Appendix — Igoe v. Chicago, Rock Island & Pacific Railroad
Supreme Court brief1955
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INDEX TO APPENDIX
Defendant’s motion to transfer .................... la
Defendant’s affidavit in support of motion to transfer 3a
Plaintiff’s affidavit and objections to motion to transfer 7a
Judge Igoe’s first order denying transfer ........ ... 16a
Court of Appeals’ first opinion ..................... 17a
Court of Appeals’ first judgment .................. 25a
Plaintiff’s additional affidavits opposing transfer:
Affidavit of Claudine M. Davis .................... 27a
Affidavit of William Davis ....................005. 30a
Judge Igoe’s memorandum opinion on second order
NE fA PCR W hie Keak eo Kaba kee es Ged nS 32a
Judge Igoe’s second order denying transfer .......... 33a
Court of Appeals’ second opinion ................... 34a
Court of Appeals’ second judgment ................. 48a
la
In THe Unrrep Srares Disrricr Covrr.
For the Northern District of Mlinois,
Eastern Division.
No. 52 C 2124.
CLauptine M. MrKesett, Administrator of the Estate of
Charles Delbert Mikesell, Deceased, Plaintiff,
Vv.
Curcaco, Rock Istanp anp Pactric Ramroap Company, a
Corporation, Defendant.
Motion by Defendant to Transfer.
Comes now Chicago, Rock Island and Pacific Railroad
Company, defendant in the above entitled action, and moves
the Court to enter an order in this action, under Section
1404(a) of Title 28 of the U. S. Code, transferring said
action to either the United States District Court for the
Southern District of Iowa, Central Division, sitting at Des
Moines, Iowa, or to the United States District Court for
the Southern District of Iowa, Western Division, sitting at
Council Bluffs, Iowa, where this action might have been
brought, for the following reasons:
1. For the convenience of the parties and witnesses ;
2. In the interest of justice ;
3. To compel the defendant to defend this action in the
United States District Court for the Northern District of
Illinois, Eastern Division, would impose an unreasonable
and unlawful burden upon interstate commerce;
4. It is against the public policy of the State of Illinois,
within which this Court sits, to adjudicate causes of action
for death where, as here, death occurs outside of this state
and where a right of action for such death exists under the
laws of the place where such death occurred and service
of process in such suit may be had upon the defendant in
2a
such place (Ch. 70, Injuries, Smith-Hurd Illinois Annotated
Statutes, Section 2).
In support of this motion, defendant submits the at-
tached affidavit of George E. Johnson, which affidavit is at-
tached hereto and made a part hereof.
/s/ Tuomas I. Mzcan,
/s/ Mitron V. THompPson,
Attorneys for Defendant,
1025 La Salle Street Station,
WAbash 2-3200.
[Verification omitted]
3a
In tHe Untrep States Distaicr Court.
For the Northern District of Illinois,
Eastern Division.
No. 52 C 2124.
CLtaupINE M. Mixesett, Administrator of the Estate of
Charles Delbert Mikesell, Deceased, Plaintiff,
Vv.
Cuicaco, Rock Istanp anp Paciric Ratroap Company, a
Corporation, Defendant.
State of Illinois, County of Cook. ss.
Affidavit in Support of Motion to Transfer.
George E. Johnson, of lawful age, being first duly sworn
upon his oath, states that since July 1, 1951, he has been
and now is the Assistant General Claim Agent for the de-
fendant herein; that he is authorized to and does make this
affidavit for and in its behalf; that at his direction and
under his supervision defendant’s Claim Department has
made an investigation of the facts pertaining to the issues
in this case; and that the facts herein set forth are based
upon said investigation and are true to the best of affiant’s
knowledge and belief:
1. The alleged accident occurred in the Village of Avoca,
County of Pottawattamie, State of Iowa, on or about Sep-
tember 14, 1951.
2. Plaintiff at the time of the alleged accident and since
said time as continuously resided at Des Moines, County
of Polk, State of Iowa.
3. Plaintiff’s decedent at the time of the alleged acci-
dent resided at Des Moines, County of Polk, State of Iowa.
4. According to plaintiff’s complaint, her alleged right
to sue herein is evidenced by Letters of Administration
issued by the District Court of Polk County, State of Tova.
4a
5. The presence and testimony of the following wit-
nesses, all of whom have personal knowledge of the facts
material to any such contested issues, will be essential to
the defense of this case:
(a) Two witnesses residing at Des Moines, Iowa.
(b) Six witnesses residing at Avoca, Iowa.
6. None of the witnesses designated in Paragraph 5 are
employed by defendant or have any affiliation or connection
whatsoever with defendant.
7. In addition to the witnesses set forth in Paragraph 5,
the presence and testimony of at least five employees of
defendant, all of whom have personal knowledge of mate-
rial facts, will be essential to the defense of this case.
8. The witnesses designated in Paragraph 7 hereof re-
side within the territorial limits of the United States Dis-
trict Court for the Southern District of Iowa, in or near
Des Moines, Iowa and Avoca, Iowa.
9. All of the witnesses referred to in Paragraphs 5 and
7 hereof reside in or near Des Moines, Iowa and Avoca,
Iowa, all of which localities are within the range of legal
process issued from and by the United States District Court
for the Southern District of Iowa.
10. The testimony of all the witnesses designated in
Paragraph 5 hereof can be obtained only by subpoena, and
the legal process of the United States District Court for
the Northern District of Illinois does not extend to any of
the localities where these witnesses reside.
11. The shortest distance by rail from Des Moines, Iowa
to Chicago, Illinois is 358 miles.
12. The shortest distance by rail from Avoca, Iowa to
Chicago, Illinois is 459 miles.
13. The minimum loss of time for each witness attend-
ing a trial of this case in this Court will be five days, and
the necessary expenses for transportation, maintenance,
oe
and loss of time of such witnesses as would voluntarily
travel to Chicago to testify on defendant’s behalf would
aggregate a substantial sum of money.
14. There will be no facts to be proved by any party by
witnesses residing in or near Chicago, Illinois.
5a
15. Defendant cannot adequately present its defense to
plaintiff’s claim at a trial of this cause in Chicago, because :
(a) Defendant cannot compel the attendance of
non-employee witnesses at the trial and it will be unable
to persuade the majority of said witnesses to volun-
tarily appear.
(b) Defendant cannot present the testimony of its
employee witnesses at a trial in Chicago because most
of them are important operating men of defendant
railroad and cannot be separated from their regular
employment for sufficient time to attend this trial.
(c) It would be impossible for defendant to ade-
quately and properly present its defense by deposi-
tions and it cannot in advance anticipate evidence
which may be offered by plaintiff.
16. Any witnesses produced by plaintiff upon any dis-
puted issue would necessarily be located in or near Des
Moines, Iowa and Avoca, Iowa, and within the range of
legal process issued by the United States District Court
for the Southern District of Iowa.
17. A trial of this action in this Court would be exces-
sively costly to defendant when compared to a trial at either
Des Moines, Iowa or Council Bluffs, Iowa.
18. If the witnesses employed by defendant were absent
from their employment for the time necessary to attend the
trial of this cause in Chicago, interruption, confusion, and
delay in defendant’s handling of its interstate business
would result.
6a
19. Defendant is suable in both the United States Dis-
trict Court, for the Southern District of Iowa, Central
Division and the United States District Court for the
Southern District of Iowa, Western Division. This action
might have been brought in either of said Courts and the
transfer thereof to either of said Courts would serve the
convenience of the parties and witnesses, and be in the
interest of justice.
/s/ Grorce #\. Jonnson.
[Verification omitted }
a
(EN
IN THE DISTRICT COURT OF THE UNITED STATES
For the Northern District of Illinois,
Eastern Division.
No. 52 C 2124.
Cuaupinz M. Mixesett, Administrator of the Estate of
Charles Delbert Mikesell, Deceased, Plaintiff,
Vv.
Cuicaco, Rock Istanp anp Paciric Ratroap Company, a
Corporation, Defendant.
Objections to Defendant's Motion to Transfer Cause Under
Provisions of 28 USCA Section 1404-A and Suggestions in
Support Thereof.
Now comes the Plaintiff, Claude M. Mikesell, Adminis-
trator of the Estate of Charles Delbert Mikesell, Deceased,
by James A. Dooley, her attorney, objecting to the Motion
of Defendant to transfer this cause to the United States
District Court for the Southern District of Iowa, Central
Division, or to the United States District Court for the
Southern District of Iowa, Western Division, and shows
unto the court as follows:
1, That the plaintiff, a resident of Des Moines, Iowa,
filed this suit on September 13, 1952, in the Superior Court
of Cook County, Illinois, against the defendant railroad
for injuries resulting in the death of her husband, Charles
Delbert Mikesell on September 14, 1951. On October 6,
1952, this suit was transferred to this court on defendant’s
motion, based on the diversity of citizenship provision of
the Federal Statutes.
2. That the defendant railroad is a Delaware corpora-
tion engaged as a common carrier of passenger and freight
for hire throughout several states of the country; that it
maintains its principal place of business, including execu-
tive and general offices and a central claim department out
of which all litigation is handled at 139 West Van Buren
8a
Street, Chicago, Illinois; that it likewise maintains a legal
department at the same address and this legal department
is currently engaged in handling personal injury and death
actions, such as the accident out of which this present suit
arises; and furthermore that the said defendant employs
many hundreds of people who are residents of the City of
Chicago.
3. That defendant desires to transfer her cause either
to Des Moines, Iowa, or to Council Bluffs, Iowa; that this
accident happened in Avoca, Iowa, and that between Avoca,
Iowa, and Des Moines, Iowa, there is but one train leav-
ing Avoca at 8:44 P. M. and arriving at Des Moines, Iowa,
at 11:00 P. M., and further that as will hereinafter ap-
pear, one can travel from Des Moines to Chicago, IIli-
nois, on defendant’s road within six hours on one of its
four daily trains which maintain the following schedules:
Leaving Des Moines Arriving Chicago
7:15 A. M. 12:45 P. M.
2:15 P. M. 8:30 P. M.
11:30 P. M. 7:05 A. M.
2:46 A. M. 8:50 A. M.
That between Council Bluffs, Iowa, and Des Moines, iowa,
the transportation is not as good as that between Des
Moines and Chicago, with the trains running on the follow-
ing schedules:
Leaving Council Bluffs Arriving Des Moines
12:10 P. M. 2:36 A. M.
11:47 A. M. 2:10 P. M.
7:55 P. M. 11:00 P. M.
That Council Bluffs, Iowa, is 107 miles from Des Moines,
Towa, and it would be just as difficult for the plaintiff to
try her cause in Council Bluffs, Iowa, as in Chicago.
a
4. That Des Moines, Iowa, the other center to which the
defendant seeks_to transfer this cause is the second largest
insurance city in the United States, being exceeded only
by Hartford, Connecticut, in the number of companies
which have its principal offices within its confines; and
that within said city, the following insurance companies
have their offices listed, many of which are their principal
offices :
Acme General Agency
Aetna Insurance Company
Aetna Life Affiliated Companies
Aetna Life Insurance Company
Agricultural Mutual Insurance Ass’n
Albany Insurance Company of New York
Allied Mutual Casualty
Allstate Automobile Insurance Co.
Allstate Insurance So.
America Fire Automobile
America Fire Ins. Group
American-Associated Insurance Companies
American Automobile Fire Ins. Co.
American Automobile Ins. Co.
American Eagle Fire Ins. Co.
American Farmers Mutual Automobile Ins. Ass’n
American Farmers Mutual Casualty Co.
American Farmers Mutual Ins. Co.
American Farmers Mutual Life Ins. Co.
American Insurance Group
American Mutual Ins. Co.
American Mutual Liability Ins.
American Mutual Life Ins. Co.
American National Ins. Co.
American Republic Ins. Co.
Associated Indemnity Corp.
Atlas Assurance Co. Ltd.
Bankers Life & Casualty Co.
Bankers Life Co., Des Moines
10a
Berkshire Life Ins. Co.
Birmingham Fire Ins. Co.
Bituminous Casualty Corp.
Central Ins. Agency
Central Life Assurance Co.
Ceitral Standard Life of Chicago
Equitable Life Assurance Society of the U. S.
Citizens Ins. Co.
Columbia Casualty Co.
Columbia National Life Ins. Co.
Combined Casualty Co.
Combined Ins. Co. of America
Commerce Ins. Co.
Connecticut Gen. Life Ins. Co.
Connecticut Indemnity Co.
Connecticut Mutual Life Ins. Co.
Continental Casualty Co.
Continental Fire Ins. Co.
Des Moines Casualty Co.
Dubuque Fire & Marine Ins. Co.
Employers Mutual Casualty Co.
Employers Mutual Casualty Insurance
Employers Mutual Liability Ins. Co. of Wise.
Employers Mutual of Wausau
Employers Mutual Fire Ins. Co.
Equitable Life Assurance Society of U. S.
Equitable Life Ins. of Iowa
Farm & City Mutual Ins. Ass’n of Iowa
Farmers Casualty Co.
Farmers Elevator Mutual Casualty Co.
Farmers Elevator Mutual Ins. Co.
Farmers Ins. Group
Farmers Life Ins. Group
Farmers Mutual Fire Ins. Ass’n
Farmers Mutual Hail Ins. Co.
Farmers Mutual of Madison, Wise.
Federated Mutual
ee a
lla
Federated Mutual Implement & Hdwe. Ins. Co.
Fidelity & Casualty Co. of New York
Fidelity-Phenix Ins. Co.
Financial Credit System
Fireman’s Friend Ins. Co. Group
Franklin Life Ins. Co.
Freeport Motor Casualty Ins, Co.
General American Companies
General American Life Ins. Co.
General Casualty Co. of Wisc.
General Mortgage Corp. of Iowa
Glens Falls Ins. Co.
Globe Indemnity Co.
Great American Group of Ins. Cos.
Great Central Ins. Co.
Hartford Accident & Indemnity Co.
Hartford Fire Ins. Co.
Hawkeye-Security Ins. Co.
Home Indemnity Co.
Home Ins. Co.
Home Ins. Co. of N. Y.
Homesteaders Life Co.
Indemnity Ins. Co. of No. Am.
Industrial Ins. Co.
Industrial Co. of No. Am.
Inter-State Assurance Co.
Inter-State Finance Corp.
Towa Farm Mutual Ins. Qo.
Towa Home Mutual Casualty Co.
Iowa Home Mutual Fire Ins. Co.
Towa Mutual Hail Ins. Co.
Towa Mutual Tornado Ins. Ass n
Towa National Mutual Ins.
Towa State Traveling Men’s Ass’n
John Hancock Mutual Ins. Co.
John Hancock Mutual Life Ins. Co.
Kansas City Fire & Marine Ins,
12a
Kansas City Life Ins.
Liberty Mutual Ins.
Lincoln Liberty Life Ins. Co.
Lincoln National Life Ins. Co.
Loyalty Group
Manufacturers Casualty Ins. Co.
Maryland Casualty Co.
Mass. Mutual Life Ins. Co.
Mass. Protective Cos.
Medical Protection Ins. of Ft. Wayne
Mercury Ins. Co.
Midwest Am. Mutual Ins. Co.
Mill Owners Mutual Ins. Co.
Minn. Mutual Life Ins. Co.
Missouri Ins. Co.
Monarch Life Ins. Co.
Motors Ins. Corp.
Mutual Benefit Health & Accident Ass’n
Mutual Benefit Life Ins. of Newark
Mutual Life Ins. Co. of N. Y.
National Benefit Ins. Co.
National Casualty Co.
National of Hartford Group
National Life Co.
National Reserve Life Ins.
National Surety Corp.
National Travelers Ins. Co.
National Union Fire Ins. Co.
New England Mutual Life Ins. Co.
New York Life Ins. Co.
New York Underwriters Co.
Newark Ins. Co.
Niagara Fire Ins. Co.
North America Companies
North America Accident Ins. Co.
North America Life & Casualty Co.
North British & Mercantile Ins. Group
13a
North River Ins. Co.
North Casualty Co. Mutual
North Life Ins. Co.
Northwestern Mut. Life Ins. Co.
Northwestern Nat’! Life Ins.
Occidental Life Ins. Co. of Calif.
Ocean Acc, & Guaranty Corp.
Ohio Casualty Ins. Co.
Ohio Farmers Ins. Co.
Ohio National Life Ins. Co.
Pacific Mutual Life Ins. Co.
Pacific National Fire Ins. Co.
Paramount Fire Ins. Co.
Patriotic Ins. Co. of America
Paul Revere Life Ins. Co.
Penn Mutual Life Ins. Co.
Peoples Life Ins. Cc. of Indiana
Phoenix Mutual Life Ins. Co. of Hartford, Conn.
Pioneer Mutual Life Ins. Co.
| Pioneer National Casualty Co.
| Preferred Risk Mutual Ins.
Providence, Wash. Ins. Co.
Providence Mutual Life Ins. Co. of Phil.
Prudential Ins. Co. of No. America
Royal Indemnity Group
Royal-Liverpool Group
St. Paul Fire & Marine Ins. Co.
St. Paul Mercury Indemnity Co.
Scandia Mut. Ins. Ass’n
Security Ins. Co. of New Haven
Springfield Fire & Marine Ins. Co.
Square Deal Ins. Co.
State Automobile Ins. Ass’n
State Farm Ins.
Sun Indemnity Co. of N. Y.
Term Mut. Dwelling Ins.
Travelers Ins. Co. Hartford, Conn.
l4a
Union Fire Ins. Co.
United Benefit Fire Ins. Co.
United Benefit Life Ins. Co.
U.S. Fidelity & Guaranty Co.
U. 8. Fire Ins. Co.
Washington Nat’l Ins. Co.
Webster Life Ins. Co.
Westchester Fire Ins. Co.
Western Mutual Ins.
Wolverine Ins. Co.
World Agency Inc.
World Ins. Co.
5. That many of the said companies write casualty in-
surance and many of their employees would be available
for and subject to jury service, if this cause were tried in
Des Moines, Iowa; that it is a common fact among lawyers
who prosecute and defend suits for damages that employees
of insurance companies are favorable to the defendant and
that the plaintiff, having only three peremptory challenges,
would not obtain a trial in an impartial atmosphere, such
as is afforded by this District.
6. That the plaintiff realizes that she has the burden of
proving her case by a preponderance of the evidence and
accordingly it will be incumbent upon her to have witnesses
testify either in person or by way of deposition; that if the
cause were tried at Council Bluffs, Iowa, it would be just
as difficult for her to obtain the testimony of witnesses who
are residents of Iowa.
7. That she has retained an attorney, who is a resident
of Cook County, Illinois, and who, to date, has conducted
an extensive investigation of facts and circumstances sur-
rounding this accident, in addition to legal services per-
formed ; further that she is a widow of moderate means and
if this case were to be transferred, she would be required
to hire an attorney in Iowa and be put to added expense
=~7""
15a
and inconvenience, all of which would prove a real burden
and Sardship in her attempt to prosecute this claim.
8. That the defendant by this motion does not seek to
further the ends of justice, which is the purpose of 1404(a) ;
it seeks to choose a forum more favorable to its side of
the case.
Wherefore, the plaintiff moves the Court to deny the de-
fendant’s motion to transfer this cause under the provi-
sions of 28 U.S. C. A. Section 1404-A to the United States
District Court for the Southern District of Iowa, Central
Division, or to the United States District Court for the
Southern District of Iowa, Western Division.
[Verification omitted]
16a
UNITED STATES DISTRICT COURT
OFFICE OF THE CLERK
UNITED STATES COURT HOUSE
OHICAGO 4
Date: 7-1-53
Re: Mikesell, ete., vs. C.R. I. & P. R. Co.
Case No. 52 C 2124
You are hereby notified that Judge Igoe entered the fol-
lowing order on 6-30-53:
Defts. motion to transfer cs. to the Southern District of
Towa is overld.
Roy H. Jounson,
Clerk
17a
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIROUIT
No. 10940.
October Term, 1953, April Session, 1954.
On Petition for a Writ of Mandamus.
Curcaco, Rock IsLanp anp Paciric Ratmroap Company, a
corporation, Petitioner,
Vv.
Honoraste Micnart L. Icon, Judge of the United States
District Court for the Northern District of Dlinois,
Eastern Division, Respondent.
April 20, 1954.
Before Masor, Chief Judge, LinpLey and ScHNACKENBERG,
Circuit Judges.
Lunoiey, Circuit Judge. This is a petition for a writ of
mandamus to compel the respondent to transfer, pursuant
to the provisions of 28 U. S. C. Sec. 1404 (a), the cause
entitled Mikesell, Etc. v. Chicago, R. I. € P. R. Co., Civil
No. 52 C 2124, from the District Court for the Northern
District of Illinois to the District Court for the Southern
District of Iowa.
Plaintiff in that cause, administratrix for the estate of
Charles Mikesell, deceased, whose counsel appears here for
respondent, filed a complaint in the Superior Court of Cook
County, Illinois, against petitioner to recover damages
claimed to have grown out of the allegedly wrongful death
of plaintiff’s decedent in a crossing accident in Avoca, Iowa.
Plaintiff averred that the decedent had been killed in a col-
lision between a train operated by petitioner and an auto-
mobile driven by the decedent, as the proximate result of
negligence on the part of the railroad company.
On motion of petitioner, a Delaware corporation, aver-
ring plaintiff’s Iowa citizenship, the cause was removed to
the United States District Court for the Northern District
18a
of Illinois. Thereafter petitioner filed a motion under 28
U. S. C. Sec. 1404 (a)! to transfer the cause to the United
States District Court for the Southern District of Iowa,
for trial in either its Central Division sitting at Des Moines
or its Western Division sitting at Council Bluffs.
This motion was supported by the affidavit of petitioner’s
assistant general claim agent to the effect that plaintiff
is a resident of Des Moines, Iowa,” in the Southern District
of Iowa; that the accident occurred at Avoca, Iowa; that
all witnesses to be called by petitioner reside at either
Des Moines or Avoca; that a trial in the Northern District
of Illinois would effectually deprive petitioner of process
to compel the attendance of witnesses; that Avoca is 459
miles from Chicago, but only some 100 miles from Des
Moines; that a trial at Chicago would necessarily impose
excessive expense upon petitioner in procuring witnesses
to go there to testify; that each of such witnesses would lose
some five days; that petitioner’s defense cannot be appro-
priately presented by deposition; that any witnesses to be
called by plaintiff on any disputed issue are necessarily
1**Por 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.’’ 28
U.S.C. Sec. 1404 (a).
Whether to transfer a cause under this section rests in the sound
discretion of the trial court. Also this section presupposes two
jurisdictions in which venue may be laid. Foster-Milburn Co. v.
Knight, 181 F. 2d 949 (CA-2).
2 Respondent’s answer to the petition avers that plaintiff, prior
to June 30, 1953, the date petitioner’s motion was denied, had
moved to and was a resident of the Northern District of Illinois,
and on the basis of this averment denies the allegation of the
petition that all witnesses to be called by either party are residents
of the Southern District of Iowa. It was conceded on oral argu-
ment that plaintiff was not a witness to the accident which caused
the death of her decedent. On November 30, 1953, over petitioner’s
objection, respondent granted a motion that a statement as to
this change of residence be certified to this court. Inasmuch as
that fact was not before respondent when he denied petitioner’s
motion to transfer, it is not properly before us now and we do
= voAT). it. General Portland Cement Co. v. Perry, 204 F. 2d
(CA-7).
_—-
resident in or near either Des Moines or Avoca, and that
petitioner is amenable to process in both the Central and
Western Divisions of the District Court for the Southern
District of Iowa.
Plaintiff objected to the motion, averring, in an affidavit,
that plaintiff is a resident of Des Moines; that the suit
was removed from the Superior Court of Cook County,
Illinois, to the federal court cn petitioner’s motion; that
petitioner is a Delaware corporation and maintains its
principal offices in Chicago; that better train service is
provided between Chicago and Des Moines than between
Des Moines and Council Bluffs; that Des Moines is the
second largest insurance center in the nation; that if the
cause were tried at Council Bluffs it would be equally
difficult for plaintiff to obtain the testimony of her wit-
nesses who are residents of Iowa; that plaintiff is repre-
sented by Chicago counsel, and that petitioner seeks, by its
motion to transfer, a forum more favorable to its cause.
Petitioner’s motion was denied on grounds subsequently
stated, and we granted leave to file this petition for a
writ of mandamus. Respondent answered, denying the
power of this court to entertain the petition in a case of
this nature. Stated in the light most favorable to re-
spondent, the contention is that the granting or denial of
a motion to transfer under 28 U. S. C. Sec. 1404 (a) rests
within the sound discretion of the trial court, and that
mandamus will not lie to review its disposition. This is
the question with which we are principally concerned and
which, if respondent’s position be sound, disposes of the
proceeding.
This question has not been considered by this court previ-
ously. A majority of the decisions from other circuits
hold that mandamus will lie in a situation such as this,
although certain apparent conflicts arise because of the
frequent failure of the opinions lucidly to distinguish be-
tween the naked question of power to issue and the broader
question of whether, on the merits, the writ should issue
19a
20a
in a particular case. See, e. g., All States Freight v. Moda-
relli, 196 F. 2d 1010 (CA-3).
The courts for the Second, Third, Fifth, Ninth and Dis-
trict of Columbia Circuits have held that mandamus will
lie, Paramount Pictures v. Rodney, 186 F. 2d 111, cert.
denied 340 U. S. 953 (CA-3); Ford Motor Co. v. Ryan, 182
F. 2d 329, cert. denied 340 U. S. 851 (CA-2) ; Wiren v. Laws,
194 F. 2d 873 (CA-DC); Atlantic Coast Line R. Co. v.
Davis, 185 F. 2d 766 (CA-5) ; Shapiro v. Bonanza Hotel Co.,
185 F. 2d 777 (CA-9); and Foster-Milburn Co. v Knight,
181 F. 2d 949 (CA-2), while the Eighth Circuit alone has
held squarely that it will not lie to review a Section 1404 (a)
order, Carr v. Donohoe, 201 F. 2d 426. See also, Swan,
C. J., concurring, Ford Motor Co. v. Ryan, 182 F. 2d 329,
332. See Hydraulic Press Mfg. Co. v. Moore, 185 F. 2d
800 (CA-8). We think also that tacit recognition of the
power of a federal appellate court to entertain such a
cause is implicit in Ex parte Collett, 337 U. S. 55; Ku-
patrick v. Texas ¢ Pacific R. Co., 337 U. 8. 75; and United
States v. Nat. City Lines, 337 U. S. 78, and, although the
jurisdictional issue was not raised, the existence of the
mandamus power is of the essence likewise in Dairy In
dustries Supply Assn. v. La Buy, 207 F. 2d 554 (CA-7);
C-O-Two Fire Equipment Co. v. Barnes, 194 F. 2d 410,
aff’d Cardox Corp. v. C-O-Two Fire Equip. Co., 344 U. S.
861 (CA-7) ; Fettig Canning Co. v. Steckler, 188 F. 2d 715,
cert. denied 347 U. S. 913 (CA-7); All States Freight v.
Modarelli, 196 F. 2d 1010 (CA-3); and Nicol v. Koscinski,
188 F. 2d 537 (CA-6). We did not reach the question in
General Portland Cement Co. v. Perry, 204 F. 2d 316, and
B. Heller & Co. v. Perry, 201 F. 2d 525. The power of a
court of appeals to mandate a district judge in a proper
case was recognized in a leading decision rendered prior
to the enactment of Section 1404 (a). Roche v. Evaporated
Milk Assn., 319 U. S. 21. There the court said, at 25-26:
‘‘The common law writs, like equitable remedies, may be
granted or withheld in the sound discretion of the court.
(Citations omitted.) Hence the question presented on this
2la
record is not whether the court below had power to grant
the writ but whether in the light of all the circumstances
the case was an appropriate one for the exercise of that
power.’’
Respondent’s principal reliance on Bankers Life & Cas-
ualty Co. v. Holland, 346 U. 8. 379, is misplaced. There
the court held that mandamus would not lie to review an
order entered under 28 U. S. C. See. 1406 (a). Suffice it to
say that that Section, unlike Section 1404 (a), deals with
a situation of total want of venue and is mandatory. If
venue is improper, the district court must either dismiss
or transfer the cause to a court in which venue lies. If the
court does neither, any judgment entered in the cause is a
nullity, an error correctible on appeal.
We find, thén;'that the authorities are persuasive that
we have power to entertain this petition. While a ruling
on a motion under Section 1404 (a) to transfer is not an
appealable order, Ford Motor Co. v. Ryan, supra; Jiffy
Iatbricator Co, v. Stewart-Warner Corp., 177 F. 2d 360
(CA-4), it is the type of order which may, absent the power
of this court to correct it in any case, give rise to judicially
sanctioned irreparable procedural injury. For example,
such was the writ issued in Atlantic Coast Line R. Co. v.
Davis, supra, to correct an erroneous transfer order which
the court held to be a ‘‘renunciation or abandonment”’ of
jurisdiction which the trial court was bound to exercise.
Adoption of respondent’s contention would compel us to
hold that this court is powerless to correct an error of that
nature. In the language of the court for the District of
Columbia Circuit, were we ‘‘to hold even unauthorized
orders of transfer to lie beyond our control, the effect would
be to deprive litigants of forums to which they are en-
titled.’’ Wiren v. Laws, swpra at 874.
A less compelling consideration is likewise persuasive of
the existence of power to supervise transfer practice.
Thus, we are in accord with Judge Frank’s statement in
the Ford Motor case, supra at 330, that this is the ‘“‘kind
of interlocutory order with which this court can properly
22a
deal by way of such a writ, since should petitioners—the
defendants—finally lose on the merits below, any error in
the interlocutory order would probably be incorrectible on
appeal, for petitioners could hardly show that a different
result would have been reached had the suit been trans-
ferred. Nor, should petitioners win on the merits below,
could they collect as costs the additional expenses to them,
if any, due to the court’s failure to order the transfer. We
recognize that the dividing line is by no means entirely
clear between the power of this court and its lack of power
to issue the writ. But we think this a sufficiently ‘extraor-
dinary cause’ to empower us to do so, if the district judge
erred.’’
We conclude that we have jurisdiction to review orders
relative to transfer under Section 1404 (a) by way of man-
damus. However, this opinion deals with the existence of
power only, not with the permissible limitations on its
exercise. The question of whether we are to adopt Judge
Frank’s view that the district court’s guess should not be
disturbed unless ‘‘it is too wild’’, Ford Motor Co. v. Ryan,
supra, or the more stringent rule that a Section 1404 (a)
ruling will never be disturbed if it is based on the requisite
statutory tests, All States Freight v. Modarelli, 196 F. 2d
1010 (CA-3), or a rule which permits a wider control over
the trial court’s discretion is not now before us.
On the merits, the proceeding at bar is strikingly similar
to that before this court in Dairy Industries Supply Assn.
v. La Buy, 207 F. 2d 554, wherein, on a petition for a writ
of mandamus, we vacated the trial court’s order on the
ground that it was not based upon consideration of the
requisite factors enumerated in Section 1404 (a), namely,
the ‘‘convenience of the parties and witnesses, in the in-
terest of justice.’’ Here the motion to transfer was denied
‘‘on the general proposition that the place where this acci-
dent occurred is about as close to Chicago as to Des Moines
where you want to have the case tried, and this case was
started in the State Court and you folks transferred it over
to the Federal Building evidently for the purpose of having
23a
a trial, and as soon as it got here the only trial you wanted
was to ship it out to Iowa. I don’t think section 1404 (a)
was ever established or ever enacted for that reason.
* *@ @ 9)
The fact that the cause is in the district court by re-
moval from a state court has no bearing on a motion to
transfer. Once removed, the action proceeds as if it had
been brought in the federal court originally. 28 U.S.C.
Sec. 81 (c); Freeman v. Bee Machine Co., 319 U. S. 448;
Grivas v. Parmelee Transp. Co., 207 F. 2d 334, cert. denied
347 U. S. 913 (CA-7). It would seem clear, therefore, that
respondent ‘‘denied the motion upon an asserted legal
premise which in fact does not exist.’’ Grivas v. Par-
melee, supra at 338.
Respondent earnestly contends, however, that the order
should stand inasmuch as one forum to which transfer is
sought is a noted insurance center, and a trial there would
be prejudicial to plaintiff. However, neither party to the
eause is an insurance company. The averment is wholly
irrelevant. Furthermore we can not presume that a trial
will proceed other than fairly in any federal forum in which
venue exists. The governing tests are expressly stated in
the Act, and a leading mandamus case points up the correct
guides to their application to a particular fact situation,
which include ‘‘the relative ease of access to sources of
proof; availability of compulsory process for attendance of
unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of a view of the premises, if [neces-
sary]; and all other practical problems that make trial of
a case easy, expeditious and inexpensive. * * * The court
will weigh relative advantages and obstacles to fair trial.’’
Gulf Ou Corp. v. Gilbert, 330 U. S. 501, 508.
Nothing herein conflicts with or impinges upon our opin-
ion in Comfort Equipment Company v. Steckler, No. 11072
and Burch Mfg. Co. v. Steckler, No. 11073, decided April 20,
1954. In those cases, as we pointed out, appeal afforded an
adequate remedy for correction of any error committed by
the trial court in entering the challenged orders.
24a
We adhere to the Dairy Industries decision and remand
the cause to the District Court with directions to vacate the
order denying the transfer and to reconsider petitioner’s
motion in the light of the views expressed herein. Ulti-
mate decision on that motion is within the province of the
District Court, and we cannot, as petitioner would have us
do, usurp its function and decide the question in this court.
25a
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIROUIT
Chicago 10, Illinois
Tuesday, April 20, 1954
Before
Hon. J. Eart Masor, Chief Judge
Hon. Watrter C. Linpiey, Circuit Judge
Hon. Eimer J. ScHNaCKENBERG, Circuit Judge
No. 10940
Cutcaco, Rock Istanp anp Pacrric Rarmroap Company, a
corporation, Petitioner,
Vv.
Honoras_e Micuas. L. Icon, Judge of the United States
District Court for the Northern District of Illinois,
Eastern Division, Respondent.
On Petition for a Writ of Mandamus
This matter comes before the Court on the Petition of
Chicago, Rock Island and Pacific Railroad Company, a
corporation, for a Writ of Mandamus to direct the Respond-
ent to vacate and set aside an order entered on June 30,
1953 in the case entitled ‘‘Claudine M. Mikesell, Adminis-
trator of the Estate of Charles Delbert Mikesell, Deceased
vs. Chicago, Rock Island and Pacific Railroad Company,
Civil Action No. 52-C-2124’’, the answer of Respondent
thereto, and renewed motion to dismiss petition for Writ
of Mandamus, and was argued by counsel.
On consideration whereof, it is ordered by the Court
that the renewed motion to dismiss petition for Writ of
Mandamus be, and the same is hereby, Denrep.
26a
It is further ordered by the Court that this cause be
remanded to the United States District Court for the
Northern District of Illinois, Eastern Division, with direc-
tions to vacate the order of said Court entered on June 30,
1953, denying the transfer, and to reconsider Petitioner’s
motion in the light of the views expressed in the opinion of
this Court filed this day.
eo
27a
IN THE DISTRICT COURT OF THE UNITED STATES.
FOR THE NORTHERN DISTRICT OF ILLINOIs,
EASTERN DIVISION.
No, 52 C 2124
Cuaupine M. Mrixkese.tt, Administrator of the Estate of
Charles Delbert Mikesell, Deceased, Plaintiff,
Vv.
Curcaco, Rock Istanp anp Pactric Rarroap Company, a
Corporation, Defendant.
Affidavit.
State or ILurNol!s,
County or Cook. ”
Claudine Mikesell Davis, being first duly sworn, deposes
and says that she is the same person as Claudine M. Mike-
sell, who brings this action as the Administrator of the
Estate of Charles Delbert Mikesell, Deceased;
That her present address is 351 Elizabeth Drive, Lom-
bard, Illinois, and that she has lived at the foregoing ad-
dress since somewhere between June 10 and June 15, 1953.
Affiant further states that on May 2, 1953, she was mar-
ried to M. L. Davis, who was then and is now employed
as the National Fleet Sales Manager for the Mack Truck
Corporation, 3300 South Wentworth Avenue, Chicago, Illi-
nois,
That about one week prior to her marriage on May 2,
1953, she and the said M. L. Davis had purchased the home
at 351 Elizabeth Drive, Lombard, Illinois, and that the
title was in joint tenancy from the date of the acquisi-
tion of the property; that she and her husband, M. L.
Davis, would have removed immediately upon their mar-
riage to their home at Lombard, Illinois, were it not for
the fact that her children, Judith Ann, born March 15,
28a
1941, and Pamela, born July 6, 1945, were in school, the
term of which would not expire until the early part of
June, 1953.
Affiant states that her husband, M. L. Davis, had lived in
Lombard, Illinois, at the home of his brother, William
Davis, 1815 South Highland Avenue, since March 1953,
when he took up residence in this district, having been
transferred by his employer from Kansas City to Chi-
cago; that her husband had, prior to the said transfer,
lived in Lombard several years and was working in Kan-
sas City from approximately March 1952 to March 1953;
that her two children attend the public schools in Lom-
bard, Illinois, and have been enrolled at the said schools
since September, 1953 ;
Affiant states that between May 15, 1953 and May 20,
1953, the said M. L. Davis, a widower, legally adopted her
children, namely, Judith Ann and Pamela.
Affiant further states that she is a member of the Parent-
Teachers Association of both the Green Valley Grade
School and the Lombard Junior High School, wherein her
children are enrolled; that both she and her husband are
registered voters in DuPage County, Illinois; that she and
her husband are possessed of two automobiles, both of
which have been in their names jointly since approximately
May 10, 1953, and that since approximately June 15, 1953,
she and her husband have had, in joint tenancy, a sav-
ings account in the Wheaton Federal Savings and Loan,
Wheaton, Illinois, and in the Lombard State Bank, Lom-
bard, Illinois.
Affiant further states that since May 2, 1953, she has
considered Lombard, Illinois, as her permanent residence
and has actually been living at the said address, together
with her husband, her husband’s child by a prior marriage,
Debra Ann. born May 31, 1950, and her two children, since
some date between June 10 and June 15, 1953; that her
residence at the said address has been continuous and
uninterrupted; that the residence of her children, Juditn
and Pamela, on whose behalf this action is brought, has
29a
likewise been continuous and uninterrupted since the said
date.
Affiant further states that her husband, M. L. Davis, is
physically unable to make an affidavit as to the facts sur-
rounding their residence, because of an automobile acci-
dent on June 16, 1954, which caused him severe injuries,
and that as the reoult of the said injuries he is now con-
fined to the Elmhurst Memorial Hospital.
She further states that because of the injuries sustained,
he has great difficulty in talking ard can only be seen at
short intervals by none other than herself.
Further affiant sayeth not.
see eee eee ee ee eee eee eee eer ere
Notary Public.
[Verification omitted]
30a
IN THE DISTRICT COURT OF THE UNITED STATES.
FOR THE NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION.
No. 52 C 2124
Cuaupins M. Mrxesett, Administrator of the Estate of
Charles Delbert Mikesell, Plaintiff,
Vv.
Cur1caco, Rock Istanp anp Pactrio Ramroap Company, a
Corporation, Defendant.
Srarte or In.iNots,
County or Coox. f =
Wi Davis, being first duly sworn, deposes and says
that he resides at 1815 South Highland Avenue, Lombard,
Illinois, DuPage County, Ilinois; that he has so lived there
for fourteen years; that he is a partner in the Highland
Metal Products Company, Hillside, Illinois; that he is a
brother of M. L. Davis, who married Claudine Mikesell on
May 2, 1953.
Affiant states that since March 1953, M. L. Davis had been
living at his home in Lombard, Illinois, and that in the
latter part of April 1953, M. L. Davis purchased a home
in Lombard, Illinois, a‘ 351 Elizabeth Drive.
Affiant further states that to his own knowledge M. L.
Davis and Claudine M. Davis have been actually residing
in the said home at 351 Elizabeth Drive, since between
June 10 and June 15, 1953; that since said date they have
lived there continuously and uninterrupted with their three
children, two of whom were Mrs. Davis’ by her marriage
to Charles D. Mikesell, and the remaining child his brother’s
by his marriage to his deceased wife.
a
3la
Affiant further states that two of the aforesaid three
children attend school in Lombard, and that the said
Claudine M. Davis participates in such civic activities as
the Parent-Teachers Association and the Girl Scouts.
Further affiant sayeth not.
eeeree eer eee ee ee eee eee eee eees
[Verification omitted]
32a
IN THE DISTRICT COURT OF THE UNITED STATES.
FOR THE NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION,
No. 52 C 2124
Cuaupine M. Mrixeseut, Administrator of the Estate of
Charles Delbert Mikesell, Plaintiff,
Vv.
Curcaco, Rock IsLanp anp Pacrric Ramroap Company, a
Corporation, Defendant.
Memorandum.
In compliance with the mandate of the Circuit Court of
Appeals in Chicago, Rock Island and Pacific Railroad Com-
pany v. Igoe, 7 Cir. 212 F. 2d 378, the order heretofore en-
tered in this matter denying the transfer of the above cause
has been vacated and further consideration has been given
to the petition for transfer heretofore filed herein, as well
as to all of the pleadings in this matter, including affidavits
filed by both parties thereto since the cause has been
remanded.
Upon consideration of all of the papers now on file in
this case, I have reached the conclusion that it would not
be for the convenience of the parties and witnesses, nor
in the interest of justice to transfer this case to either of
the Iowa Districts requested in the petition of the
defendant.
Icor,
Judge.
33a
UNITED STATES DISTRICT COURT.
Office of the Clerk.
United States Court House.
Chicago 4.
Date: 7-8-54
Re: Mikesell, Adm. vs. C. R. I. & P. R. R. Co.
Case No. 52C 2124.
You are hereby notified that Judge Igoe entered the fol-
lowing order on 7-2-54:
In accordance with the Memorandum Opinicn filed this
day herein, defendants move to transfer cause to the South-
ern District of Iowa, Western Division or to the Southern
District ef Iowa, Central Division is denied.
Roy H. Joxnnson,
Clerk.
34a
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIROUIT
No. 11247.
October Term, 1954, January Session, 1955.
Cuicaco, Rock IsLanp anp Paciric Ramroap Company, a
corporation, Petitioner,
Vv.
Honoraste Micnart L. Icon, Judge of the United States
District Court for the Northern District of Dlinois,
Eastern Division, Respondent.
February 16, 1955.
Before Durry, Chief Judge, Mason, Finnecan, Linbiey,
Swam and Scunackenserec, Circuit Judges.
Durry, Chief Judge. This is a petition for a Writ of
Mandamus seeking an order directing the respondent to
transfer from the United States District Court for the
Northern District of Illinois, Eastern Division, to the Dis-
trict Court for the Southern District of Iowa, pursuant to
28 U. S. C. A. § 1404(a), the case entitled ‘‘Clendine M.
Mikesell, Administrator of the Estate of Charles Delbert
Mikesell, Deceased, plaintiff, vs. Chicago, Rock Island and
Pacific Railroad Company, defendant, Civil Action No.
52 C 2124.’’
This proceeding is here for the second time. In the
previous proceeding the respondent insisted that this Court
did not have the power to entertain a petition for man-
damus in a case of this nature. We held (Chicago, R. I.
& P. R. Co. v. Igoe, 7th Cir., 212 F. 2d 378, 382) that
mandamus would lie and after citing various authorities,
including Dairy Industries Supply Ass’n. v. LaBuy, 7 Cir.,
207 F’. 2d 454 we said: ‘‘We adhere to the Dairy Industries
decision and remand the cause to the District Court with
directions to vacate the order denying the transfer and to
reconsider petitioner’s motion in the light of the views
35a
expressed herein.’’ After the remand the District Court
entered an order again denying the petition to transfer,
and filed a memorandum in which the District Judge
stated: ‘‘* * * T have reached the conclusion that it
would not be for the convenience of the parties and the
witnesses, nor in the interests of justice to transfer this
case to either of the Iowa Districts requested in the petition
of the defendant.’’
On September 14, 1951, Charles D. Mikesell and Claudine
Mikesell, husband and wife, were residents of Des Moines,
Iowa. On that date Charles Mikesell was driving an auto-
mobile in the village of Avoca, Iowa, and in passing over
the tracks of the Rock Island Railroad, was struck by a
train operated by the Railroad and was killed. Avoca is
located within the Western Division of the Southern Dis-
trict of Iowa. The District Court of Polk County, Iowa,
issued letters of administration to Claudine Mikesell and
on September 13, 1952, in her capacity as administrator,
she commenced an action against said Railroad in the
Superior Court of Cook County, Illinois, claiming damages
for wrongful death.
The Railroad, on the grounds of diversity of citizenship,
caused the Mikesell case to be removed from the Superior
Court of Cook County to the United States District Court
for the Northern District of Illinois. Thereafter, the Rail-
road filed a motion under 28 U. 8. CG. A. § 1404(a)? to
transfer the cause to the United States District Court for
the Southern District of Iowa for trial in either its Central
Division sitting at Des Moines, or its Western Division
sitting at Council Bluffs.
It is without dispute that on and prior to September 14,
1951, the date of the death of Charles Mikesell, he and his
wife were residents of Des Moines, Iowa; that letters of
administration were issued to plaintiff by the District
Court of Polk County, Iowa; and plaintiff continued to
_ *“$1404(a) For the convenience of parties and witnesses in the
mterest of justice, a district court may transfer any civil action
to any other district or division where it might have been brought.’’
36a
reside in Des Moines and was living there on the date when
she commenced suit against the railroad in the Superior
Court of Cook County, Illinois. Further, it is averred, in
the affidavit filed upon behalf of the Railroad, that in order
to defend plaintiff’s action, petitioner wili be required to
call two non-employee witnesses residing at Des Moines,
six non-employee witnesses residing at Avoca and five em-
ployee witnesses residing at Des Moines and Avoca; that
the testimony of said non-employee witnesses can be ob-
tained only by subpoena and that the legal process of the
United States District Court for the Northern District of
Illinois does not extend to any of the localities where such
witnesses reside. It was also shown that Des Moines is
358 miles from Chicago; that Avoca is 459 miles from
Chicago, but that Avoca is 33 miles from Council Bluffs
and 104 miles from Des Moines; that all of the witnesses
petitioner expects to call in its defense are within the
range of legal process which can be issued by the United
States District Court for the Southern District of Iowa.
Petitioner’s affidavit also asserted that it would be impos-
sible for it to properly present its defense by depositions
as it could not, in advance, anticipate evidence which may
be offered by the plaintiff.
Plaintiff opposed petitioner’s motion to transfer and
filed an affidavit which disclosed that on May 2, 1953 she
married one M. L. Davis and since June, 1953, she and
Davis have resided in Lombard, Illinois, in a home which
they have purchased and that she now considers Lombard
as her permanent residence.
Plaintiff’s counsel filed an affidavit showing that peti-
tioner’s main offices are in Chicago, Illinois; that the train
service between Avoca and Des Moines is poor, the trip
consuming 214 hours, while the train service between Des
Moines and Chicago was much more frequent, the trip
taking about 6 hours. The affidavit also stated that plain-
tiff had hired an attorney residing in Chicago, Illinois, and
that if the case were tried in Iowa that plaintiff would be
put to the expense of hiring an additional attorney.
37a
When the petition for transfer was first presented to the
District Judge he denied the motion ‘‘* * * on the general
proposition that the place where this accident occurred is
about as close to Chicago as to Des Moines where you want
to have the case tried, and this case was started in the
State Court and you folks transferred it over to the Fed-
eral Building evidently for the purpose of having a trial,
and as soon as it got here the only trial you wanted was
to ship it out to Iowa, I don’t think § 1404(a) was ever
« established or ever enacted for that reason * * *.’’ In
our previous opinion we pointed out that the reasons given
by the District Judge for denying the petition were not
valid, and we stated ‘‘The governing tests are expressly
stated in the Act, and a leading mandamus case points up
the correct guides to their application to a particular fact
situation, which include ‘the relative ease of access to
sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attend-
ance of willing witnesses; possibility of view of premises,
(if necessary) ; and all other practical problems that make
trial of a case easy, expeditious and inexpensive * * *.
The Court will weigh relative advantages and obstacles to
fair trial. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508.’ ”’
We then remanded-this case with directions to vacate the
order denying the transfer and to reconsider petitioner’s
motion in the light of the views that we expressed in our
opinion.
Plaintiff invokes the doctrine of res judicata based on the
statement in our previous opinion herein, ‘‘Ultimate deci-
sion on that motion is within the province of the District
Court, and we cannot, as petitioner would have us do, usurp
its function and decide the question in this court.’’ All we
intended to say was that the District Court must, initially,
make the decision by applying the statutory tests laid down
in § 1404(a), viz., ‘‘* * * convenience of the parties and
witnesses, in the interest of justice * * *.’’ We thought
we clearly delineated the scope of our decision when we
stated: ‘‘However, this opinion deals with the existence
38a
of power only, not with the permissible limitations on its
exercise.’’ It is clear that the doctrine of res judicata has
no application. Furthermore, we feel there is no incon-
sistency between this opinion and our previous opinion in
this case.
In considering the three factors prescribed by the statute,
the District Court should bear in mind that in filing an
action the plaintiff is permitted to choose any proper forum
and that the plaintiff’s choice of forum should not be lightly
set aside. In acting on such motion the District Judge has
a broad discretion, but in exercising this discretion he is
limited in his consideration to the three factors specifically
mentioned in § 1404(a), and he may not properly be gov-
erned in his decision by any other factor or consideration.
Dairy Industries Supply Ass’n. v. LaBuy, supra, pages
557-8.
Whether the plaintiff followed the litigation or whether,
by an unusual coincidence, she moved to the Northern Dis-
trict of Illinois because of her second marriage, is, as we
see it, not of great importance. Although plaintiff was not
a witness to the collision at Avoca, Iowa, she, undoubtedly,
might be called to testify at the trial as to undisputed
matters, and we think, under the circumstances of this case,
if the first test alone were to be considered, viz., ‘‘con-
venience of the parties’’ that the trial judge acted within
his discretion in refusing to order the transfer. But the
statute requires the application of two additional tests.
As to the second test ‘‘convenience of witnesses’’ it is
self-evident that the convenience of both plaintiff’s and
defendant’s witnesses would be served by a trial of the
cause in the Southern District of Iowa. A number of wit-
nesses reside at Avoca which is 459 miles from Chicago
but only 33 miles from Council Bluffs and 104 miles from
Des Moines, the two cities where the trial might be held.
The other witnesses apparently all reside at Des Moines.
Plaintiff’s counsel argues that train service between Avoca
and Des Moines is poor, but we assume the highways in
that area are suitable for automobile travel, and that Iowa,
39a
like other states, has the benefit of extensive bus service.
There is nothing in this record to indicate the convenience
of witnesses will be served by a trial in Chicago. There
is no factual basis in this record for the respondent’s con-
clusion to the contrary.
The third test under the statute is ‘‘in the interest of
justice’’. The phrase connotes conditions which are in
furtherance of the administration of justice. It has been
held that the phrase should be given paramount considera-
tion. Greve v. Gibraltar Enterprises, Inc., 85 F. Supp. 410,
413. Both the interest of the parties to the lawsuit as well
as society in general should be considered. United States
v. National City Lines, Inc., 7 F. R. D. 393, 397, 402. In
the interest of justice there should be considered the rela-
tive ease of access to sources of proofs; availability of
compulsory process for attendance of unwilling, and the
cost of obtaining attendance of willing witnesses; the pos-
sibility of a view of the premises; and the state of the
court calendar both in the District where the case is pend-
ing, and in the District to which it is sought to have the
ease transferred.
A number of courts have given consideration to the
congested state of their calendars in considering a motion
to transfer. Rhoton v. Interstate R. Co., 123 F. Supp. 34;
Glasfloss Corporation v. Owens-Corning Fiberglas Cor-
poration, 90 F. Supp. 967; United States v. E. 1. Du Pont
DeNemours & Co., 83 F. Supp. 233; Hansen v. Nash-Finch
Co., 89 F. Supp. 108; Healy v. New York, New Haven &
Hartford R. Co., 89 F. Supp. 614.
The calendar for the District Court of the Northern Dis-
trict of Illinois is congested.? There is no apparent reason
? The annuai report of the Director of the Administrative Office
of the U. S. Courts issued September, 1954 states: (A-27) ‘‘The
Northern District of IUinois—This large metropolitan district with
8 judges succeeded in reducing the number of pending civil cases
from 3170 to 2497, but the reduction was almost entirely in United
States cases. The private caseload per judge both of cases filed and
cases pending is far heavier than average and the median inter-
val from filing to disposition was 15.1 months in 1954 as compared
40a
why this case could not be brought to trial promptly in the
Southern District of Iowa.
Possibly the real motive for plaintiff’s vigorous opposi-
tion to the transfer of this case is the hope and expectation
that a verdict for a larger sum would be returned in
Chicago than in the Southern District of Iowa. Also, the
Railroad might hope for a lower verdict in Iowa. Such
results might well obtain, but we cannot consider those
speculative factors as reasons either for or against a trans-
fer, nor does § 1404(a) provide that the convenience of
counsel is a factor to be considered. United States vy,
Williams, 88 F. Supp. 531, 535; Henderson v. American
Air Lines, 91 F. Supp. 191, 193.
We agree with the statement of the court in Josephson
v. McGuire, 121 F. Supp. 83, 84: ‘‘A large measure of
deference is due to the plaintiff’s freedom to select his own
forum. Yet this factor has minimal value where none of
the conduct complained of occurred in the forum selected
by the plaintiff * * *.’’ In this case there is no con-
troverted question which depends on any event occurring
in the Northern District of Dlinois. Both parties must
rely upon evidence of events entirely removed from that
District. B. Heller € Co. v. Perry, 201 F. 2d 525, 527.
The writer of this opinion feels confident that had he
been sitting in the District Court when the motion for
transfer was made, an order for transfer would have been
entered without hesitation. But what he or any other judge
might have done in the circumstances is not the test we
must apply in deciding this case. To warrant action by us,
there must be something more than an erroneous decision.
Our problem is, was the refusal by the District Judge to
order the transfer, an abuse of discretion? B. Heller é
with 14.8 months in 1953 and over 15.5 months for each of the three
previous years. Although the court regularly disposes of a con-
siderably larger number of cases per judge than the national
average, a substantial reduction in the number of private cases
is necessary to insure prompt disposition of civil business. Almost
80 percent of the cases filed in 1954 were private cases compared
with the national average of 66 percent.’’
4la
Co. v. Perry, 7 Cir., 201 F. 2d 525, 527; Dairy Industries
Supply Ass’n. v. La Buy, 207 F. 2d 554, 558; Ford Motor
Co. v. Ryan, 2 Cir., 182 F. 2d 329, Certiorari denied 340
U. S. 851. Was respondent’s denial of the transfer ‘‘so
clearly erroneous as to amount to an abuse of his dis-
eretion?’’ General Portland Cement Co. v. Perry, 7 Cir.,
204 F. 2d 316, 319.
The only possible factor to support the refusal to trans-
fer is that the plaintiff chese a state court in Cook County,
Illinois, as a forum, and that about nine months after she
commenced such action, she moved from the Southern Dis-
trict of Iowa to the Northern District of Illinois. We give
little weight to the claim that plaintiff will be required to
hire an Iowa attorney if the transfer is ordered.*
Factors under the statute which demonstrate that a
transfer should be made are: convenience of witnesses of
both plaintiff and defendant; the ease of access to sources
of proof; the availability of compulsory process to compel
the attendance of unwilling witnesses; the smaller amount
of,expense required for willing witnesses; the availability
as view of the premises; the congestion of the District
urt calendar in the Northern District of Illinois, Eastera
DiNision; that no controverted issue of fact depends upon
any\vent that occurred in the Northern District of Illinois;
and the burden of a jury trial should not be imposed upon
the Northern District of Illinois, an area which has no
relation to the litigation.‘
Another factor to be considered is plaintiff acts in a
representative capacity and was appointed by an Iowa
*If plaintiff signed a contingent fee contract as is so often done
in wrongful death cases, it is probable that any such expense would
be an obligation of plaintiff’s attorney.
* As was well stated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
507, 508-9 ‘Factors of public interest also have a place in apply-
ing the doctrine. Administrative difficulties follow for Courts
when litigation is piled up in congested centers instead of being
handled at its origin. Jury duty is a burden that ought not to
be imposed on the people of a community which has no relation
to the litigation.’’
42a
State Court. Authorization of that Court would be re-
quired in order for plaintiff to make a settlement, and
plaintiff must account to that Court for any sums received
by settlement or litigation, and distribution of any such
sums would be under the jurisdiction of the Iowa State
Court.
One additional point raised by the attorney for respond-
ent should be noted. The claim is made that the petition
for mandamus is insufficient because the names of the wit-
nesses were not stated. The decision of this Court in
General Portland Cement Co. v. Perry, 204 F. 2d 316 is
cited. No request was made for the production of the
names of defendant’s witnesses. As far as this record
shows all witnesses bearing on the subject of defendant’s
alleged liability reside in the Southern District of Iowa. In
any event, the point was not raised in the Court below.
Such objection cannot be raised here for the first time.
Hopkins v. Waco Products, Inc., 7 Cir., 205 F. 2d 221, 224;
Kainz v. Anheuser-Busch, Inc., 7 Cir., 194 F. 2d 737, 744;
Apex Smelting Co. v. Burns, 7 Cir., 175 F. 2d 978, 982;
McComb v. Goldblatt Bros., Inc., 7 Cir., 166 F. 2d 387,
389-90.
The balance of convenience of the parties is so over-
whelmingly in favor of the defendant that we hold the
denial by respondent of the motion to transfer this case to
the Southern District of Iowa was so clearly erroneous that
it amounted to an abuse of discretion.
Let a Writ of Mandamus issue directing the Respondent
1) to vacate and set aside the order entered July 7, 1954;
and 2) to enter an order transferring this cause for trial
to the Southern District of Iowa, in either the Central or
Western divisions thereof.
Ir Is So Orperep.
Fixneoan, Circuit Judge, dissenting. An er banc hearing
as one of three oral arguments and two briefings, on each
side, is quite enough of this case. Several serious matters
of policy and principle, however, concerning mandamus,
a a a
anaes
impel me to expand this dissent and express my views on
some broader aspects of the majority opinion. This entire
episode illustrates problems following in the wake of gen-
erously encouraged repetitive invocations of mandamus.
I would have allowed the respondent Judge’s motion to
dismiss the Railroad’s second petition for a writ of manda-
mus, a... tested my determination on the reasons expressed
in this dissent
A major point of my divergence, from the majority opin-
ion, is stressed by tracing, chronologically, the various
stages through which this matter passed after suit was
filed, September 13, 1952, in the Superior Court of Cook
County, Illinois. Petitioner here, defendant-Railroad, re-
moved the case from that State court, October 6, 1952, to
the district court below. Four days later petitioner in-
voked 28 U. S. C. § 1404(a) and moved for a transfer to
one of two districts in Iowa, the Eighth Circuit. Objec-
tions to petitioner’s motion were interposed, June 12, 1953,
on behalf of the plaintiff-widow-administratrix. It was
respondent’s order, entered eight days later, which stimu-
lated the Railroad’s first petition for a writ of mandamus
te compel the transfer, and that resulted in an opinion re-
ported as Chicago, R. I. € P. R. Co. v. Hon. M. L. Igoe, 212
F, 2d 378 (7th Cir. 1954).
On remand ordered April 20, 1954, the basic factual
showing remained unaltered, save in one respect herein-
after mentioned, and remarkably similar to that outlined
in Judge Lindley’s opinion (212 F. 2d 378) and now nar-
rated in the Chief Judge’s opinion. Confronted with the
same papers originally tendered him by the Railroad and
plaintiff’s objections, by then implemented with her afti-
davit (filed June 24, 1954) concerning change of residence
to Illinois sometime in May-June, 1953, respondent again
denied this transfer.
At this juncture, and parenthetically at least, I recall
marginal note 2 of Chicago, R. I. d P. R. Co. v. Hon. M. L.
Igoe, 212 F. 2d 378, 379 (7th Cir. 1954), viz.:
44a
Heo gency answer to the petition avers that
plaintiff, prior to June 30, 1953, the date petitioner’s
motion was denied, had moved to, and was a resident
of the Northern District of Illinois, and on the basis
of this averment denies the allegation of the petition
that all witnesses to be called by either party are resi-
dents of the Southern District of Iowa. It was con-
ceded on oral argument that plaintiff was not a witness
to the accident, which caused the death of her dece-
dent. On November 30, 1953, over petitioner’s objec-
tion, respondent granted a motion that a statement as
to this change of residence be certifie? to this court.
Inasmuch as that fact was not before respondent when
he denied petitioner’s motion to transfer, it is not
properly before us now and we do not consider it.
General Portland Cement Co. v. Perry, 7 Cir., 204 F.
2d 316.’’
Judge Igoe, as part of his second denial, filed the follow-
ing memorandum:
*‘In compliance with the mandate of the Circuit
Court of Appeals in Chicago, Rock Island and Pacific
‘Railroad Company v. Igoe, 7 Cir., 212 F. 2d 378, the
order heretofore entered in this matter denying the
transfer of the above cause has been vacated and fur-
ther consideration has been given to the petition for
transfer heretofore filed herein, as well as to all of the
pleadings in this matter, including affidavits filed by
both parties thereto since the cause has been remanded.
‘*Upon consideration of all of the papers now on file
in this case, I have reached the conclusion that it would
not be for the convenience of the parties and witnesses,
nor in the interest of justice to transfer this case to
either of the Iowa Districts requested in the petition
of the defendant.’’
I also think the District Judge is entitled to have repeated
the following representation made in his answer, and be-
half, by his counsel:
‘*Respondent further states that he has faithfully
discharged the discretion which the orderly adminis-
tration of justice requires.’’
45a
Now, the majority devotes part of their opinion to what
‘‘we intended to say’’ and *‘thought we clearly deline-
ated ...’’ in Chicago, R. I. P. R. Co. vy. Igoe, 212 F.
2d 378 (7th Cir. 1954). Yet I find it difficult to so easily
dilute the impact of Judge Lindley’s final passage :
“Ultimate decision on that motion is within the
province of the District Court, and we cannot, as peti-
tioner would have us do, usurp its function and decide
the question in this court.”’ (ibid, 382; italies added.)
The Railroad’s first petition for mandamus, then pend-
ing before the panel which approved that specific closing
paragraph, sought precisely the same relief now granted,
after petitioner’s persistent efforts. Having announced
we had ‘‘power,’’ the writ was neither expressly granted
nor denied. Facing up to realities, it seems to me the trial
judge was simply given a second chance. Since ho made
the wrong choice on the second round, which incidentally
was the same ruling precipitating remand, the writ issues.
Discretion, vested in the District Judge is the nub of
this matter. Secret motives of either set of litigants, or
their counsel are irrelevant—the trial judge stands alone.
For that reason I disclaim the majority’s statement, i. e.,
“. . . we feel there is no inconsistency between this
opinion and our previous opinion in this case.” It is
hardly sound justification for currently usurping the Dis-
trict Judge’s function and deciding the question in this
court, to say we were, at first, concerned solely with
enunciating the existence of our ‘power.’ ess
of how it is articulated, I think we now usurp, where
once we refrained. Either the remand order gave the
District Judge a Hobson’s choice, or it left him with
discretion. Nor can the inconsistency be dispelled by
simply pointing up a sentence lurking in the first opinion
(212 F. 2d 378, 381) viz. :., **However, this opinion deals
with the existence of power only, not with the permissible
limitations on its exercise.’? For I find it difficult to
conclude that the following portion of Judge Lindley’s
46a
opinion is merely dictum, if ‘‘power’’ was the sole decision
point:
‘“We adhere to the Dairy Industries decision and
remand the cause to the District Court with directions
to vacate the order denying the transfer and to recon-
sider petitioner’s motion im the light of the views ex-
pressed herein.”’ (212 F. 2d 378, 382; italics added.)
The ‘‘views’’ concerned § 1404(a); and the District
Judge reconsidered. Nowhere in its opinion has the
majority shown why the writ did not issue the first time.
I hardly think remand was ordered as a veiled threat predi-
cated upon an announcement that we had power to issue
the writ.
I think we should come to grips with the core issue—
abuse of discretion, its existence or non-existence. If we
are substituting our discretion for that of respondent we
ought to say so and be done with it. We have no business,
as I view it, balancing conveniences of the parties, and
speculating upon their motivations.
Just how ‘‘society in general’’ merits consideration on
a motion to transfer escapes me. That the words found in
§ 1404(a) ‘‘in the interest of justice must be given para-
mount consideration’’ is an unsupported view of a district
court speaking in Grove v. Gibraltar Enterprises, Inc., 8
F. Supp. 410, 413 (D. New Mexico, 1949). But if that
epitomizes § 1404(a) then certainly it is a sweeping and
elastic criteria. Respondent had a broad range of discre-
tion under that prong of § 1404(a), even in light of the
majority’s reasoning.
What chiefly emerges from the repertory of ideas ex-
pressed in the majority’s opinion is not a demonstration
of discretion abused below, but rather a sliding scale of
judgment values between reviewing tribunal and trial
court.
My additional views coincide with those expressed by
Judge Goodrich, speaking for a unanimous court in All
47a
States Freight v. Modarelli, 196 F. 2d 1010-1011-1012 (3rd
Cir. 1952) :
‘The second danger which threatens the usefulness
of Section 1404(a) comes from the appellate courts.
It is settled in this Circuit and elsewhere that an order
either making a transfer or refusing a transfer is not
appealable. Now the effort is being made both in this
court and elsewhere to substitute for appeal a review
by mandamus whenever the losing party on a motion
to transfer wants an advance review of the ruling on
this point.
‘‘We think that this practice will defeat the object
of the statute. Instead of making the business of the
courts easier, quicker and less expensive, we now have
the merits of the litigation postponed while appellate
courts review the question where a case may be tried.
‘*Every litigant against whom the transfer issue is
decided naturally thinks the judge was wrong. It is
likely that in some cases an appellate court would
think so, too. But the risk of a party being injured
either by the granting or refusal of a transfer order
is, we think, much less than the certainty of harm
through delay and additional expense if these orders
are to be subjected to interlocutory review by man-
damus.
‘*We do not propose to grant such review where the
judge in the district court has considered the interests
stipulated in the statute and decided thereon * * *”
Our mandamus power is not a muscle which requires
exercise to maintain its vitality. More slides into abdica-
tion, today, than a mere order of transfer finally wrested
from our court.
48a
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIROUIT
Chicago 10, Illinois
Wednesday, February 16, 1955
Before
Hon. F. Ryan Durry, Chief Judge
Hon. J. Ear. Mason, Circuit Judge
Hon. Punmuir J. Finneoan, Circuit Judge
Hon. Water C. Linney, Circuit Judge
Hon. H. Natuan Swarm, Circuit Judge s
Hon, Exmer J. Scunacxenserc, Circuit Judge a
No. 11247. q
Curcaco, Roox Istanp anp Pacrrio Ramroap Company, .
corporation, Petitioner, e
v. 4
q
Honoraste Micuart L. Icor, Judge of the United States”
District Court for the Northern District of nie
‘Eastern Division, Respondent.
On Petition for Writ of Mandamus.
This matter comes before the Court on the Petition for
Writ of Mandamus, the Answer thereto, Briefs of counsel
for the parties, and was argued by counsel.
On consideration whereof, it is ordered by this Court”
that a Writ of Mandamus issue directing the Respondent
(1) to vacate and set aside the order entered July 7, 1954;
and (2) to enter an order transferring this cause for trial
to the Southern District of Iowa, in either the Central or
Western Divisions thereof.
ase
— ee
ee ee ee ee eee ne
’
j
|
}
pow tne ns
, 5
‘
ee a ee
INDEX.
PAGE
Opinion Below ......5.......seeee eee e ee eeee eens 1
Question Presented .......... cc cceeesecsecececnees 2
Statutes REE cc anvctavscesvesscusounevan ans 2
‘Reasons for Denying the Writ........... weet eee ees 3
MMPOMONE 2.2... neces cece e nee eereeseeseseesencnces 3
Argument ............. esses sees este tte neneeees 8
I. The petition for certiorari was not filed within
the time prescribed by law ..........-+++++++55 8
II. In taking jurisdiction by mandamus, vacating
Petitioner’s denial of respondent’s motion to
transfer, and directing Petitioner to transfer the
case to the Southern District of Iowa, the Court
of Appeals ruled in accordance with reason and
authority. Its decision is not in confliet with ap-
plicable decisions of this Court, or with a deci-
sion of another Court of Appeals on the same
ERP re ee ee 9
The decision of the Court of Appeals is not in
conflict with applicable decisions of this Court.. 11
The decision of the Court of Appeals is not in
conflict with the decision of another court of ap-
peals on the same matter ......-..-++.++eeees 14
een dea SeSeRECR ASS RA SAI ETO
CrraTIons.
Cases.
All States Freight v. Modarelli, 3 Cir., 196 F. 2d 1010 15
Bankers Life & Casualty Co. v. Holland, 346 U. 8. 379 18
Bryan v. United States, 338 U. S. 552.............. ll
C-0-Two Fire Equipment Co. v. Barnes, 7 Cir., 194
ee Re a EEN cc cabs cane cane Sewnacew ey 15
Cardox Corp. v. C-O-Two Fire Equipment Co., 344
OE Ca UVa OL b aA eA ban ata sadn Sevewe soe 15
Chicago, Rock Island and Pacific Railroad Company
v. Igoe, 7 Cir., 212 F. 2d 378............4. 1, 5, 6, 9, 14
Chicago, Rock Island and Pacific Railroad Company
v. Igoe, 7 Cir., 220 F. 2d 299......... cece eeeee 1, 7, 10
DeBeer Consolidated Mines v. U. S., 325 U. S. 212.. 1
Ex Parte Collett, 337 U. S. 55.......... eee cece eees 13
Ex Parte Fahey, 332 U. S. 258.............eeeeess 12
Ex Parte Krentler-Arnold Hinge Last Co., 286 U. 8.
Pe Ce LUNs chi SUA KRCKMNM CREO SO ee SUES UNOS 8, 14
Ex Parte Peru, 318 U. S. 578.......... cece eee enees 12
Ex Parte Peterson, 253 U. S. 300..............0085 12
Ex Parte Simons, 247 U. S. 231............. 0s eee 12
Ex Parte Skinner & Eddy, 265 U. S. 86.............. 13
Fettig Canning Co. v. Steckler, 7 Cir., 188 F. 2d 715,
certiorari denied 341 U. S. 951............. 0008 15
Ford Motor Co. v. Ryan, 2 Cir., 182 F. 2d 329, certi-
orari denied 340 U. S. 851......... cc eee eee eens 11, 14
Gulf Research & Development Co. v. Leahy, 3 Cir.,
Se ME ME chav ikon senses sovwvede sans ts een 12
iii
Jiffy Lubricator, Ine. v. Stat nyse Warner Co., 4 Cir.,
Ie SE 0 3 he dk Eades oe he D eo onae te Oke bam 11
Kilpatrick v. Texas & Pacifie Ry. Co., 337 U. 8. 75.. 13
Los Angeles Mfg. Corporation v. James, 272 U.S. 701 12
McCullough, et al. v. Cosgrove, 309 U. S. 634........ 12
Norwood v. Kirkpatrick, 99 L. Ed. 461.............. 13
Paramount Pictures v. Rodney, 186 F. 2d 111, certi-
ee eoeeneein OO a), Th BOR ia des i isc cada cs 14
Pennsylvania Turnpike Commission v. Welsh, 3 Cir.,
TI: SU MOR <a 5 656 oi nc oi x 0 aw Dich had Ga SAR 12
Roche vy. Evaporated Milk Assn., 319 U. S. 21...... 12,13
Shapiro v. Bonanza Hotel Co., 9 Cir., 185 F. 2d 777.. 14
Sun Oil Co. v. Lederle, et al., 6 Cir., 199 F. 24 423.... 14
United States v. National City Lines, 334 U. S. 573.. 13
United States v. National City Lines, 337 U. S.78.... 13
U. 8. Alkali Assn. v. U. S., 325 U. S. 196............ 13
Wilbur v. United States, 281 U. S. 206........... 9, 11, 14
Statutes.
ne BUENO isi, RRS LETS iA CRRA 10
MRO sas chu bc chu s bdcba waa On ERT tb oaa ke 11
SE EME iikio-d 5c adic drd nten cha. co de Ve WERE ee 2,8
SG RSME a SIN aaaes SAGs ahaa RAR eh bea one 2, 8, 11
IN THE
Supreme Court of the United States
OcrosEr Term, 1954.
No. 797.
HONORABLE MICHAEL L. IGOR, Jvupce or tue Unrrep
Srates Districr Court ror THE Norrdian District OF
I:xtinois, Eastern Division,
Petitioner,
vs.
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD
COMPANY,
Respondent.
RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI.
OPINION BELOW.
The first opinion of the Court of Appeais in the
mandamus proceedings held that the appellate court
had jurisdiction to review orders relative to transfer under
8 U. S. C. 1404(a) by way of mandamus. Chicago, Rock
Island and Pacific Railroad Company v. Igoe, 7 Cir., 212 F.
2d 378, 381 (April, 1954).
The second opinion of the Court of Appeals held that the
denial by the Petitioner of the motion to transfer was so
dearly erroneous that it amounted to an abuse of discre-
tion. Chicago, Rock Island and Pacific Railroad Company
Igoe, 7 Cir., 220 F. 2d 299, 305 (February, 1955).
QUESTION PRESENTED.
Where appeal is clearly inadequate, is the Court of Ap.
peals powerless to review by mandamus an order denying
a transfer under 28 U. S. C. 1404(a), when the denial is
‘*so clearly erroneous that it amounted to an abuse of
discretion’’?
The petition erroneously asserts (page 2) that Petitioner
applied ‘‘the proper legal standards’’, and acted ‘‘on con-
flicting facts’’. The facts were undisputed and overwheln-
ingly in favor of transfer, and Petitioner arbitrarily dis-
regarded the proper legal standards.
STATUTES INVOLVED.
In addition to the statutes referred to in Petitioner's
petition, this proceeding involves 28 VU. S. C. 2106 (Act of
June 25, 1948, 62 Stat. 963), which provides:
The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court law-
fully brought before it for review, and may remand
the cause and direct the entry of such appropriate
judgment, decree, or order, or require such further pro-
ceedings to be had as may be just under the circum-
stances.
28 U.S. C. 2101(¢) (Act of June 25, 1948, 62 Stat. 961),
which provides:
Any other appeal or any writ of certiorari intended
to bring any judgment or decree in a civil action, suit
or proceeding, before the Supreme Court for review
shall be taken or applied for within ninety days after
the entry of such judgment or decree. A justice of the
Supreme Court, for good cause shown, may extend the
time for applying for a writ of certiorari for a period
not exceeding sixty days.
1. The petition for certiorari was not filed within the
time prescribed by law. By its second judgment the Court
of Appeals acted to enforce its first judgment, which Peti-
tioner had disregarded.
2. The decision of the Court of Appeals is not in con-
flict with applicable decisions of this Court.
3. The decision of the Court of Appeals is not in con-
flict with the decision of another Court of Appeals on the
same matter.
¢
STATEMENT.
Petitioner’s statement is neither accurate nor complete.
It is best corrected by a complete statement on tive part of
the respondent.
The case in the District Court was a suit brought against
respondent in September, 1952, in the state court of Illinois
at Chicago, for damages for the death of Charles Delbert
Mikesell in an Iowa grade crossing accident of September,
1951 (P. 3-4, App. 17a).* It was brought under the Iowa
Wrongful Death statute (Section 635.9 Iowa Statutes 1954),
by the widow of deceased, Claudine M. Mikesell, as Ad-
ministrator of his estate (hereinafter referred to as ‘‘plain-
tiff’’) (P. 3-4; App. 17a).
At the time of the accident plaintiff and her husband
resided in Des Moines, Iowa, ard plaintiff resided there at
the time the suit was brought (App. 3a, 7a). Plaintiff was
appointed Administrator by the District Court of Polk
County, lowa, and continues to act in that capacity (App.
3a, 27a). Respondent, a Delaware corporation, removed
the case to the District Court for the Northern District of
*Figures in parenthesis following the letter ‘‘P.’’ indicate
pages of Petitioner's petition ; figures following the letters ‘‘ App.”’
indicate pages of the appendix of the petition.
4
Illinois, Eastern Division, at Chicago, upon the ground of |
diversity of citizenship (App. 7a).
In October, 1952, respondent moved for the transfer of
the case under 28 U. 8S. C. 1404(a) to the District Court
of the United States for the Southern District of Towa,
either at Des Moines, in the Central Division, or at Council -
Bluffs, in the Western Division (P. 4, App. 1a).
The motion to transfer was supported by an affidavit to
the effect that plaintiff was a resident of Des Moines, Iowa,
in the Southern District of Iowa; that the accident oc-
curred at Avoca, Iowa, in said district; that all witnesses
to be called by the defendant reside at either Des Moines
or Avoca; that a trial in the Northern District of Tlinois
would deprive the defendant of process to compel the at-
tendance of eight non-employee witnesses; that Avoca is
459 miles from Chicago, but only 100 miles from Des
Moines; that a trial at Chicago would necessarily impose
excessive expense upon the defendant in procuring such
voluntary witnesses as would go there to testify; that each
of such witnesses would lose some five days; that defend-
ant’s defense could not be appropriately presented by
deposition; that any witnesses to be called by plaintiff on
any disputed issue necessarily resided in or near either Des
Moines or Avoca; and that the defendant was amenable to
process in both the Central and Western Divisions of the
District Court for the Southern District of Iowa (App.
3a-6a).
Plaintiff, concededly not a witness to the accident (App.
18a), objected to the motion, averring that she was a
resident of Des Moines; that the suit was removed from the
Superior Court of Cook County, Illinois, to the federal
court on defendant’s motion; that defendant was a Dela-
ware corporation and maintained its principal offices in
Chicago; that better train service was provided between
Chicago and Des Moines than between Des Moines and
5
Council Bluffs; that Des Moines was the second largest in-
surance center in the nation; that if the cause were tried at
Council Bluffs it would be equally difficult for plaintiff to
obtain the testimony of her witnesses who are residents of
Iowa; that plaintiff was represented by Chicago counsel;
and that defendant sought, by its motion to transfer, a
forum more favorable to its cause (App. 7a-15a).
On June 30, 1953, the Petitioner denied the motion to
transfer ‘‘on the general proposition that the place where
this accident occurred is about as close to Chicago as to
Des Moines' where you want to have the case tried, and
this case was started in the State Court and you folks
transferred it over to the Federal Building evidently for
the purpose of having a trial, and as soon as it got here
the only trial you wanted was to ship it out to Iowa. I
don’t think Section 1404(a) was ever established or ever
enacted for that reason’’ (App. 16a, 22a-23a).
On August 4, 1953, respondent applied to the Court of
Appeals for the Seventh Circuit for a writ of mandamus
directing the Petitioner to vacate his order denying the
transfer, and to enter an order transferring the cause te
the Southern District of Iowa (P. 5).
On April 20, 1954, the Court of Appeals held (App. 17a,
22a-23a ; 212 F. 2d 378, 381-2):
‘‘We conclude that we have jurisdiction to review
orders relative to transfer under Section 1404(a) by
way of mandamus. However, this opinion deals with
the existence of power only, not with the permissible
limitations on its exercise.’’
‘*The fact that the cause is in the district court by
removal from a state court has no bearing on a mo-
tion to transfer. Once removed, the action proceeds
as if it had been brought in the federal court orig-
1. Actually Avoca, Iowa is 300 miles farther from Chicago
(App. 4a).
—
inally. * * * It would seem clear, therefore, that re-
spondent (Petitioner herein) ‘denied the motion upon
an asserted legal premise which in fact does not
exist.’ ’’
* . . 7 .
‘Respondent (Petitioner herein) earnestly contends,
however, that the order should stand inasmuch as
one forum to which transfer is sought is a noted
insurance center, and a trial there would be prejudi-
cial to plaintiff. However, neither party to this cause
is an insurance company. The averment is wholly
irrelevant.”’
The Court of Appeals remanded the cause to the Dis-
trict Court with directions to vacate the order denying
the transfer and to reconsider the motion to transfer in
the light of the views expressed in its opinion (App. 24a,
26a; 212 F. 2d 378, 382).
On remand plaintiff filed additional affidavits showing —
that in June, 1953 (over 8 months after the action had
been instituted) she had remarried and moved to Lom-
bard, Illinois (App. 27a-3la).
On July 2, 1954, the Petitioner again denied respond-
ent’s motion to transfer, by a memorandum which stated
(App. 32a) -
‘‘Upon consideration of all the papers now on file
in this case, I have reached the conclusion that it
would not be for the convenience of the parties and
witnesses, nor in the interest of justice to transfer
this case to either of the Iowa Districts requested in
the petition of defendant.’’
On August 7, 1954, the respondent again applied to
the Court of Appeals for the Seventh Circuit for a writ
of mandamus directing the Petitioner to vacate his order
denying the transfer, and to enter an order transferring
the cause to the Southern District of Towa (P. 6). On
February 16, 199§; the Court of Appeals issued a writ of
i.
e—_
7
mandamus directing the Petitioner to vacate and set aside
the order denying the transfer, and to enter an order
transferring the cause for trial to the Southern District
of Iowa, in either the Central or Western divisions there-
of (App. 34a, 42a, 48a; 220 F. 2d 299, 305).
In directing the writ of mandamus to issue (220 F. 2d
299) the Court held (App. 42a; 220 F. 2d at 305):
“‘The balance of convenience of the parties is so
overwhelmingly in favor of the defendant that we
hold the denial by respondent of the motion to trans-
fer this case to the Southern District of Iowa was so
clearly erroneous that it amounted to an abuse of dis-
cretion.’’
The Court of Appeals held that the writ of mandamus
would issue to compel the transfer for the reason that no
controverted issue of fact depends on any event that
occurred in the Northern District of Illinois; that con-
venience of both plaintiff's and respondent’s witnesses
would be served by a trial of the cause in the Southern
District of Iowa; and that the plaintiff remains subject to
the jurisdiction of the Iowa state court which appointed
her administrator (App. 34a-42a; 220 F. 2d 299, 301-5).
ARGUMENT.
I.
The petition for certiorari was not filed within the time
prescribed by law.
A writ of certiorari intended to bring any judgment be-
fore this Court for review must be applied for within
90 days after the entry of the judgment, unless the time
has been extended by a Justice of the Court. 28 U.S. ¢.
2101(c).
_ Petitioner contends that mandamus does not lie to re-
view an order denying transfer under 28 U. 8. C. 1404(a).
The judgment of the Court of Appeals holding that the
court had jurisdiction to review by mandamus Petitioner's
original order denying transfer, was entered April 20,
1954 (App. 17a; Chicago, Rock Island & Pacific R. Co. v.
Igoe, 212 F. 2d 378). Petition for certiorari herein was
filed May 13, 1955. There has been no extension of time.
As appears from our Statement and Argument IT, the
second judgment of the Court of Appeals was necessary
to enforce the mandate of the first judgment that the
District Court ‘‘reconsider’’ defendant’s motion to trans-
fer ‘‘in the light of the views expressed in the opinion of
this Court filed this day’? (App. 26a). The Court of Ap-
peals had the power to so enforce the mandate of its first
judgment. 28 U. S. C. 2106;' Ex Parte K rentler-Arnold
1. ‘*The Supreme Court or any other court of appellate juris-
diction may affirm, modify, vacate, set aside or reverse any judg-
ment, decree, or order of a court lawfully brought before it for
review, and may remand the cause and direct the entry of such
appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances.”
>>
9
Hinge Last Co., 286 U. S. 533; Wilbur v. United States,
281 U. S. 206, 218-19.
It results that the petition for certiorari was not filed
within the time prescribed by law.
II.
In taking jurisdiction by mandamus, vacating Petitioner's
denial of respondent’s motion to transfer, and directing
Petitioner to transfer the case to the Southern District
of Iowa, the Court of Appeals ruled in acsordance with
reason and authority. Its decision is not in com3ict with
applicable decisions of this Court, or with a decision of
another Court of Appeals on the same matter.
The facts stated in the affidavit supporting respondent’s
motion to transfer (summarized on page 4, supra) were
undisputed. The facts asserted in the opposing affidavit
of plaintiff’s counsel (summarized on pages 4-5, supra)
were not pertinent to the question of whether a transfer
would be for the convenience of the parties and witnesses
and in the interest of justice (28 U. S. C. 1404(a); Chicago,
Rock Island & Pacific R. Co., 212 F. 2d at 382 and cases
cited).
The undisputed facts overwhelmingly establish the
right to transfer. All of the witnesses were located and
subject to process in the Southern District of Iowa, and
beyond process of the District Court at Chicago. The
interest of justice manifestly demands that the District
Court at Chicago be relieved of the burden of trying the
case by the transfer of it to the Southern District of Iowa,
where the witnesses are located and subject to process of
the court; where the accident occurred and plaintif? was
appointed Administrator, and where the Court is neces-
sarily more familiar with the applicable Iowa law.
10
The fact that plaintiff moved to Illinois 8 months after
bringing the suit, asserted in the affidavits filed after the
first hearing by Petitioner (App. 27a-31a), is unimportant
(220 F. 2d at 303). It is undisputed that plaintiff is still
acting as an administrator appointed by an Iowa court,
in prosecuting an action under the Iowa Wrongful Death
Act. Plaintiff was not a witness to the accident (App.
18a). It remains undisputed that all witnesses for either
plaintiff or defendant who can testify to controverted
facts are located in the Southern District of Iowa and sub-
ject to the process of a District Court of that District.
The undisputed facts were ‘‘so overwhelmingly in favor
of the defendant’’ that the denial by Petitioner of defend-
ant’s motion to transfer? ‘‘was so clearly erroneous that
it amounted to an abuse of discretion’? (App. 42a; Chi
cago, Rock Island & Pacific R. Co. v. Igoe, 220 F. 2d 299,
305).
Delay complained of at page 8 of the petition was not
the fault of the proper efforts of respondent to obtain a
transfer of the case to Iowa. The delay is chargeable to
the bringing of the suit in Illinois, to plaintiff’s resistance
to the motion to transfer, and to Petitioner’s arbitrary
denial of the motion.
The affidavit of plaintiff’s counsel asserts that it would
be as difficult for plaintiff to obtain testimony of Iowa wit-
nesses at Council Bluffs as it would to obtain them at
Chicago (App. 14a). If such be the case Petitioner is free
to give plaintiff the choice of a trial at Des Moines, under
the judgment of the Court of Appeals (App. 48a).
2. For the convenience of the parties and witnesses and in the
interest of justice. 28 U. S. C. 1404(a).
=
-—
11
The decision of the Court of Appeals is not in conflict with
applicable decisions of this Court.
The Court of Appeals has power to ‘‘issue all writs
necessary or appropriate in aid of * * * (its) jurisdic-
tion(s) and agreeable to the usages and principles of
Jaw,’’* and has power to ‘‘affirm, modify, vacate, set aside
or reverse any judgment, decree or order of a court law-
fully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment,
decree or order * * * as may be just under the circum-
stances.’”*
The Court of Appeals for the Seventh Circuit had the
power to make such disposition of the case as justice re-
quired. Bryan v. United States, 338 U. S. 552, 554-558;
Wilbur v. United States, 281 U. S. 206, 218.
Clearly mandamus is the proper remedy and the only
remedy to review an order denying a transfer pursuant to
28 U. S. C. 1404(a). The injury to the respondent cannot
be corrected by appeal from the order complained of since
the order is interlocutory and not appealable. Jiffy Lubri-
eator, Inc. v. Stewart-Warner Co., 4 Cir., 177 F. 2d 360;
Ford Motor Co. v. Ryan, 2 Cir., 182 F. 2d 329, 330. Nor
can the injury to respondent be corrected upon appeal from
an adverse final judgment below because respondent will
not be able to show that a different result would have been
reached had the case been tried in the proper jurisdiction,
towit: the Southern District of Iowa; and even if respond-
ent should eventually secure a judgment on the merits
below, it will be unable to recover as costs the additional
expense incurred by it due to Petitioner’s failure to order
the transfer. Ford Motor Co. v. Ryan, 2 Cir., 182 F. 2d
829, 330.
3. 28 U. 8. C, 1651(a).
4, 28 U.S. C. 2106.
12
Mandamus is the only remedy whereby the statutory fac-
tors providing for the convenience of the parties, conven-
ience of the witnesses, and in the interest of justice can
be protected. Upon appeal from a final judgment of the
district court the inconvenience of the parties and the in-
convenience of the witnesses, would be a moot question.
The factors, convenience of parties and witnesses, must in
their nature be reviewed before trial, if at all. Gulf Ke-
search & Development Co. v. Leahy, 3 Cir., 193 F. 2d 302,
305; Pennsylvania Turnpike Commission v. Welsh, 3 Cir,
188 F. 2d 447, 449, Footnote 2.
An order denying transfer under 28 U. S. C. 1404(a), is
the type of order which may, in absence of power of the
appellate court to correct it, give rise to judicially sane-
tioned procedural injury. The effect would be to deprive
litigants of forums to which they are entitled, and as such
is properly rectified by mandamus. Ex Parte Simons,
247 U.S. 231, 239; Ex Parte Peterson, 253 U. 8. 300; McCul-
lough, et al. v. Cosgrave, 309 U. S. 634; Los Angeles Mfg.
Corporation v. James, 272 U. 8. 701.
In Ex Parte Fahey, 332 U. S. 258, 260, this Court recog-
nized that the inadequacy of remedy by appeal is a basis
for mandamus. This Court has held that ‘‘the common
law writs, like equitable remedies, may be granted or with-
held in the sound discretion of the court.’’ Roche v. Evapo-
rated Milk Assn., 319 U.S. 21, 25; Ex Parte Peru, 318 U.S.
578, 584. In Roche it was also held (page 31) that it is a
function of mandamus to correct an abuse of judicial power.
Petitioner is contending that although appeal is clearly
inadequate the Court of Appeals ‘s powerless to utilize
the remedy of mandamus to review an order denying 8
transfer under 28 U. 8S. C. 1404(a), when the denial is
‘so clearly erroneous that it amounted to an abuse of
discretion.’’ This contention is tantamount to arguing
13
that a district court is under no duty to comply with th»
statutory mandate of Congress because there is no remedy
to force proper compliance. Such a contention completely
ignores the holding of this Court in United States v. Na-
tional City Lines, 334 U. S. 573, 588-89, that ‘‘Congress’s
mandate regarding venue and the exercise of juris-
diction is binding upon the federal courts.’’
Bankers Life € Casualty Co. v. Holland, 346 U. 8. 379,
relied upon at page 15 of the petition, is distinguishable
for the reason that it involved a question of total want of
venue which could be adequately corrected upon appeal
from final judgment. It was nevertheless recognized (346
U.S. at 383) that ‘‘the supplementary review power con-
ferred on the courts by Congress in the All Writs Act’’
can be used ‘‘where there is clear abuse of discretion or
usurpation of judicial power’’. It was so held in DeBeer
Consolidated Mines v. U. S., 325 U. 8. 212, 217.
Mandamus is the proper remedy to review an order
denying transfer for the reason that the remedy is in aid
of the appellate jurisdiction of the court. By such remedy
the appellate court is able to compel an inferior court to
relinquish a jurisdiction which it could not properly ex-
ercise. Ex Parte Skinner & Eddy, 265 U. S. 86, 95-6; Roche
v. Evaporated Milk Assn., 319 U. 8. 21, 32; U. 8S. Alkali
Assn. v. U. S., 325 U. S. 196, 202-4.
The power of a federal appellate eourt to review an order
denying a transfer under 28 U.S. C, 1404(a) by mandamus
is implicit in Ex Parte Collett, 337 U. S. 55; Kilpatrick v.
Texas & Pacific Ry. Co., 337 U. S. 75; and United States v.
Netional City Lines, 337 U. 8. 78.
In the majority opinion in the case of Norwood v. Kirk-
patrick, decided April 11, 1955, 99 L. Ed. 461, 463, it was
said that since the District Judge properly construed Sec-
tion 1404(a) ‘‘it is unnecessary to pass upon the question of
14
whether mandamus or prohibition is a proper remedy.’’ The
minority opinion, however, necessarily proceeded upon the
theory that mandamus wes the proper remedy.
In his second denial of transfer, upon the same con-
trolling facis. Petitioner merely stated that the transfer
‘‘would not be rer the convenience of the parties and wit-
nesses nor in the interest of justice’’ (App. 32a). The sec-
ond denial was necessarily arbitrary, an abuse of discre-
tion, and in disregard of the first mandate of the Court of
Appeals directing Petitioner to reconsider the motion in
light of the opinion setting out the proper legal standards
for transfer under 28 USC 1404(a) (App. 17a-26a; 212 F.
2d 378). Ex Parte Krentler-Arnold Hinge Last Co., 286
U. 8. 533. Wilbur v. United States, 281 U.S. 206, 218-19,
It is submitted that the decision of the Court of Appeals
is in harmony with decisions of this Court.
The decision of the Court of Appeals is not in conflict with
the decision of another court of appeals on the same
matter.
The courts of appeal have uniformly held that mandamus
will lie to review an order denying a transfer under 28
U. S. C. 1404(a).
Second Circuit—Ford Motor Co. v. Ryan, 182 F, 2d 3x,
Certiorari denied 340 U. S. 851.
Third Circuit—Paramount Pictures v. Rodney, 186 F. |
2d 111, Certiorari denied 340 U. S. 953.
Sixth Circuit—Sun Oil Co. v. Lederle, et al., 199 F. 2d
423.
Seventh Cireuit—Chicago, Rock Island and Pacific
Railroad Co. v. Igoe, 212 F. 2d 378. .
ate perenne v. Bonanea Hotel Co., 185 F. 2d
In the other circuits this matter has not been considered.
a
15
Although the jurisdictional issue was not raised, the ex-
istence of the mandamus power is of the essence in C O
Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F. 2d 410,
afirmed Cardox Corp. v. C O Two Fire Equipment Co.,
344 U. S. 861; Fettig Canning Co. v. Steckler, 7 Cir., 188 F.
2d 715, certiorari denied 341 U. S. 951; All States Freight
y. Modarelli, 3 Cir., 196 F. 2d 1010.
The Josephson case of the 1st Circuit and the Carr case
of the 8th Circuit relied upon by the Petitioner are not in
point. These cases merely dealt with the reviewability of
an order granting transfer under 28 U. 8S. C. 1404(a).
CONCLUSION.
It is respectfully submitted that the petition for writ of
certiorari should be denied because it was not filed within
90 days from the first judgment of the Court of Appeals,
and because the decision of the Court of Appeals is not in
conflict with applicable decisions of this Court, or with the
decision of another court of appeals on the same matter.
Respectfully submitted,
Bruou DwtNeE.L,
Eaton ApaMs,
M. V. THompson,
T. I. Mecan,
O. L. Hovts,
139 West Van Buren,
Chicago, Illinois,
Hare Hovts,
1122 Rialto Building,
Kansas City, Missouri,
Attorneys for Respondent.
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