United States v. Berkowitz

• Decision Date: 05 February 1964
• Docket Number: 14430,No. 14429,14505.,14429
• Citation: 328 F.2d 358
• Parties: UNITED STATES of America, Appellant, v. Morton BERKOWITZ. UNITED STATES of America, Petitioner, v. Honorable Joseph S. LORD, III, Judge, United States District Court for the Eastern District of Pennsylvania, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

328 F.2d 358 (1964)

UNITED STATES of America, Appellant, v. Morton BERKOWITZ.

UNITED STATES of America, Petitioner, v. Honorable Joseph S. LORD, III, Judge, United States District Court for the Eastern District of Pennsylvania, Respondent.

Nos. 14429, 14430, 14505.

United States Court of Appeals Third Circuit.

Argued October 25, 1963.

Decided February 5, 1964.

Rehearing Denied March 23, 1964.

Joseph Kovner, Atty., Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Robert A. Bernstein, Attys., Dept. of Justice, Washington, D. C., Drew J. T. O'Keefe, U. S. Atty., Francis Ross Crumlish, Asst. U. S. Atty., on the brief), for appellant and petitioner.

I. Arnold Ross, New York City (Raymond L. Shapiro, Wexler, Mulder & Weisman, Philadelphia, Pa., on the brief), for appellee and respondent.

Before STALEY and GANEY, Circuit Judges, and NEALON, District Judge.

STALEY, Circuit Judge.

The United States filed a civil action in the District Court for the Eastern District of Pennsylvania to recover taxes it alleged were due and owing from the defendant, Morton Berkowitz. The complaint averred that a penalty assessment in the amount of $63,653.73 had been made against the defendant on May 31, 1956, because he was a responsible officer of a corporation which had become delinquent in the payment of withholding taxes. The suit was filed on May 14, 1962, just seventeen days prior to the expiration of the applicable statute of limitations. Internal Revenue Code of 1954, § 6502(a) (1), 26 U.S.C.A. § 6502 (a) (1). A copy of the complaint and summons were served upon an individual at the Philadelphia address of the defendant as shown in the records of the Internal Revenue Service.¹ Thereafter, the defendant filed a motion to dismiss the complaint or to quash the return of summons on the grounds that he was a resident and citizen of the state of New York and had not been properly served with process. The motion was supported by an affidavit stating that he had resided in New York since January of 1960 and had abandoned both his Philadelphia residence and his intention to make that residence his domicile.

Since the period provided in the statute of limitations had by this time expired, the Government filed a motion to transfer the action to the District Court for the Eastern District of New York, pursuant to 28 U.S.C. § 1404(a). That section provides:

"§ 1404. Change of venue

"(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

The district court determined that it had no power to effect a transfer under § 1404(a) because it had not acquired jurisdiction over the person of the defendant. 214 F.Supp. 579 (E.D.Pa., 1962). The court acknowledged that this had been held immaterial in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), but it limited that decision to transfers under § 1406(a). Accordingly, an order was entered denying the motion to transfer and granting the motion of the defendant to quash the return of process.

Subsequently, the United States filed another motion to transfer, pursuant to 28 U.S.C. § 1406(a). That section provides:

"§ 1406. Cure or waiver of defects

"(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."

The district court reasoned that because the tax liability arose in the Eastern District of Pennsylvania, and as the tax returns were filed there, venue was properly laid in that district under 28 U.S.C. § 1396.² The court concluded that the action could not be transferred under § 1406(a) which, by its terms, is applicable to a case laying venue in the wrong division or district. 215 F.Supp. 615 (E.D.Pa., 1963).

The Government filed timely notices of appeal from each of these orders and, as a precautionary measure, filed a petition for a writ of mandamus to compel the district court to exercise its discretion to transfer this action. We granted a rule to show cause on this petition and consolidated it with the proceedings on the appeals.

We are faced with the threshold question of whether we have jurisdiction to review the orders of the district court by way of appeal. Several decisions of this court, as well as those of other circuits, have held that an order either granting or denying a motion to transfer is not appealable. Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267 (C.A. 3, 1962); All States Freight, Inc. v. Modarelli, 196 F.2d 1010 (C.A.3, 1952); Paramount Pictures, Inc. v. Rodney, 186 F.2d 111 (C.A.3), cert. denied, 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687 (1951); Lemon v. Druffel, 253 F.2d 680 (C.A.6), cert. denied, 358 U.S. 821, 79 S.Ct. 34, 3 L.Ed.2d 62 (1958); Ford Motor Co. v. Ryan, 182 F.2d 329 (C.A.2), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). Of course, the rationale underlying these decisions is that because such orders are interlocutory in character they are not appealable as "final decisions" under 28 U.S.C. § 1291, and are not within the class of decisions made appealable by 28 U.S.C. § 1292. However, the orders denying transfer in the case at bar are unique, for they effectively terminate this lawsuit: the action in the Eastern District cannot be further prosecuted since the defendant cannot be properly served there, and the defendant can assert the statute of limitations as a defense to a new suit elsewhere. Though the district court has not dismissed the complaint, it has quashed the return of process in the first of its orders denying transfer. Thus, under the circumstances here, these orders have "sufficient indicia of finality for us to hold that the judgment is properly appealable at this time." Brown Shoe Co. v. United States, 370 U.S. 294, 308, 82 S.Ct. 1502, 1514, 8 L.Ed.2d 510 (1962).³ See also Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); Hohensee v. News Syndicate, Inc., 286 F.2d 527, 529, n. 2 (C.A.3, 1961), vacated and remanded on other grounds, 369 U.S. 659, 82 S.Ct. 1035, 8 L.Ed.2d 273 (1962).

On the merits, the Government argues that under the decision of the Supreme Court in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), jurisdiction over the person of the defendant is not a prerequisite to the power of the district court to transfer this case either pursuant to § 1406(a) or under § 1404(a). The major portion of the argument is devoted to § 1406(a), although it is recognized that the finding of the district court that venue was properly laid in the Eastern District of Pennsylvania presents a serious obstacle to transfer under that section. However, the Government urges that though venue is technically proper in the Eastern District, this is nonetheless "a case laying venue in the wrong division or district" within the meaning of § 1406(a), because the defendant is not amenable to service there.

We find it unnecessary to consider the Government's novel and intricate contention that venue may be properly laid in a district and, yet, the case may be one "laying venue in the wrong district" under § 1406(a), for we think that § 1404(a) clearly authorizes the transfer of this civil action. As we have seen, that section provides that for the convenience of the parties and witnesses and in the interest of justice, an action may be transferred to any district where it might have been brought. The district court believed that it was...