Goldlawr, Inc. v. Marcus Heiman, Select Operating Corporation and United Booking Office, Inc., and Milton Shubert, William Klein and Sylvia W. Golde

HINCKS, Circuit Judge

(dissenting in part).

I agree with my brothers that the order below as to Heiman should be affirmed. See United States v. Fields, C.C.S.D.N.Y., 25 Fed.Cas. No. 15,089, p. 1067.

But I would hold that the transfer was proper as to Select and United, notwithstanding the absence of effective personal service on them in Pennsylvania. It was so held in Amerio Contact Plate Freezers v. Knowles, 107 U.S.App.D.C. 81, 274 F.2d 590, 591, in an opinion which was entered after the opinion below. The court there said, in speaking of such a transfer, “The court’s lack of jurisdiction over the person of the defendant is immaterial.” This holding was followed in Hayes v. Livermont, 108 U.S.App.D.C. 43, 279 F.2d 818. And in Internatio-Rotterdam, Inc. v. Thomsen, 4 Cir., 218 F.2d 514, 516, it was so held. To be sure, Internatio was an admiralty case and the appellees urge that its holding must be restricted to admiralty eases. I do not agree. There the power of transfer prior to any service was held to be authorized under 28 U.S.C. § 1406 (a). In speaking of a situation in which when the libel was filed neither a proper respondent nor property was within the transferor district but a vessel was expected shortly to appear, Judge Parker said:

“When suit is so instituted, which has the effect of preserving the rights of libellant against the running of the statute, and the vessel does not appear in the district as anticipated but does appear or is expected to appear in another district, it seems clearly within both the letter and the spirit of 28 U.S. C. § 1406(a) to transfer the case, in the interest of justice, as having been brought in the wrong district, since the vessel cannot be served there and must be served before the ease can proceed.”

Often in actions at law the situation is not significantly different. When a complaint is filed in a particular district the complications of fact and uncertainties of law may be such that the plaintiff cannot be sure that venue or service of process in the district will be sustained (much as a libelant cannot be sure that an expected vessel will arrive in the district). When after long controversy it is adjudicated that the venue is improper, as was the case here, I think “the letter and spirit of 28 U.S.C. § 1406(a)” just as in the Internatio situation requires a transfer to a district in which venue can be properly laid and the defendant can be served. The policy underlying transfers in admiralty cases is equally applicable to actions at law. As Judge Parker, in Internatio, so well said:

“Certainly such transfer is in accord with modern standards of procedure, the purpose of which is to get away from time-consuming and justice-defeating technicalities and secure an adjudication of the rights of the parties by as direct and as expeditious a route as possible. The courts of the United States comprise one great system for the administration of justice.”1

Numerous district court decisions reach the same result. Orzulak v. Federal Commerce and Navigation Co., D.C. *588E. D.Pa., 168 F.Supp. 15; United States v. Welch, D.C.S.D.N.Y., 151 F.Supp. 899; Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y., 116 F.Supp. 426 (transfer under § 1404(a)); Lumbermens Mut. Cas. Co. v. Mohr, D.C.S.D.Tex., 87 F. Supp. 727; Schiller v. Mit-Clip Co., Inc., D.C.S.D.N.Y., unreported, appeal dismissed 2 Cir., 180 F-2d 654.2

Since the requirements which support venue under § 12 of the Clayton Act and which support amenability to service of process whereby personal jurisdiction may ordinarily be obtained are so nearly the same, the appellant argues that seldom if ever would a plaintiff be privileged to invoke § 1406(a) against a corporate defendant in a private anti-trust action if personal jurisdiction were a prerequisite. For in cases in which personal jurisdiction may be acquired by service within the district there would be no defect of venue; it is generally only when the defendant cannot be served within the district that venue would be defective. The appellees counter with the argument that under § 12 of the Clayton Act a defendant, even if not amenable to local service, may be subjected to the jurisdiction by extraterritorial service, so that personal jurisdiction may be obtained even when venue is improper. But if § 12 is available when venue is improper, the only ground upon which the appellees attack the transfer to the court below is gone. For prior to the transfer the appellant did make extraterritorial service on the appellees, as my brothers recognize.3 The judge below, on the other hand, held that § 12 by its terms was available only in cases in which venue was proper (i. e., cases brought “not only in the judicial district whereof it [the defendant] is an inhabitant, but also in any district wherein it may be found or transacts business”). [175 F.Supp. 795], If this interpretation of § 12 be right, there is weight in the above-stated contention of the appellant that to read into § 1406(a) of the Code a requirement of personal jurisdiction, as in effect the appellees ask us to do, would go far to nullify the liberal objective of § 1406 (a); it would then, if I may resort to an Irish bull, be available only when there was no occasion for its use. That interpretation of § 1406(a), I would think neither desirable nor required.

The appellees argue that my construction of § 1406(a) will invite its abuse. But I am not impressed by the procedural spectres which they conjure up to *589bolster this argument.4 I do not suggest that a transfer by a court without personal jurisdiction will “cure” the jurisdictional defect; the defendants would still have to be properly served before their substantive rights could be affected. And in any event, if a plaintiff attempts to make improper use of the Act the court, “in the interests of justice,” may refuse to order the transfer.

Certainly in this case no improper tactics seem to be present. The plaintiff for aught that appears had some reason for laying venue in Pennsylvania, its home state. After a substantial controversy it prevailed as to some defendants and failed as to others, including these appellees. Doubtless in bringing suits against all in Pennsylvania it was actuated by the hope of prosecuting its claim against all the defendants in one action in its home forum. There was nothing improper in that: indeed, the law frowns upon needless severance of trials and provides some flexibility to accommodate the convenience of litigants. Doubtless plaintiff was also actuated by a desire to hold the filing date of its complaint as marking the period for which damages would be recoverable: if compelled to serve the appellees anew in New York it would lose the right to recover for damages which had accrued in the earlier part of the statutory period under its original complaints. But this consideration, also, was completely consistent with its good faith: indeed, at least in the circumstances of this case, that factor might be considered as one in the interest of justice tending to support the transfer. Per contra, it would not have been a wise use of discretion to withhold the transfer merely to provide the appellees with immunity for part of the statutory period.

I think that considerations of procedural policy unite with the weight of precedent in support of the construction I have put on the Act. The only court of appeals decision which supports my bi’others is Hohensee v. News Syndicate, referred to in footnote 10 of the majority opinion. With deference, I can only say that that case, like the opinion of my brothers herein, wholly without Congressional sanction reads into § 1406 a restriction on a salutary procedural provision which is not there. And a careful reading of its Congressional history does not suggest to me that such a restriction was intended. I would hold that the transfer was made not only legally but also in a wise exercise of discretion.

. I agree with the judge below and with my brothers that the decision of .this court in Schiller v. Mit-Clip, 180 F.2d 654, does not speak to the precise question now raised although other cases have given Schiller a more expansive reading. But after all, this court in Schiller, even if it did not pass upon the validity of a transfer made without personal jurisdiction, at least allowed such a transfer to stand.

. Personal jurisdiction over the defendant was held at least by implication to be a prerequisite to a § 1406(a) transfer in Independent Productions Gorp. v. Loew’s, Inc., D.C.S.D.N.Y., 148 F.Supp. 460, 467. See Fistol v. Beaver Trust Co., D.C.S.D.N.Y., 94 F.Supp. 974 (unclear whether ruling based on 1408(a) or 1404(a)). Several cases have held personal jurisdiction a prerequisite to transfer under 1404(a), McDaniel v. Drotman, D.C.W.D.Ky., 103 F.Supp. 643; Hargrove v. Louisville & N. R. R., D.C.W.D.Ky., 153 F.Supp. 681; Wilson v. Kansas City So. Ry., D.C.W.D.Mo., 101 F.Supp. 56; Scarmardo v. Mooring, D.C.S.D.Tex., 89 F.Supp. 936; In re Josephson, 1 Cir., 218 F.2d 174, 185 (not “in the interests of justice” to transfer under 1404(a) before transferor court obtains personal jurisdiction).

However, since 1404(a) is the statutory articulation of the doctrine of forum non conveniens, these cases may be based on the historical fact that that doctrine was not applicable “if there is absence of jurisdiction,” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 841, 91 L.Ed. 1055. Moreover it may be noted that in 1404(a) cases the liberal objective of the doctrine will not bo materially impaired by requiring personal jurisdiction as a prerequisite to transfer since in 1404(a) cases, unlike 1406(a) cases, venue is an indispensable prerequisite and hence personal jurisdiction except in occasional diversity cases can be easily obtained.

Whether personal jurisdiction is a prerequisite to transfer under 1404(a), is not now before us.

. See majority opinion, footnote 1.

. If there were substance to such spectres one would expect the appellees to refer to actual cases instead of to hypothetical cases only.