Opinion
Docket 22181.
Motion Argued November 5, 1951.
Decided November 28, 1951. Writ of Certiorari Denied March 10, 1952. See 72 S.Ct. 629.
Plaintiff brought suit in the United States District Court for the Southern District of New York. One of the defendants, incorporated in Delaware, does an extensive business in the Southern District of California. The other defendant, also incorporated in Delaware, with offices in New York, is a holding company owning all the stock of the first defendant. On motion of both defendants, Judge Samuel H. Kaufman, sitting in the court below, purporting to act under 28 U.S.C. § 1404(a), made an order directing the transfer of the suit to the United States District Court for the Southern District of California.
Davidson Davidson, New York City (David Haar, New York City, of counsel), for petitioner.
Donovan Leisure Newton Lumbard Irvine and Roy W. McDonald, all of New York City (George H. Bailey, New York City, of counsel), for respondent.
Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.
Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, is not apposite, as there the district court refused to order a transfer. For where, as here, the order directs a transfer, we have held that a petition for a writ of mandamus will not be entertained if it alleges merely an "abuse" of discretion. Magnetic Engineering Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866. If, however, the district judge lacked power to make his order of transfer, we will entertain such a petition. See Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949. In that case, the defendant, which could not have been served in the transferee district, objected to the transfer, and we issued a mandamus writ. But here, one defendant could have been served in the transferee district, while the other defendant, which could not there have been served, has joined in the application for, and thus consented to, the transfer. That consent is a waiver of lack of venue; had such a waiver existed before plaintiff commenced suit, it could have been brought there. We think 28 U.S.C. § 1404(a) covers such a case. Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111.
The same rule must apply to a petition for a writ of prohibition.
The writer of this opinion dissented from the decision in that case and still thinks it wrong, but feels obliged to abide by it until his colleagues join in overruling it. See The Arrowhead v. S.S. Aimee Lykes, 2 Cir., 193 F.2d 83.
We left that question open in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 332 note 7.
Petition dismissed.