United States v. Swift & Company

• Decision Date: 09 January 1958
• Docket Number: No. 37623.,37623.
• Citation: 158 F. Supp. 551
• Parties: UNITED STATES of America v. SWIFT & COMPANY, Armour & Company, Wilson & Co., Inc., and the Cudahy Packing Company, et al., Defendants.
• Court: U.S. District Court — District of Columbia

158 F. Supp. 551

UNITED STATES of America v. SWIFT & COMPANY, Armour & Company, Wilson & Co., Inc., and the Cudahy Packing Company, et al., Defendants.

No. 37623.

United States District Court District of Columbia.

January 9, 1958.

Harry N. Burgess, Alfred Karsted, and George Avery, Antitrust Div., Dept. of Justice, Washington, D. C., for United States.

Snyder, Chadwell, Faberburg & Keck, Chicago, Ill., by John T. Chadwell and Theodore A. Groenke, Chicago, Ill., and

Arthur C. O'Meara, Chicago, Ill., and Earl G. Spiker, Washington, D. C., for Swift & Co., Swift & Co. Inc., and Derby Foods, Inc.

Kirkland, Fleming, Green, Martin & Ellis, Chicago, Ill., by E. Houston Harsha, Chicago, Ill., Perry S. Patterson, Washington, D. C., for Armour and Co.

McDermott, Will & Emery, Chicago, Ill., by Walker Smith, Chicago, Ill., Hamilton & Hamilton, Washington, D. C., by William B. Jones, Washington, D. C., for Cudahy Packing Co.

McLAUGHLIN, District Judge.

This is a joint motion of defendants Swift and Armour to transfer the suit to the United States District Court for the Northern District of Illinois, Eastern Division.

The suit is an antitrust action by the United States against defendants Swift, Armour and others. It was filed in this court on February 27, 1920. On the same date the defendants filed answers denying unlawful acts, but also on the same date agreed to the entry of a consent decree, and said consent decree was thereupon filed on February 27, 1920. Thus, the filing of the Government's complaint, the defendants' answer and the consent decree occurred simultaneously on February 27, 1920. There was no trial. By the terms of this consent decree, defendants agreed not to engage in certain types of business activities in connection with the operation of their packing companies.

On August 10, 1929, Swift and Armour filed petitions for certain modifications of the consent decree, said petitions being supplanted by amended petitions filed on April 2, 1930. On January 31, 1931, after a lengthy trial, Judge Jennings Bailey of this court entered an order granting, in part, the defendants motion for modification of the terms of the consent decree of 1920. The Supreme Court of the United States, on May 2, 1932, reversed the judgment of modification of the decree. United States v. Swift, 286 U.S. 106, 52 S.Ct. 460, 76 L. Ed. 999.

In the opinion reversing Judge Bailey's order of modification of the 1920 decree the Supreme Court, speaking through Justice Cardozo, said (286 U.S. at page 119, 52 S.Ct. at page 464):

"We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. * * * Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. * * * Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned."

Since May 2, 1932, the consent decree of February 27, 1920 has remained unmodified, and so, also, has the decision of the Supreme Court announcing the controlling criterion to be employed in determining applications for modifications of said decree.

In November and December 1956, defendants Swift, Armour and Cudahy filed motions and petitions for modifications of the consent decree. On September 9, 1957, the Government filed a motion for summary judgment. On the same date defendants Swift and Armour filed the joint motion to transfer, referred to above.

This suit having been referred to this judge of this court in October, 1957 under special assignment to hear all motions and other proceedings therein, oral arguments on the joint motion of defendants Swift and Armour to transfer this case to the District Court for the Northern District of Illinois, Eastern Division, were fully presented by counsel for the movants, Swift and Armour, and for the respondent the Government.

The joint motion to transfer is brought under Title 28, Section 1404(a) United States Code, which provides as follows:

"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 determination of the motion to transfer depends on two issues. First, does the court have power under Section 1404(a) to transfer this action and Second, if the court has that power should it exercise its discretion in favor of such transfer.

The movants' basis for assertion of the possession of power by the court to order transfer rests upon the terms of Section 1404(a) above quoted. Reliance is placed on the grant of power to the court in the words of the statute to transfer "any civil case" to another court for the reasons set forth in the statute as grounds therefor.

Respondent makes the following concessions as to the power of transfer granted the court by the statute.

1. The original 1920 complaint could have been filed in Northern District of Illinois, Eastern Division.

2. Section 1404(a) applies to antitrust cases.

3. Section 1404(a) applies to cases which were filed and were pending prior to passage of that statute, but which had not been reduced to judgment.

4. Were this an original action in which the only procedural step that had been taken was the filing of a complaint by the Government, the defendants might properly seek to invoke Section 1404(a) and upon a proper showing this court would have discretion to transfer this case to Chicago, or to any other forum which they might establish as a more convenient one.

Respondent further concedes that had the present suit been institutd as of the date of the filing of the motion to transfer it would have interposed no objection to the transfer sought by the movants. But respondent contends that this is not a motion to transfer filed in a civil action which this court has power under Section 1404(a) to transfer, but rather is a motion to transfer filed after a final judgment had been entered, and, that at that time, there existed no pending case to which said motion was applicable, or over which this court had jurisdiction to enter an order of transfer under said statute; that respondent is seeking by motion to secure an order of this court empowering another court to modify said final judgment; that no other court possesses power to modify a decree of this court; that respondent is in fact seeking modification of said final order under the pertinent terms and provisions of Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.;¹ that said rule vests solely in the court which entered the final order the power to modify such order and that a transfer of a civil case, including a final order therein, to another court for the purpose of seeking modification of said final order in the transferee court would have the effect of destroying Rule 60(b).

The determination of the first issue rests, therefore, on the narrow question as to whether the power to transfer possessed by courts under Section 1404(a), extends to the transfer of a civil action in which a final judgment has been entered. This narrow question is further affected by the presence in the final judgment of the following provision as set forth in Paragraph 18 of the consent decree of 1920:

"* * * that jurisdiction of this cause be, and is hereby, retained by this court for the purpose of taking such other action or adding at the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree and for the purpose of entertaining at any time thereafter any applications which the parties may make with respect to this decree."

No decided case has been submitted to the court by counsel on either side involving the question of the applicability of Section 1404(a) to a petition or motion for transfer of a case in which a judgment has been previously entered, and all counsel state that in their opinion none exists. The court's research, likewise, has not served to disclose such a case. In the circumstances, the question of the applicability of the statute to the facts involved herein must be determined by a construction of the statute in the light of those facts.

Counsel for the Government contend that under the strict statutory construction rule the court is required to construe the words of the statute "any civil action" to read, in effect, "any civil action in which a judgment has not been entered" and as basis for said contention assert that the entry of a judgment terminates or ends a civil action and causes said action, thereupon, to become nonexistent. Government counsel further contend that counsel for the movants have failed to establish, by a showing of legislative intent, that the words "any civil action" in the statute include a civil action in the posture of the case at bar. The court has not been persuaded that the words in question are themselves ambiguous or that ambiguity is present in the entire statute so as to make necessary or, indeed, pertinent, any consideration of legislative intent in connection with the meaning of said words. "The short answer is that there is no need to refer to the legislative history where statutory language is clear." Ex parte Collett, 1948, 337 U.S. 55, 60, 69 S. Ct. 944, 947, 93 L.Ed. 1207 and cases cited. Should it be felt, however, that reason exists for inquiry into legislative intent to ascertain what is covered by the term "any civil action" in Section 1404(a), despite this court's belief that no such reason does exist, adequate judicial support is found in the following pronouncements that the intendment...