United States v. 74 CASES, ETC., 10373.

• Decision Date: 29 June 1944
• Docket Number: No. 10373.,10373.
• Citation: 55 F. Supp. 745
• Parties: UNITED STATES v. 74 CASES, EACH CONTAINING 48 CANS OF C. C. BRAND OYSTERS.
• Court: U.S. District Court — District of South Carolina

55 F. Supp. 745

UNITED STATES

v.

74 CASES, EACH CONTAINING 48 CANS OF C. C. BRAND OYSTERS.

No. 10373.

District Court, W. D. South Carolina.

June 29, 1944.

Oscar H. Doyle, U. S. Atty., of Greenville, S. C., for the United States.

Mann & Arnold, of Greenville, S. C., for C C Co., intervening claimant.

WYCHE, District Judge.

The above libel proceeding is based upon the charge of adulteration of oysters, and is now before me upon the motion of C C Company, intervening claimant, to transfer the cause from this district to the Southern District of Mississippi, where claimant's principal place of business is located.

Section 304(a) and (b) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. A. § 334(a) and (b), sets forth the authority conferred upon district courts to proceed upon or to transfer seizure actions from one district to another.¹

The pertinent portion of section 304(a) deals exclusively with the removal of libels for condemnation based upon the charge of misbranding. It authorizes removal, with two specified types of exceptions, of a single libel for condemnation where the charge is misbranding.²

The pertinent portion of section 304(b) deals exclusively with the consolidation and removal of multiple libels pending in two or more jurisdictions and involving the same claimant and the same issues of adulteration or misbranding.³

It will be seen, therefore, that the Act has expressly conferred upon the district courts the authority to consolidate and/or transfer three types of libel proceedings, (1) a single libel based upon a misbranding charge (with some exceptions); (2) multiple libels based upon a misbranding charge; (3) multiple libels based upon an adulteration charge. The Act is silent with respect to the authority of a district court to transfer a single libel based upon an adulteration charge, and such is the nature of the libel involved in this motion.

Section 304(b) of the Act requires that the procedure in cases arising under this section "conform, as nearly as may be, to the procedure in admiralty." In Re Thames Towboat Co., D.C.D.Conn., 1927, 21 F.2d 573, a motion was made by one of the parties to remove an admiralty case from the District of Connecticut to the Eastern District of New York. The Court denied this motion and said, "* * * there are no such proceedings in admiralty as motions * * * to remove from one district to another."

In the absence of express statutory authority a district court does not have the authority to transfer a case to another district court for trial. See, Billings Utility Co. v. Federal Reserve Bank, D.C. D.Montana, 1941, 40 F.Supp. 309; Spies v. Chicago E. E. I. R. Co., C.C.S.D.N.Y., 1887, 32 F. 713; In re Associated Gas & Electric Co., 2 Cir., 1936, 83 F.2d 734. United States District Courts have no jurisdiction beyond that granted by Congress. Applegate v. Applegate, D.C., 39 F.Supp. 887.

In the Federal Food, Drug, and Cosmetic Act Congress has empowered the district courts to remove designated types of libel proceedings to other districts for trial. The present libel proceeding is not among those therein designated as removable. I know of no other statute that authorizes its transfer to another district for trial, and none has been called to my attention.

For the foregoing reasons, the motion to transfer the above cause is denied.

1 "(a) Any article of food, drug, device, or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce, or which may not, under the provisions of section 344 or 355, be introduced into 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: Provided, however, 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 proceeding 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, except that such limitations shall not apply (1) when such misbranding has been the basis of a prior judgment in favor of the United States, in a criminal, injunction, or libel for condemnation proceeding under this chapter, or (2) when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of the Agency that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent,...