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.
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 --
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?
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 --
Felix Frankfurter: Raised and adjudicated in -- by the -- by the Court of Appeals in the Fifth Circuit?
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).
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?
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.
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.
Charles J. Merriam: Well, as I said --
Felix Frankfurter: And the questions that -- that that involves so far as I'm concerned, which isn't a pure 1404 question.
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 --
Felix Frankfurter: Who said it was frivolous?
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 --
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?
Charles J. Merriam: I haven't thought so.
Felix Frankfurter: In judicial administration?
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.
Felix Frankfurter: All I can say that (inaudible) and can't be foreclosed by your view of the matter.
Charles J. Merriam: No sir, I hope not.
Speaker: Could I ask you where the -- in the record is the waiver (Inaudible)?
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.
Speaker: (Inaudible)
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.
Speaker: (Inaudible)
Charles J. Merriam: I believe so. There is no question about the waiver having been made.
Speaker: (Inaudible)
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.
Speaker: (Inaudible)
Charles J. Merriam: The -- the --
Speaker: (Inaudible)
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 --
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 --
Charles J. Merriam: The matter was directly involved, the Court indicated, at least as I understand it, that --
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?
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 --
Felix Frankfurter: Is -- is --
Charles J. Merriam: -- company.
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?
Charles J. Merriam: That has not been raised, Your Honor. There seems to be a great deal of --
Felix Frankfurter: Is it -- is it implicitly involved in any of these three cases?
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 --
Felix Frankfurter: Was --
Charles J. Merriam: -- the difference of opinion.
Felix Frankfurter: (Voice Overlap) a little confuse -- conflict. There is -- there is some conflict on this, in the lower courts, isn't it?
Charles J. Merriam: Yes, sir. There certainly is.
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?
Charles J. Merriam: It's very important. I think that --
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.
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 --
Felix Frankfurter: No, no, no.
Charles J. Merriam: -- reach out and -- and take it but nobody has raised that point.And I --
Felix Frankfurter: This is a subject which, for me at least, especially required for the brief, didn't involve this philosophically.
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.
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?
Charles J. Merriam: It came up --
Felix Frankfurter: Or has that become the -- has that become the rule of the Second Circuit?
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.
Speaker: Yes, that was Second Circuit.
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.
Charles J. Merriam: They haven't -- had enough experience to answer Your Honor but they have followed in that --
Felix Frankfurter: Yes, but what is practically your say to this, Mr. Merriam?
Charles J. Merriam: In the --
Felix Frankfurter: At least, they don't go on its own?
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 --
Speaker: Is the Second -- is the Seventh Circuit decision here the only one who's gone this way?
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.
Speaker: But the -- but there's -- the Seventh Circuit as a circuit is alone as against the other Four Circuits?
Charles J. Merriam: Yes, sir.
Speaker: Is that right?
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 --
Speaker: Judge Learned Hand has gone the other way, wasn't it?
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.
Speaker: Could you marshal the pros and cons the practicalities of litigants, in the courts of the two positions?
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.
Charles E. Whittaker: Is that --
Charles J. Merriam: Now --
Charles E. Whittaker: -- what the statute says? Isn't that what the statute say and to where the action might have been brought?
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 --
Charles E. Whittaker: Is duties are all confined, I take it you can agree, into that, are they not?
Charles J. Merriam: Yes, sir.
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.
Charles J. Merriam: That's correct.
Charles E. Whittaker: And this forced Congress in the interest of justice to adopt this for lying statute 1404.
Charles J. Merriam: Yes, sir.
Charles E. Whittaker: And all the rights of transfer that a district court acquires are in that statute.
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 --
Charles E. Whittaker: Yes, I knew that.
Charles J. Merriam: -- to some specialist.
Charles E. Whittaker: Yes. So do you ascribe any meaning to the six words where the action might have been brought?
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.
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?
Charles J. Merriam: If the -- yes -- for the convenience of the parties and the interest of justice so require but only then.
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.
Charles J. Merriam: And the Court finds if that's in the interest of justice.
Charles E. Whittaker: I say yes. But now then, is that what Congress said in your view?
Charles J. Merriam: Yes, sir.
Speaker: 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?
Charles J. Merriam: I -- yes, well, yes. I think so.
Speaker: That's been the fact, I'd say.
Charles J. Merriam: Yes.
Speaker: 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.
Charles J. Merriam: Yes sir.
Speaker: As against your opinion.
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.
Felix Frankfurter: Mr. Merriam.
Charles J. Merriam: Yes, sir.
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 --
Charles J. Merriam: Well --
Felix Frankfurter: -- as you indicated. Flexible, there was too many flexible thought in my mind.
Charles J. Merriam: I -- I apologize --
Felix Frankfurter: But --
Charles J. Merriam: -- for the word.
Felix Frankfurter: That wasn't -- wasn't yours. This kept --
Speaker: And why do you (Inaudible) --
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.
Charles E. Whittaker: Well, the statute says the action may have -- quite have been brought, doesn't it?
Charles J. Merriam: Yes, sir.
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?
Charles J. Merriam: Yes, sir.
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?
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.
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 --
Charles J. Merriam: Yes, sir.
Felix Frankfurter: -- before he start at anything.
Charles J. Merriam: Yes, sir he could.
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.
Charles J. Merriam: Yes, sir. And on the day of --
Felix Frankfurter: So as a matter of English, it satisfies those words.
Charles J. Merriam: And on the day of the transfer, he did have that consent in his pocket.
Felix Frankfurter: Well, (Voice Overlap) --
Charles E. Whittaker: That's the --
Felix Frankfurter: I think it's different.
Charles E. Whittaker: The statute doesn't say anything about that to mean --
Charles J. Merriam: About what?
Charles E. Whittaker: The statute doesn't say anything about any transfer if you have a waiver in your pocket.
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.
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.
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.
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 --
Charles J. Merriam: Well, Your Honor --
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.
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.
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.
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.
Felix Frankfurter: Well, you're trying to prove it's ambiguous by --
Charles J. Merriam: No.
Felix Frankfurter: -- the desirability of your result and I think --
Charles J. Merriam: No.
Felix Frankfurter: -- you have to prove it desirable. It's unambiguous before you can get the questions of desirability.
Charles J. Merriam: No. I'm merely saying that if it's ambiguous, then --
Felix Frankfurter: If it's ambiguous, then you open the field to follow the consideration.
Charles J. Merriam: Yes, sir. That's all I'm saying.
Felix Frankfurter: But before you get to policy consideration, you must exclude Mr. Justice Whittaker's point of view.
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.
Felix Frankfurter: On the risk --
Charles J. Merriam: You must --
Felix Frankfurter: -- of repetition, what is the legislative history that justified you in saying, that I must find it unambigu -- ambiguous? What -- what --
Charles J. Merriam: The legislative history is --
Felix Frankfurter: -- apart from the geniality about doing away with the undesirable result of the Gilbert case.
Charles J. Merriam: The -- after the decisions of this Court in the Collet case and the National City Lines case.
Felix Frankfurter: Yes, I know.
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 --
Felix Frankfurter: In labor --
Charles J. Merriam: -- in 1955, I believe. I have the date here.
Hugo L. Black: It was 1954 or 1955 --
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.
Felix Frankfurter: Well, those -- those -- when is -- what -- what's the date of 1404's amendment?
Charles J. Merriam: 1948, I don't remember the month.
Felix Frankfurter: 1948. I'm -- I'm not sure I follow you. You -- then the decisions construing it came later.
Charles J. Merriam: Yes, the Rodney case came in 1951.
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.
Charles J. Merriam: My position is that the amendment or the possibility of amending Section 1404 (a) was under consideration in --
Felix Frankfurter: Thereafter.
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.
Felix Frankfurter: What kind of amendment are proposed?
Charles J. Merriam: The -- the amendment proposed was a --
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?
Charles J. Merriam: Yes, sir.
Felix Frankfurter: And there under, there were these decisions construing it and then came these proposals which you're about to tell us.
Charles J. Merriam: Yes, sir.
Felix Frankfurter: What were they?
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.
Felix Frankfurter: That would be practically the reenactment of the Kepner case.
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.
Felix Frankfurter: They have shown in -- does it show anymore than that that they didn't propose to recommend the adoption of that proposal?
Charles J. Merriam: Well, it shows that -- as I read, I hope I can find it but again that the -- the committee, this --
Felix Frankfurter: Judicial Conference committee, this Conference Committee.
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.
Felix Frankfurter: Those are just probably words where the question --
Charles J. Merriam: Well, this is -- this is a report of the Committee –
Felix Frankfurter: But before they set forth the fourth question. You've just said --
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 --
Felix Frankfurter: Is that all -- Is that all the legislative history that is -- that's relevant to our consideration?
Charles J. Merriam: I think it is.
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.
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.
Felix Frankfurter: Yes, what is your reasons for saying it's ambiguous.
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 --
Felix Frankfurter: (Voice Overlap) on the intrinsic deduction from the word ambiguity derived, is that what you're saying?
Charles J. Merriam: Yes, sir.
Charles E. Whittaker: Do -- do you think I added something?
Charles J. Merriam: Well I may -- there maybe -- there were so many cases here Mr. Justice Whittaker that might --
Charles E. Whittaker: Problem is --
Charles J. Merriam: -- the recollection of your --
Charles E. Whittaker: Never mind, I -- I didn't think I do.
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.
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?
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.
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?
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 --
Earl Warren: (Voice Overlap) is there any difference of opinion or opinions?
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.
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.
Charles J. Merriam: Yes, sir.
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.
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 --
Felix Frankfurter: But that's the basis on which so called justice turns, doesn't it?
Charles J. Merriam: Yes, sir. I think so.
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.
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.
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.
Charles J. Merriam: It is limited.
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?
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.
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).
Charles J. Merriam: Well, certainly -- certainly preexisting history.
Earl Warren: Mr. O'Keeffe.
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 --
Felix Frankfurter: Well, the plaintiff should show the forums though, doesn't he, to begin with?
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 --
Felix Frankfurter: He isn't limited if the -- the defendant doesn't stand on his venue rights.
Daniel V. O'Keeffe: Well, that -- that is true. That -- but this is not a waiver of venue case, Your Honor.
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.
Charles E. Whittaker: Well, the statute (Inaudible) -- and the statute (Inaudible) for his adversary may let him up, isn't that it?
Daniel V. O'Keeffe: Well, yes -- he is limited in this -- this is not a waiver of venue statute case at all --
Felix Frankfurter: I understand that.
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.
Felix Frankfurter: I understand that.
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 --
Felix Frankfurter: Well, that's a big if, isn't it?
Daniel V. O'Keeffe: Well --
Felix Frankfurter: It's a big qualification.
Daniel V. O'Keeffe: Yes but -- but Your Honor, the plaintiff -- the plaintiff --
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?
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.
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.
Daniel V. O'Keeffe: Yes Your Honor. The Foster-Milburn versus Knight case well, is an -- is an instance --
Felix Frankfurter: But that is --
Daniel V. O'Keeffe: -- where --
Felix Frankfurter: There was no --
Daniel V. O'Keeffe: -- the plaintiffs transferred and moved for the transfer and the defendant said no.
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.
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.
Felix Frankfurter: That's when the defendant resists --
Daniel V. O'Keeffe: Yes.
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.
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.
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?
Daniel V. O'Keeffe: Well, of course assuming that the defendant is willing to do it --
Felix Frankfurter: Well, I -- I must --
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 --
Felix Frankfurter: But what --
Daniel V. O'Keeffe: -- if -- if a defendant is willing. What we're talking about is --
Felix Frankfurter: Suppose --
Daniel V. O'Keeffe: -- when one party isn't willing.
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?
Daniel V. O'Keeffe: Not as long as both parties are willing, Your Honor.
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.
Daniel V. O'Keeffe: No. The -- that is correct. Now -- now --
Felix Frankfurter: In this case -- I know that in this case (Voice Overlap).
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.
Felix Frankfurter: (Inaudible)
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.
Felix Frankfurter: Not my -- that's the case I put to you.
Daniel V. O'Keeffe: Well --
Felix Frankfurter: Because (Voice Overlap) --
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.
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.
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.
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?
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 --
Speaker: Is that -- is that clear?
Daniel V. O'Keeffe: Excuse me?
Speaker: 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.
Daniel V. O'Keeffe: Well, Your Honor --
Speaker: Now, I know -- I haven't read those cases yet, but is that so?
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 --
Speaker: Well, they would be under it. They would be under that theory.
Daniel V. O'Keeffe: Of what?
Speaker: There would be two proper forums under that --
Daniel V. O'Keeffe: Oh I mean, origin --
Speaker: -- under the -- the forums theory.
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.
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 --
Daniel V. O'Keeffe: It means no -- that -- no, that's right --
Charles E. Whittaker: But it contemplates if this action be brought in an inconvenient forum that it be dismissed, isn't that right?
Daniel V. O'Keeffe: Yes. That -- that's right Your Honor. No, you couldn't actually transfer under the doctrine.
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?
Daniel V. O'Keeffe: So that -- do I understand you correctly? The defendants were residents of Illinois?
Charles E. Whittaker: The plaintiffs. The plaintiffs were residents of Illinois.
Daniel V. O'Keeffe: In this instance, that is correct, Your Honor.
Charles E. Whittaker: That's right, and they filed the suit in Texas. And here, it's the plaintiffs that moved to transfer.
Daniel V. O'Keeffe: No, Your Honor the defendants --
Charles E. Whittaker: Defendants here --
Daniel V. O'Keeffe: -- then it's move, alright.
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?
Daniel V. O'Keeffe: Yes, Your Honor.
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?
Daniel V. O'Keeffe: Certainly no, Your Honor.
Charles E. Whittaker: Why not?
Daniel V. O'Keeffe: Because -- because the Court did not have the power to transfer it.
Charles E. Whittaker: Because the action couldn't have been brought in Illinois.
Daniel V. O'Keeffe: That's right.
Charles E. Whittaker: Isn't that it?
Daniel V. O'Keeffe: That's right, Your Honor.
Felix Frankfurter: But suppose -- but suppose that (Inaudible) was brought, the defendants (Inaudible) then has moved for the transfer.
Daniel V. O'Keeffe: Well --
Felix Frankfurter: Is there any case that says no?
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 --
Felix Frankfurter: (Inaudible)
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 --
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.
Daniel V. O'Keeffe: Well I --
Felix Frankfurter: That's the request of (Inaudible)
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 --
Felix Frankfurter: (Inaudible)
Daniel V. O'Keeffe: Well, because they could --
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.
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.
Felix Frankfurter: (Inaudible)
Charles E. Whittaker: Could they?
Daniel V. O'Keeffe: If both sides are agreeing to it.
Charles E. Whittaker: Well now, they can't confer jurisdiction by agreement. What they'd have to do is dismiss the lawsuit --
Daniel V. O'Keeffe: Lawsuit.
Charles E. Whittaker: -- and file (Voice Overlap) --
Daniel V. O'Keeffe: No, no, that's what I mean.
Charles E. Whittaker: -- in Chicago and then you have your appearance.
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.
Felix Frankfurter: Plaintiff would have to go to (Inaudible)
Daniel V. O'Keeffe: Yes, I think that is correct.
Felix Frankfurter: (Inaudible)
Charles E. Whittaker: That would be a situation done of bringing a suit where under the law it might be brought, wouldn't it?
Daniel V. O'Keeffe: That's right, Your Honor.
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.
Daniel V. O'Keeffe: That -- that's correct.
Charles E. Whittaker: And isn't just (Inaudible) for the rules --
Daniel V. O'Keeffe: That's right.
Charles E. Whittaker: (Inaudible)
Daniel V. O'Keeffe: That -- that's correct, Your Honor. Also, Your Honor --
Felix Frankfurter: (Inaudible)
Daniel V. O'Keeffe: Not -- not, Your Honor --
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.
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.
Felix Frankfurter: That should be justice abstract in equality. That doesn't prove that this might (Inaudible)
Daniel V. O'Keeffe: Well --
Felix Frankfurter: It isn't a great (Inaudible) argument of the plaintiff and defendant was then to take it home for the litigation.
Daniel V. O'Keeffe: Well --
Felix Frankfurter: I have problems just relating for the law.
Daniel V. O'Keeffe: One -- one of the -- excuse me.
Felix Frankfurter: I do know is the (Inaudible)
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.
Felix Frankfurter: Yes, but that's the rule (Inaudible)
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.
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)
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.
Earl Warren: That's your condition (Inaudible) just the result might be but when (Inaudible)
Daniel V. O'Keeffe: That's right, Mr. Chief Justice. That's right and the -- the plaintiff --
Earl Warren: (Voice Overlap) difference to power of a (Inaudible)
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.
Speaker: Did the opinions in those cases refer to that section?
Daniel V. O'Keeffe: None of them -- none -- none of them --
Speaker: (Voice Overlap)
Daniel V. O'Keeffe: None of them held on that basis.
Speaker: No, no.
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 --
Charles E. Whittaker: The way of recital of fact of --
Daniel V. O'Keeffe: In the Paramount case, for instance, the 9 out of the 14 defendants --
Speaker: Yes.
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.
Speaker: Yes.
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.
Felix Frankfurter: The definition --
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 --
Felix Frankfurter: (Inaudible)
Daniel V. O'Keeffe: Well, it'll take me a few more minutes, Your Honor.
Earl Warren: Thank you.