ARROWHEAD CO., INC., ET AL.
v.
THE AIMEE LYKES ET AL.
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The court held that the order appealed from was not final and thus not appealable under 28 U.S.C. § 1291, nor was it an appealable interlocutory order under § 1292.
The court considered an appeal from an order that was neither a final judgment nor an appealable interlocutory order. The court also considered treati…
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FRANK, Circuit Judge.
1. The order is not final within the meaning of 28 U.S.C. § 1291.1 Nor is it the kind of interlocutory order made appealable by 28 U.S.C. § 1292, for it does not determine the rights and liabilities of the parties.2 3
2. But, in appropriate circumstances, we may treat an appeal as a petition for a mandamus writ.3 Yet if no more than an “abuse” of discretion is involved, and the order directs a transfer,4 we have held that we will not entertain such a petition, for it must be addressed to the court of appeals for the circuit which includes the transferee district.5 If, however, the district court lacked all power to order a transfer, so that its order is a nullity, we will issue a writ of mandamus.6 But we think that here ■ there was no such lack of power. 28 U.S. C. § 1404(a) relates to “any civil action”; see Ex parte Collett, 337 U.S. 55, 58, 69 S.Ct. 944, 959, 93 L.Ed. 1207; United States v. National City Lines, 337 U.S. 78, 81, 83, 69 S.Ct. 955, 93 L.Ed. 1226; cf. 28 U.S.C. § 1333.7
Appeal dismissed. Treating it as a petition for a writ of mandamus, the petition is dismissed.
. Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 2 Cir., 178 F. 2d 866.
. See, e. g., Schoenamsgruber v. Hamburg-American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Jarka Corporation v. Rederii, 1 Cir., 110 F. 2d 234; Barbarino v. Stanhope S. S. Co., 2 Cir., 150 F. 2d 54.
. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F. 2d 866.
. If a district judge refuses to order a transfer, and, in doing so, “abuses” his discretion, we will issue a writ. Ford Motor Co. v. Ryan, 2 Cir., 182 F. 2d 329.
. Magnetic Engineering & Mfg. Co. v, Dings Mfg. Co., supra. In that case, the writer of the present opinion dissented; he still believes that decision wrong — see Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F. 2d 766 — but will abide by it until his colleagues are ready (as now they are not) to overrule it.
. Foster-Milburn Co. v. Knight, 2 Cir., 181 F. 2d 949.
. It is perhaps arguable that § 1404(a) does not apply to an in rem proceeding because it could not have been brought in the transferee district. But we need not and do not pass on that question.
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Hartland v. Alaska Airlines, 544 F.2d 992 (9th Cir. 1976)
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex parte Collett, 337 U.S. 55 (U.S. 1949)
- Hildegard Schoenamsgruber v. Hamburg Am. Line, 294 U.S. 454 (U.S. 1935)
- United States v. Nat'l City Lines, Inc., 337 U.S. 78 (U.S. 1949)
- Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir. 1950)
- Magnetic Eng'g & Mfg. Co. v. Dings MFG. Co., 178 F.2d 866 (2d Cir. 1950)
- Foster-Milburn Co. v. Knight, 181 F.2d 949 (2d Cir. 1950)
- Atl. Coast Line R. Co. v. Davis. in re Atl. Coast Line R. Co., 185 F.2d 766 (5th Cir. 1950)
- Barbarino v. Stanhope S. S. Co., 150 F.2d 54 (2d Cir. 1945)
- Waley v. Johnston, 110 F.2d 234 (9th Cir. 1940)