United States v. National City Lines

• Decision Date: 12 October 1948
• Docket Number: Civil Action No. 6747.
• Citation: 80 F. Supp. 734
• Parties: UNITED STATES v. NATIONAL CITY LINES, Inc., et al.
• Court: U.S. District Court — Southern District of California

80 F. Supp. 734

UNITED STATES v. NATIONAL CITY LINES, Inc., et al.

Civil Action No. 6747.

United States District Court S. D. California. Central Division.

October 12, 1948.

William C. Dixon, Sp. Asst. to Atty. Gen., and Jesse R. O'Malley, Edwin U. Driscoll and Alex D. Fred, Sp. Attys., Department of Justice, all of Los Angeles, Cal., for plaintiff.

O'Melveny & Myers, by Jackson W. Chance, all of Los Angeles, Cal., and Hodges & Reavis, Pantaleoni & Downey, by Martin Jacobs, all of New York City, for defendants National City Lines, Inc., American City Lines, Inc., and Pacific City Lines, Inc.

Cosgrove, Clayton, Cramer & Diether, by T. B. Cosgrove and Leonard A. Diether, all of Los Angeles, Cal., and Henry M. Hogan, of Detroit, Mich., for defendant General Motors Corporation.

Finlayson, Bennett & Morrow and H. T. Morrow, all of Los Angeles, Cal., for defendant Phillips Petroleum Co.

Wright & Millikan and Charles E. Millikan, all of Los Angeles, Cal., for defendant Mack Mfg. Corporation.

Joseph Thomas, of Akron, Ohio, and Haight, Trippet & Syvertson and Oscar A. Trippet, all of Los Angeles, Cal., for defendant Firestone Tire & Rubber Co.

Lawler, Felix & Hall and John M. Hall, all of Los Angeles, Cal., for defendants Standard Oil Co. of California and Federal Engineering Corporation.

YANKWICH, District Judge.

I.

The Motion to Transfer.

This civil action seeking injunctive and other relief against the defendants for violation of the Sherman Anti-Trust Act¹ was instituted on April 10, 1947. On September 29, 1947, I granted the motion of the defendants to dismiss the action on the ground that our district was an inappropriate forum for its maintenance and prosecution.² On direct appeal to the Supreme Court, pursuant to the special provision of the Judicial Code,³ that Court reversed the order⁴ upon the ground that the doctrine of forum non conveniens does not apply to civil actions of this character, in which the choice of venue is determined by Section 12 of the Clayton Act.⁵

After the return of the mandate to this Court, the defendants moved to transfer the cause to the district court for the Northern District of Illinois, Eastern Division — the district to which a companion criminal prosecution against nine corporate defendants involved in this action and seven individuals, originally instituted in this district, was transferred by me on August 14, 1947.⁶ That transfer was made under the provision for change of venue contained in the Federal Rules of Criminal Procedure.⁷

The motion to transfer the present proceeding is made under a new section of the revised Judicial Code, which went into effect September 1, 1948.⁸

The Government resists the motion and has filed a countermotion to strike the motion to transfer.

II.

Change of Venue.

In the main, the position of the parties to this litigation is the same as to both motions. For, in the last analysis, it relates to the applicability or non-applicability of the new provision for the transfer of civil actions to other districts to an action of this character, which reads:

"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." (Emphasis added.)⁹

The clause is part of a section which the Revisers have entitled "Change of Venue," and which also allows the transfer of civil actions from one division to another,¹⁰ and the trial of any civil action at any place within the division.¹¹

A consideration of this enactment calls for certain general and almost obvious observations.

We are not dealing with an amendatory statute, but with a revision of the entire Judicial Code, the first one attempted since 1911. This aim was set forth with thorough emphasis in the Reports of the Senate and House Judiciary Committees. The Senate Committee on the Judiciary, in its Report to accompany H.R. 3214, stated:

"It is evident, therefore, that a thorough codification and revision of the statutes relating to the judiciary and its procedure is very much in the public interest in order that the law in this important field may be clear, certain, and readily available.

"The bill H.R. 3214 accomplishes these desirable results. The statutory material presently in force has been arranged in the bill in a logical and consistent way, rendering it easily ascertainable. Existing inconsistencies and ambiguities have been removed and obsolete and archaic provisions eliminated or modernized.

"By enacting this bill into positive law as title 28 of the United States Code, that title will thereby become the law rather than merely presumptive evidence of the law, and reference to prior volumes of the Statutes at Large will be rendered wholly unnecessary."¹² (Emphasis added.)

The Report of the House Committee on the Judiciary, dated April 25, 1947, which accompanied the Resolution, stressed the object of the resolution "to revise, codify, and enact into law."¹³ It called attention to the changes in the national scene which "make imperative this revision of the Judicial Code."¹⁴ (Emphasis added.)

Professor James Wm. Moore, who was one of the consultants on the revision, stated, on March 7, 1947, at the hearing before Subcommittee No. 1 of the House Judiciary Committee:

"The revision is a statement of the law and not merely presumptive. If enacted, the revision will state the law on matters covered by it."¹⁵ (Emphasis added.)

He added:

"Now, however, in attempting a revision of what is essentially only one title of the United States Code, it seems proper to state what the law is and not make the revision merely presumptive of the law. The Federal judiciary, practitioners, and other interested parties, are entitled to that much certainty."¹⁶ Emphasis added.)

These facts are important. For, in attempting to discern the purpose of the enactment, we are, at the outset, confronted with the proposition that it created a new procedural scheme, namely, a method of transferring cases from one district to another, which did not exist before. This was accomplished not by amending existing law, but by including the particular provision in a single piece of legislation, the object of which was to enact a revised code dealing with the jurisdiction of, and procedure in, the courts of the United States.

In endeavoring to achieve this object, the Congress strove to attain uniformity and simplicity of expression. The various circumlocutions, which had heretofore been used to designate the varieties of actions, were abandoned and the phrase "civil action" was substituted. The reviser's notes, which the Committees made a part of their report to the two Houses of the Congress, reveal this intention. Indeed, this appears in the very section on change of venue.¹⁷ The phrase "any civil action" is given as the equivalent of "any action, suit or proceeding of a civil nature" used in subdivision (b).¹⁸ And the reviser's notes leave no doubt that this was their intention in the entire revision.¹⁹

III.

The Manner of Changing Venue.

The aim of the Congress in enacting the section allowing transfers from one district to another, and from one division to another, was to cover the entire field and set down the circumstances under which such transfers could be had, either by the consent of the parties, or upon a proper showing.

Professor Moore, in his statement before the Subcommittee of the House Judiciary Committee, made this very plain. He said:

"Venue provisions have not been altered by the revision. Two changes of importance have, however, been made. Improper venue is no longer grounds for dismissal of an action in the Federal courts. Instead the district court is to transfer the case to the proper venue. See section 1406. And section 1404 introduces an element of convenience which gives the court the power to transfer a case for the convenience of parties and witnesses to another district. Both of these changes were in line with modern State practice; and the provision for change of venue on the grounds of convenience is also embodied in the Bankruptcy Act for corporate reorganization, section 118, Eleventh United States Code, section 518."²⁰ (Emphasis added)

The reviser's notes to the section state:

"Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, which was prosecuted under the Federal Employer's Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so."²¹ (Emphasis added)

It is, therefore, evident that the aim of the Congress was (1) to establish, through this revision, a single procedural scheme to cover all incidences of procedure in the federal courts not provided for by the Rules of Civil Procedure; and (2) to apply the provisions, except where otherwise indicated, to all civil actions, of whatever nature.

The aim being procedural, it is axiomatic that, unless the contrary appears, the provisions are applicable to pending proceedings.²²

The principle which forbids application of new enactments or revisions to pending actions applies to statutes dealing with substantive rights only.²³ At times, it is difficult to draw a distinct line between substantive law and procedure. And many procedural changes have, historically, had a lasting effect on substantive rights, as, for instance, the rule allowing the jury to judge both the law and the facts in criminal libel.²⁴ Nonetheless, matters of venue and change of venue are, as a rule, mere incidences of procedure. And statutes relating to remedies and...