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Shutte v. ARMCO Steel Corp.

decided: August 14, 1970.

NANCY SHUTTE, ADMINISTRATRIX OF THE ESTATE OF RICHARD K. SCHUTTE, DECEASED, PETITIONER,
v.
ARMCO STEEL CORPORATION (DEFENDANT AND THIRD-PARTY PLAINTIFF). ACE DORAN HAULING & RIGGING COMPANY, A CORPORATION (DEFENDANT), V. TIPPINS MACHINERY COMPANY, INC., A PENNSYLVANIA CORPORATION (THIRD-PARTY DEFENDANT), AND BELGER CARTAGE SERVICE, INC., A FOREIGN CORPORATION (THIRD-PARTY DEFENDANT), RESPONDENTS, HONORABLE EDWARD DUMBAULD, UNITED STATES DISTRICT JUDGE, NOMINAL RESPONDENT



McLaughlin, Staley and Adams, Circuit Judges.

Author: Mclaughlin

Opinion OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This matter is before the court on plaintiff administratrix's petition for a writ of mandamus. Petitioner requests us to direct the nominal respondent, a district court judge, to vacate his order of February 16, 1970, transferring this diversity action, pursuant to 28 U.S.C.A. § 1404(a), from the Western District of Pennsylvania to the Western District of Missouri at Kansas City.

I

The use of the mandamus power conferred on this court by the All Writs Act, 28 U.S.C.A. § 1651, can be the indicated remedy to correct an erroneous transfer. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964); Hoffman v. Blaski, 363 U.S. 335, 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960); Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267 (3 Cir. 1962); 2 ALR Fed. 573. As Professor Moore has commented:

"Rulings as to the legal meaning of § 1404(a) have generally been made in prerogative writ proceedings and the consensus of opinion is generally to the effect that such procedure is warranted in a proper case." 1 Federal Practice, § 0.147, 1968 (1964).

"Circuits have recognized that their power of review by a prerogative writ includes the situation where there is a clear abuse of discretion." Id. at 1969.

II

Section 1404 of the Judicial Code, Title 28 of the United States Code, reads, in pertinent part, as follows:

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

The transfer order in this instance simply recited that it was the district court's conclusion that "* * * such transfer is appropriate for the convenience of parties and witnesses in the interest of justice, in light of the circumstances of the case." No mention was made of Subsection 1404(a)'s limiting provision to the effect that a transfer is authorized by the statute only if the plaintiff had an "unqualified right" to bring the action in the transferee forum at the time of the commencement of the action; i.e., venue must have been proper in the transferee district and the transferee court must have had power to command jurisdiction over all of the defendants. Van Dusen v. Barrack, supra; Hoffman v. Blaski, supra. Prior to ordering a transfer the district court must make a determination that the suit could have been rightly started in the transferee district. Jones v. Valley Welding Supply Company, 303 F. Supp. 9 (W.D.Pa.1969). If there is a "real question" whether a plaintiff could have commenced the action originally in the transferee forum, Leyden v. Excello Corporation, 188 F. Supp. 396 (D.N.J.1960), it is evident that he would not have an unqualified right to bring his cause in the transferee forum.

The district court's transfer order neither reflects a determination that venue and in personam jurisdiction were proper for this case in the Western District of Missouri, nor even intimates that the limiting provision of Subsection 1404(a) was considered by the court. Needless to say, the entry of an order which does not enunciate sound prerequisite determinations motivating a district judge to order a transfer in any particular litigation renders this court a disservice. In addition, since the district court did not hold the requested hearing ...


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