TRANSCRIPT OF ORAL ARGUMENT

Hoffman v. Blaski, 363 U.S. 335 (1960),

argued April 19-20, 1960, decided June 13, 1960.

CHIEF JUSTICE EARL WARREN: No. 25, Honorable Julius J. Hoffman, Judge of the United States District Court for the Northern District of Illinois, Eastern Division, petitioner, versus John F. Blaski, et al.

CLERK: Counsel are present.

CHIEF JUSTICE WARREN: Mr. Merriam.

CHARLES J. MERRIAM, ESQ.: Your Honor, if the Court please, this case comes here on certiorari to the Seventh Circuit, which had issued a writ of mandamus to petitioner directing him to send back to Dallas, Texas, a patent infringement case which had been begun there and which had been transferred to the Northern District of Illinois, Eastern Division. The facts in the case are simple. The plaintiffs were all Illinois residents or corporations, having their place of business in and around Chicago. The two defendants, Mr. Howell and Lifetime Metal Buildings, were both residents of Texas and had their only place of business in and around Dallas. After the case had been begun in 1957 in Dallas, the defendants moved to transfer the case to Illinois because of the pendency of another patent--in fact, two other patent infringement cases--which had been pending in Illinois for some time and in which a great deal of pretrial discovery had been had. The court granted the motion to transfer. The plaintiffs in Texas took--uh, asked for a writ of mandamus to the district judge in Dallas. They were--that writ was denied in Ex parte Blaski in 245 Fed.2d 737. A writ of certiorari was asked from this Court and denied. And then the case was sent to Illinois. Whereupon the--

JUSTICE FRANKFURTER: May I interrupt to ask whether upon the denial of the writ for the Fifth Circuit, the so-called jurisdictional point was raised?

MR. MERRIAM: Yes, it was, Your Honor. There's no point of discretion in this case. It's entirely a matter of jurisdiction, and it was raised in the Fifth Circuit. When the case was sent to Illinois--

JUSTICE FRANKFURTER: The case was adjudicated by the court of appeals in the Fifth Circuit?

MR. MERRIAM: Yes, sir. When the case came back, came to the Northern District of Illinois, it was assigned to Judge Hoffman and the plaintiffs moved to send it back to Texas on the ground that the Illinois court had no power to receive it or the Texas court had no power to send it. And Judge Hoffman, the petitioner, denied the motion, whereupon a writ of mandamus was sought from the Seventh Circuit Court of Appeals and was denied on July 1, 1958, whereupon a petition for rehearing was filed and granted on October 16, 1958, without reargument. A petition was then filed by Judge Hoffman asking that the court reconsider the whole matter en banc, in view of the fact that it was contrary--the decision in this case--was contrary to two other cases of the Seventh Circuit and contrary to the decisions in four other circuits, including the Blaski case to which I have just referred. That petit--that request for a rehearing was denied 4 to 2. Incidentally, the reversal of the mandamus was 2 to 1 and this was 4 to 2. And the petition to this Court was promptly taken and granted. There are, as Your Honors know, two other cases which follow this. One from the Seventh Circuit and one from the Fifth on the same point, which involves the construction of section 1404(a) of Title 28 of the Judicial Code, which reads: "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." And those last six words are the ones which have caused all the controversy here. Because at the time the case was transferred from Texas to Illinois, there was no indication that except for the waiver which was made in the motion to transfer that either Mr. Howell or Lifetime Metal Buildings could have been served in Illinois. They have not--they had no place of business there, they were not resident there, and they had not committed an act of infringement there. There's no charge there was, there's no point that I make to the contrary. The question, therefore, was: Did the waiver which accompanied the motion to transfer, as a matter of law, bring the situation within the 1404(a)?

JUSTICE FRANKFURTER: Mr. Merriam, I've just paged your gratefully brief brief. I notice that you, so far as your brief is concerned, are merely raising the direct question of 1404. As though this were, as though this came here in a situation where the case was transferred without any of the history involved in this case. Is that right?

MR. MERRIAM: I think you're right, Your Honor. I raised only the question of power here and not discretion.

JUSTICE FRANKFURTER: I understand that. You see no--you don't raise any question as to the fact that this was litigated in the Fifth Circuit and the ball was pitched over to Illinois and then Illinois pitched it back. And the question that that involves so far as I'm concerned, which isn't a pure 1404 question.

MR. MERRIAM: Well, we considered that, Your Honor. And in my brief in the district court I said something which Judge Hoffman refused to let me say here, in my brief anyway, on the ground it was frivolous, but I'll say anyway now--

JUSTICE FRANKFURTER: Who said it was frivolous?

MR. MERRIAM: Judge Hoffman said it was not sufficiently dignified. But if we had not come here before this Court, this case would have orbited between Dallas and Chicago because the Fifth Circuit was under final order to send it to Illinois and the clerk in Chicago was under final order to send it to Dallas. And it would have presented a situation which, to us, seems not in good consonance with the way courts ought to act, and therefore ought to be adjudicated some way.

JUSTICE FRANKFURTER: And you don't think it raises a question that--no matter what one thinks about 1404--whether one circuit court of appeals can review and revise and reject what a prior circuit court of appeals has done. You don't think that raises a question of judicial administration?

MR. MERRIAM: I hadn't thought so. Well, I think it raises a question of administration. But if jurisdiction is involved, I don't see how it can be avoided. At least we have not gone off on that angle, for the reason I have given.

JUSTICE FRANKFURTER: Well, I can say that I can't be foreclosed by your view on the matter.

MR. MERRIAM: No, sir. I hope not.

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JUSTICE WHITTAKER: Do you ascribe any meaning to the six words "where the action might have been brought"?

MR. MERRIAM: Yes, sir. My own--I do. But I say that language should be interpreted not as of the day the complaint was filed, which seems to me to be just a point in time that has no significance. But to the time that the actual order of transfer is carried out.

JUSTICE WHITTAKER: Then does that mean that the action might be transferred to any place in the country where the defendant is willing to waive venue and enter an appearance?

MR. MERRIAM: If the convenience of the parties and the interest of justice so require, but only then.

JUSTICE WHITTAKER: Yes, but then if that could be so, then the case may be transferred to any place, any venue in the entire country if the defendant will waive venue and enter an appearance there.

MR. MERRIAM: And the court finds that that's in the interest of justice.

JUSTICE WHITTAKER: I say, yes. Now then, is that what Congress said, in your view?

MR. MERRIAM: Yes, sir.

JUSTICE HARLAN: What you say, if I can--you can sort of go around in a circle on this. What you're saying in effect is, that as far as the limitations "it might have been brought" are concerned, that is flexible enough to justify an interpretation, if that's the sense--otherwise a sensible construction of the statute--as meaning "anywhere where the parties will get a trial," as of the time of transfer.

MR. MERRIAM: Yeah, well, yeah.

JUSTICE HARLAN: In effect, that's it.

MR. MERRIAM: Yeah.

JUSTICE HARLAN: And then you're saying, in counterbalancing the practicalities, as you might call them, all of the competing considerations can be taken care of under the other clause in the statute "convenience of parties and witnesses."

MR. MERRIAM: Yes, sir.

JUSTICE HARLAN: That's the guts of your position.

MR. MERRIAM: Yes, sir. And that's done regularly in the forum non conveniens cases.

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MR. MERRIAM: Now there, it doesn't matter when the suit could have been brought in the other jurisdiction, it's merely a matter of, at this time can it be brought? And it seems to me that's a far more just situation than otherwise. For example, suppose that on the day the suit is filed the plaintiff lives in New York and the defendant lives in California. On the day after, or the week after, he moves from California to New Jersey. And all the witnesses happen to be either in New York or New Jersey. Obviously it's not a just thing to say that that case must be continued in California. It seems to me that the time to look at it--for the transfer--is, as of the time the case is transferred, namely, under the events that occurred. Now, you can have the opposite situation, too. But it seems to me that you're flexible, uh, by using the flexible rule and not saying there's a fixed period of time when everything takes effect.

JUSTICE FRANKFURTER: Mr. Merriam, may I pick up the questions put to you by Justice Whittaker and Justice Harlan and phrase it a little differently, because to me different words may stir different lines of thought. I don't like the word "flexible." To me the crucial question--the starting point of all competing considerations, all practical considerations, in a field like this--is whether the words "where the suit might have been brought" may fairly, without torturing language, be an ambiguous collocation of words, be a doubtful phraseology, so as to permit one construction rather than another--not "flexible," anything, this thing, that thing. Or whether those words are terms of art, namely, it means where this suit might have been brought when this suit [pounding] was brought. And one has to determine that, if I should think--to me it's clear--one has to make up his mind whether that phrase is an unambiguous phrase, has a technical, confined, fenced-in meaning.

MR. MERRIAM: Well--

JUSTICE FRANKFURTER: As you indicated, "flexible" opens too many flexible thoughts in my mind.

MR. MERRIAM: I apologize for the word.

JUSTICE FRANKFURTER: Well, it wasn't yours.

JUSTICE HARLAN: I used the word.

JUSTICE FRANKFURTER: But, it seems to me that's the crux; from there you go on, then you can consider, if it's doubtful, should you give this meaning or that meaning, and for the resolution of that doubt, all the practical considerations come in. But you can't jump that hurdle of determining whether that is a strictly defined, technical, in federal jurisdiction, procedural term which means the allowable venue as of the date this suit was filed, rather than as of the time that the judge decides the motion to transfer.

JUSTICE WHITTAKER: Well, the statute says "the action may--might--have been brought," doesn't it?

MR. MERRIAM: Yes, sir.

JUSTICE WHITTAKER: Now how do you bring an action under the Rules? Simply by filing a complaint in the office of the clerk, isn't that what you do?

MR. MERRIAM: Yes, sir.

JUSTICE WHITTAKER: That brings an action, so say the Rules. And the statute says that any action--civil action--brought in the federal district court "may for the convenience of the parties and in the interest of justice be transferred to some other venue where the action might have been brought," isn't that what it says?

MR. MERRIAM: Yes, sir. But it doesn't say when, and as a matter of fact if you merely limit it to "brought," as has been pointed out in these decisions, you can bring a patent infringement suit anywhere in the United States, but you can't successfully prosecute it there unless certain things occur. Now, therefore "brought" doesn't mean "brought"; it means something more, and you've got to bring in something more to explain the ambiguity. Furthermore, it doesn't say whether "brought" now, or "brought" then. Both of those words could be intended in there and I think it's clear. Now, our court of appeals, 2 to 1, has said that that's unambiguous. But I think that no other court of appeals judge, even including the 2 in the Third Circuit that dissented, went on that ground. Certainly, there are 17 court of appeals judges now who have found that the act is either ambiguous or unambiguous in my way.

JUSTICE FRANKFURTER: Well, certainly this suit might have been brought in the Chicago, in the Illinois district if the plaintiff had had in his pocket a waiver of the venue requirement, before he started anything.

MR. MERRIAM: Yes, sir, he could.

JUSTICE FRANKFURTER: I'm not saying that's what I think this statute means, but as a matter of English words, that suit "might have been brought" if he'd had a waiver in his pocket.

MR. MERRIAM: Yes, sir, and on the day--

JUSTICE FRANKFURTER: So as a matter of English, it satisfies those words.

MR. MERRIAM: And on the day of the transfer he did have that inside of his pocket.

JUSTICE FRANKFURTER: Well, it's up to me whether--that might make a difference.

JUSTICE WHITTAKER: Statute doesn't say anything about that.

MR. MERRIAM: About what?

JUSTICE WHITTAKER: Statute doesn't say anything about, you may transfer if you have a waiver in your pocket.

MR. MERRIAM: No, and it doesn't say whether it meant at the date that the case was filed or at some subsequent day.

JUSTICE WHITTAKER: Is it fair to ask you how you dispose of Mr. Justice Learned Hand's--Mr. Judge Learned Hand's--statement, oft repeated, that 1404 presupposes at least two forums in which the defendant is amenable to process?

MR. MERRIAM: Yes, there's no problem to me on that, if you say amenable to process at the time of the motion, just as is done in the forum non conveniens cases. They repeatedly transfer to a place where they could not have been sued at the time the complaint was brought without--well, they couldn't have. That's done all the time. They don't transfer, excuse me, they dismiss only on the ground that there is a waiver. I misspoke myself. I'm sorry.

JUSTICE FRANKFURTER: Well, let me--isn't the answer whether he's amenable under the statute, or whether he's amenable under the facts? Under the statute if there is no venue under which he can be brought to Chicago or to the transfer district, then it can't be brought. But the words don't say that. I'm not--I don't know what I think about the truth of the matter at this moment. But I do say that for anyone to say that those words can't be interpreted in two different ways, as a matter of English, is something very difficult for me to entertain.

MR. MERRIAM: Well, I feel that way too, Your Honor, and, as I say, you have to look at the situation, if you try to limit it--what happens where the defendant is in Europe on the date the complaint was filed? Do you wait till he gets back to say it could have been brought, or do you say it couldn't have been brought in that jurisdiction because he wasn't there at the time?

JUSTICE FRANKFURTER: If you've got a waiver in your pocket you come within Judge Hand's rule--that there are two forums that you might choose. It doesn't follow though that--that's all you've done thus far, Mr. Merriam--it doesn't follow that there is merely one meaning to be attached to the phrase, in connection with all the other venue provisions.

MR. MERRIAM: It's our position, however, that if there are two meanings, one of which is in favor of petitioner's position, that the three factors involved here require adoption of that meaning: (1) because of the legislative history, (2) because it's a remedial statute that should be liberally construed, and (3) because the interests of justice are in favor of the transfer which was made here.

JUSTICE FRANKFURTER: Well, you're trying to prove it's ambiguous by the desirability of your result--

MR. MERRIAM: No.

JUSTICE FRANKFURTER: --and I think you have to prove it's desirable--it's ambiguous--before you can get to the question of desirability.

MR. MERRIAM: No, I am merely saying that if it's ambiguous, then--

JUSTICE FRANKFURTER: If it's ambiguous, then you open the field to policy considerations.

MR. MERRIAM: Yes, sir, that's all I'm saying.

JUSTICE FRANKFURTER: But before you get to policy considerations, you must exclude Mr. Justice Whittaker's point of view.

MR. MERRIAM: Yes, sir, and my position on that is that no matter who tries to interpret "where it might have been brought," in any decision that I've seen, they've always added something to it to explain it.

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