United States v. 353 CASES, ETC.

• Decision Date: 11 December 1953
• Docket Number: No. 565.,565.
• Citation: 117 F. Supp. 110
• Parties: UNITED STATES v. 353 CASES, MORE OR LESS, MOUNTAIN VALLEY MINERAL WATER.
• Court: U.S. District Court — Western District of Arkansas

117 F. Supp. 110

UNITED STATES

v.

353 CASES, MORE OR LESS, MOUNTAIN VALLEY MINERAL WATER.

No. 565.

United States District Court W. D. Arkansas, Hot Springs Division.

December 11, 1953.

Charles W. Atkinson, U. S. Atty., Ft. Smith, Ark., for plaintiff.

Wright, Harrison, Lindsey & Upton, Little Rock, Ark., for defendant.

JOHN E. MILLER, District Judge.

This proceeding was filed in the United States District Court for the Western District of Tennessee on August 19, 1953, for seizure and condemnation of certain articles under and in accordance with the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. The articles sought to be seized and condemned were situated in the City of Memphis, within the territorial jurisdiction of the Federal Court for the Western District of Tennessee and were alleged to be misbranded. The libelant, inter alia, prayed "that all persons having any interest therein be cited to appear herein and answer the aforesaid premises; that this court decree the condemnation of the aforesaid article and grant libelant the costs of this proceeding against the claimant of the aforesaid article; that the aforesaid article be disposed of as this court may direct pursuant to the provisions of said Act; and that libelant have such other and further relief as the case may require."

After due and timely notice of the filing of the libel, the Mountain Valley Sales Company, a corporation organized and existing under the laws of the State of Arkansas and having its principal office in the City of Hot Springs, County of Garland, State of Arkansas, filed its claim in which it alleged that it "is the true and bona fide owner of and herein makes claim for the aforesaid 353 cases, more or less, each containing 6½-gallon bottles, and the 81 5-gallon carboys, more or less, of an article labeled in part `Mountain Valley Mineral Water', which are the subject matter of the libel filed herein on August 19, 1953."

On the same date, the claimant filed its motion for removal and transfer and renewed its allegation that it is an Arkansas corporation, with its principal place of business in the City of Hot Springs in Garland County, Arkansas, "which is in the Western District of Arkansas."

The motion was based upon Section 304(a) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 334(a). The prayer of the motion is that the court "immediately remove and transfer this case either to the Eastern District of Arkansas or to some other district which is within reasonable proximity of claimant's principal place of business and is contiguous to the district in which said place of business is located."

The motion was heard on October 16 and the court, in granting the motion, said:

"The law provides that the court shall, by order, unless good cause to the contrary shown, specify a district of reasonable proximity to the claimant's principal place of business, to which district the case shall be removed for trial."

The formal order of removal recites that the court "does hereby find that the claimant is an Arkansas corporation having its principal place of business in Hot Springs, Arkansas, which is located within the Western Judicial District of Arkansas, and that a judicial district of reasonable proximity to the claimant's principal place of business is the Eastern Judicial District of Arkansas, Western Division, at Little Rock, Arkansas; and the court further finds that the motion of claimant is well taken and should be granted, no good cause to the contrary having been shown, under the direction and authority of Section 304(a) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 334 (a)."

In accordance with the order, the papers and record were transmitted to the United States District Court for the Eastern District of Arkansas, Western Division, at Little Rock, Arkansas, and were filed in that court on October 20, 1953. On November 2, 1953, Honorable James T. Gooch, United States Attorney for the Eastern District of Arkansas, as attorney for libelant, and Messrs. Wright, Harrison, Lindsey & Upton, attorneys for claimant, filed a stipulation in which they stipulated, "that this cause be transferred forthwith to the United States District Court, Western District of Arkansas, Hot Springs Division." On the same date, the court entered an order transferring the case in accordance with the stipulation, and the papers and record were filed herein on November 10, 1953.

Subsequent to the transfer of the case by the court for the Eastern District of Arkansas, Western Division, upon the stipulation of the parties, the record was examined and this court decided that it was without jurisdiction of the subject matter and, on its own motion, entered an order on November 23, 1953, remanding the case to the United States District Court for the Eastern District of Arkansas, Western Division. It was the duty of the court to remand the case to the Eastern District of Arkansas, Western Division, if convinced that jurisdiction was lacking. 2 Moore's Federal Practice, Second Edition, Page 2330; Rule 12(h), Federal Rules of Civil Procedure, 28 U.S.C.A.; Hackner v. Guaranty Trust Co. of New York, 2 Cir., 117 F.2d 95-97; Clark, Director, v. Paul Gray, Inc., 306 U.S. 583-588, 59 S.Ct. 744, 83 L.Ed. 1001; Louisville & N. R. Co. v. Mottley, 211 U.S. 149-152, 29 S.Ct. 42, 53 L.Ed. 126; Millslagle v. Olson, 8 Cir., 130 F.2d 212.

Following the entry of the order remanding the case, the claimant, Mountain Valley Sales Company, filed a motion to vacate and set aside the order on the ground that the order is contrary to law in "that this court properly acquired jurisdiction of this case under Title 21 U.S.C.A. § 334(a), pursuant to the stipulation between the parties executed November 2, 1953, filed in the United States District Court, Eastern District of Arkansas, Western Division, and the order of that court entered November 2, 1953, transferring this cause from said district to this court in accordance with the stipulation and under the authority of said statute."

Thus, the question before the court is whether the court for the Eastern District of Arkansas could, by the order entered upon the stipulation of the parties, transfer the case to this court, after the case had been properly transferred upon motion of claimant from the Western District of Tennessee, the court of original jurisdiction, to the Eastern District of Arkansas, and vest in this court by such order jurisdiction of the subject matter under 21 U.S.C.A. § 334 (a).

A federal court cannot acquire jurisdiction of the subject matter by consent or waiver. United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 82 L.Ed. 764.

In Mulligan v. Federal Land Bank of Omaha, 8 Cir., 129 F.2d 438, at page 440 the court said:

"The Supreme Court of the United States has held that lack of jurisdiction in a federal court over the subject matter of the litigation cannot be waived by the parties; and that when the matter is brought to its attention, the district court should decline sua sponte to proceed in the cause. It is further held that `if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it'. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263; McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 184, 56 S.Ct. 780, 80 L.Ed. 1135."

The learned attorneys for the claimant, in the motion to set aside the order remanding the case, concede that 28 U.S.C.A. § 1404(a) does not apply. It is clear that the section does not apply since the original action could not have been brought in this district because the articles sought to be condemned were not then and are not now within the territorial jurisdiction of this court. Clinton Foods, Inc. v. United States, 4 Cir., 188 F.2d 289; Fettig Canning Co. v. Steckler, 7 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, provides:

"(a) Any article of food, drug, device, or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce or while held for sale * * * after shipment in interstate commerce, * * * shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found". (Emphasis added.)

The remainder of 21 U.S.C.A. § 334 (a) prescribes the procedure to be followed in seeking a transfer of the case from the court of original jurisdiction and designates the district to which a case may be transferred by the court of original jurisdiction. The statute provides:

"That no libel for condemnation shall be instituted under this chapter, for any alleged misbranding if there is pending in any court a libel for condemnation proceedings under this chapter based upon the same alleged misbranding, and not more than one such proceeding shall be instituted if no such proceeding is so pending, * * *. 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 shown, specify a district of reasonable proximity to the claimant's principal place of business, to which the case shall be removed for trial." (Emphasis added.)

The record...