# Hoffman v. Blaski/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
United States Supreme Court
363 U.S. 335
Honorable Julius J. HOFFMAN, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, Petitioner, v. John F. BLASKI et al. Honorable Philip L. SULLIVAN, Chief Judge of the United States District Court for the Northern District of Illinois, Petitioner,
Argued: April 19 and 20, 1960. --- Decided: June 13, 1960
To relieve against what was apparently thought to be the harshness of dismissal, under the doctrine of forum non conveniens, of an action brought in an inconvenient one of two or more legally available forums, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, and concerned by the reach of Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, Congress, in 1948, enacted 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a), which provides:
's 1404. Change of venue.
'(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.'
The instant cases present the question whether a District Court, in which a civil action has been properly brought, is empowered by § 1404(a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it.
No. 25, Blaski.-Respondents, Blaski and others, residents of Illinois, brought this patent infringement action in the United States District Court for the Northern District of Texas against one Howell and a Texas corporation controlled by him, alleging that the defendants are residents of, and maintain their only place of business in, the City of Dallas, in the Northern District of Texas, where they are infringing respondents' patents. After being served with process and filing their answer, the defendants moved, under § 1404(a), to transfer the action to the United States District Court for the Northern District of Illinois. Respondents objected to the transfer on the ground that, inasmuch as the defendants did not reside, maintain a place of business, or infringe the patents in, and could not have been served with process in, the Illinois district, the courts of that district lacked venue over the action and ability to command jurisdiction over the defendants; that therefore that district was not a forum in which the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning that objection or the question it raised, the District Court found that 'the motion should be granted for the convenience of the parties and witnesses in the interest of justice,' and ordered the case transferred to the Illinois district. Thereupon, respondents moved in the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of that order. That court, holding that '(t)he purposes for which § 1404(a) was enacted would be unduly circumscribed if a transfer could not be made 'in the interest of justice' to a district where the defendants not only waive venue but to which they seek the transfer,' denied the motion. Ex parte Blaski, 245 F.2d 737, 738.
Upon receipt of a certified copy of the pleadings and record, the Illinois District Court assigned the action to Judge Hoffman's calendar. Respondents promptly moved for an order remanding the action on the ground that the Texas District Court did not have power to make the transfer order and, hence, the Illinois District Court was not thereby vested with jurisdiction of the action. After expressing his view that the 'weight of reason and logic' favored 'retransfer of this case to Texas,' Judge Hoffman, with misgivings, denied the motion. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing Judge Hoffman to reverse his order. After hearing and rehearing, the Seventh Circuit, holding that '(w)hen Congress provided (in § 1404(a)) for transfer (of a civil action) to a district 'where it might have been brought,' it is hardly open to doubt but that it referred to a district where the plaintiff * * * had a right to bring the case,' and that respondents did not have a right to bring this action in the Illinois district, granted the writ, one judge dissenting. 260 F.2d 317, 320.
No. 26, Behimer.-Diversity of citizenship then existing, respondents, Behimer and Roberts, residents of Illinois and New York, respectively, brought this stockholders' derivative action, as minority stockholders of Utah Oil Refining Corporation, a Utah corporation, on behalf of themselves and others similarly situated, in the United States District Court for the Northern District of Illinois against Standard Oil Company and Standard Oil Foundation, Inc., Indiana corporations but licensed to do and doing business in the Northern District of Illinois, for damages claimed to have been sustained through the alleged illegal acquisition by defendants of the assets of the Utah corporation at an inadequate price.
After being served with process and filing their answer, the defendants moved, under § 1404(a), to transfer the action to the United States District Court for the District of Utah. Respondents objected to the transfer on the ground that, inasmuch as the defendants were not incorporated in or licensed to do or doing business in, and could not be served with process in, the district of Utah, the courts of that district lacked venue over the action and ability to command jurisdiction over the defendants; that therefore that district was not a forum in which the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning the question raised by that objection, the court found that the proposed transfer would be 'for the convenience of the parties and witnesses, and in the interest of justice,' and ordered the case transferred to the district of Utah.
Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing the District Court to reverse its order. After hearing, the Seventh Circuit, following its decision in Blaski v. Hoffman, supra, granted the writ. 261 F.2d 467.
To settle the conflict that has arisen among the circuits respecting the proper interpretation and application of § 1404(a), we granted certiorari. 359 U.S. 904, 79 S.Ct. 583, 3 L.Ed.2d 570; 361 U.S. 809, 80 S.Ct. 50.
Without sacrifice or slight of any tenable position, the parties have in this Court commendably narrowed their contentions to the scope of the only relevant inquiry. The points of contention may be sharpened by first observing what is not in contest. Discretion of the district judges concerned is not involved. Propriety of the remedy of mandamus is not assailed. No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. Petitioners concede that these actions were properly brought in the respective transferor forums; that statutory venue did not exist over either of these actions in the respective transferee districts, and that the respective defendants were not within the reach of the process of the respective transferee courts. They concede, too, that § 1404(a), being 'not unlimited,' 'may be utilized only to direct an action to any other district or division 'where it might have been brought," and that, like the superseded doctrine of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055, the statute requires 'an alternative forum in which plaintiff might proceed.'
Petitioners' 'thesis' and sole claim is that § 1404(a), being remedial, Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 946, 93 L.Ed. 1207, should be broadly construed, and, when so construed, the phrase 'where it might have been brought' should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer; and that 'if at such time the transferee forum has the power to adjudicate the issues of the action, it is a forum in which the action might then have been brought.' (Emphasis added.) They argue that in the interim between the bringing of the action and the filing of a motion to transfer it, the defendants may move their residence to, or, if corporations, may begin the transaction of business in, some other district, and, if such is done, the phrase 'where it might have been brought' should be construed to empower the District Court to transfer the action, on motion of the defendants, to such other district; and that, similarly, if, as here, the defendants move to transfer the action to some other district and consent to submit to the jurisdiction of such other district, the latter district should be held one 'in which the action might then have been brought.' (Emphasis added.)
We do not agree. We do not think the § 1404(a) phrase 'where it might have been brought' can be interpreted to mean, as petitioners' theory would required, 'where it may now be rebrought, with defendants' consent.' This Court has said, in a different context, that § 1404(a) is 'unambiguous, direct (and) clear,' Ex parte Collett, 337 U.S. at page 58, 69 S.Ct. at page 946, and that 'the unequivocal words of § 1404(a) and the legislative history * * * (establish) that Congress indeed meant what it said.' United States v. National City Lines, Inc., 337 U.S. 78, 84, 69 S.Ct. 955, 958, 93 L.Ed. 1226. Like the Seventh Circuit, 260 F.2d at page 322, we think the dissenting opinion of Judges Hastie and McLaughlin in Paramount Pictures, Inc. v. Rodney, 3 Cir., 186 F.2d 111, 119, correctly answered this contention:
'But we do not see how the conduct of a defendant after suit has been instituted can add to the forums where 'it might have been brought.' In the normal meaning of words this language of Section 1404(a) directs the attention of the judge who is considering a transfer to the situation which existed when suit was instituted.'
It is not to be doubted that the transferee courts, like every District Court, had jurisdiction to entertain actions of the character involved, but it is obvious that they did not acquire jurisdiction over these particular actions when they were brought in the transferor courts. The transferee courts could have acquired jurisdiction over these actions only if properly brought in those courts, or if validly transferred thereto under § 1404(a). Of course, venue, like jurisdiction over the person, may be waived. A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179-180, 49 S.Ct. 98, 99, 73 L.Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. But the power of a District Court under § 1404(a) to transfer an action to another district is made to depend not upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action 'might have been brought' by the plaintiff.
The thesis urged by petitioners would not only do violence to the plain words of § 1404(a), but would also inject gross discrimination. That thesis, if adopted, would empower a District Court, upon a finding of convenience, to transfer an action to any district desired by the defendants and in which they were willing to waive their statutory defenses as to venue and jurisdiction over their persons, regardless of the fact that such transferee district was not one in which the action 'might have been brought' by the plaintiff. Conversely, that thesis would not permit the court, upon motion of the plaintiffs and a like showing of convenience, to transfer the action to the same district, without the consent and waiver of venue and personal jurisdiction defenses by the defendants. Nothing in § 1404(a), or in its legislative history, suggests such a unilateral objective and we should not, under the guise of interpretation, ascribe to Congress any such discriminatory purpose.
'If when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district 'where (the action) might have been brought.' If he does not have that right, independently of the wishes of defendant, it is not a district 'where it might have been brought,' and it is immaterial that the defendant subsequently (makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum).' 260 F.2d at page 321, and 261 F.2d at page 469.
Inasmuch as the respondents (plaintiffs) did not have a right to bring these actions in the respective transferee districts, it follows that the judgments of the Court of Appeals were correct and must be affirmed.
Affirmed.

## Notes

* ↑ See the Reviser's Notes following 28 U.S.C. § 1404, 28 U.S.C.A. § 1404.
* ↑ The asserted basis of the motion was that trial of the action in the Illinois District Court would be more convenient to the parties and witnesses and in the interest of justice because several actions involving the validity of these patents were then pending in that court, and that pretrial and discovery steps taken in those actions had developed a substantial amount of evidence that would be relevant and useful in this action.
* ↑ See 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b), quoted in note 10, infra.
* ↑ See Rule 4(f) of the Fed.Rules Civ.Proc., 28 U.S.C.A., quoted in note 11, infra.
* ↑ The motion asserted, and the court found, that trial of the action in the district of Utah would be more convenient to the parties and witnesses for the reasons, among others, that all of the officers and directors, and a majority of the minority stockholders, of the Utah corporation reside in that district; that the books and records of the corporation are located in that district; that the substantive law of Utah governs the action, and that the calendar of the Utah court was less congested than the Illinois one.
* ↑ See 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c), quoted in note 10, infra.
* ↑ See Rule 4(f) of the Fed.Rules Civ.Proc., quoted in note 11, infra.
* ↑ The decisions of the circuits are in great conflict and confusion. The Second Circuit has held one way on a plaintiff's motion and the other on a defendant's motion. Compare Foster-Milburn Co. v. Knight, 181 F.2d 949, 952-953, with Anthony v. Kaufman, 193 F.2d 85, and Torres v. Walsh, 221 F.2d 319. The Fifth Circuit, too, has held both ways. Compare Blackmar v. Guerre, 190 F.2d 427, 429, with Ex parte Blaski, 245 F.2d 737. The Ninth Circuit has held a District Court to be without power to transfer an action, on plaintiff's motion, to a district in which plaintiff did not have a legal right to bring it originally. Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 780. The Third Circuit has held, two of the five judges dissenting, that a District Court has power to transfer an action, on defendant's motion, to a district in which the plaintiff did not have a legal right to bring it. Paramount Pictures, Inc. v. Rodney, 186 F.2d 111. The First Circuit has upheld transfer, on defendant's motion, to a district in which venue existed but where process could not be served on defendants (but defendants had been served in the transferor district). In re josephson, 218 F.2d 174.
* ↑ That order did not purport to determine the jurisdiction of the transferee court and therefore did not preclude Judge Hoffman of power to determine his own jurisdiction, nor did it preclude the power of the Seventh Circuit to review his action. Fettig Canning Co. v. Steckler, 7 Cir., 188 F.2d 715; Wilson v. Kansas City Southern R. Co., D.C.W.D.Mo., 101 F.Supp. 56; United States v. Reid, D.C.E.D.Ark., 104 F.Supp. 260, 266. Several reasons why principles of res judicata do not apply may be stated in a few sentences. The orders of the Texas and Illinois District Courts on the respective motions to transfer and to remand, like the orders of the Fifth and Seventh Circuits on the respective petitions for mandamus, were (1) interlocutory, (2) not upon the merits, and (3) were entered in the same case by courts of coordinate jurisdiction. Here the sole basis of the right of the Fifth Circuit to entertain the petition for a writ of mandamus was to protect its appellate jurisdiction, 28 U.S.C. § 1651(a), 28 U.S.C.A. § 1651(a); Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866, 869-870; Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949, 951; In re Josephson, 1 Cir., 218 F.2d 174, 177; Torres v. Walsh, 2 Cir., 221 F.2d 319, 321 and, by denying leave to file the petition, it forsook such right, but it did not thereby determine that the Illinois District Court had jurisdiction of the action. The question of that court's jurisdiction still remained subject to attack as of right on appeal to the Seventh Circuit from any final judgment in the action. When, therefore, jurisdiction of the District Court was assailed in the Seventh Circuit, by the petition for mandamus, that court surely had power to determine whether it would hold, on such an appeal, that the Illinois District Court did or did not have jurisdiction of the action and, if not, to say so and thus avoid the delays and expense of a futile trial.
* ↑ Venue over patent infringement actions is prescribed by 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b), which provides:
* ↑ General provisions respecting service of the process of federal courts are prescribed by Rule 4(f) of the Fed.Rules Civ.Proc., which provides:
* ↑ A similar view was expressed in Paramount Pictures, Inc. v. Rodney, 3 Cir., 186 F.2d 111. The court there thought that the § 1404(a) phrase 'might have been brought' means 'could now be brought.' Id., at page 114.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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