(dissenting).
Assuming that the writ of certiorari in Brouk v. Managed Funds, Inc., 286 F.2d 901 (8 Cir.), cert. granted, 366 U.S. 958, 81 S.Ct. 1921, 6 L.Ed.2d 1252 (1961), is dismissed by the Supreme Court as a i’esult of the settlement with the directors who were parties to that appeal (and any uncertainty on that scoi'e ought not be of long duration), the petition for rehearing seems to me to demand application of the maxim, cesscmte mtione, cessat ipsa lex. Essential to the original sustaining of transfer was my brothers’ recommendation that the District Court for Minnesota withhold action until the Supreme Court had decided the Brouk ease. With the decision of the Court of Appeals in that case left standing, the District Court will be obliged forthwith to dismiss so much of the complaint as asserts a claim under the Investment Company Act of 1940, leaving only the claim based on diversity which could not have been brought in that district. Of course, it is possible, as my brothers suggest, that on an appeal from such a decision the Court of Appeals for the Eighth Circuit may be persuaded, in the light of subsequent developments, to alter its unanimous and considered decision in Brouk, which I read as denying any private remedy for violation of the Investment Company Act; but I cannot think that, on a motion for transfer under 28 U.S.C. § 1404(a), it is proper for the transferor court to indulge in speculation of that sort. It is quite true that if a decision in this Circuit turned on the application of a Federal statute to a Minnesota transaction, we would apply our own construction of the statute rather than a contrasting one of the Eighth Circuit; but that is altogether different from applying our own view to determining whether the action “might have been brought” in a district court in that circuit in the face of a decision by the Court of Appeals there that the district court has no jurisdiction.
Beyond all this I cannot understand how it can be thought to be “in the in*74terest of justice” to remit a plaintiff asserting a claim which we have held to be conferred by a Federal statute, Brown v. Bullock, 294 F.2d 415 (2 Cir. 1961), to a district where, at the very least, he will encounter the maximum difficulty in getting it heard. Although § 1404(a) has properly qualified the plaintiff’s position as dominus litis, it did not go to the extent of making the defendant the dominus and the plaintiff the servus, see 1 Moore, Federal Practice (1960), 0.145
and cases cited