Citations
- 186 F.2d 111
Full opinion text
BIGGS, Chief Judge.
The question presented by the cases at bar is whether the United States District Court for the District of Delaware on a motion made by all of the defendants, opposed by the plaintiffs, has the power under Section 1404(a) of Title 28 United States Code Annotated, to transfer to an appropriate United States district court in Texas two suits based on the antitrust laws of the United States. The trial court concluded that it lacked the authority to transfer the actions. 89 F.Supp. 278. We disagree.
Section 1404(a) states that “For the convenience of parties and witnesses, in the interest of justice, a district court may-transfer any civil action to any other district * * * where it might have been brought.” Section 12 of the Clayton Act, 15 U.S.C.A. § 22, provides that a -suit under the antitrust laws against a corporation may be brought not only in the district of which it is an inhabitant but “also in any district wherein it may be found or transacts business”, and that “all process in such cases may be served in the district of which [the corporation] is an inhabitant, or wherever it may be found.” Cf. Section 4 of the Clayton Act, 15 U.S.C.A. § 15.
There are fourteen defendants, identical in each suit, in the Delaware actions. Ten were incorporated in Delaware; four, in New York. The trial court concluded that only nine defendants were transacting business in Texas and therefore venue could be laid in that State only as to them under Section 12 of the Clayton Act. It also found that five defendants were not inhabitants of Texas, could not be found and did not transact business there, and that “ * * * the actions could not consequently have been originally brought against all of the defendants in any District Court in Texas.” The trial court interpreted Section 1404(a) in the light of the doctrine of forum non conveniens which prohibits the dismissal of a suit unless there is a more convenient forum where it may be recommenced and maintained,, , and limiting the statute by the phrase “might have been brought”, refused transfer.
In Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167, it was held that the power of the federal courts to adjudicate controversies is granted by Congress and cannot be conferred by the consent of the parties, whereas the place where judicial authority is to be exercised relates only to the convenience of litigants and is subject to their disposition. A venue statute gives a “personal privilege” to a defendant which he may assert or waive at his election. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252. Moreover, the doctrine of forum non conveniens means no more than that a court may resist an imposition upon its jurisdiction even when that jurisdiction is authorized by a general venue -statute. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055.
The suits in the District of Délaware are based, as we have said, on the antitrust laws. Jurisdiction to adjudicate such controversies was conferred on all United States district courts by Sections 41(8) and (23) of Title 28 U.S.C., 1940 ed., now covered into Section 1337 of revised Title 28 United States Code Annotated. Suits embracing the identical subject matter could have been brought and, literally, “might have been brought”, by the plaintiffs against the defendants in any district court in Texas. Moreover, if brought, the suits could have been maintained unless there had been -seasonable objection to the venue by the defendants, for service of process under Section 12 of the Clayton Act could have been made wherever the defendants could have been found. Even if the doctrine of forum non conveniens be applied under the precise conditions required by Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 91 L.Ed. 1055 (and Section 1404(a) was not then before the Supreme Court), those conditions are met by the instant circumstances: viz., the Texas court would have
had the power to adjudicate the controversies and it would have had jurisdiction of aI1 the defendants. By joining in the mo-tion t0 transfer the defendants have waived an7 objection to Texas venue and have a£ree