HOFFMAN v. BLASKI

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Argument of John C. Butler

Chief Justice Earl Warren: Number 26, Sullivan, Chief Judge of the United States District Court for the Northern District of Illinois, Petitioner, versus Otto Behimer.

Mr. Butler, you may proceed with you argument.

Mr. John C. Butler: Mr. Chief Justice and the Associate Justices, may it please this Honorable Court.

This certiorari review presents the question whether a district judge is authorized by virtue of Section 1404 (a) of the Judicial Code, to transfer on motion of the defendants, a diversity action pending before him to a forum where the convenience of the parties and witnesses in the interest of justice would best be served, but, wherein the venue of the transferee forum and the reach of its process was supplied by the assurances of the defendants to wave their venue privilege and to enter their personal appearances.

However, the transferee forum was run which was competent to hear the issues in the suit, such forum independently possessed jurisdiction of the subject matter of the case by virtue of the diversity of citizenship of the parties.

More generally, this case presents for determination the question whether Federal District Courts are authorized to transfer actions either on motion of plaintiff or of defendant to another forum which has become available since the commencement of the action by reason of such post-suit circumstances as, one, a change in the residence of the parties, or two, a plaintiff for a defendant corporation's qualification or doing of business in such other forum, or three, a defendant's consent to an acceptance of the venue in process of the transferee forum.

In all such instances, I presuppose that such a transfer would be for the convenience of the parties and witnesses and in the interest of justice were that not so the question of the authority of the district judge would be academic.

The facts, out of which the present question arose in this case are these.

Respondents, one, a citizen of Illinois and the other a citizen of New York filed suit in the Northern District of Illinois charging the two defendants, Standard Oil Company and Indiana Corporation and Standard Oil Foundation, Inc and Indiana Charitable Corporation with acquiring the assets of a Utah Corporation at less than the fair value of such assets.

Plaintiffs, who are respondents here on respectively 900 and 1000 shares of stock in the Utah company, the two defendants owned approximately 76% of the outstanding stock of the Utah company.

And the defendants had organized to wholly on subsidiary which offered to buy all of the assets of such -- of such company.

This offer was considered at the special meeting of the shareholders of the company and was accepted.

The charge against the defendants is that they, together with 52 so called controlled stockholders in the Utah Corporation, permitted the sale of these assets at a price less than fair value.

The plaintiffs sued not in the right of the Utah company but on behalf of themselves and all other stockholders who are or were similarly situated.

Those stockholders are called minority stockholders in the complaint.

Jurisdiction of the action was bottomed upon diversity of citizenship.

The residence of the defendants was not alleged nor did the complaint occur that the venue of the United States District Court for the Northern District of Illinois was proper.

Defendants however, did not raise this question and so they have waived it.

The day following the answers of the defendants in which they denied the crucial substantive allegations of the complaint, they filed a motion to transfer the action to the District of Utah, Central Division which is at Salt Lake City.

Petitioner granted the motion to transfer saying that, and I quote “If I have the power to do so, I would be guilty of an abuse of the discretion vested in me by Section 1404 (a) of the Judicial Code if I refuse to transfer this action to Salt Lake City.”

In some, there were eight reasons which moved the petitioner to this conclusion.

These are set forth at pages 88 and 89 of the record and they're summarized at page 5 of the petitioner's brief.

An important reason among those eight is found in the fact that the class on whose behalf of the two respondents have volunteered to act, consists of 920 shareholders.

575 of them reside in Utah and 134 more in California, Washington and Idaho.

However, petitioner's order of transfer was stayed by the issuance of the writ of mandamus by the Court of Appeals for the Seventh Circuit.

That Court stated that petitioner did not have the power to transfer, since the transfer reform must be a district were a plaintiff has a right to sue independently of the wishes of defendant.

If the plaintiff does not have this right, independently of the wishes of the defendant, it is not a district where it might have been brought.

Now, since venue and personal jurisdiction in this instance where available to the plaintiffs in Utah, only by reason of the post of assurances of the defendants, under the standards adopted by the Court of Appeals.

Such assurances were unavailing and transfer was unauthorized.

So holding, the Court of Appeals did not reach the question which respondents had also raised before them as to the exercise of the petitioner's discretion.

The Court of Appeals said whether or not he and his Judge Sullivan properly exercised his discretion in the mistaken and the belief that he did have such power, it will be unnecessary for us to decide.

It is petitioner's contention not the phrase “where it might have been brought,” as such appears in Section 1404 (a).

And incidentally, in my view, a most deceptively simple phrase is at least an ambiguus phrase and that it does not establish the time of determination as to the where.

As Mr. Merriam has pointed out yesterday, the courts which have dealt with this matter have spoken of such time in terms of commenced or could now be brought or maybe prosecuted and so forth.

That you will find rehearsed in the Paramount Pictures versus Rodney case and in the opinion of Chief Judge Magruder in the Josephson case.

It is petitioner's contention that this phrase been at the least ambiguous because of its silence about the matter of when one is to determine where an action might have been brought.

Should be interpreted so as to confer upon the District Courts the power to transfer if at the time the power is exercised, the transferee forum is, one, where the action might have been brought.

Such an interpretation will in the petitioner's view and here I quote from Chief Judge Magruder, “Enhance the usefulness of this important provision for transfer of cases in the interest of convenience and justice.”

The transfer provision so construed will then be available to both plaintiff and defendant.

An instance was mentioned yesterday by Mr. Merriam, which I should like briefly to repeat here today.

“Let us suppose a case of a plaintiff being a New York resident, being involved in an accident in New Jersey, occasioned by the negligence of a defendant, who is a California citizen.

And the defendant being merely momentarily in the State is not available for the process and then it would be improper because it would be either New York or California.”

After suit is filed and this is a hypothetical case, but after suit is filed, let us assume that the defendant moves to New Jersey.

Plaintiff in order to have sued the defendant had to proceed to California.

May he not move to transfer his case to New Jersey where on my supposition, the cause of action arose, the witnesses reside and where all of the convenience of the witnesses in the interest of justice will best be served by having the Court there hear the case.

If the contention -- if the position of the Court of Appeals in my circuit is correct, that would be denied to the plaintiff in my hypothetical case.

Justice Charles E. Whittaker: But why?

Mr. John C. Butler: The plaintiff in my hypothetical case, Mr. Justice Whittaker, could sue in New Jersey and drop a suit in California, but he couldn't transfer it because at the time he filed his suit in California which was the only place he could then reach the defendant, this -- the forum of New Jersey was unavailable to him.

Justice Charles E. Whittaker: (Inaudible)

Mr. John C. Butler: That is correct.

Except in the Court of Appeals' interpretation, that is true.

If you then say by brought, you mean not only commenced but service of process acquired.

There are some cases, District Court cases earlier which have gone off on the thought that commenced is equivalent to brought and have transferred on that basis.

Chief Justice Earl Warren: Suppose the defendant have moved to Montana instead of New Jersey, would the -- would the Court have transferred to Montana in the interest of justice?

Mr. John C. Butler: Assuming as I always do that the interest of justice would there be served.

The plaintiff, I should think would have his option to ask the Court to transfer the case to Montana.

Chief Justice Earl Warren: No.

I'm talking about the defendant.

Mr. John C. Butler: And --

Chief Justice Earl Warren: But they --

Mr. John C. Butler: The defendant as well, either side.

Chief Justice Earl Warren: Then --

Mr. John C. Butler: Under the circumstances of my case, I would fail to see where the convenience of the parties and witnesses would -- would be served by a transfer.

But passing that and speaking in terms only of the authority, I would assume that being then a forum available at the time, either the plaintiff or the defendant could move and the case be transferred there.

Chief Justice Earl Warren: Suppose the question arose in this way, suppose it arose before the -- the suit was filed and the defendant moved to Montana and agreed with the plaintiff that the suit could be filed in Montana.

Could the plaintiff have maintained an action in Montana?

Mr. John C. Butler: The -- the change of residence on the part of the defendant having been prior to the suit?

Chief Justice Earl Warren: Yes.

Mr. John C. Butler: Yes, I believe so.

Chief Justice Earl Warren: Even though the -- even though the statute specified the forums, the only forums in which the action could be brought in Montana didn't -- was not one of them?

Mr. John C. Butler: Well, I'm talking of the general diversity cases.

Chief Justice Earl Warren: Yes.

Mr. John C. Butler: So that, Montana would presumably be a correct forum.

Not being a district of the residence of the defendant.

Chief Justice Earl Warren: Well, do you differentiate this case then from the one that preceded you in that regard?

There, there were two places --

Mr. John C. Butler: Yes.

Chief Justice Earl Warren: -- two forums in which the -- the action could be brought, one was Texas, one was Illinois.

Suppose we had your hypothetical case or a case -- the kind of case that they had.

And -- and the defendant had consented to be -- be sued in Montana, lets say, instead of Illinois or -- or Texas where -- where the law have said, it could only be sued.

Could they then maintain the suit in Montana?

Mr. John C. Butler: Mr. Chief Justice, the questions in the case preceding and in this case are approximately the same.

I would say this, that if there be a reversal in the preceding case, I believe that our for certiorari, there should be a reversal here because there is involved in the patent case a particularized venue provision whereas I am speaking in terms on the framework of the diversity action.

Chief Justice Earl Warren: Well, but to get back to my question.

Do you think that could be done?

Mr. John C. Butler: That if a defendant in the diversity case moves, or in a patent case, where it could have moved --

Chief Justice Earl Warren: (Voice Overlap)

Mr. John C. Butler: -- to Montana prior to the infringement suit against him.

Yes, then it would be a proper forum, as I understand Section 1401 (b).

Justice Potter Stewart: If there had been a -- an infringement in Montana?

Mr. John C. Butler: Well, I believe there is a choice of a residence or where he has a -- a place of business and has committed acts of infringement.

So, by definition, Montana would be a proper forum.

Justice Felix Frankfurter: Mr. Butler, did I understand you to say, that if there is a change of residence after the suit has been commenced on the part of the defendant to another venue jurisdiction that the plaintiff could move, to have a case transferred to the venue district of the defendant if that is the venue district in which suit could have been brought originally?

Mr. John C. Butler: Yes, sir.

Justice Felix Frankfurter: Now, so I understood you.

If that is sought, as any case -- is there any decision in which the 1404 (a) was invoked by a plaintiff when an appropriate occasion in your point of view had arisen?

Mr. John C. Butler: Not under those precise circumstances.

But, there have been many cases, Mr. Justice Frankfurter, where plaintiffs have invoked Section 1404 (a).

Justice Felix Frankfurter: Decided --

Mr. John C. Butler: Where --

Justice Felix Frankfurter: -- a case, reported opinion?

Mr. John C. Butler: Yes.

Justice Felix Frankfurter: Are these -- are they in your brief?

Mr. John C. Butler: Yes.

Justice Felix Frankfurter: Where are they, Mr. Butler?

Mr. John C. Butler: Let me mention particularly one --

Justice Felix Frankfurter: Well, that raises one of the -- one of the naturally fittest questions whether they -- whether this is only a one way street as it was.

Mr. John C. Butler: Yes.

Well now, involved in the Torres versus Walsh case was the companion case which is not too much discussed by the Court of Appeals but was involved in the court below.

Justice Felix Frankfurter: I'll be grateful to you if you --

Mr. John C. Butler: The decision there --

Justice Felix Frankfurter: Just give me a (Voice Overlap) --

Mr. John C. Butler: Torres which is in our brief.

Justice Felix Frankfurter: Does the reference of the cases in your brief?

Mr. John C. Butler: Yes.

Its 221 F.2d 319 but the District Court decision was not mentioned as such in our brief.

Justice Hugo L. Black: Did you say 319 or 219?

Mr. John C. Butler: 29 -- 319.

The case below, the companion case to the admiralty action in Torres is Thompson Products versus Pennsylvania Railroad Company and its citation is 127 F.Supp. 449.

That came up under the name, I believe, Pennsylvania Railroad Company versus Dawson, Judge Dawson of the Southern District of New York.

Justice Felix Frankfurter: Did you say that was an admiralty case?

Mr. John C. Butler: No.

Justice Felix Frankfurter: Oh.

Mr. John C. Butler: This was a case where the plaintiff sued the defendant railroad company in the Southern District of New York in an action for damages to a shipment over the defendant railroad, consigned to the plaintiff.

After filling a suit, the plaintiff found that the damage might have been caused by improper loading by the consignor, Landis Tool Company of Waynesboro, Pennsylvania.

So, the plaintiff then moved to transfer his action which he had filed in New York City to the Middle District of Pennsylvania where both the railroad and the consignor could be sued.

He was particularly interested in doing that because where he to file a new suit in Pennsylvania, the statute of limitations against the railroad on, I believe, a bill of lading was about to expire and he would have been out, as to the railroad, and the Court granted the motion.

Justice Felix Frankfurter: Well, 1404 itself is of course silent regarding the moving party?

Mr. John C. Butler: Yes.

And it is silent insofar as to the when.

Justice Felix Frankfurter: Well, that raises the question that we've been buried back and forth.

Mr. John C. Butler: Yes.

Now, petitioner would suggest that these following considerations which would support his -- his contention.

First, that when a motion to transfer is presented to the District Judge, he of course, would look to see if the present circumstances are such that the interest of justice would best be served by such transfer in the convenience of parties and witnesses.

He would not, in other words, look to some preceding point in the past time to determine whether the interest of justice would then be served.

But rather, is it now, to be served by such a transfer.

And the petitioner suggests this, that if that be the case, if the exercise of his discretion should be presently made should not contemporaneously also, his power to transfer be determined.

Justice Charles E. Whittaker: (Inaudible)

Mr. John C. Butler: I would suggest that that would be very logical.

The question is now assuming that you do not know when -- the where it might have been brought is to be fixed.

That a -- the parallel determination of whether it is not in the interest of justice to transfer should be a contemporaneous factor.

Justice Hugo L. Black: What's the controlling guide in there?

Suppose a man sues a company that's doing business in a certain state.

And that's the only place he can sue it, but all the witnesses or somewhere -- no doubt to what convenience and fairness requires of the case be tried somewhere else.

Why could he not sue him there in that place where, under you argument -- where he's doing business and then go into the Court and say, “I had to sue you here,” but in all fairness, injustice, this can be tried only at this other state and ask for it to be moved there under the federal court, could he do that?

Mr. John C. Butler: Well, sir, Chief Judge Magruder has suggested that he might do just that very thing.

Justice Hugo L. Black: But I think that's been intimidated several times because I'm -- I'm just wondering what's your position was on.

Mr. John C. Butler: I believe, that assuming, that we're talking on framework of a diversity action and that venue would be proper, as I presume it would be.

Justice Hugo L. Black: Provided they could get service?

Mr. John C. Butler: Yes.

So that the question would be the availability to service, but by definition, that has been accomplished when the suit is first filed in the transfer or a forum.

So that presumably, the transfer would then be proper.

Justice Hugo L. Black: To such Court, District Court, anywhere -- then you wouldn't be guided at all by whether it could have been brought in the beginning or could be brought there now.

Mr. John C. Butler: And I should think --

Justice Hugo L. Black: But you would -- you would let be the controlling thing, the fairness and justice of the trial?

Mr. John C. Butler: Well, that and the availability of the transferee forum at the time the -- a motion to transfer is passed upon.

Justice Hugo L. Black: Oh, do you -- you do give it that much effect?

Mr. John C. Butler: Well --

Justice Hugo L. Black: If you give it that much effect, why don't you not have to give it to the other effect if --

Mr. John C. Butler: Well, because I -- well, I'm saying is the same thing, Mr. Justice Black and that is this, that by definition, venue always obtained in the diversity case.

Service of process has been accomplished before the motion to transfer is made, in the transfer or forum.

And Chief Judge Magruder has suggested that the service of process, once accomplished, need not be repeated in the transferee forum.

Justice Felix Frankfurter: You added a minute ago to -- in answer to Justice Black's question.

Assuming the availability of the transferee forum, is it correct?

Mr. John C. Butler: Well --

Justice Felix Frankfurter: What do you mean by that?

Mr. John C. Butler: -- the --

Justice Felix Frankfurter: What do you mean by that?

Mr. John C. Butler: That the venue would be proper.

Chief Justice Magruder did not, and say that you could transfer it in the improper venue.

Justice Felix Frankfurter: Well, what --

Justice Hugo L. Black: What would be in the improper venue?

The fairness and justice of the trial.

Justice Felix Frankfurter: I understood Justice Black's question.

I may have misapprehended it, to say that if the suit -- if a suit is properly instituted in the transferor's forum, is there no unquestionably as if satisfying all the venue provisions.

But then, there arises the only additional fact that it would be more just to bring this suit in another district in which suit could not be brought under the venue provision.

Mr. John C. Butler: Then I -- I --

Justice Felix Frankfurter: Merely, justice can mean as the party.

Mr. John C. Butler: That then would not be sufficient --

Justice Hugo L. Black: Why?

Mr. John C. Butler: -- in my view.

Justice Felix Frankfurter: Alright.

Justice Hugo L. Black: Why?

Mr. John C. Butler: Because there --

Justice Hugo L. Black: Why?

If you are right in saying, if the question is decisive as whether the case can be tried.

There is no fairness and most justice if that's the controlling thing.

Mr. John C. Butler: Because it would be going beyond the wording of the statute and --

Justice Hugo L. Black: Well, but that depends --

Mr. John C. Butler: Well, the statute --

Justice Hugo L. Black: Well, I don't think you see something could go beyond the wording of the statute.

You say where the suit could have been brought.

Mr. John C. Butler: Yes, that's where it might have been brought.

Justice Hugo L. Black: But you're saying that they can -- they don't have to accept that and that means, where it could be brought at the time the motion is made?

Mr. John C. Butler: That is where it might have been brought if at that time, it might have been brought there.

Then the wording of the statute will satisfy it.

Justice Charles E. Whittaker: Isn't that the -- another (Inaudible)

Mr. John C. Butler: I don't believe so, with all deference.

I -- I see that I am running out of time, but I'd like to mention one perfect point.

And that is this, that Section 1404 (a) is the remedial statute, it was -- it adopted the doctrine of forum non conveniens.

The doctrine forum non conveniens as it -- that a court may dismiss conditions being satisfied if there is an available forum as an alternate which is the more convenient forum.

Well, I'd like to make this point clear, that nowhere have I found a non conveniens -- forum non conveniens case which requires the availability of the alternate more convenient forum to exist at the time the suit was filed.

And I should like to call particularly to the Court's attention, the case of Vargas versus A. H. Bull Steamship Company.

A very well reasoned decision by a court in New Jersey, the Law Division of the Superior Court, who's opinion was adopted by the Supreme Court of New Jersey involving a Jones Act case, a federally created right of action.

Certiorari was sought and because the Court there did conditionally dismiss the case and certiorari was refused by this Court.

I should like to point this out, that if the present case had been filed some five moths after it was.

It could not have been filed in the Northern District of Illinois.

Although no charges made in the complaint, counsel for the respondents in an affidavit have suggested that the principal office, the place of business of Standard Oil Company is in Chicago.

And under the amendment of Section 1332 which was enacted July 25th, 1958, that then would make Standard a resident of Illinois for purposes of diversity and there would be an Illinois plaintiff and Illinois defendant.

Diversity would be destroyed and presumably, the plaintiff would then have recourse only to the state courts of Illinois.

In which event, Illinois having the doctrine of forum non conveniens, it is reasonable to suppose that they would do as, it was done in the Rogers case in New Jersey conditionally dismissed the case on the insurances there.

They have been given to the District Court in this case, namely that they would accept the venue in the process of the alternate forum which is the much more convenient forum.

It would be in other words, I should think, rather strange to construe Section 1404 (a) in a fashion which would be somewhat retrogressive denying it the authority, the power, or the scope which as antecedent doctrine possesses.

Particularly, in view of the fact that section 1404 (a) has been well regarded as a remedial statute and its provision should be given hospitable scope.

I might add that to give the construction that the petitioner contends for here, does not make mere surplusage of the phrase “where it might have been brought” because we have three factors to consider, venue, personal jurisdiction and subject matter jurisdiction.

Venue is a mere privilege.

Personal jurisdiction can be accepted by the parties but if it's beyond the scope of the litigants to confer subject matter jurisdiction on the court, therefore, there is content, substance of vital nature in the phrase “where it might have been brought”.

Because you cannot -- even though you have venue and personal jurisdiction transfer an action to another forum which does not posses subject matter jurisdiction.

Justice Hugo L. Black: Is it your argument that wherever the Court has subject matter, jurisdiction of the subject matter of the lawsuits therefore, that it can be moved to that court?

Mr. John C. Butler: Venue and personal service, the --

Justice Hugo L. Black: Well --

Mr. John C. Butler: Yes, sir.

Justice Hugo L. Black: But that would seem to me, let you close it.

If you're going to put it that way, close to the saying that the suit is brought at the place where the person is doing business and that the statute authorize it to be transferred to a place where he is not doing business, if fairness and justice required it.

Now, why do you not have to take those words at the end of that Section as a whole or reject them as a whole?

Mr. John C. Butler: Because where it might have been brought are words of limitation.

But the stat -- the statute does not tell us when the “where it might have been brought” is to be determined.

Justice Hugo L. Black: Well, but -- but the “where it might have been brought” depends on when, doesn't it?

Mr. John C. Butler: No.

Justice Hugo L. Black: Frequently -- frequently.

Mr. John C. Butler: Not in this sense, so we contend.

Justice John M. Harlan: Who do you think Congress is trying to protect by the phrase “might have been brought,” plaintiff or the defendant?

So, limitation on somebody, the statute doesn't say that wherever -- whenever the interest of justice require it or it requires it, the District Court may order the transfer to a district which would have subject matter and venue jurisdiction, subject matter jurisdiction and venue.

Who is it?

It's -- Congress is trying to protect somebody.

Mr. John C. Butler: I think, they where trying to conform with venue and personal jurisdiction requirements, but at the same time, within that limitation to expand the availability of forums to hear and determine cases in the interest of justice.

Justice Felix Frankfurter: Well, Mr. Butler, it isn't either plaintiff or defendant to ask whether it was to protect either plaintiff or defendant, doesn't exhaust the alternative.

This is a statute relating to the functioning of the federal courts, not merely the -- the the interest advantages or disadvantages of litigants.

Mr. John C. Butler: That's right.

That is right.

I think that -- I see my times up.

I'll make this comment.

I think, Congress had in mind to promote the interest of justice to make transfers --

Justice John M. Harlan: That's a lot of words --

Mr. John C. Butler: (Voice Overlap) dismissals or to make transfers much more available.

Justice Charles E. Whittaker: Well, that's precisely what it said -- what it said that -- that this transfer might and should be made to some other venue where the action might have been brought.

So, it's not a full package to say, we treat only this, the convenience of the parties or the witnesses to the interest of justice because there is a further limitation.

Mr. John C. Butler: That is true.

That is true.

And it's inherent in the subject matter jurisdiction which must be preserved.

In other words, you cannot transfer a case and thereby destroy the jurisdiction of the Court to hear and determine.

Thank you very much for you kind attention.

Chief Justice Earl Warren: Mr. King.

Argument of Warren E. King

Mr. Warren E. King: Mr. Chief Justice and Associate Judges.

The question was just asked as to the intention of the Congress in enacting Section 1404 (a) and an examination of the status of litigation in the period when Section -- Section 1404 (a) was enacted, might shed a little bit of light on that question.

In 1947 and 1946, the House Judiciary Subcommittee was holding hearings on -- with reference to the bringing of suits against railroads.

Some of the facts that were brought up before the Subcommittee were these.

For example, in Minnesota at one time, there were over 1000 personal injury cases brought in the state courts of Minnesota by nonresidents -- nonresident plaintiff against railroads.

And some of the railroads didn't even have lines in Minnesota.

One lawyer in Chicago filed 100 suits within a period of one year against the Southern Pacific Railroad and the Santa Fe with Diamond in excess of $6 billion.

And an analysis of the distance from Chicago to the site of the accident on the average was some 1930 miles.

The average accident occurred 1930 miles from Chicago.

Between 1941 and 1946, there were 2500 suits filed in the District Court other than the district in which the accident occurred or in which the plaintiff resided.

What was occurring in those -- in that period of time was, in personal injury cases, primarily in suits under the Federal Employers Liability Act, lawyers would get these cases and file them as far from site of the accident is possible.

An action happened in New Mexico, they filed in Minnesota or in Chicago.

The doctrine of forum non conveniens was not a universally accepted doctrine in 1946 and 1947.

In an article in the California Law Review by Edward Barrett, Professor of Law at the University of California, he states that the doctrine had not been examined and just passed upon by most of the states, that 14 states had rejected it and only six states had accepted the doctrine of forum non conveniens.

One of those states was New York, in which it was a statutory right given to the court to transfer if the court felt it was a tort action brought for purpose of harassment of the defendant.

The earliest case, recognizing the doctrine in the federal courts where the companion cases of the Gulf Oil Company and the Lumberman's Mutual case.

Justice Felix Frankfurter: Oh, but there was an earlier opinion by Justice Brandeis in 280 of -- referring -- giving the whole history of the business.

The doctrine one really arose in connection with commercial litigation and not collision cases.

Mr. Warren E. King: The doctrine originally arose in Scotland, I understand, in the suits between nonresidents and it was first adopted in this country where there were nonresident litigants and the cause of action had arose outside of the country.

And in that case -- those cases, they were sent back to their respective countries.

But the decisions in the Gulf Oil Company case and the Lumberman's case indicated, after a split decision of five to four that they should be -- the doctrine should be applied only in exceptional circumstances or the use of the word “those rare cases” where the doctrine should be applied and it was not generally recognized that the federal courts would have the right to transfer these cases.

If there were an accident case that happened in New Mexico, filed in Minnesota, then Santa Fe would have the right to remove the case to the federal court in Minnesota.

But it still could not transfer that case to the -- to the state where the accident occurred, where the witnesses were located.

And some writers have indicated that the purpose of the enactment of Section 1404 was to exact the remedy of this situation where in personal injury cases, the suits were brought far from the State where the accident occurred.

And the venue statutes of the various states and under the Employer's Liability Act permits, the suits to be brought where the defendant resides.

And because of that are -- that there will always be more than one forum in these railroad cases.

These railroad lines go through a dozen or more states.

And if the suit is brought in Minnesota in an accident happened in Montana, then proper venue would have been in Montana, coexist and with the venue in Minnesota.

And Section 1404 gave the federal court in Minnesota the power to transfer it to a -- the forum where it could have been originally brought.

And I believe the purpose of 1404 was to actually broaden, thus, the doctrine as it had been enunciated in the two cases decided by this Court where they used the word, “the exceptional case, exceptional circumstances, the rare instance”.

It was and it's so that the Court has a bigger leeway in transferring cases to a forum where the suit could have been bought in -- in the beginning.

It is their position of course that -- of the respondents here that there is no ambiguity in the words “where it might have been brought”.

Section 1391, the general venue section, Section 1400, serving venue of patents, all used the word “may bring”.

Brought is the past tense of bring.

Justice Felix Frankfurter: And all those --

Mr. Warren E. King: May have --

Justice Felix Frankfurter: -- and all those sections allow suits to be started in those jurist -- in those venue districts in which it couldn't be brought by virtue of the statute.

But in which it maybe brought if the defendant waive that limitation, isn't that true?

Mr. Warren E. King: I respectfully submit, it is not.

Justice Felix Frankfurter: You surprise me.

Mr. Warren E. King: This -- the statute doesn't say that you can't --

Justice Felix Frankfurter: I'm not talking about 1404.

I mean all the other provisions.

Mr. Warren E. King: 1391?

Justice Felix Frankfurter: 13 -- all of the other -- all the other venue provisions which makes specific limitations upon the Court to entertain a suit unless the provision of the statute is satisfied.

That limitation is lifted if the defendants -- because I have no objections.

Mr. Warren E. King: That is correct.

But it does not make it a proper venue in the first place.

It is not a suit -- a state as none --

Justice Felix Frankfurter: But it doesn't -- I don't know what that means, a proper venue.

And certainly, it isn't a proper venue in the sense that you could have brought suit there if there had been no waiver.

But it -- it -- by the consent of the party in part if you will by that kind of phrasing, imparts jurisdiction in a court which by statutes, hasn't got it.

Mr. Warren E. King: Section 1406 merely states that failure to waive.

The failure to raise the question of improper venue waives improper venue.

Justice Felix Frankfurter: Well, therefore, although -- although the statute which the limitation, it says, maybe brought here, must be brought here.

All those subjective -- subjunctive limitations are wiped out if the defendant affirmatively says, "I have no objection.” If he doesn't raise it, which means it's a protection for the defendant and not something that circumscribes the Court as a matter of -- as part of the federal judicial system.

Mr. Warren E. King: But the act or failure to act of the defendant to object to venue, under Section 1406 does not in light to the scope of 1391 or 1400.

There is a correct and an incorrect venue under 1391.

Suit maybe brought in this jurisdiction or that jurisdiction.

1406 merely says, if you bring it in the long jurisdiction and the defendant does not object, then the Court did acquire it.

Justice Felix Frankfurter: Well, that's merely using your formal words instead of some other formal words and say, although the statute defines the limitations under which a court may entertain a suit if the defendant objects.

If he doesn't object, the Court may answer the plaintiff.

Mr. Warren E. King: That maybe the result.

But the --

Justice Charles E. Whittaker: Well, Isn't it just the other way?

[Laughs] As far as 1404 which concern venue.

A statute does not say that the cause maybe transferred to some other forum if the defendant will consent, but limits the power of the Court to make the transfer to a venue where the action might have been bought.

That doesn't involve any additions or if the defendant will waive something, does it?

Mr. Warren E. King: Definitely not, sir.

Justice Felix Frankfurter: But 1391 says it maybe brought.

It doesn't say if the defendant waives it.

It says, maybe brought here and that is right into to it because of the nature of venue in protecting the defendant.

I'm not saying that the outcome has to be one way or the other and saying that these entomological and dramatical or syntactical arguments do not control the decision in this case.

Mr. Warren E. King: The chance of the Section 1404 is the past (Inaudible) that indicates a point of view of time that has already passed.

If the action is -- if the motion to transfer is under the present, it maybe transferred.

But the conditions or the -- the conditions covering the jurisdiction to which it maybe transferred are those -- are referred to in the plural perfect tense.

Something that has occurred in the past and it is now no longer true.

May or -- may or may not be true any longer.

But it must have occurred at the time -- it must have been true at the time the suit was brought.

The report of the House Judiciary Committee in adoption of the Section, 1404 refers to the -- the B & O versus Kepner.

There was the case were an action have occurred in Ohio, the defendants line, Mansfield, Ohio and yet the plaintiff file suit in New York.

And the House Committee report says that the 1404 was intended to remedy situations just of that nature.

And the meaning of the Kepner case will disclose that at the time suit was filed in the New York District, it could have been filed in one or more districts in Ohio.

But in the absence of 1404, the cause could not have been transferred and 1404 was enacted to permit that -- suits of that nature to be transferred to a forum were it could have been brought at the time the suit was originally instituted.

The position of course of the respondent is that there no ambiguity, the wording is clear and that the District Judge -- petitioner did not have authority, power to transfer this case to Utah where the suit could not have originally been brought in the first instance.

Justice Potter Stewart: Mr. King, you pointed out that a railroad, typically does business in many, many states and that the basic purpose perhaps was to enable a transfer of -- of a lawsuit against the railroad to a district closer or to the district, where the personal injury has occurred and where the witness is presumably are available.

But there are great many other diversity of citizenship cases, and many of them are negligence cases involving automobile accidents.

And as I -- I'm right, am I not, in thinking that under the diversity venue statute, the plaintiff is limited to his residence or that of the defendant under general diversity under the enactment.

Now, it said certainly, not a rare or very hypothetical case to have an automobile accident happen fairly far from the residence of either the plaintiff or the defendant.

And Massachusetts can be involved in a collision with a man from New York, both -- and they're both on their summer vacation in Wyoming.

And yet, under your interpretation of this -- this statute, the Court would be powerless, would it not to -- to transfer an -- an action even though both -- both of the parties were willing to the district where the actual -- called the locus of the actual cause of action.

Mr. Warren E. King: I believe that that would be true if suit could be started there and if objection were not made to venue, then, the Court would have jurisdiction.

But I doubt if a Court would have the power to transfer a -- this particular action to Montana or Wyoming.

Justice Potter Stewart: It's where -- where, under my hypothetical case, all the witnesses, all the eyewitnesses were.

And where those parties would like to see it transferred.

Of course, as you point out, if -- if a suit where brought there, and there were no objection that be given.

Mr. Warren E. King: But this Section 1404 was enacted after long hearings by the House -- Judiciary Committee where the statute concerning the personal injury case against railroad was brought into.

And there of course, venue did lay in many, many States.

Thank you, Your Honor.

Print this transcript Transcript: 

Argument of Charles J. Merriam

Chief Justice Earl Warren: Number 25, Honorable Julius J. Hoffman, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, Petitioner, versus John F. Blaski et al.

Mr. Merriam.

Mr. Charles J. Merriam: Your Honor, if the Court please.

This case comes here on certiorari to the Seventh Circuit which had issued a writ of mandamus to petitioner directing him to send back to Dallas, Texas a patent infringement case which had been begun there and which had been transferred to the Northern District of Illinois, Eastern Division.

The facts on the case are simple.

The plaintiffs were all Illinois residents or corporations having their place of business in and around Chicago.

The two defendants, Mr. Howell and Lifetime Metal Buildings, were both residents of Texas and have their only place of business in and around Dallas.

After the case had been begun in 1957 in Dallas, the defendants moved to transfer the case to Illinois because of the pendency of another patent, in fact, two other patent infringement cases which had been pending in Illinois for some time and in which a great deal of pretrial discovery had been had.

The Court granted the motion to transfer.

The plaintiffs in Texas took -- asked for a writ of mandamus to the District Judge in Dallas.

They were -- that writ was denied in Ex parte Blaski in 245 F.2d 737.

A writ of certiorari was asked from this Court and denied and then the case was sent to Illinois whereupon the --

Justice Felix Frankfurter: May I interrupt you -- may I interrupt you to ask for that?

Upon the denial of the writ for the Fifth Circuit, the jurist -- the so called jurisdictional point was raised?

Mr. Charles J. Merriam: Yes, it was Your Honor.

There was no -- there's no point of discretion in this case.

It's entirely a matter of jurisdiction and it was raised in the Fifth Circuit.

When the case was sent to Illinois --

Justice Felix Frankfurter: Raised and adjudicated in -- by the -- by the Court of Appeals in the Fifth Circuit?

Mr. Charles J. Merriam: Yes, sir.

When the case came back to -- came to the Northern District of Illinois, it was assigned to Judge Hoffman and the plaintiffs moved to send it back to Texas on the ground that the Illinois Court had no power to receive it or the Texas Court had no power to send it.

And Judge Hoffman, the petitioner denied the motion whereupon a writ of mandamus was sought from the Seventh Circuit Court of Appeals and was denied on July 1, 1958, whereupon a petition for rehearing was filed and granted on October 16th, 1958 without reargument.

A petition was then filed by Judge Hoffman asking that the Court reconsider the whole matter en banc in view of the fact that it was contrary to the decision, in this case, was contrary to two other cases of the Seventh Circuit and contrary to the decisions in four other circuits including the Blaski case to which I have just referred.

That petition -- that request for a rehearing was denied for the two.

Incidentally, the reversal of the mandamus was two to one.

This was for the two and the petition to this Court was properly taken and granted.

And there are, as Your Honors know, two other cases which follow this, one from the Seventh Circuit and one from the Fifth on the same point which involves the construction of Section 1404 (a) of the Title 28 Judicial Code which reads, “For the convenience of parties and witnesses in the interest of justice, a District Court may transfer any civil action to any other district or division where it might have been brought.”

And those last six words are the ones which have caused all of the controversy here.

Because of the time the case was transferred from Texas to Illinois, there was no indication that except for the waiver which was made in the motion to transfer that either Mr. Howell or Lifetime Metal Buildings could have been served in Illinois.

They have not -- they have no place of business there, they were not resident there and they had not committed an act of infringement there.

No charge, there was of no point that I make to the contrary.

The question therefore was, did the waiver which was accompanied -- which accompanied the motion to transfer, as a matter of law bring the situation within the 1404 (a).

Justice Felix Frankfurter: Mr. Merriam, may I've just paid for you -- gratefully brief really.

I noticed that you -- as far as your brief is concerned of merely raising the direct question of 1404 and all these were -- and all these came here in a -- in a situation where the case was transferred without a need of the history involved in this case.

Is that right?

Mr. Charles J. Merriam: Well, I -- I think that you're right, Your Honor.

I have raised only the question of power here and not discretion.

Justice Felix Frankfurter: Yes.

I understand that but you see no -- there's no -- you don't raise any question as to the facts that this was litigated in the Fifth Circuit and the bowl was fixed over to Illinois and then Illinois fixed it back.

Mr. Charles J. Merriam: Well, as I said --

Justice Felix Frankfurter: And the questions that -- that that involves so far as I'm concerned, which isn't a pure 1404 question.

Mr. Charles J. Merriam: Well, the -- we considered that, Your Honor.

And in my brief in the District Court, I said something which Judge Hoffman refused to let me say here in my brief, anywhere on the ground that was frivolous but I'll say anyway.

Now, in -- in --

Justice Felix Frankfurter: Who said it was frivolous?

Mr. Charles J. Merriam: Judge Hoffman said it was not sufficiently dignified but if we had not come here before this Court, this case would have orbited between Dallas and Chicago because the Fifth Circuit was under a final order to send it to Illinois and the clerk in Chicago was under a final order to send it to Dallas and it would have presented a situation which to us seems not in good consonance with the way courts had to act and therefore, up to be adjudicated in some way.

And --

Justice Felix Frankfurter: And you don't think it raises a question is that no matter what one thinks about 1404, well, one Circuit Court of Appeals to -- can review and revive and reject what the five Circuit Court of Appeals -- Court of Appeals have done.

You don't think that raises a question?

Mr. Charles J. Merriam: I haven't thought so.

Justice Felix Frankfurter: In judicial administration?

Mr. Charles J. Merriam: Well, I think it raises a question of administration but if jurisdiction is involved, I don't see how it can be avoided.

At least we have not gone off on that -- that angle for the reason I've given.

Justice Felix Frankfurter: All I can say that (inaudible) and can't be foreclosed by your view of the matter.

Mr. Charles J. Merriam: No sir, I hope not.

Justice John M. Harlan: Could I ask you where the -- in the record is the waiver (Inaudible)?

Mr. Charles J. Merriam: I'm not sure it is, Your Honor.

It's found in the opinions of the Court that there was a waiver.

Justice John M. Harlan: (Inaudible)

Mr. Charles J. Merriam: The motion for transfer is not in the printed record.

I think the motion is here in it's entirely, but I don't have that probably.

Justice John M. Harlan: (Inaudible)

Mr. Charles J. Merriam: I believe so.

There is no question about the waiver having been made.

Unknown Speaker: (Inaudible)

Mr. Charles J. Merriam: Well, I wasn't there at the time but my recollection is that it was made at the same time and as a part, whether it was actually passed as a separate document or was in the motion, I don't know.

I make -- I don't -- I make no point of any difference and I don't think my opponents have.

Unknown Speaker: (Inaudible)

Mr. Charles J. Merriam: The -- the --

Unknown Speaker: (Inaudible)

Mr. Charles J. Merriam: The history of Section 1404 (a) goes back of course to the decision of this Court in Gulf Oil against Gilbert in 330 U.S. 501, which was a five to four decision on the matter forum non conveniens after which the Congress passed this section in 1948.

And promptly there was a flood of litigation concerning its meaning.

There were first two cases in this Court, the Ex Parte Collet in 337 U.S. 55 and the U.S. against National City Lines in 337 U.S. 78, both of which involved this section but not this point and that is there was a good deal of controversy as to whether the section would extend to Federal Employer's Liability Act or to the antitrust legislation.

The -- this Court decided it did but there was a dissent in which it was indicated that the proper party to decide that should have been Congress.

And a flood of litigation -- a flood of legislation was introduced into Congress at that time or within a short time after it to change the ruling of the Collet and National City Lines cases by limiting the action of 1404 (a) to those cases which did not have special jurisdict -- special venue statutes.

That -- there were 13 such acts and that was considered by the judicial conference for some time and I'll come back to that later but -- but I'll merely say at this time that it was decided not to amend the Act.

In the meantime, there was a series of cases which begun in the Courts of Appeals with Paramount Pictures versus Rodney in 186 F.2d 111 in the Third Circuit, dealing with it precisely the point which we have before us here.

That is the matter of whether a case might have been brought in a jurisdiction where venue depended upon a waiver subsequent to the filing of suit.

That case was heard by all seven justices -- judges in the Third Circuit, and by a five to two decision, it was held that the words “where it might have been brought” would cover such a situation.

And accordingly, that case was transferred to a jurisdiction where some but not all of the defendants could have been served without the waiver.

After that case, the matter came up next in the Second Circuit in Anthony against Kaufman of 193 F.2d and there, the Second Circuit Court of Appeals reached the same decision but then came up in the First Circuit and in In re Josephson in 218 F.2d 174.

It came up next again in the Second Circuit in two cases in Torres against Walsh in 221 Federal Second --

Justice Felix Frankfurter: Was -- was -- may I interrupt Mr. Merriam?

Was the matter directly, explicitly involves in a matter of Josephson, wasn't -- to give them recollection, I'm dreaded to --

Mr. Charles J. Merriam: The matter was directly involved, the Court indicated, at least as I understand it, that --

Justice Felix Frankfurter: I thought it went of in Judge Magruder's -- dealt a lot with power to deal with it by mandamus, didn't he?

Mr. Charles J. Merriam: Well, he talked about that a great deal but I -- my understanding of the case is and that decided, although there's a little question on my mind whether he -- he regarded venue waivers is necessary.

The -- the case could in my estimation be read to cover -- transfer even without the waiver.

However, it certainly goes into the waiver matter.

In the Torres against Walsh case, the Second Circuit came back to the situation in order to transfer to Puerto Rico upon agreement of the defendant ship --

Justice Felix Frankfurter: Is -- is --

Mr. Charles J. Merriam: -- company.

Justice Felix Frankfurter: -- the question that was discussed at length and which is, for me it is the difficult one, in Josephson.

Is that that's all involved in any of these cases whether mandamus, whether you can review in the forwarding and the transferring forth or whether they have to wait to the transferring Court?

Mr. Charles J. Merriam: That has not been raised, Your Honor.

There seems to be a great deal of --

Justice Felix Frankfurter: Is it -- is it implicitly involved in any of these three cases?

Mr. Charles J. Merriam: Well, I think it probably is implicitly involved in all of them I think that the parties in all of the cases felt for the -- would -- that's not the way to decide it but they would prefer to have it adjudicated finally in view of the --

Justice Felix Frankfurter: Was --

Mr. Charles J. Merriam: -- the difference of opinion.

Justice Felix Frankfurter: (Voice Overlap) a little confuse -- conflict.

There is -- there is some conflict on this, in the lower courts, isn't it?

Mr. Charles J. Merriam: Yes, sir.

There certainly is.

Justice Felix Frankfurter: And the matter is very important isn't it in the practical litigation whether the transfer of Court of Appeals should review or whether you have to wait until you get through with the trial, isn't that right Mr. Merriam?

Mr. Charles J. Merriam: It's very important.

I think that --

Justice Felix Frankfurter: Well now, if it didn't, is it -- is it implicitly involved in any of these cases so that without reaching out for anything, this Court could properly test on it or should properly test on it.

Mr. Charles J. Merriam: Well, he's not been adequately brief in any of the cases which of course does not mean that you can't --

Justice Felix Frankfurter: No, no, no.

Mr. Charles J. Merriam: -- reach out and -- and take it but nobody has raised that point.And I --

Justice Felix Frankfurter: This is a subject which, for me at least, especially required for the brief, didn't involve this philosophically.

Mr. Charles J. Merriam: I agree and we felt that there was enough to be said in favor of the mandamus is a matter of right in a non-jurisdiction case that we did not raise that point.

Now, after the Torres against Walsh case, the Circuit Court of Appeals of the Seventh Circuit had two cases.

One of which as we pointed and the other of which is not but which is referred to in the record at page 46, and again, at page 49 in the dissenting opinion of Mr. -- of Judge Finnegan in the Court of Appeals and merely referred briefly to that case because it happens to involve the same plaintiffs who are in this case.

They had gone to Milwaukee and started a case there on these patents that are involved here and Judge Tehan transfered back to Chicago and a petition for mandamus was filed with the Seventh Circuit seeking to stop that transfer as a matter of jurisdiction.

And the court acting through, I believe Judge Schnackenberg and Judge Lemley, only two judges denied the -- denied the writ and that case is still pending in Illinois.

Now, the fact that it's still pending is not in the record.

Justice Felix Frankfurter: As a matter -- I'm sorry for interrupting you but -- but I think this is purely the case where interruption may serve a good purpose.

Has the matter come up before the Second Circuit after that short opinion of Judge Frank in (Inaudible) case?

Mr. Charles J. Merriam: It came up --

Justice Felix Frankfurter: Or has that become the -- has that become the rule of the Second Circuit?

Mr. Charles J. Merriam: Torres against Walsh, I believe was in the Second Circuit Your Honor.

That's 221 F.2d 319.

I'll check the circuit but I'm quite sure that's where it was.

Justice John M. Harlan: Yes, that was Second Circuit.

Justice Felix Frankfurter: Well that Circuit has -- has been happy and I think almost indispensable sent to a practice that -- that penalties follow each other, whether they like it so far as first penalties or not.

Mr. Charles J. Merriam: They haven't -- had enough experience to answer Your Honor but they have followed in that --

Justice Felix Frankfurter: Yes, but what is practically your say to this, Mr. Merriam?

Mr. Charles J. Merriam: In the --

Justice Felix Frankfurter: At least, they don't go on its own?

Mr. Charles J. Merriam: In the Seventh Circuit, there doesn't seem to be such uniformity judging by the experience here as I will point out in just a minute because in the General Casualty against Grubb, Judge Grubb had transferred to Oklahoma, he sued against to Wisconsin residents and mandamus was sought against him and denied -- certiorari was taken to this Court and denied.

My opponent say that in that case, the suit could have been brought in Oklahoma against one of the defendants.

I find nothing in the record which -- which so indicate nor do I see any reason why it would it make a difference that it could.

The suit was one for the construction of a contract of automobile insurance, and while the accident had occurred in the State of Oklahoma, I see no reason to assume and the Court certainly didn't go on this ground that that case could have been brought in Oklahoma against two Wisconsin residents via Washington Insurance Company.

Now, with those two cases in the books, ours came up and they say that it first decided one way and then two to one the other way and then four to two petition en banc was denied.

It's petitioners position here that it isn't necessary for us or don't hesitate if asked to say exactly what language in the statute should be construed and exactly what way to serve the purpose of the First, Second, Third, and Fifth Circuits and of the two earlier decisions of the Seventh Circuit.

And -- but that the statute was passed as a remedial statute due to the situation that resulted from Gulf Oil against Gilbert and -- but under that situation, the rule of statutory construction is that a statute which is intended as a remedy should be broadly construed.

There's no doubt that the act is ambiguous as to where it might have been brought.

There is no statement as to whether that means where it might then had been brought that is in on the day that the suit was filed or whether it is of some subsequent time such as the time the motion to transfer is granted.

If you go to the forum non conveniens cases as Mr. Butler has in the case which follows and he has gone into it at great length and I don't want to deprive him of the opportunity of presenting that in the first distance, in the forum non conveniens cases, it never was a rule that the two forums which were prerequisite to the doctrine -- to the doctrine had to be available on the day the suit was filed and that seems to make good sense because I would think it was rather rare.

But in the first place, justice would seem to indicate otherwise but I think it's quite rare that a plaintiff who is filing a suit can be absolutely certain on the day he files it whether he's going to get good service on the defendant or not.

And if we start using his subjective test to that nature, what happens, do we investigate to see whether at the day that suit was started in Texas, the Texas people happened to be in Europe and therefore, it couldn't have been served there until a month later?

I don't think we do.

And therefore I think that an -- an objective point of view which promotes justice is to be preferred.

But the cases which have found in the way which petitioner found have not gone in to detail reasoning for the -- for basis for their findings that begs in the Rodney case made a great many suggestions as to how the statute might be interpreted, how the language which is -- might be brought and that could be brought, indicates permission, brings out the dramatical basis for where it might have been brought as to whether it means in the day the complaint was filed or sometime later but he does not try to pin it down anymore than we are trying to pin it down here as to the exact words which should be used.

As matter of fact, the only court that I know of that has held the Act unambiguous is the Seventh Circuit, two to one in this case.

It says it's clear and ambiguous -- unambiguous.

Whereas I don't think any other court in considering it has so stated and certainly the law review articles which were cited in the cases and a great -- there are great many of them say anything to the contrary.

They all said it's ambiguous and some of them were quite vehement --

Justice John M. Harlan: Is the Second -- is the Seventh Circuit decision here the only one who's gone this way?

Mr. Charles J. Merriam: Well, there are two -- two Seventh Circuit cases, they're both here.

Those are the only two cases in the Courts of Appeal that have gone that way and Mr. Justice Whittaker had a case in -- in -- while he was on the District Court in which he went the other way but in which he finally decided that there was venue in the others' denial on that case and transferred it.

Justice John M. Harlan: But the -- but there's -- the Seventh Circuit as a circuit is alone as against the other Four Circuits?

Mr. Charles J. Merriam: Yes, sir.

Justice John M. Harlan: Is that right?

Mr. Charles J. Merriam: That's not what my opponent say but it -- the -- there is the case the Shapiro against Bonanza Hotel in the Ninth Circuit.

In that case however, it is not a matter of waiver of venue, the plaintiff moved to transfer from the Nevada to California where there was no jurisdiction of the defendants or venue either.

And the Court properly in that case said that it should not transfer to California.

I don't think that is in any sense contrary because there was no question of waiver of venue there.

The -- they also cite the Milburn --

Justice John M. Harlan: Judge Learned Hand has gone the other way, wasn't it?

Mr. Charles J. Merriam: No, I don't think so.

The -- the Milburn case against Knight which is in 185 F.2d was again a case where the plaintiff sought to transfer and there was no waiver.

And while his language might be interpreted one way as against the other, the decision in the case is not in anyway contrary to this and of course it was ahead of the Kaufman case and the Torres against Walsh.

Now, they also cite as contrary to the situation the -- this early case in the -- in the Fifth Circuit which is cited by in the Blaski opinion in that Court which appears at page 9 of the transcript.

And on page 11, the Court discusses Blackmar against Guerre in -- which was in 190 F.2d 427 as being contrary.

And that case did deny the transfer but it did not go into the matter of waiver of venue and the Fifth Circuit Court of Appeals says this did not go into it and this is not contrary authority.

So I don't -- I don't consider as contrary authority and -- I know no -- no Circuit Court as such except these two decisions in the Seventh Circuit that have taken the other position.

Now, in the meantime while the -- the chronology here is somewhat interesting because the Rodney case was decided in January of 1951, January 5th I believe.

The Kaufman case was paneled, what was decided later in that same year, the Josephson case in 1954, the Torres case in 1955 and the Blaski case I forget whether it's 1957 or 1958 on the Fifth Circuit.

During that time, the -- a member of the Judicial Code and particularly the venue sections, were under consideration by the judicial conference and that is summarized and referred to in our brief.

In the report number 1706 of the House of Representatives, 85th Congress Second Session and the document is extremely interesting and showing just what it was it was before the judicial conference, the length of time it was before the judicial conference and what they decided.

Now, the -- on page 13 of the document, there's a footnote and I'll read the footnote, it's not long and it's not quoted in my brief.

“Chief Judge Parker presented a resolution of the Judicial Council of the Fourth Circuit with respect to legislating, proposing to establish restrictions upon the existing statutory power of the District Courts in the transfer of civil cases.

It was the opinion of Judge Parker as well as that of the Judicial Counsel of the Fourth Circuit, but because of the numerous legislative proposal which had -- recently been introduced affecting the venue on jurisdiction of the courts, it was advisable to have a committee of the conference created for the purpose of considering the entire question of venue and jurisdiction of the courts and that was done and the report was submitted not only to all of the circuits but there was -- it's pointed out on page 27 of the report.

A special conference was held in each of the First, Second, Third, Fourth, Fifth, Seventh, Eight and Tenth Circuits concerning the entire subject matter.

And the conclusion was that no change of the nature proposed to be made in Section 1404 of the Judicial Code be made.

Now, it's true, I don't want to mislead anybody that the change that was under some -- the specific change under consideration was that, to cut down the right to transfer in all cases where the venue was controlled by a separate act.

However, the Court could not have during that time with members from the various circuits which had -- were passing on this subject has failed to consider also the question of whether or not the act should be narrowed or to eliminate the problem that we have here.

And I cited in my brief the NLRB versus Gullett Gin Company case, 340 U.S. 361 in this case -- court, State of Missouri against Ross at 299 U.S. 72 and 75.

Both of which held that where an act in one case, as the Bankruptcy Act has been on -- analogous of the National Labor Relations Board Act had been under consideration by Congress during a period while decisions were being handed down adopting a particular construction that the Court should not go counter to that construction which the courts have found during that period of time.

Now, actually, the document from which I read a moment ago, the report of the 85th Congress was not put out until 1957 I believe.

And during all of that time, the cases had been unanimous toward the position which petitioner seeks here.

Justice John M. Harlan: Could you marshal the pros and cons the practicalities of litigants, in the courts of the two positions?

Mr. Charles J. Merriam: I think that if the position of the respondents here were taken, the transfer of litigation to a place where it is more convenient would be greatly cut down to the detriment of justice because -- take a diversity case where there are -- not corporations but individuals.

The only place that an act can be brought -- action can be brought in the federal court of either the residence of the plaintiff or the residence of the defendant.

If it's brought on one of those places -- well, if it's brought on that residence of the defendant, he has many place to transfer it to.

Unless he happens to be spending most of his time in the residence of the plaintiff and that's highly unlikely.

Therefore, there's practically no chance to transfer a diversity case.

I think the thing -- the same thing is true of -- of a patent infringement case.

Now, there is one way around this which is not been pointed out on the briefs, it might change this point and that is that it could be decided that if a declaratory judgment suit could be maintained on the same issues in the place to which transfer was made that then it could have been brought there on the day the action was filed, and therefore, the action not in posture which it was presented but on the same issues.

Now, that might be a distinction that would overcome a part of my problem.

But we have here a case in which it is conceded at least to the purposes of this Court by our opponents that justice is -- the interest of justice is required, requires that this case be transferred to Illinois.

Now, why should that interest of justice be denied upon a technicality?

The court below said that if our position was followed that a case could be transferred to any court in the United States.

And it seems to petitioner that that ignores the fact that the act says that it can only be transferred where the interest of the parties, the convenience of the parties or the witnesses or the interest of justice require.

Justice Charles E. Whittaker: Is that --

Mr. Charles J. Merriam: Now --

Justice Charles E. Whittaker: -- what the statute says?

Isn't that what the statute say and to where the action might have been brought?

Mr. Charles J. Merriam: Yes, Your Honor.

But I'm saying even if the -- our Court of Appeals says if you take the position that where it might have been brought can be -- that goes that can be after the filing of the complain, then you have no one, somewhere you may go.

And I'm only addressing my comments to the fact where -- where it might have been brought includes a waiver of venue.

Under that condition, there is still the limitation in the statute about convenience as a -- convenience of the parties and witnesses and the interest of justice.

And I don't know any reason to suppose and it has been said by this Court that it will not be supposed that a district judge will go contrary to his duty and to the interest of justice.

Certainly, I don't think legislation can be interpreted on the basis of the district courts and not going to do the duty.

And therefore --

Justice Charles E. Whittaker: Is duties are all confined, I take it you can agree, into that, are they not?

Mr. Charles J. Merriam: Yes, sir.

Justice Charles E. Whittaker: Prior to the statute, the Gulf Oil case held, did it not?

That where the rule of forum non conveniens was violated, the only remedy was dismissal, isn't that right?

There could be no transfer.

There was no power to transfer to some other venue.

Mr. Charles J. Merriam: That's correct.

Justice Charles E. Whittaker: And this forced Congress in the interest of justice to adopt this for lying statute 1404.

Mr. Charles J. Merriam: Yes, sir.

Justice Charles E. Whittaker: And all the rights of transfer that a district court acquires are in that statute.

Mr. Charles J. Merriam: That is correct.

Well, so far as we're concerned, there are some other ones that we're not concerned with but --

Justice Charles E. Whittaker: Yes, I knew that.

Mr. Charles J. Merriam: -- to some specialist.

Justice Charles E. Whittaker: Yes.

So do you ascribe any meaning to the six words where the action might have been brought?

Mr. Charles J. Merriam: Yes, sir.

My a -- I do, but I say that that language should be interpreted not as of the day the complaint was filed.

It seems to me that -- and just a point in time that has no significance, but to the time that the actual order of transfer is carried out.

Justice Charles E. Whittaker: Then does that mean that the action might be transferred to any place to the country where the defendant is willing to waive venue on every grounds?

Mr. Charles J. Merriam: If the -- yes -- for the convenience of the parties and the interest of justice so require but only then.

Justice Charles E. Whittaker: Yes, but then if we -- that could be so, then the case maybe transferred to any place, any venue in the entire country if the defendant will waive a new and then their appearance there.

Mr. Charles J. Merriam: And the Court finds if that's in the interest of justice.

Justice Charles E. Whittaker: I say yes.

But now then, is that what Congress said in your view?

Mr. Charles J. Merriam: Yes, sir.

Justice John M. Harlan: What you say as I construe it.

You can start to go around in circle on this thing.

What you're saying in effect is that as far as the limitations, it might have been broader concern.

That is flexible enough to justify an interpretation if that's a sense otherwise, a sensible construction of the statute as meaning anywhere where the parties would get a trial as of the time of the transfer?

Mr. Charles J. Merriam: I -- yes, well, yes.

I think so.

Justice John M. Harlan: That's been the fact, I'd say.

Mr. Charles J. Merriam: Yes.

Justice John M. Harlan: And then you are saying -- and counter balancing the practicalities as you might call them.

All of the competing considerations can be taken care of on the other clause in the statute convenience of party on what you say.

Mr. Charles J. Merriam: Yes sir.

Justice John M. Harlan: As against your opinion.

Mr. Charles J. Merriam: Yes sir, and that's done regularly in the forum non conveniens cases with which Mr. Butler has gathered a great number.

And particularly, the one in Vargas against Bull Steamship Company in 131 A.2d at 39 I believe the page where the Superior Court of New Jersey and by Judge (Inaudible), and a very careful review of the entire subject matter applied the rule that forum non conveniens would not be dismissed unless the defendant consented to be sued in the convenient forum where he could not and ordinarily been sued.

Now, that case went to the Supreme Court of New Jersey.

It was a Jones Act case and with -- and it was -- and certiorari was brought to this Court and denied.

The opinion is not by a United States court but it's a very thoroughly considered opinion following the Rodney and the Kaufman and the Torres against Walsh decisions in saying that the rule must be the same in forum non conveniens cases.

And there are quite a numbers of cases including the District Courts of the United States where the same rule has been submitted and in fact in the -- in this Court -- well, I can find it here.

In Canada Malting versus Paterson, 285 U.S. 413, this isn't in my brief but it's in one of the other briefs.

Two -- two ships collided in the Great Lakes and the District of Columbia dismissed on the condition that the plaintiff appear in Canada and file security so that there would be no prejudice.

And that was followed in a later decision which I'm looking for and can't find here in this Court where it was held that because the District Court did not do that, it was improper.

That is, if they should have not dismissed without entering such a rule.

Now, there, it doesn't matter when the suit could have been brought in the other jurisdiction, it's merely a matter of -- at this time cannot be brought.

And it seems to me, that's a far more just situation and otherwise.

For example, suppose that on the day the suit is filed, the plaintiff lives in California -- the plaintiff lives in New York and the defendant lives in California.

On the day after, the week after, he moves from California to New Jersey and all of the witnesses happened to be either New York or New Jersey.

Obviously, it's not a just thing to say that that case must be continued in California.

It seems to me that the time to look at it, the transfer is as of the time the case is transferred, namely under the events that occurred.

Now, you can -- you can have the opposite situation too but it seems to me that you're flexible while using the flexible rule and not saying it was a fixed period of time when everything takes effect.

Justice Felix Frankfurter: Mr. Merriam.

Mr. Charles J. Merriam: Yes, sir.

Justice Felix Frankfurter: May I pick up the question put to you by Justice Whittaker and Justice Harlan and phrase it a little differently.

But to me, different words may start different lines of thought.

I don't like the word flexible.

To me, the crucial question, the starting point of all competing consideration, all practical consideration in a filed like this is whether the words where the suits might have been brought may fairly, without torturing language, be an ambiguous collocation of words be a doubtful phraseology.

So, as to put this one construction rather another and that flexible, anything, this thing, that thing over with those words of terms of art, namely it means where the suit might have been brought when this suit was brought.

And one has to determine that if I should think to make it clear.

One has to make up his mind whether that phrase is an unambiguous phrase as a technical confined sense in meaning --

Mr. Charles J. Merriam: Well --

Justice Felix Frankfurter: -- as you indicated.

Flexible, there was too many flexible thought in my mind.

Mr. Charles J. Merriam: I -- I apologize --

Justice Felix Frankfurter: But --

Mr. Charles J. Merriam: -- for the word.

Justice Felix Frankfurter: That wasn't -- wasn't yours.

This kept --

Unknown Speaker: And why do you (Inaudible) --

Justice Felix Frankfurter: But it seems to me that's the -- that's the crux of -- from there you go on, then you can consider.

If it's doubt, of course should you give this meaning or that meaning?

And for the resolution of that doubt, all the practice of considerations come in but you can't jump that hurdle of determining whether that is a strictly defying technical in federal jurisdiction procedural term which mean the allowable venue as of the date this suit was filed rather than as of the time that the judge makes up his -- decide the motion to transfer.

Justice Charles E. Whittaker: Well, the statute says the action may have -- quite have been brought, doesn't it?

Mr. Charles J. Merriam: Yes, sir.

Justice Charles E. Whittaker: Now, how could you bring an action under the rules?

Simply by filing a complaint to the Office of the clerk, isn't that what you do?

Mr. Charles J. Merriam: Yes, sir.

Justice Charles E. Whittaker: That brings an action that's why you -- and the statute says that any action, civil action, brought in the Federal District Court may for the convenience of the parties and the interest of justice be transferred to some other venue where the action might have been brought.

Isn't that what you said?

Mr. Charles J. Merriam: Yes, sir.

But it doesn't say when and as a matter of fact, if you merely limit it to be brought, this has been pointed out in these decisions.

You can bring the patent infringement suit anywhere in United States but you can't successfully prosecuted it there unless certain things occur.

Now therefore, brought doesn't mean brought.

It means something more and you've got to bring in something more to explain the ambiguity.

Well, furthermore, it doesn't say whether brought now or brought then.

Both of those same words could be intended in there and I think it's clear.

Now, our Court of Appeals, two to one and said that that's unambiguous.

Well, I think that no other Court of Appeals judge even -- including the two and the Third Circuit that dissented, went on that ground.

Certainly, the -- there are 17 Court of Appeals judges now who have found that the Act is either ambiguous or unambiguously my way.

Justice Felix Frankfurter: Well, it's definitely this suit, might have been brought in the -- and cover in Illinois district if the plaintiff -- because if -- if the plaintiff had had in his pocket a waiver of the venue requirement --

Mr. Charles J. Merriam: Yes, sir.

Justice Felix Frankfurter: -- before he start at anything.

Mr. Charles J. Merriam: Yes, sir he could.

Justice Felix Frankfurter: I'm not saying that's what I think the statute means, but as a matter of English words, that suit might have been brought if you -- you have a waiver in your pocket, he'd have a waiver in his pocket.

Mr. Charles J. Merriam: Yes, sir.

And on the day of --

Justice Felix Frankfurter: So as a matter of English, it satisfies those words.

Mr. Charles J. Merriam: And on the day of the transfer, he did have that consent in his pocket.

Justice Felix Frankfurter: Well, (Voice Overlap) --

Justice Charles E. Whittaker: That's the --

Justice Felix Frankfurter: I think it's different.

Justice Charles E. Whittaker: The statute doesn't say anything about that to mean --

Mr. Charles J. Merriam: About what?

Justice Charles E. Whittaker: The statute doesn't say anything about any transfer if you have a waiver in your pocket.

Mr. Charles J. Merriam: No, and it doesn't say whether it meant at the date of the -- where the case was filed or some subsequent date.

Justice Charles E. Whittaker: They refer to ask you what -- how you dispose of Mr. Justice Learned Hand's -- Mr. Justice Learned Hand's statement of -- to complete it that 1404 presupposes at least two forums in which the defendant is amenable to processes.

Mr. Charles J. Merriam: Yes, that -- that there's no problem to me on that if you say amenable to process at the time of the motion, justices done in the forum non conveniens cases.

They -- they repeatedly transferred to a place where they could not have been sued at the time the complaint was brought without -- well, they couldn't have.

That's done all the time.

They don't transfer -- excuse me, they dismiss only on the ground that there's a waiver.

I misspoke myself, I'm sorry.

Justice Felix Frankfurter: Well, isn't the -- isn't the answer whether he's amenable under the statute or whether he's amenable in -- under the fact.

Under the statute, if there is no venue under which it can be brought to Chicago or the transfer district, then it can't be brought.

But the -- the words don't say that.

I'm not -- I don't know what I think that concludes the matter --

Mr. Charles J. Merriam: Well, Your Honor --

Justice Felix Frankfurter: -- at this moment.

But I do say that for anyone to say that those words can't be interpreted in two different ways as a matter of English is something very difficult for me to entertain.

Mr. Charles J. Merriam: Oh I fell that way too, Your Honor.

And as I say, you have to look at the situation if you try to limit it.

Mr. -- what -- what happens where the defendant is in Europe on the date the complaint was filed, do you wait until he gets back to say it couldn't have been brought or do you say it couldn't have been brought in that jurisdiction because he wasn't there at the time.

Justice Felix Frankfurter: If you got a waiver in your pocket, you come within Judge Hand's rule.

But there are two forums that you might choose.

Doesn't follow -- it doesn't follow though that -- that's different.

After all, you've gone this far Mr. Merriam.

It doesn't follow the -- there is merely one meaning to be attached to the phrase in connection with all the -- the other venue provisions.

Mr. Charles J. Merriam: It's our position however that if there are two meaning, one of which is in favor of petitioners' position that the three factors involved here require adoption of that meaning.

One, because of the legislative history, two, because it's a remedial statute which should be literally construed and three, because the interest of justice are in favor of the transfer which was made here.

Justice Felix Frankfurter: Well, you're trying to prove it's ambiguous by --

Mr. Charles J. Merriam: No.

Justice Felix Frankfurter: -- the desirability of your result and I think --

Mr. Charles J. Merriam: No.

Justice Felix Frankfurter: -- you have to prove it desirable.

It's unambiguous before you can get the questions of desirability.

Mr. Charles J. Merriam: No.

I'm merely saying that if it's ambiguous, then --

Justice Felix Frankfurter: If it's ambiguous, then you open the field to follow the consideration.

Mr. Charles J. Merriam: Yes, sir.

That's all I'm saying.

Justice Felix Frankfurter: But before you get to policy consideration, you must exclude Mr. Justice Whittaker's point of view.

Mr. Charles J. Merriam: Yes, sir.

And my position on that is that no matter who tries to interpret where it might have been brought in any decision that I've seen, they've always added something to it to explain it like unsuccessfully prosecuted because I think Mr. Justice Whittaker there over -- over objections seasonably made of a defendant.

If you have to have that language to make it clear, then it's ambiguous.

Justice Felix Frankfurter: On the risk --

Mr. Charles J. Merriam: You must --

Justice Felix Frankfurter: -- of repetition, what is the legislative history that justified you in saying, that I must find it unambigu -- ambiguous?

What -- what --

Mr. Charles J. Merriam: The legislative history is --

Justice Felix Frankfurter: -- apart from the geniality about doing away with the undesirable result of the Gilbert case.

Mr. Charles J. Merriam: The -- after the decisions of this Court in the Collet case and the National City Lines case.

Justice Felix Frankfurter: Yes, I know.

Mr. Charles J. Merriam: These thirteen bills were presented to limit Section 1404 (a).

They were under consideration for some years by the Judicial Conference and by the various circuits.

At the end of that time, it was decided not to make any change in the law in spite of the fact that the Rodney and the Kaufman and the Torres and the Josephson case which had been handed down in the Courts of Appeals.

In Mr. Justice Whittaker's case, I think it --

Justice Felix Frankfurter: In labor --

Mr. Charles J. Merriam: -- in 1955, I believe.

I have the date here.

Justice Hugo L. Black: It was 1954 or 1955 --

Mr. Charles J. Merriam: 1954 or 1955, 127 F.Supp.9 -- I haven't got the date -- June -- January 22nd, 1955.

So that had also come down by the time the Act was actually amended in which they merely changed the jurisdictional amount and certain other things, but they did not change the section.

I think that is a clear indication of judicial consideration by the conference and the Congress, by the very people who are most concerned with the situation we have here.

Justice Felix Frankfurter: Well, those -- those -- when is -- what -- what's the date of 1404's amendment?

Mr. Charles J. Merriam: 1948, I don't remember the month.

Justice Felix Frankfurter: 1948.

I'm -- I'm not sure I follow you.

You -- then the decisions construing it came later.

Mr. Charles J. Merriam: Yes, the Rodney case came in 1951.

Justice Felix Frankfurter: But pursuant to that is that, I don't see -- I don't see how that helps.

I'd like that checked on the legislative history.

Mr. Charles J. Merriam: My position is that the amendment or the possibility of amending Section 1404 (a) was under consideration in --

Justice Felix Frankfurter: Thereafter.

Mr. Charles J. Merriam: Thereafter.

It was under consideration from 1951 until 1957 during which time this unbroken line of Courts of Appeals' decisions came down.

Justice Felix Frankfurter: What kind of amendment are proposed?

Mr. Charles J. Merriam: The -- the amendment proposed was a --

Justice Felix Frankfurter: I see now.

What you're saying is this -- this Act was passed in -- what we're considering is came out with the Code in 1940 and 1948?

Mr. Charles J. Merriam: Yes, sir.

Justice Felix Frankfurter: And there under, there were these decisions construing it and then came these proposals which you're about to tell us.

Mr. Charles J. Merriam: Yes, sir.

Justice Felix Frankfurter: What were they?

Mr. Charles J. Merriam: The proposal was to add a Section (d), the preceding provisions of this section shall not apply to any civil action brought under any act of Congress which vest in the plaintiff a choice of forum in which to bring suit and does not provide any authority for the transfer of the same to any other district or division.

Justice Felix Frankfurter: That would be practically the reenactment of the Kepner case.

Mr. Charles J. Merriam: Well, I think so.

And they -- and they -- the Judicial Conference said they favored no amendment of Section 1404 (a).

And I think that while it is not a direct attempt to change the act in the respects or behavior under consideration, certainly shows that the Judicial Conference and the proper committee of Congress was in close touch with the situation on 1404 (a) and did not make a change.

Justice Felix Frankfurter: They have shown in -- does it show anymore than that that they didn't propose to recommend the adoption of that proposal?

Mr. Charles J. Merriam: Well, it shows that -- as I read, I hope I can find it but again that the -- the committee, this --

Justice Felix Frankfurter: Judicial Conference committee, this Conference Committee.

Mr. Charles J. Merriam: Here is the (Voice Overlap) Judicial Conference Committee on page 14 of the -- of the House Report which quotes their various report, says, the fourth question to be considered by the conference was -- should Section 1404 (a) of the revised code relating to transfers be repealed or amended.

And that's a broad statement and that it would include just what we're talking about here.

Justice Felix Frankfurter: Those are just probably words where the question --

Mr. Charles J. Merriam: Well, this is -- this is a report of the Committee –

Justice Felix Frankfurter: But before they set forth the fourth question.

You've just said --

Mr. Charles J. Merriam: Well, I'll read the paragraph.

“Your Committee has been given to -- that has given consideration to four questions.

One, should the jurisdiction based on diversity be retained and two, down to the forum.”

And I'm trying to find out whether that was from the Congress Committee or whether that came from the Judicial Conference.

And I think that is the -- unfortunately I don't have all the pages and I -- I'm not sure.

I'm thinking the Court would show --

Justice Felix Frankfurter: Is that all -- Is that all the legislative history that is -- that's relevant to our consideration?

Mr. Charles J. Merriam: I think it is.

Justice Felix Frankfurter: The -- well, you say the legislative history that we had said, there are three grounds for saying this is ambiguous which allows the inflow of quality consideration.

One was legislative history.

Mr. Charles J. Merriam: Well, excuse me.

I -- that -- I think we're getting off on the wrong foot.

What I said was if it's ambiguous, then there are three reasons why it should be construed in favor of the liberal.

Justice Felix Frankfurter: Yes, what is your reasons for saying it's ambiguous.

Mr. Charles J. Merriam: The reason for saying it's ambiguous is that nobody that I have seen yet is able to interpret it without adding something to it.

It could main -- could have been brought now or then.

It could have been --

Justice Felix Frankfurter: (Voice Overlap) on the intrinsic deduction from the word ambiguity derived, is that what you're saying?

Mr. Charles J. Merriam: Yes, sir.

Justice Charles E. Whittaker: Do -- do you think I added something?

Mr. Charles J. Merriam: Well I may -- there maybe -- there were so many cases here Mr. Justice Whittaker that might --

Justice Charles E. Whittaker: Problem is --

Mr. Charles J. Merriam: -- the recollection of your --

Justice Charles E. Whittaker: Never mind, I -- I didn't think I do.

Mr. Charles J. Merriam: If you'll let me take a moment, I'll find out or I can -- perhaps I'll find out.

I have a few minutes on rebuttal.

Chief Justice Earl Warren: Mr. Merriam, one of the factors you mentioned was that this was in the interest of justice.

Is there any difference of opinion between counsel on that question?

Do they concede that that -- that this would be in the interest of justice?

Mr. Charles J. Merriam: I think they have to concede it because it was found by the court as a finding of fact and that is not brought up here for review.

Chief Justice Earl Warren: Well, I know, but -- but a broad -- an interpretation of the statute itself.

Do they concede that that would result in -- in the interest of justice?

Mr. Charles J. Merriam: Well, I think so but I'd rather have them as to that Your Honor, there's still certainly a realm of --

Chief Justice Earl Warren: (Voice Overlap) is there any difference of opinion or opinions?

Mr. Charles J. Merriam: They've -- they've said frankly that the only issue here is one of jurisdiction which would obviously eliminate the matter, the interest of justice.

Justice Felix Frankfurter: Yes, but I don't see how that fit this, if I may put this to you.

Assuming, as -- as I've indicated my agreement with you that the statute is ambiguous, meaning by that that there's no compulsive content to those words requiring that if he read the meaning that assume -- that acton might have been brought when the pending action was brought.

Assume, I agree with you on that.

Then when you come to policy consideration, I put to you two possibilities.

One, that the policy consideration, the -- that which is determined by the whole scheme, by the general scheme of venue, namely it might have been.

Or that the policy consideration, what vest whether it's the general administration of justice in the federal courts of an entirety, which is what you're arguing for.

Mr. Charles J. Merriam: Yes, sir.

Justice Felix Frankfurter: But I think the former is -- is -- well, is justice -- or not just as because one makes a choice but the former -- the perfectly legitimate point of view from which to consider, how to resolve the ambiguity once you grant -- even granting the ambiguity.

Namely, that you are restricted.

You confine the ambiguity.

Assume it's ambiguous, you don't reach the conclusion that it means whether a suit might have been brought when this suit was brought, rather than it might have been brought when the judge comes to pass on the motion for transfer because of its general conformity in a nation as big as this, with the territorial limitations and the other considerations that define and confine venue.

Mr. Charles J. Merriam: I had intended to argue that when I said that it seemed more just to look at it at the time of it was granted within some other time and also --

Justice Felix Frankfurter: But that's the basis on which so called justice turns, doesn't it?

Mr. Charles J. Merriam: Yes, sir.

I think so.

Justice Felix Frankfurter: Well, is that the general theory as -- as Judge Hand points out, limits jurisdiction of courts within their territory, but doesn't that -- have to travel all over the United State except in antitrust cases.

Mr. Charles J. Merriam: Well, of course this act, any of -- any act that's passed could be of use.I don't think we should look at that, I think that the acts purposes are salutary and should be expanded.

Justice Felix Frankfurter: Do you argue that the restriction upon the court of finding that where justice has done, and against that as a consideration that the review of such a finding is extremely limited because mandamus doesn't review the balance of consideration for this fellow as having his trial in Chicago and Dallas and away before us.

Mr. Charles J. Merriam: It is limited.

Justice Charles E. Whittaker: Do you not think, if I may ask you sir?

The Congress in adding those last six words had the purpose of preventing the abuse to which you refer?

Mr. Charles J. Merriam: I don't think so, Your Honor but I haven't anything to guide me except perhaps prejudice in this case but I don't think that's any indications if that's what they intended.

I think they did intend to bar, as we pointed it out and it's our -- the people who follow has pointed out, to bar those cases where you might destroy diversity by moving, or you might have an action in rem but you couldn't move like the -- there's one of the other cases where there was a -- an executor who couldn't sue in the foreign jurisdiction.

I think those are reasonable cases and I think that there's good reason for using the term to cover that situation.

Justice Felix Frankfurter: The reason I pressed you on the legislative history is because I wonder if it's -- there's anymore like the Congress gave of its contention in the words you've used.

The answer is no I think (Voice Overlap).

Mr. Charles J. Merriam: Well, certainly -- certainly preexisting history.

Chief Justice Earl Warren: Mr. O'Keeffe.

Argument of Daniel V. O'keeffe

Mr. Daniel V. O'keeffe: Mr. Chief Justice, Justices of the Court, if the Court please.

Mr. Chief Justice, in answer to your inquiry a moment ago of Mr. Merriam as to whether or not the respondents disagree with the idea that the interpretation of Mr. Merriam is asking for with respect to the statute, whether we agree to that would be in the interest of justice.

In the narrow sense, we -- we aren't quarreling with the convenience of parties and interest of justice in the sense of the statute.

That is now involved here.

It's strictly here, a question of power.

We haven't appealed from the District Courts' finding in Texas as to the convenience of parties and that we don't agree with them but that isn't -- doesn't have any element here.

All -- our question is here is whether the Court have the power to do it.

Now, if you are asking -- if the question was, “Do we agree that in general it would be an interest of justice?”

Our answer is emphatically no and we think it would be great injustice and that -- that it would be giving a defendant a power which neither party ever had before and it would be giving a defendant power that a plaintiff doesn't have now.

A defendant could then transfer the case into any district in the 50 states, merely on the finding of a district judge that would be for the inconvenience of parties on the defendants own motion.

The plaintiff doesn't have -- doesn't have that power.

The -- that is --

Justice Felix Frankfurter: Well, the plaintiff should show the forums though, doesn't he, to begin with?

Mr. Daniel V. O'keeffe: No, only to a certain sense, Mr. Justice Frankfurter.

The Section 1404, or 1400 (b), the patent statute, is very specific and it says that a patent infringement action maybe brought and I quote the words “may be brought,” in a place where the defendant as a resident or in a place where he has committed acts of infringement and has an -- regular and established place of business.

So the plaintiff is very definitely limited to only those places.

In this case --

Justice Felix Frankfurter: He isn't limited if the -- the defendant doesn't stand on his venue rights.

Mr. Daniel V. O'keeffe: Well, that -- that is true.

That -- but this is not a waiver of venue case, Your Honor.

Justice Felix Frankfurter: Alright.

And I don't care what they believe but all I'm saying is that he is not limited -- that you are limited if the defendant doesn't stand on his venue rights.

Justice Charles E. Whittaker: Well, the statute (Inaudible) -- and the statute (Inaudible) for his adversary may let him up, isn't that it?

Mr. Daniel V. O'keeffe: Well, yes -- he is limited in this -- this is not a waiver of venue statute case at all --

Justice Felix Frankfurter: I understand that.

Mr. Daniel V. O'keeffe: -- because in a waiver of venue case, you have a stipulation or a waiver by both sides.

In other words, either both parties stipulate to try it in a jurisdiction which would otherwise be improper.

Or a plaintiff brings it in an improper district and therefore, waives his objection to it and then the defendant comes in and waives venue, answers and goes ahead.

So that in that instance, there is a waiver on both sides.

Here, the plaintiff brought this action in the only place under patent statutes they could bring in Texas.

The defendants then moved to transfer it to Illinois.

The petitioner agrees that -- and all parties agreed that it could not have been brought in the first place against the defendant in Illinois.

The plaintiff has never consent -- consented to it because the plaintiff has opposed it from the first.

Justice Felix Frankfurter: I understand that.

Mr. Daniel V. O'keeffe: So you don't have a waiver of venue situation at all and if this case could be transferred to Illinois under the statute, there is no reason why on the defendant's motion, it couldn't have been transferred to any district in the United States.

There'd be just as much justification for it as long as the Court found -- convenience of parties and witnesses.

It's --

Justice Felix Frankfurter: Well, that's a big if, isn't it?

Mr. Daniel V. O'keeffe: Well --

Justice Felix Frankfurter: It's a big qualification.

Mr. Daniel V. O'keeffe: Yes but -- but Your Honor, the plaintiff -- the plaintiff --

Justice Felix Frankfurter: You're saying -- you're saying that you could send it to any court in the United States is really a -- well, not a very realistic way of talking, is it?

Mr. Daniel V. O'keeffe: If -- if the Court found it, the plaintiff does not have that right, Your Honor, under any circumstances if the defendant is against it on both.

Justice Felix Frankfurter: And it's settled that -- that if -- is it settled that if the plaintiff -- because I am ready to try this thing at some other places, but the plaintiff intends, maybe the court probably to send it to some other cases -- some other district which is even more convenient than the one he'd suggested.

Is that been settled by cases?

I don't think so.

Mr. Daniel V. O'keeffe: Yes Your Honor.

The Foster-Milburn versus Knight case well, is an -- is an instance --

Justice Felix Frankfurter: But that is --

Mr. Daniel V. O'keeffe: -- where --

Justice Felix Frankfurter: There was no --

Mr. Daniel V. O'keeffe: -- the plaintiffs transferred and moved for the transfer and the defendant said no.

Justice Felix Frankfurter: Yes but defendant -- all I'm saying, that the defendant then didn't -- didn't waive his -- stood on his venue rights.

But I'm supposing where the defendant doesn't stand on his venue rights and says, “I want it moved to Chicago.”

Is there any case which says that judge says, “Well, you now don't on stand on the limitation of the suit against you.”

If you don't do that -- the plaintiff says, there would still -- better or third place to send it to.

Is there any case which says that can't be done?

I think not.

Mr. Daniel V. O'keeffe: Well there are cases -- there are cases denying -- and if I understand you correctly, Your Honor, there are cases denying transfer to other districts on plaintiff's motion on the ground that the other district is in action in which it could not have been brought.

Justice Felix Frankfurter: That's when the defendant resists --

Mr. Daniel V. O'keeffe: Yes.

Justice Felix Frankfurter: -- and -- and stands back.

But I'm supposing this case where the defendant says, “I don't stand on the limitation of suit,” namely, which restricts suit to be brought in Texas.

“I'm ready to waive my right as to that and you send it Illinois.”

I don't know what I will decide but is there any case which says in that case to the interest of justice but judge can't say when the plaintiff suggests a federal third alternative as to this would.

There isn't any case.

Mr. Daniel V. O'keeffe: As -- as far as I know, Your Honor, there's no decision in there, no.

In this -- one thing that it is important to remember in this case with respect to Section 1400 -- 1404 (a) is that there are two parts of that section.

The first is -- the convenience of parties and witnesses and -- and -- but then assuming that the Court does find that there are -- if for the convenience of parties and witnesses, then what does this section, the statute provide?

Does it say that you can then transfer to any district?

It doesn't.

It says any district in which it might have been brought.

Now of course it's well-established law and -- that you have to give words meaning if possible to all the words of the statute.

The Court itself has stated in the case of the United States versus Menasche that it is our duty to give effect if possible to every clause and word of a statute and of course that that's the established statutory construction rule.

Now, so that if the words where it might have been brought are to be given any meaning, then of course the next question is, “Well, what meaning should it be given?”

Well, it -- we submit that it's only sensible when Congress has provided in one section of a statute that an action maybe transferred to a district where it might have been brought that you then look and see if Congress has provided in the statutes for that particular kind of action where it might have been brought.

And in Section 1400 (b), it specifically says that a patent infringement action maybe brought in place of residence of the defendant or where he is, committed acts of infringement or -- and has a regular and established place of business.

Justice Felix Frankfurter: And I suppose you had that in your pocket, a letter from the defendant in this case say that we now, you can't bring us into court in -- in Chicago or Illinois but we hereby authorize you to file this commission, specifically waiving the venue objection we might raise.

Before you begin a suit, you think the English language is -- is offended by saying that you might have brought that suit in Illinois, and put the waiver in your pocket?

Mr. Daniel V. O'keeffe: Well, of course assuming that the defendant is willing to do it --

Justice Felix Frankfurter: Well, I -- I must --

Mr. Daniel V. O'keeffe: -- you -- you could bring it -- you could bring it anywhere, Your Honor, yes.

I mean no, that instance you could because --

Justice Felix Frankfurter: But what --

Mr. Daniel V. O'keeffe: -- if -- if a defendant is willing.

What we're talking about is --

Justice Felix Frankfurter: Suppose --

Mr. Daniel V. O'keeffe: -- when one party isn't willing.

Justice Felix Frankfurter: Well, take my case, Mr. O'Keeffe.

You have such a waiver in his pocket before you bring the suit.

You then bring the suit in Texas and the defendant, present petitioners -- no, the present petitioner is Judge Hoffman.

And the defendant in that suit then move for a transfer on the ground that you might have been -- might have brought that suit in Illinois before you file it in Texas.

Wouldn't -- wouldn't -- would there be any offense to the English language to translate the -- those terms that you might have brought that suit in Illinois in the case I put to you?

Mr. Daniel V. O'keeffe: Not as long as both parties are willing, Your Honor.

Justice Felix Frankfurter: No, I'm not supposing.

By that time you say, “I want to bring it in -- I want to bring it in -- in Texas.”

And they say, “We sent you a letter saying that we are ready to -- we waive our venue restriction as to Illinois.”

And on the basis of that they move the Texas District Judge to transfer.

And you say jurisdictionally, he has no power to transfer because the suit couldn't have been brought in Illinois.

Mr. Daniel V. O'keeffe: No.

The -- that is correct.

Now -- now --

Justice Felix Frankfurter: In this case -- I know that in this case (Voice Overlap).

Mr. Daniel V. O'keeffe: No.

No, Your Honor.

As far as bringing it, that isn't really involved here.

The big thing here is though that it is well-established law of course that the District Court do not have the power to transfer an action to another -- another district except by reason of 1404 (a).

And prior to 1404 (a), they have no such power.

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel V. O'keeffe: So if they obtained power from Congress which is the only way they could have obtained it, then the thing is -- what did Congress intend to give him.

If the interpretation, the counsel of petitioner is putting on is to be used here, then that section in the statute would have -- have been complete if it had been -- if it had finished in stating that it maybe transferred to any other district.

The words where it might have been brought are rendered meaningless on the thing.

Justice Felix Frankfurter: Not my -- that's the case I put to you.

Mr. Daniel V. O'keeffe: Well --

Justice Felix Frankfurter: Because (Voice Overlap) --

Mr. Daniel V. O'keeffe: No I say -- I -- I say what -- I say what counsel for petitioner's standing, but not -- not from what you mentioned.

Justice Felix Frankfurter: But -- but I put you my case in order to test what to me is the initial question, namely “might have been brought” are those imprisoning words which mean -- what do they mean?

Do they mean that as a matter of venue legislation, it could only have been brought -- it -- it couldn't be brought in the district which the transfer is made.

And I put you to the case of advanced waiver which would have led you to be able to bring that suit in Illinois.

Mr. Daniel V. O'keeffe: Well, counsel for petitioner made some remarks as to the exact words.

If you look at the exact words, Your Honor, as to might have been brought, that doesn't say or it may have been brought now, may -- might have been -- it says where it might have been brought.

And if -- if anything, if that word “might” would mean anything in reading it at the time of the transfer, it's in a past sense to where it might have been brought originally instead of where it may have been brought now.

Justice Felix Frankfurter: To think if I taught a school of grammar class that might have been -- it's not used with exactly $2 and might have been, might mean may at this moment be -- I have to be a bad teacher?

Mr. Daniel V. O'keeffe: No, but it -- no, but it -- it is -- let's point it the other way and also as -- as to, this been a remedial statute.

Neither plaintiff nor defendant prior to 1404 (a) had a right to force the other party into a district in which that district in that -- into which that party did not want to go unless it came within a statutory provision permitting it.

And that for instance, in a patent infringement action you could bring it against the defendant in his place of residence or where he had an established place of business and was infringing.

And the plaintiff have the right to choose those forms.

If there was a selection form, he had a right to choose one but he couldn't just arbitrarily pick a district and bring it.

On the other hand, the defendant could not do that either.

He couldn't do that against the plaintiff.

He couldn't just force him into an -- any arbitrary district.

Now, speaking of this as a remedial statute and now saying that -- that Congress in -- in making applicable the -- the doctrine of forum of non conveniens to these cases, not only did that but gave the defendant a new power.

I -- I think he is going entirely too far.

There is no basis for it.

Here if the -- if Congress would have given the defendant a brand new power to force that the plaintiff into any district in the United States in which the defendant move to move and the Court found it was convenient and it never had that power before.

And I think that if Congress had ever intended to give that revolutionary power to a defendant, it would have very carefully spelled it out.

And then -- and most certainly, it would have left out the words where it might have been brought.

They wouldn't have put in limiting words like that to -- that are definitely limiting in their sense.

Under the doctrine, the -- under the doctrine of forum non conveniens, this Court has specifically said in the Gulf Oil Company case that in all cases in which doctrine of forum of non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process and that doctrine furnishes criteria for choice between them.

Now, the petitioner in his opinion in this case at page 17 of the transcript of the record admits that this case would not have been fileable in Illinois under the doctrine forum non conveniens.

He's -- he said and I quote, "Since it appears that the defendants are not amendable to process in Illinois, the doctrine of forum non conveniens could not have been applied at the case (Inaudible).”

This Court --

Justice John M. Harlan: Is that -- is that clear?

Mr. Daniel V. O'keeffe: Excuse me?

Justice John M. Harlan: Is that clear?

Because your -- the next briefs for example that argue the question on that point a little more fully.

They say that under the doctrine of forum non conveniens, the test was as to another forum.

The test was as to the -- at the time of transfer.

Mr. Daniel V. O'keeffe: Well, Your Honor --

Justice John M. Harlan: Now, I know -- I haven't read those cases yet, but is that so?

Mr. Daniel V. O'keeffe: Well, that is not my understanding Your Honor.

My understanding is and I think, as far as I'm concerned, the Gulf Oil Corp. case is the controlling case in -- in the doctrine of forum non conveniens.

In my -- my understanding of that ruling is that there had to be two forums, two proper forums.

I mean I -- I think that's what the Court was saying.

Now, they don't say it in that many words.

I -- I mean --

Justice John M. Harlan: Well, they would be under it.

They would be under that theory.

Mr. Daniel V. O'keeffe: Of what?

Justice John M. Harlan: There would be two proper forums under that --

Mr. Daniel V. O'keeffe: Oh I mean, origin --

Justice John M. Harlan: -- under the -- the forums theory.

Mr. Daniel V. O'keeffe: I mean the proper forums where you could force the plaintiff or you could force the other party to try it -- and so that there's only a choice of the forums agreement.

And that is my opinion and I personally feel that that is the -- they weight of authority.

Now, in the Ex parte Collett case, this Court has specifically recognized that the purpose of Section 1404 (a) was to render applicable the doctrine of forum non conveniens.

In the first paragraph of that opinion at page 56 in the 3367 U.S. it stated, "In this case, we decide whether -- we must decide whether the venue provisions of the Judicial Code rendered applicable the doctrine of forum non conveniens to actions under the Federal Employers Liability Act."

And it went on to answer that question in the affirmative and the basis for the answering in the affirmative was that it rendered it applicable to all civil actions, to any civil actions and therefore run it.

So this Court itself has specifically said that the -- that 1404 (a) was to render applicable the doctrine of forum non conveniens.

Justice Charles E. Whittaker: Well that isn't literally right, is it?

The doctrine of forum non conveniens does suppose at least two venues where the action might have been brought?

But it contemplates no transfer --

Mr. Daniel V. O'keeffe: It means no -- that -- no, that's right --

Justice Charles E. Whittaker: But it contemplates if this action be brought in an inconvenient forum that it be dismissed, isn't that right?

Mr. Daniel V. O'keeffe: Yes.

That -- that's right Your Honor.

No, you couldn't actually transfer under the doctrine.

Justice Charles E. Whittaker: Now, while -- if I might ask you, suppose in this very case, the plaintiffs here who had to by virtue of the nature of this action bring it in Texas, no residents of Illinois were dissatisfied with that forum and they sought a transfer under 1404 (a) to Illinois.

Could they have -- could the Court have made that order?

Mr. Daniel V. O'keeffe: So that -- do I understand you correctly?

The defendants were residents of Illinois?

Justice Charles E. Whittaker: The plaintiffs.

The plaintiffs were residents of Illinois.

Mr. Daniel V. O'keeffe: In this instance, that is correct, Your Honor.

Justice Charles E. Whittaker: That's right, and they filed the suit in Texas.

And here, it's the plaintiffs that moved to transfer.

Mr. Daniel V. O'keeffe: No, Your Honor the defendants --

Justice Charles E. Whittaker: Defendants here --

Mr. Daniel V. O'keeffe: -- then it's move, alright.

Justice Charles E. Whittaker: Alright, now, but then I assume that the plaintiffs themselves moved to transfer the case to Illinois.

The plaintiffs, they had to file it in Texas, didn't they?

Mr. Daniel V. O'keeffe: Yes, Your Honor.

Justice Charles E. Whittaker: Alright.

Now, could they upon a showing of convenience of parties and witnesses and in the interest of justice have obtained the valid order by the Texas Court transferring the case to Chicago?

Mr. Daniel V. O'keeffe: Certainly no, Your Honor.

Justice Charles E. Whittaker: Why not?

Mr. Daniel V. O'keeffe: Because -- because the Court did not have the power to transfer it.

Justice Charles E. Whittaker: Because the action couldn't have been brought in Illinois.

Mr. Daniel V. O'keeffe: That's right.

Justice Charles E. Whittaker: Isn't that it?

Mr. Daniel V. O'keeffe: That's right, Your Honor.

Justice Felix Frankfurter: But suppose -- but suppose that (Inaudible) was brought, the defendants (Inaudible) then has moved for the transfer.

Mr. Daniel V. O'keeffe: Well --

Justice Felix Frankfurter: Is there any case that says no?

Mr. Daniel V. O'keeffe: I -- I -- well, I -- I would have to answer that in two parts, Your Honor if I may.

Number one, I grant that a plaintiff and defendant if they both get together and say, "We're going to sue out in Utah.”

Although neither one of them had a right to be there, you can do it.

Therefore as a practical matter, a court no doubt would say, "Well, we'll make this transfer out here" and then never would be any -- it -- it never come up to be to the -- for a decision because both sides were happy in going out there anyway and -- and --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel V. O'keeffe: That -- that is correct but, Your Honor, while if you gone out in Utah and both parties went ahead and tried it without any objection to it, there is a possible waiver there anyway.But -- so it -- it would -- it -- I -- I don't think it had come up but --

Justice Felix Frankfurter: (Inaudible) the plaintiff could never construe (Inaudible) in -- in Illinois.

If this is a jurisdictional limitation, then the court wouldn't grant it.

Mr. Daniel V. O'keeffe: Well I --

Justice Felix Frankfurter: That's the request of (Inaudible)

Mr. Daniel V. O'keeffe: My -- my answer would be that technically, no, you couldn't.

But as a practical matter, it wouldn't arise -- I mean the problem wouldn't arise for decision because you need the both side of --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel V. O'keeffe: Well, because they could --

Justice Felix Frankfurter: If the plaintiff of his reference would originally have gone (Inaudible) while he couldn't thought that the limitations of venue statutes.

But thereafter, the defendant will need to do to arrive in this.

That's wouldn't be a (Inaudible) upon your view, the Courts will have jurisdiction to that.

Mr. Daniel V. O'keeffe: No.

I -- I'd say that that's -- technically, they did not have jurisdiction but of course the plaintiff and defendant could get together and stipulate and go ahead and try the case in Illinois anyway.

They could re-file it if necessary because both sides have agreed to a decision.

Justice Felix Frankfurter: (Inaudible)

Justice Charles E. Whittaker: Could they?

Mr. Daniel V. O'keeffe: If both sides are agreeing to it.

Justice Charles E. Whittaker: Well now, they can't confer jurisdiction by agreement.

What they'd have to do is dismiss the lawsuit --

Mr. Daniel V. O'keeffe: Lawsuit.

Justice Charles E. Whittaker: -- and file (Voice Overlap) --

Mr. Daniel V. O'keeffe: No, no, that's what I mean.

Justice Charles E. Whittaker: -- in Chicago and then you have your appearance.

Mr. Daniel V. O'keeffe: No, that's what I mean Your Honor.

They -- they could -- they could actually file.

I mean the plaintiff could go ahead and file in Illinois and the defendant could come in and answer and -- and they'd -- would get their trial in Illinois.

Justice Felix Frankfurter: Plaintiff would have to go to (Inaudible)

Mr. Daniel V. O'keeffe: Yes, I think that is correct.

Justice Felix Frankfurter: (Inaudible)

Justice Charles E. Whittaker: That would be a situation done of bringing a suit where under the law it might be brought, wouldn't it?

Mr. Daniel V. O'keeffe: That's right, Your Honor.

Justice Charles E. Whittaker: Now, if the plaintiff cannot transfer this case from Texas to Illinois or he doesn't like the venue, but he's required by virtue of physical facts to bring it there.

He can't transfer it, then how can the defendant transfer or to have -- having the Court transfer it on the motion of the defendant.

Mr. Daniel V. O'keeffe: That -- that's correct.

Justice Charles E. Whittaker: And isn't just (Inaudible) for the rules --

Mr. Daniel V. O'keeffe: That's right.

Justice Charles E. Whittaker: (Inaudible)

Mr. Daniel V. O'keeffe: That -- that's correct, Your Honor.

Also, Your Honor --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel V. O'keeffe: Not -- not, Your Honor --

Justice Felix Frankfurter: But I suppose in determining justice in the district courts, district courts just decide as to the problem (Inaudible) straight to the defendant.

Mr. Daniel V. O'keeffe: Well, but they weren't being treated alike, Your Honor.

If the plaintiff can be forced into a -- an improper district because the plaintiff does not have that right against the defendant.

Justice Felix Frankfurter: That should be justice abstract in equality.

That doesn't prove that this might (Inaudible)

Mr. Daniel V. O'keeffe: Well --

Justice Felix Frankfurter: It isn't a great (Inaudible) argument of the plaintiff and defendant was then to take it home for the litigation.

Mr. Daniel V. O'keeffe: Well --

Justice Felix Frankfurter: I have problems just relating for the law.

Mr. Daniel V. O'keeffe: One -- one of the -- excuse me.

Justice Felix Frankfurter: I do know is the (Inaudible)

Mr. Daniel V. O'keeffe: One of the main things as to what the meaning of -- where it might have been brought should be is that Congress in another section of the statute has specifically provided in the patent infringement in -- in 1400 -- 1400 (b) has specifically provided that a patent infringement maybe brought in certain qualified districts.

And we -- we submit that it's reasonable to read the words “might have been brought” then with respect to patent infringement action as being -- were Congress specifically stated patent infringement of an actions maybe brought.

Justice Felix Frankfurter: Yes, but that's the rule (Inaudible)

Mr. Daniel V. O'keeffe: Well, the -- the fact that the -- the defendant might have the right to waive it as far as he is concerned, if the plaintiff is willing.

We submit, this is a remedial statute to protect the defendant.

It shouldn't be construed to -- beyond that to say that we are giving the defendant a new power of which he never had before and we are now permitting him to force the defendant -- the plaintiff into a district in which he never could've forced him before.

If Congress had intended to give that revolutionary power, we submit that they would have carefully spelled it out.

Justice Felix Frankfurter: You don't force him into it.

You don't force (Inaudible) unless to satisfy the requirement that justice will be there by (Inaudible)

Mr. Daniel V. O'keeffe: Well, but the -- they have never had that power before and the plaintiff does not have that power now.

So -- and -- so that if it's a remedial statute to protect the defendant, it shouldn't be construed that far to give it this brand new revolutionary power that a defendant never had before.

Chief Justice Earl Warren: That's your condition (Inaudible) just the result might be but when (Inaudible)

Mr. Daniel V. O'keeffe: That's right, Mr. Chief Justice.

That's right and the -- the plaintiff --

Chief Justice Earl Warren: (Voice Overlap) difference to power of a (Inaudible)

Mr. Daniel V. O'keeffe: Yes.

And if -- if Congress had meant to give that power, it would have spelled it out instead of -- instead of -- actually, what appears to me to be a express limitation stating that at any district where it might have been brought and they were intending to spell out a limitation.

In the Norwood-Kirkpatrick case, a decision of this Court, they -- they stated with approval, the Ex parte Collett case.

And in that case, they -- they held the transfer was proper, and they did make the statement in effect that -- that 1404 (a) had broadened the discretionary -- liberalized the discretionary powers to be exercised.

Where is that effect?

But it also -- this Court also stated and I quote, “This is not to say that the relevant factors have changed or that the plaintiff's choice of forum is not to be considered but only that the discretion to be exercised is broader.”

Now, one of those relevant factors, we submit of forum non conveniens has always been the necessity of two doctrine -- two forums in which the defendants are amenable to process and then the Court merely had the choice between them.

And that that is one of the factors which is still present under the Norwood-Kirkpatrick case.

With respect to the Circuit Court of Appeals' decisions relied upon by the petitioner and -- and petitioner counsel.

We submit that actually, none of those Court of Appeals' decisions in First, Second, Third, or Fifth Circuit has adopted the petitioner's interpretation with -- with the exception of course of the Ex parte Blaski case which was this case in the -- in the Fifth Circuit which is contrary to the holding of the Seventh Circuit.

But in the Anthony ver -- Kaufman case in the Second Circuit, the In re Josephson case in the First Circuit, the Paramount versus Rodney case in the Third Circuit, in each of those cases, at least one of the defendants if they all involved a plurality of defendants and in each of those cases, at least one of those defendants could have been sued in the transferee district.

So, that under one interpretation of the statute, it could have been brought against that defendant at least in that new district.

Then the other defendants could have come in and joined at that sir.

Justice John M. Harlan: Did the opinions in those cases refer to that section?

Mr. Daniel V. O'keeffe: None of them -- none -- none of them --

Justice John M. Harlan: (Voice Overlap)

Mr. Daniel V. O'keeffe: None of them held on that basis.

Justice John M. Harlan: No, no.

Mr. Daniel V. O'keeffe: I think -- I think it's -- in a couple of instances, they did find it -- well, yes I mean the Court has specifically found in the --

Justice Charles E. Whittaker: The way of recital of fact of --

Mr. Daniel V. O'keeffe: In the Paramount case, for instance, the 9 out of the 14 defendants --

Justice John M. Harlan: Yes.

Mr. Daniel V. O'keeffe: -- could have been sued in the -- in the New Mexico District.

And it resided as a fact in the -- In re Josephson case that it was a New Mexico Corporation, the transferee district and the -- the three directors that were also sued were -- were in Massachusetts Court.

And two of the defendants in the Anthony Kaufman case, one of those could have been sued in the transferee district and the other defendant was the holding company of all the stock of -- of the defendant that was in the transferee district.

So a -- as factual matters, the Court stated it but I do not think the Court went ahead and held on that basis.

No, Your Honor.

Justice John M. Harlan: Yes.

Yes.

Mr. Daniel V. O'keeffe: And in -- as for Torres and Walsh case, that was admiralty action and the Court stated there again as a fact that the ship had been in and out of Puerto Rican waters.

So, the action could have been brought in Puerto Rico, the transferee district.

In the other hand, if it is to be considered as in rem action with the raise in -- in New York only, then we submit that it would -- have been in conflict with -- with the Fettig Canning Company case in the Seventh Circuit, 188 F.2d 715 which was a condemnation case transferred from the District Court in Missouri on food stubs to Indiana.

And the Indiana Court ordered it back and it went up on mandamus to the Seventh Circuit Court of Appeals and they upheld the Indiana Court's retransfer order stating that Section 1404 (a) provided that you could transfer it to a place where it might have been brought and that the food stubs that were in the -- involved were in Missouri.

Now, both -- in that instance, both parties, both the plaintiff and the defendant had -- had agreed to the -- to the transfer but the Court said they are without power to transfer it and the District Court has no power to accept it.

The District Court decisions in five circuits support the respondent's position in this case.

Those are in the District Court, decision of the District Columbia, the Second Circuit, the Sixth Circuit, the Eight Circuit, and the Ninth Circuit.

And in -- one of those cases -- also for petitioner endeavors to distinguish from the Felchlin v. American Smelting & Refining Company case at page 2 of it's a reply brief on the basis that -- in that case, it was a -- it was a California -- District of California case.

In that case that the executor was an executor in California and would -- wouldn't have had power in the Texas Court, the transferee Court.

That isn't in accordance with the facts stated by the District Court in its opinion at page 579.

There he said, “Defendant's contend that before an executor may sue in the Texas Court unless timely objection is made and that in the instant case, the defendants have waived their objection by filing a motion to transfer.”

So, actually, that case is very, very analogous to this situation.

The -- and -- the only difference in that instance, you had a California executor involved as -- on the plaintiff's side, the defendants moved to transfer it to Texas and they waived venue.

And the defendant's argument was that well, the executor could've brought it down in Texas and if we haven't objected to it, he -- he could have gone again with the -- with the case.

We are waiving our objection and therefore, it should be tried there.

But the court refused it and in doing so, he pointed out that this was a question of power and that Section 1404 (a) didn't give that power and it specifically held “the phrase might have been brought,” means the place for the plaintiff have the right to institute a suit originally.

Justice Felix Frankfurter: The definition --

Mr. Daniel V. O'keeffe: Orginially, Yes, Your Honor.

Even the Court of Appeals for the Fifth Circuit in its decision in the Blaski case and this case admits that these five district court cases referred to in our brief and then in five -- I mean in the five circuits support the respondent's position in this case and refers to them -- itself -- at page 11 of the transcript of the record that appears in their opinion.

And another of the District Court decisions supporting the respondents here is the decision of then Judge Whittaker, now, Justice -- Mr. Justice Whittaker of this Court in the General Electric Company versus Transit Warehouse Company case.

And in that case, Judge Whittaker in a very carefully reason, the logical opinion discussed at some length, the words “where it might have been brought” in Section 1404 (a).

And in ruling on a motion of defendant for change of venue and in that case, he granted the motion because the plaintiffs had pleaded in their complaint residents of the -- of the defendant in the transferee district.

But in that case, Judge Whittaker carefully pointed out that -- that no meaning is left to the words “where it might have been brought” if this section is interpreted to require a trans -- a transferee district unless it's interpreted to require a transferee district in which statutory venue exist and service of process and involuntary personal jurisdiction could be acquired.

Judge Whittaker, now Justice Whittaker, in that case also agreed with the dissenting members in the Paramount Pictures versus Rodney case.

And Judge Hoffman, the petitioner in this instance, in his opinion in this case, also stated that he personally -- he agreed and I'd like to read from his opinion, the closing part -- toward the closing under his opinion there which appears at page 25 of the transcript of record where he stated, “Gentlemen, personally, I am of the opinion that the dissent in Paramount against Rodney is supported by the greater weight of reasons and logic and that this Court, if I were to rely upon my own personal information should retransfer this case to Texas.

Those cases supporting transfer of this district, I think do great violence to the established rules of statutory construction.

They seem to create a doctrine of retroactive waiver in order to reach the conclusion that the action might have been brought.”

Now, after making that strong statement, Judge Hoffman, the petitioner in this case then proceeded to rule to the contrary on and put it on the basis of these other Court of Appeals cases which we've stated -- which in our opinion can be distinguished.

And also, he stated that he -- he felt that he should follow the law as it appear to be established and I quote, “Especially in view of the fact that the Supreme Court has consistently refused to grant certiorari in those cases supporting transfer to this district.”

Well, of course, we submit that Judge Hoffman clearly was in error in giving any weight whatsoever to the fact that certiorari was denied by -- by this Court that he was given in any -- that he was in error in giving any weight to that whatsoever either way.

Mr. Justice Frankfurter, earlier, you asked with respect to question of whether mandamus was a proper action here and at page 35 of the transcript, the Court or Appeals stated, “No question is raised.

In fact, all parties concede that under Section 1651 mandamus is appropriate means for testing the legality of the order in controversy.”

Further, our jurisdiction if there be any doubt is supported by the decision of this Court in the Chicago Rock Island versus (Inauidble).

And with respect to the question of -- of res judicata or comity, the petitioner himself admits that -- at page 16 of the transcript of the record, he says, “I am of the opinion that this Court may -- may so inquire that's into the jurisdiction of transferring and accept jurisdiction and that the doctrine res judicata on the law of the case raise no barrier to such an inquiry.”

And on page 17 --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel V. O'keeffe: Well, it'll take me a few more minutes, Your Honor.

Chief Justice Earl Warren: Thank you.

Print this transcript Transcript: 

Argument of Daniel V. O'keeffe

Chief Justice Earl Warren: -- Julius J. Hoffman, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, Petitioner, versus John F. Blaski.

Mr. O'Keeffe, you may continue with your argument.

Mr. Daniel V. O'keeffe: Mr. Chief Justice, Justices of the Court.

If the Court please, counsel for the petitioner has requested me in view of the fact of the -- of the shortness of his time to answer Mr. Justice Harlanf's question of yesterday as to the question of whether a waiver was included by the defendants in the motion of -- to transfer that was filed in Texas.

And the answer that is, that there was such a motion included in the motion -- such a waiver included in the motion to transfer.

Of course, the facts has -- have not ever changed the defendants as far as it's known are only residents of Texas.

They -- that's the only place they have place of business or have committed acts of infringement as far it's known, they never have done any of those things or have been residents of Illinois even up today as far as it's known.

Justice Felix Frankfurter: What was the ground of the District Court's justification for transferring it to Illinois?

Mr. Daniel V. O'keeffe: Well, Mr. Justice Frankfurter, of course, it was argued in the District Court in Texas as to whether or not there -- whether it was in --

Justice Felix Frankfurter: I asked that question of you, what you said that -- if I understand what you said just now, the defendant had no connection at all (Inaudible)

Isn't that what you said?

Mr. Daniel V. O'keeffe: No, no, no.

That is the only place the defendant is.

Justice Felix Frankfurter: How come it's the other way on --

Mr. Daniel V. O'keeffe: He's in Texas.

Justice Felix Frankfurter: I beg your pardon.

Yes.

Mr. Daniel V. O'keeffe: The defendant --

Justice Felix Frankfurter: That's the only place where -- where he really has the footings to stay?

Mr. Daniel V. O'keeffe: Yes, sir.

That's right.

Justice Felix Frankfurter: And so, I'm actually at the point of why the district judge should refer him further.

Mr. Daniel V. O'keeffe: Well, first you'll have to understand, sir.

This has nothing to do with -- with the present action here because we didn't appeal from the discretionary part --

Justice Felix Frankfurter: I understand that but --

Mr. Daniel V. O'keeffe: -- we thought -- we -- we --

Justice Felix Frankfurter: -- I'm just trying to (Voice Overlap) --

Mr. Daniel V. O'keeffe: -- consider that to be fact finding and therefore we didn't appeal from that.

Justice Felix Frankfurter: I'm just trying to understand --

Mr. Daniel V. O'keeffe: We don't agree with it.

Justice Felix Frankfurter: -- the human race.

Mr. Daniel V. O'keeffe: No, we don't agree with it but we didn't --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Daniel V. O'keeffe: -- appeal it.

But there was contention in the District Court of Texas that it could be brought up to Illinois and that there were three other cases involving the same patents.

I suppose their idea was consolidated.

How in the world it can never be consolidated?

I don't know.

The parties are different, the -- the structures are different.

The only thing that's the same is --

Justice Felix Frankfurter: Patent.

Mr. Daniel V. O'keeffe: -- is the patent.

Yesterday, Mr. Justice Frankfurter, you asked opposing counsel if there's any legislative history other than what he had referred to that was pertinent to this matter.

And I would like to point out to the Court that, of course, in the Ex parte Collett decision, the Court discussed at some length, the legislative history leading up to the adaption of Section 1404 (a).

And we respectfully submit that, in that decision, it's quite clear from that decision that Congress was fully aware of the special venue statutes including the Federal Employer's Liability Act and the patent statutes and as a matter of fact, in Footnote 29, the patent statute was even specifically referred to.

So that we submit that when Congress passed Section 1404 (a), stating that an action may be transferred to a district where it might have been brought, that it is reasonable to assume that Congress intended then, that you also consider that, together with the patent statute which they definitely recognize to be there and which states that an action may be brought in certain specified districts, none of which, would qualify in this case as being in Illinois.

It's limited in this case to Texas.

That's the only proper case, the place where the plaintiff could have brought the action against the defendants.

Justice Felix Frankfurter: Has -- has bearing on -- on the venue legislation pertaining to patents, you will refresh my recollection that this Court decided that -- isn't it decided that it would stay an action in a district in which a patent case properly and perhaps only could be brought in order to await the determination of a patent decision in another district where the same patent had been issued?

Mr. Daniel V. O'keeffe: You -- you -- is your question, has this Court decided that?

Justice Felix Frankfurter: Yes.

Mr. Daniel V. O'keeffe: Yes.

Justice Felix Frankfurter: I remember -- I think I wrote the opinion (Inaudible)

Mr. Daniel V. O'keeffe: Oh, I'm sorry to say, Your Honor I don't remember this Court having --

Justice Felix Frankfurter: Has bearing -- has bearing on the -- on the relevance of -- as it were in (Inaudible) decision on the patent, I'm using the loose language.

Mr. Daniel V. O'keeffe: Yes.

I don't -- there have --

Justice Felix Frankfurter: That patent has come up below in (Voice Overlap) --

Mr. Daniel V. O'keeffe: Yes, there have been decisions below, I -- I think both ways.

Some courts saying, “Well, we won't do it, I -- but I -- of course it depends on the facts.”

Justice Felix Frankfurter: I think we have it here.

Mr. Daniel V. O'keeffe: I -- I do not recall at the moment a decision of this Court on that point.

But I -- but I do not -- don't mean to say by that, that there isn't such a decision.

I just do not recall.

Also yesterday --

Justice John M. Harlan: Could I ask you a question?

In your position (Inaudible)

Mr. Daniel V. O'keeffe: In one sense, yes, sir, I -- in the sense that the patent statute specifically provides that a patent infringement action may be brought in a certain district.

So --

Justice John M. Harlan: Are you suggesting that it might -- might have been brought to the -- should be interpreted one way and in application in another way as to the (Inaudible)

Mr. Daniel V. O'keeffe: Well --

Justice John M. Harlan: Or where there's no (Inaudible)

Mr. Daniel V. O'keeffe: Well, let me put it this way, sir.

In an ordinary diversity of citizenship case, of course, you have to have service of process on the -- you -- you could only bring the action against that person in a district where you could get service of process.

It's somewhat similar in the patent statute case except that it is even more emphatic in a patent statute case because the Congress has specifically provided where you can bring a patent infringement action.

In a few cases -- and -- and -- Texas is -- is the only case here.

And our position is that Congress certainly didn't mean to permit the defendant to force a plaintiff into an improper district.

It's a -- if -- if both parties agree to try a case in the improper district, that's one thing.

But Congress by -- by stating that it may be transferred to a District Court, it might have been brought, certainly intended that to be read in -- in a patent infringement action together with Section 1400 (b) in the patent infringement statute which states that it may be brought in such and such a district.

And the only district that would qualify in this case is Texas.

Justice Felix Frankfurter: What you're saying is that in view of the specific venue provision regarding patent, you say that's an a fortiori case for the general proposition which you're advancing, that the things commerce specifically defined where a patent suit may be brought, the generality of language or the language of 1404 is not to make inroads on that.

That's your point.

Mr. Daniel V. O'keeffe: Yes, that -- that's one point, Your Honor.

Yesterday, counsel for petitioner stated that if the District Court in Illinois had ordered this transferred back to Texas that the clerk couldn't have accepted it down there because he was bound by his court's decision and it would've become a legal Sputnik orbiting between the two districts.

Well, of course, I submit that that hasn't any basis.

If it have been transferred back down to Texas in the Court, in the district clerk or the Court had refused it down there, well, then, of course, this Court would've taken it to decide that issue that direct conflict between them as to which it was.

And in connection with that, the District Court in Illinois, we submit, is it's mandatory under the law that a court inquire into its jurisdiction.

If parties don't raise the point even, if the Court has reason to believe it doesn't have jurisdiction, it -- it must raise that on its own motion sua sponte, but it -- so it was incumbent on the District Court in Illinois to consider whether it had jurisdiction.

Now, if the -- if the Texas court did not have the power to transfer this case to Illinois, then, of course, the Illinois court couldn't accept it.

It -- it didn't have jurisdiction of the case.

And therefore, it was mandatory on the District Court to review that and it wasn't bound by the Fifth Circuit Court of Appeals, as both the -- the petitioner and the Court of Appeals, the Seventh case -- Seventh Circuit have specifically found.

They weren't bound.

It wasn't res judicata.

They weren't bound by comity or law of the case, I don't think.

Justice Felix Frankfurter: But why is that so?

That seems to be obvious to -- you indicate isn't obvious to me.

This Court has held that jurisdictional determination may also be your -- but you can't go behind determination regarding jurisdiction no matter how wrong a court was.

Mr. Daniel V. O'keeffe: Mr. Justice Frankfurter, isn't that determining jurisdiction over the person in that court?

Here, the question is, did Illinois have jurisdiction?

And I believe each court has to find that whether or not it has jurisdiction itself.

Justice Felix Frankfurter: It doesn't seem to me a -- a self-determining proposition.

That if a Court of Appeals makes the determination on jurisdiction that the District Court has made a determination, I do not find any Euclidean proposition or anything else that they said necessarily that it isn't -- isn't a foreclosable decision by another Court of Appeals.

Well, I don't understand it.

Mr. Daniel V. O'keeffe: The -- the Court of Appeals for the Seventh Circuit in -- in its opinion, referred to the case, I believe it's the Igoe case.

It is -- it is in the opinion and it's our position that with respect to this -- it might be possible in some instances but -- but with respect to a case of this type, I think it -- it isn't only the thing that the Court should do, I think it is mandatory that the --

Justice Felix Frankfurter: What makes it mandatory?

Mr. Daniel V. O'keeffe: Well, because --

Justice Felix Frankfurter: One says the decision of this Court, it will make it mandatory.

But I see is that -- what was that case?

Gottlieb against somebody where patently none on the merit, a jurisdictional determination was made that couldn't be sustained.

But having been made by a court of competent jurisdiction, I don't see why every other Court of Appeals can, on its own, decide what it will do.

Maybe it's so, but I don't understand it, that's all I'm saying.

Justice Charles E. Whittaker: Mr. O'Keeffe, may I ask you, sir?

Did the Texas court under any judgment that this action might have been brought in Illinois?

Or did he --

Mr. Daniel V. O'keeffe: Well, Mr. --

Justice Charles E. Whittaker: -- find that it was for the convenience of the parties and witnesses that it be transferred to Illinois, in as much, and could be, in as much as the defendants were willing to waive venue and interference there?

Mr. Daniel V. O'keeffe: Well, it was put on that latter basis --

Justice Felix Frankfurter: Well, that's what --

Mr. Daniel V. O'keeffe: -- Mr. Justice Whittaker.

Justice Felix Frankfurter: -- made might've -- that's what made it might have been.

Mr. Daniel V. O'keeffe: It was put on the latter basis.

I -- I cannot recall whether they specifically, in so many words, said that it might have been brought there.

Justice Charles E. Whittaker: So, when we're talking about res judicata, we have to look to see what was the thing adjudicated.

Justice Felix Frankfurter: Well, how could the District Court have transferred it if it didn't think it have jurisdiction?

And how could the Court of Appeals have affirmed what the District Court did, unless the Court of Appeals thought it had jurisdiction?

The Court can't act without jurisdiction --

Mr. Daniel V. O'keeffe: Well, of course --

Justice Charles E. Whittaker: -- because somebody asked them to.

Mr. Daniel V. O'keeffe: Of course, sir, it could have done it, even though it didn't have jurisdiction and then --

Justice Felix Frankfurter: I don't think that --

Mr. Daniel V. O'keeffe: -- wrong, it could've been wrong in that determination.

Justice Felix Frankfurter: Well, it could have been wrong in saying it had jurisdiction but it had to adjudicate that it had jurisdiction.

Mr. Daniel V. O'keeffe: Yes, but our Court of Appeals had --

Justice Charles E. Whittaker: Well --

Mr. Daniel V. O'keeffe: -- said that they adjudicated it improperly, that it was wrong.

Justice Felix Frankfurter: I understand your point of view.

Mr. Daniel V. O'keeffe: Yes.

Justice Felix Frankfurter: What I want to know is, why when there was a determination by a Court of Appeals of a jurisdictional point, because unless the District Court had jurisdiction, it was -- it was null and void what it did.

It might have been wrong but it wasn't null and void because it thought it did have jurisdiction.

And the Court of Appeals sustained its claim of jurisdiction.

Mr. Daniel V. O'keeffe: Well, but if the -- if it in fact did not have jurisdiction and entered judgment in the case, it would be my feeling that the -- that the judgment -- any judgment that would enter in there would void ab initio.

Justice Felix Frankfurter: In order --

Mr. Daniel V. O'keeffe: It did not have --

Justice Felix Frankfurter: -- to decide that, you'll have to decide that the determination is -- doesn't foreclose the other Court of Appeals.

Mr. Daniel V. O'keeffe: Mr. Justice Whittaker or Mr. Justice Whittaker, I believe it was asked me as to the order of transfer is -- it -- it appears on page 8 of the transcript and is -- I don't see any specific mention of -- of being implied or might have been brought.

Of course, it had never have been duly heard.

The Court hadn't heard the argument of the counsel being fully advised in appearing to the Court that the defense motion should be granted for the grievance of the party.

Witnesses didn't suggest it.

Justice Felix Frankfurter: Isn't that what argued before --

Mr. Daniel V. O'keeffe: Yes.

Justice Felix Frankfurter: -- the District Court?

Mr. Daniel V. O'keeffe: Yes.

Justice Felix Frankfurter: That you didn't have jurisdiction?

Mr. Daniel V. O'keeffe: Well.

Justice Felix Frankfurter: Isn't that what you argue?

Mr. Daniel V. O'keeffe: Power, power, yes.

Power was argued.

Justice Felix Frankfurter: And -- and despite that argument, it entered an order.

But if that order doesn't mean that it -- it found that you did have jurisdiction, I don't know why it doesn't.

Mr. Daniel V. O'keeffe: There are -- there's just one more thing which we would like to point out and I believe it illustrates the erroneousness and -- and the untenableness of the position for counsel, the petitioner in this -- counsel for the petitioner in this matter.

In the last paragraph in the reply brief, it stated it is s not however petitioner's purpose to perform a literary autopsy upon the section.

As respondents have properly pointed out, petitioner's original opinion in the District Court stated that on a pure basis of literal construction, the ambiguity might well be resolved against his present position.

Petitioner however properly resolve the ambiguity in accordance with the appropriate rules of statutory construction and consistent with the remedial purpose of the statute.

That, we submit, is in conflict with what the petitioner himself stated in his own opinion.

In that opinion -- in the opinion at -- at page 25 of the transcript, the petitioner stated, “Those cases supporting transfer to this district, I think, do great violence to the established rules of statutory construction.”

And we submit that petitioner's own statement, in his opinion in this case shows the erroneousness of -- of the position of counsel for the petitioner that this is in -- in accordance with -- with the proper statutory construction.

Justice Hugo L. Black: Have there been any cases where a defendant who was properly sued in one district moved from that district to a new district where he had not lived before?

And where there has been an effort made to change the venue or the jurisdiction to that court?

Mr. Daniel V. O'keeffe: Mr. Justice Black, I -- I am not absolutely certain now that this is correct.

But I believe that in that Seventh Circuit case, there was a mandamus action in the Seventh Circuit Court of Appeal against Judge Igoe and it involved in -- an insurance company claim and I believe the person transferred from Illinois to Iowa or vice versa.

And it was a question that came up under Section 1404 (a) and it was in that case that the Court in a footnote stated that under Section 1404 (a) as in -- under the doctrine of forum non conveniens, it presupposed to jurisdictions in which a -- a venue was -- the defendant was amenable to -- to process.

Justice Felix Frankfurter: Mr. O'Keeffe, just as a matter of interest, you might like to look at, it's not bearing on this case, the opinion that I had in mind, Kerotest Manufacturing Company against C-O-Two Fire Equipment, 342 U.S. 180 where an action was stayed merely because the validity and infringement of the same patent was going on in another district.

Mr. Daniel V. O'keeffe: Yes, that very well be, Your Honor.

And I -- I have trouble recalling it.

Justice Felix Frankfurter: (Voice Overlap).

I'm just -- I'm just curious, that was it.

Chief Justice Earl Warren: Mr. Merriam.

Argument of Charles J. Merriam

Mr. Charles J. Merriam: Thank you.

To answer Mr. Justice Whittaker's question about the place in his opinion where the -- I thought there was an addition, I was referring to page 824.

Insofar as the question Mr. Justice Black just asked about a case where there was a transfer of residence, I don't know of any --

Justice Hugo L. Black: (Inaudible)

Mr. Charles J. Merriam: Yes, sir.

In the Internatio-Rotterdam case 218 F.2d 514 which is one of the cases referred to in the 229 case, the (Inaudible) case, it appeared that the boat was in prospect of moving into the district to which the case was transferred.

It wasn't there at the time but they thought it might be and they permitted the transfer on that basis.

That's the only case I know of where it was in residence but it was a possibility that the change might take place.

Justice Hugo L. Black: Suppose the defendant did move his residence, would you think he could then have -- make a motion by having transferred to that residence?

Mr. Charles J. Merriam: I think that either party --

Justice Hugo L. Black: (Voice Overlap)

Mr. Charles J. Merriam: -- I think either party should be under those conditions for the convenience of the witnesses and in the interest of justice.

Justice Hugo L. Black: It couldn't have been brought there at the beginning.

Mr. Charles J. Merriam: No, sir.

But that it could've been brought there at the time of the motion.

It's our position that the transfer could be made.

Justice Hugo L. Black: That would in your -- that -- that could cover that case.

Mr. Charles J. Merriam: Yes, sir.

And the one question which I wish to post in closing is that if in view of the question as to jurisdiction which has -- have been asked, what would be the effect of overruling Rodney, and the Kaufman and Josephson cases and the hundreds which I suppose have been -- have followed them without opinion and have gone to final decision as to whether or not there might be a lack of jurisdiction and might be subject to collateral attack.

Justice Charles E. Whittaker: May I ask you (Inaudible) how you can assume that order?

Do you believe from the terms (Inaudible)

Mr. Charles J. Merriam: Well, I should think there was an implied finding, Your Honor.

And I don't have before me whether there were any findings of fact made in addition to the order of transfer but certainly they're not in it.

I would think it presupposes that but it -- I don't find any specific statement of it.

Justice Felix Frankfurter: (Inaudible)

Mr. Charles J. Merriam: If the -- yes and then 245 F.2d.

Justice Charles E. Whittaker: (Inaudible)

Mr. Charles J. Merriam: The opinion on mandamus was at page 9 of the record, Your Honor.

And it held the District Court was empowered by the statute to make the transfer to which I would say went into the jurisdictional factor.