United States v. Honorable Caleb M. Wright, Chief Judge, United States District Court for the District of Delaware

282 F.2d 428, 1960 U.S. App. LEXIS 3935

Opinions

PER CURIAM.

In this case a petition for a writ of mandamus was denied. A petition for rehearing followed. The dissent to denial of that petition makes necessary this brief opinion.

The alleged abuse of discretion attributed to the district judge is that he employed improper standards in deciding the motion for change of venue. What is charged is a mistake of law. To issue mandamus on that basis would be to substitute the writ for appeal. The next step and it would be a short one might well be use or rather misuse of the writ to correct interlocutory orders where appeal is foreclosed, by urging abuse of discretion.

If we issued a writ in this instance, what action would it direct? Though we are satisfied to the contrary, assuming the district judge failed to apply the standards set forth in 28 U.S.C.A. § 1404 (a)¹ we are without knowledge that he would have granted the transfer even if he had followed § 1404. Were we to direct a transfer of this cause we would in effect be assuming original jurisdiction.

In that original jurisdiction phase there are strong arguments in favor of change of venue. But those arguments are not so strong as to justify us in holding that the district judge, who was alert to and guided by Section 1404, abused his discretion in denying the motion. Dissent from his view represents a difference of opinion, nothing more. It would be a grave mistake for us to seize on the elements presented so well by petitioner as an excuse to arbitrarily strip the district court of the result of its independent honest thinking, i. e. its judgment, and force that thinking to be controlled decisionally by an appellate tribunal.

The petition for rehearing will be denied.

Footnotes

1

. “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.”