United States v. 84 CARTONS, MORE OR LESS, ETC., Civ. No. 35559.

• Decision Date: 01 September 1960
• Docket Number: Civ. No. 35559.
• Citation: 186 F. Supp. 324
• Parties: UNITED STATES of America v. 84 CARTONS, MORE OR LESS, OF AN ARTICLE OF DRUG LABELED IN PART: "FEMICIN A NEW SCIENTIFIC COMPOUND," Etc. Parties in interest: Thayer Laboratories, Inc., et al., Consignor.
• Court: U.S. District Court — Northern District of Ohio

186 F. Supp. 324

UNITED STATES of America v. 84 CARTONS, MORE OR LESS, OF AN ARTICLE OF DRUG LABELED IN PART: "FEMICIN A NEW SCIENTIFIC COMPOUND," Etc Parties in interest: Thayer Laboratories, Inc., et al., Consignor.

Civ. No. 35559.

United States District Court N. D. Ohio, E. D.

September 1, 1960.

George W. Morrison, Asst. U. S. Atty., Cleveland, Ohio, for the United States.

Fred H. Mandel, Cleveland, Ohio, Bernstein & Kleinfeld, Washington, D. C., for claimant.

KALBFLEISCH, District Judge.

This is an action in rem involving the alleged misbranding of an article called "Femicin." The libel alleges that the article was misbranded when introduced into and while in interstate commerce, within the meaning of 21 U.S.C.A. § 352 (a) and 352(f) (1) and (2). The drug was seized in this district under authority of the Food and Drug Act, 21 U.S.C.A. § 301 et seq.

The manufacturer and claimant herein, Thayer Laboratories, has its main offices located in the Southern District of New York in the Borough of Manhattan. Pursuant to 21 U.S.C.A. § 334(a), claimant has filed a motion for an order removing this cause to the Eastern District of New York for trial. The motion is couched in language as follows:

"Pursuant to 21 U.S.C. § 334 (a), claimant, by and through its attorneys, moves the Court for an order removing this case for trial to the United States District Court for the Eastern District of New York, a district of reasonable proximity to the claimant's principal place of business in the Southern District of New York."

The portion of the above statute applicable here provides 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."

The parties have at all times been unable to agree and stipulate as to a place for trial and, accordingly, the claimant filed its motion for removal. The Government opposes removal to the district specified in claimant's motion, suggesting instead that the case be transferred to the United States District Court of New Jersey, at Newark. It is conceded by the parties that under the statute, sans a stipulation, the claimant has no right to removal of the case to the district of its principal place of business. The Government concedes that claimant has a right to removal to a district of "reasonable proximity to the claimant's principal place of business."

The issue here arises from claimant's...