alton, Ill., for defendant.

TRIMBLE, Chief Judge.

On August 19, 1953, the United States filed libel of information in the Western District of Tennessee against certain pamphlets and cases of half-gallon bottles of water, praying seizure and condemnation in accordance with the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. It was alleged that said bottled water was misbranded within the meaning of said Act and that it was in the unlawful possession of Mountain Valley Distributors (Mountain Valley Water Company).

An attachment was issued and duly served the day the petition was filed. The return of the attachment shows the seizure of a number of cases of bottles of "Mountain Valley Mineral Water", and various pamphlets at 2089 Madison Avenue, Memphis, Tennessee.

On August 26, 1953, the Clerk of the United States District Court caused to be published a notice of the seizure of said articles.

On September 8, 1953, a motion for removal and transfer was filed in the United States District Court for the Western District of Tennessee by the claimant, Mountain Valley Sales Company.

On October 19, 1953, the cause was transferred to the Eastern District of Arkansas, Western Division of the United States District Court.

On November 2, 1953, the United States Attorney, James T. Gooch, for libelant, and Edward L. Wright of the firm of Wright, Harrison, Lindsey and Upton, for claimant, signed and filed a stipulation that the cause might be transferred from this court to the Hot Springs Division of the Western District of Arkansas. On the same date the court entered an order so transferring the cause and on November 19, 1953, the judge of the District Court for the Western District of Arkansas, Hot Springs Division, made an order allowing the libelant until December 5, 1953, in which to answer or otherwise plead.

On November 23, 1953, the United States District Court, presided over by Judge John E. Miller, of its own motion ordered that this case be remanded to the United States District Court for the Eastern District of Arkansas, Western Division.

On December 2, 1953, claimant filed a motion in the Hot Springs Division of the United States District Court to set aside the order made by Judge Miller on November 23rd remanding the case and that motion was overruled by Judge Miller on December 11, 1953. 117 F. Supp. 110.

Pursuant to the order of the Hot Springs Division of the United States District Court of the Western District of Arkansas, the Clerk of that court transferred all files to this court, and on December 21, 1953, claimant filed a motion to dismiss the libel and release the articles and pamphlets.

On December 21, 1953, the claimant filed a motion to dismiss or retransfer this cause and for grounds set up that this court is without jurisdiction because the action was properly transferred from this court to the Western District of Arkansas, Hot Springs Division, by a valid order entered on November 2, 1953, pursuant to stipulation between the parties made under the authority of Section 304(a) of the Federal Food, Drug and Cosmetic Act.

The motion alleges that the order of the District Court for the Western District of Arkansas, Hot Springs Division, entered on November 23, 1953, remanding this cause to this court is void.

On January 11, 1954, libelant responded to the motion to dismiss or retransfer, setting up that the jurisdiction to try this action is vested exclusively in this court; that Section 304(a) of the Federal Food, Drug and Cosmetic Act provides for only one transfer of an action whether by order of court or by stipulation between the parties and that the transfer of the cause from this court entered on November 2, 1953, was invalid and for that reason the present motion should be denied.

The proper ruling on the motion to dismiss or retransfer depends upon whether or not the order made by this court on November 2, 1953, was valid. If it was valid, this court does not have jurisdiction to proceed further with the case.

It was the view of Judge Miller that when this cause was transferred from the Western District of Tennessee to the Eastern District of Arkansas, the power of the court to transfer was exhausted.

The portion of the statute which controls this matter, 21 U.S.C.A. § 334(a), reads as follows:

"* * * In any case where the number of libel for condemnation proceedings is limited as above provided the proceeding pending or instituted shall, on application of the claimant, seasonably made, be removed for trial to any district agreed upon by stipulation between the parties, or, in case of failure to so stipulate within a reasonable time, the claimant may apply to the court of the district in which the seizure has been made, and such court (after giving the United States attorney for such district reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, specify a district of reasonable proximity to the claimant's principal place of business, to which the case shall be removed for trial."

It will be observed that provision is made for two separate methods of transfer of libel for condemnation proceedings. One of these methods is by stipulation between the parties. The other is by application to the court of the district in which the seizure has been made when there is a failure to stipulate.

Under the first method or means of transfer, the district to which the cause may be transferred is not restricted. That is, upon stipulation between the parties, the cause may be removed for trial to any district agreed upon.

In the second method or means of transfer, there is a restriction. The court, acting upon application for transfer, can transfer the cause to a district of reasonable proximity to the claimant's principal...