Arrowhead Co., Inc. v. The Aimee Lykes

193 F.2d 83, 1951 U.S. App. LEXIS 2868

• Court: Court of Appeals for the Second Circuit
• Decided: November 28, 1951
• Docket: 22149_1
• Status: Published

Opinion

FRANK, Circuit Judge.

1. The order is not final within the meaning of 28 U.S.C. § 1291. 1 Nor is it the kind of interlocutory order made appealable by 28 U.S.C. § 1292, for it does not determine the rights and liabilities of the parties. 2 3

2. But, in appropriate circumstances, we may treat an appeal as a petition for a mandamus writ. 3 Yet if no more than an “abuse” of discretion is involved, and the order directs a transfer, 4 we have held that we will not entertain such a petition, for it must be addressed to the court of appeals for the circuit which includes the transferee district. 5

If, however, the district court lacked all power to order a transfer, so that its order is a nullity, we will issue a writ of mandamus. 6 But we think that here ■ there was no such lack of power. 28 U.S. C. § 1404(a) relates to “any civil action”; see Ex parte Collett, 337 U.S. 55, 58, 69 S.Ct. 944, 959, 93 L.Ed. 1207; United States v. National City Lines, 337 U.S. 78, 81, 83, 69 S.Ct. 955, 93 L.Ed. 1226; cf. 28 U.S.C. § 1333. 7

Appeal dismissed. Treating it as a petition for a writ of mandamus, the petition is dismissed.

1 . Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 2 Cir., 178 F.2d 866.

2 . See, e. g., Schoenamsgruber v. Hamburg-American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Jarka Corporation v. Rederii, 1 Cir., 110 F.2d 234; Barbarino v. Stanhope S. S. Co., 2 Cir., 150 F.2d 54.

3 . Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866.

4 . If a district judge refuses to order a transfer, and, in doing so, “abuses” his discretion, we will issue a writ. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329.

5 . Magnetic Engineering & Mfg. Co. v, Dings Mfg. Co., supra. In that case, the writer of the present opinion dissented; he still believes that decision wrong — see Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766 — but will abide by it until his colleagues are ready (as now they are not) to overrule it.

6 . Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949.

7 . It is perhaps arguable that § 1404(a) does not apply to an in rem proceeding because it could not have been brought in the transferee district. But we need not and do not pass on that question.