United States v. United States District Court, 15407.

• Decision Date: 19 October 1955
• Docket Number: No. 15407.,15407.
• Citation: 226 F.2d 238
• Parties: UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of ARKANSAS, WESTERN DIVISION, and Honorable Thomas C. Trimble, Chief Judge, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

226 F.2d 238 (1955)

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of ARKANSAS, WESTERN DIVISION, and Honorable Thomas C. Trimble, Chief Judge, Respondents.

No. 15407.

United States Court of Appeals Eighth Circuit.

October 19, 1955.

Frank J. Kiernan, Dept. of Justice, Alexandria, Va., (Warren Olney, III, Asst. Atty. Gen., Osro Cobb, U. S. Atty., Little Rock, Ark., and John T. Grigsby, Dept. of Justice, Washington, D. C., were with him on the brief), appeared for petitioner.

Robert F. Schlafly, St. Louis, Mo. (Edward L. Wright, Little Rock, Ark., and J. F. Schlafly, Jr., Alton, Ill., were with him on the brief), appeared for respondents.

Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

By order of this court dated August 15, 1955, the petitioner, United States of America, was granted leave to file its petition for a writ of mandamus wherein petitioner asked that the respondents herein show cause before this court why a writ of mandamus should not issue requiring the United States District Court for the Eastern District of Arkansas and the Honorable Thomas C. Trimble, Chief Judge of said court, to vacate its order of June 14, 1955, denying jurisdiction in the case of United States of America v. 353 Cases, More or Less, containing Mountain Valley Mineral Water, 135 F.Supp. 333, and retain jurisdiction of such action and dispose of the case in accordance with proper legal procedure.

The facts out of which the matter arose are as follows:

On August 19, 1953, the United States filed libel of information in the Western District of Tennessee against certain merchandise, praying seizure in condemnation in accordance with the Federal Food, Drug and Cosmetic Act, 21 U.S. C.A. § 301 et seq., alleging that the merchandise was misbranded. No stipulation for removal of the case to another district was entered into and upon petition for removal and transfer, the District Court for the Western District of Tennessee transferred the case to the District Court for the Eastern District of Arkansas.

On November 2, 1953, the United States Attorney for the Eastern District of Arkansas, representing the libelant, and the attorney representing the claimant signed and filed a stipulation providing that the case should be transferred from the Eastern District of Arkansas to the Hot Springs Division of the Western District of Arkansas, the principal place of claimant's business. Chief Judge Trimble, respondent, signed an order so transferring the case.

On November 23, 1953, Judge John E. Miller, of the Hot Springs Division of the Western District of Arkansas, on his own motion, ordered that the case be remanded to the United States District Court for the Eastern District of Arkansas. On December 2, 1953, the claimant filed a motion to set aside the remanding order of November 23, 1953. Such motion was overruled by Judge Miller on December 11, 1953. Pursuant to Judge Miller's order, the case was remanded to the Eastern District of Arkansas. In remanding the case, Judge Miller, whose opinion appears in United States v. 353 Cases, More or Less, Mountain Val. Mineral Water, 117 F.Supp. 110, held that his court was without jurisdiction.

On December 21, 1953, the claimant filed a motion in the Eastern District of Arkansas, asking that the case be dismissed or re-transferred to the Western District of Arkansas pursuant to the stipulation referred to herein. Chief Judge Trimble of that court, in an opinion and order dated June 14, 1955, held that his court was without jurisdiction to proceed in the case and that,

"* * * due to the refusal of the court of the Hot Springs Division of the Western District of Arkansas to accept said transfer, it would not be proper for this court to make a re-transfer of the case, but that an order dismissing the cause should be deferred for a period of sixty days in order to enable libelant, if it so desires, to apply to the Court of Appeals for a writ of mandamus to determine the proper forum for the trial thereof."

We have thus presented a question of jurisdiction as between two District Courts within this Circuit, each holding that it is without power or jurisdiction to proceed with the trial of the case. A stalemate or impasse is created which, in the opinion of this court, justifies the exercise of its power to determine the question of jurisdiction. The order of Chief Judge Trimble is not an appealable order. However, no good could come of, and considerable delay and possibly harm could be caused by, awaiting an order of dismissal from the District Court for the Eastern District of Arkansas, Western Division, and appeal therefrom. Chief Judge Trimble has held that his court does not have jurisdiction. If he is right, then he does not have jurisdiction to dismiss and there would be nothing from which to appeal. It would be improper for this court to allow such a stalemate to continue. The matter should be dealt with now so that the case may be properly tried in the court having jurisdiction thereof. Ex parte Simons, 1917, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; Barber Asphalt Paving Co. v. Morris, 8 Cir., 132 F. 945, 67 L.R.A. 761; C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410; Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873.

The question presented is difficult. Two able and conscientious District Judges, after exhaustive review and the writing of carefully considered opinions, have arrived at diametrically opposed conclusions, each holding that his court is without jurisdiction. While this situation exists, the case itself hangs in midair with nothing being done to bring it to trial and proper conclusion.

The solution of the problem lies in the interpretation given to 21 U.S.C.A. § 334 (a). That section, insofar as it may be pertinent to the problem, 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." (Emphasis supplied.)

In remanding the case to the Eastern District of Arkansas, Judge Miller said, in United States v. 353 Cases, More or Less, Mountain Valley Mineral Water, D.C., 117 F.Supp. 110, 115:

"A reference to the statute discloses that the application of a claimant for transfer, whether upon stipulation or motion, must be made `to the court of the district in which the seizure has been made, * * *'. The statute authorizes only one application and that must be to the designated court. If agreeable to all parties in a case of alleged misbranding, as in the instant case, the case may be transferred to `any district agreed upon by stipulation between the parties', but if the parties do not so stipulate then the designated court must, if a transfer is allowed, `specify a district of reasonable proximity to the claimant's principal place of business, to which the case shall be removed for trial.' The claimant exercised its right to a transfer from the court of original jurisdiction to a court permitted by the statute. In so doing it exhausted the statutory right to transfer and the case cannot be transferred again either on motion or stipulation.

* * * * * *

"If the parties are allowed, by stipulation, to transfer a case a second time, there is no reason why they could not transfer it as many times as they might desire and thus control the...