Parsons v. Chesapeake & Ohio Railway Company

PETITIONER:Parsons
RESPONDENT:Chesapeake & Ohio Railway Company
LOCATION:Alabama State Capitol

DOCKET NO.: 32
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 375 US 71 (1963)
ARGUED: Oct 23, 1963
DECIDED: Nov 12, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – October 23, 1963 in Parsons v. Chesapeake & Ohio Railway Company

Earl Warren:

The Honorable James B. Parsons, judge of the United States District Court for the Northern District of Illinois, Petitioner, versus the Chesapeake and Ohio Railroad Company.

Mr. Naughton.

John J. Naughton:

Mr. Chief Justice, may it please the Court.

This case involves the issuance of a writ of mandamus by the Court of Appeals for the Seventh Circuit directing the petitioner, a United States District Judge, to transfer a cause of action arising under the Federal Employers’ Liability Act to the Western District of Michigan, the Southern Division, sitting in Grand Rapids, Michigan.

Previous to the ruling by the petitioner, denying a motion to transfer made under Section 1404 (a) of the Judicial Code, the same case had been brought before the Circuit Court of Cook County.

There, the plaintiff’s cause of action was dismissed by that Court on the ground of forum non conveniens.

A decision below issued the writ of mandamus on two grounds, on the grounds of full faith and credit as stated in Section 1738 of the Judicial Code and on its finding that the plaintiff was estopped by the previous ruling under a so-called estoppel by verdict.

Arguing on behalf of the petitioner here, I would contend that the decision of the court below is clearly incorrect in that the question is not a question of the statutory provision of full faith and credit creating any rights in the respondent here to have a particular ruling when it makes a motion under a federal provision.

I would also contend today that there’s an inter relationship between the acts involved herein that is Section 1404 (a), Section 1738 and Section 6 of the Federal Employers’ Liability Act.

The case arose when an employee of the respondent by the name of Jack Filbrun was injured while attempting to release a hand break on a car in the respondent’s yard at Ludington, Michigan.

He states that when he attempted to release this hand break, it suddenly quickly released causing him to fall from the car where he was caught by his conductor and was injured.

Subsequent, that injury occurred on the 15th of July in 1960, subsequent to that injury, he went to a Dr. Serb who was indentified in the record as a company doctor.

He was placed in a hospital and he was told by that doctor that there was nothing to matter with him.

He went to other doctors.

One of the doctors, a Dr. Boelkins was a specialist to whom he was referred by the company.

Some of the other doctors were doctors of his own choosing.

They —

Potter Stewart:

These all the doctors are in or around at Ludington or in Michigan?

John J. Naughton:

Almost all were in Ludington, Dr. Boelkins was in Grand Rapids, Michigan.

Potter Stewart:

How far is Ludington to Grand Rapids, about 40 or 50 miles?

John J. Naughton:

60 miles.

Potter Stewart:

60 miles.

John J. Naughton:

The situation came according to his affidavit, which is contained at pages 72 to 74 of the record that his physical situation was such that he was getting no relief, the company had a promised him a specialist.

He was not getting a specialist.

So at that time, he decided to go to his union attorneys in Chicago, seeking there basically medical help and as well legal help.

Now some points, it has been raised in the — a brief respondent here that I am associated with the firm that represents Mr. Filbrun and that is correct.

I am also here by virtue of appointment by his Honor Judge Parsons.

In representing Judge Parsons here, I don’t want to deceive the Court that I don’t have a — a special interest in this particular case being associated with the plaintiff’s attorneys but the basic representation I would submit here by me is on behalf of Judge Parsons in advancing his ideas as to the judgment below issuing a writ of mandamus.

The plaintiff when he came to Chicago was eventually placed under the care of Dr. Raven at the — his attorney’s reference.

The plaintiff was then hospitalized in Chicago for conservative treatment complaining of back condition.

John J. Naughton:

After several weeks in the hospital, he was released, he was still complaining of it.

He was placed back in the hospital, a myelogram was performed and it was discovered that he had a disc by virtue of that myelogram.

He was then operated on and on the operation, disc — herniated disc was found between the fifth lumbar and the second and this disc was herniated to such an extent that was encroaching on the spinal cord.

Now, that was removed, a spinal fusion was performed and he was under the care and treatment of Dr. Raven succeeding that operation.

Now, all of these facts here, I would think on first impression were not encompassed by the granting of the writ of certiorari by this Court.

However, in its brief, respondent contends that alternatively the court below ruled that the petitioner had abused his discretion in denying the motion of transfer.

The only basis for that language is contained in the opinion of the Court in the last paragraph thereof at pages — at page 87 in which the Court states referring to the previous reasons, these reasons are sufficient upon which the grant for issuance of the writ requested, the transfer of this case to the Federal District Court 60 miles from plaintiff’s home, the scene of his accident all combined to establish that justice would there be accomplished.

Now, I would suggest that that is not a square holding that the petitioner abused his discretion.

The dissent specifically finds that the petitioner did not abuse his discretion.

The opinion from which we are now arguing this case is the second opinion on this case.

Previous to that, there was an opinion by which the petition for writ of — of mandamus was denied.

The dissenting opinion was the majority opinion at that time and there was a concurring opinion by retired Circuit Judge Major in which he states that he agrees with the now dissenting opinion that there had been no abuse of discretion.

Under all of these circumstances, I would submit that there is no question of an abuse of discretion in this case.

Arthur J. Goldberg:

Mr. Naughton, do you agree with this possible (Inaudible)?

John J. Naughton:

Yes Your Honor, I would — based on the — on the Interlocutory Appeals Act, I would think that it could’ve been certified by the petitioner here of Judge Parsons and could’ve been —

Arthur J. Goldberg:

(Inaudible)

John J. Naughton:

They did not request that.

Arthur J. Goldberg:

(Inaudible) is that correct?

John J. Naughton:

Yes Your Honor.

Potter Stewart:

It should have required a certification though on your view by the District Judge, is it not?

John J. Naughton:

Yes, I would think that Judge Parsons in his case would have certified the matter under the Interlocutory Appeals Act if that request had been made.

That was not made.

William J. Brennan, Jr.:

But would the state court transfer (Voice Overlap) —

John J. Naughton:

Mr. Justice Brennan?

William J. Brennan, Jr.:

But could the state court transfer order in contrast appealable for like —

John J. Naughton:

Yes.

William J. Brennan, Jr.:

— state of appellant court?

John J. Naughton:

That was appealable.

It takes me into probably the first statement I should make in discussing the law applicable here.

The — the case seems to me involves the — the effect of a decision of a court deciding a motion to dismiss on the grounds of forum non conveniens and I would suggest that —

William J. Brennan, Jr.:

The state court decision was a dismissable, was it?

John J. Naughton:

Yes, it was Your Honor.

William J. Brennan, Jr.:

It’s not a transfer of course.

It was outright dismissal.

John J. Naughton:

It was outright dismissal.

That is the only power it would have on that particular motion.

William J. Brennan, Jr.:

Yes.

John J. Naughton:

Now, such a decision it seems to me involves elements of discretion and of matters that are peculiar to the Court deciding the motion which are so sui generis that I would not think they should be the basis of a — of the doctrine of res judicata or of estoppel by verdict in the later proceedings.

And as to that, I would suggest that the respondent itself states in its brief and in quoting the doctrines of res judicata and estoppel by verdict at page 7 thereof talking about one of the commentators’ comments, a professor query that this is a matter of fact a practical decision as to what a res judicata or estoppel by verdict applies and it seems to me that the dissent below is a very practical dissent.

It states that the majority opinion has confused the material issues with the material facts.

Now, respondent seeks to avoid that type of ruling below or that type of consideration by this Court here by stating that the plaintiff’s residence in Ludington, Michigan is a mere happenstance, but that is not a happenstance.

That is part and parcel of the remedy provided in Section 1404 (a).

You cannot say that when a plaintiff lives in Ludington, Michigan, he should be treated identically to a plaintiff who lives in Grand Rapids, Michigan.

The Congress specifically set up the convenience of the parties, the convenience of the witnesses and the interest of justice and it intended that the Federal District Judge who have an individual right to determine those matters in the particular proceeding.

William J. Brennan, Jr.:

How far is Ludington from Grand Rapids?

John J. Naughton:

60 miles Your Honor.

Now, the — what drawn in concurring opinion stated that there was a different results in the District Court, that is a transfer rather than a dismissal.

Now, we make no point of that here on behalf of the petitioner.

We do make a point that the ruling below and the contention of the respondent here seems to imply that the United States District Court for the Northern District of Illinois, Eastern Division sitting in Chicago, Illinois and also by virtue of other division sitting in Freeport and Peoria, Illinois is the same as a court sitting in Cook County, Illinois, and we would contend that it is no such thing.

Moreover, the statutes of the United States permit subpoenas to be issued out of District Courts beyond state limits to the extent of a hundred miles from the place where the Court sits.

And for that reason, it can be seen that a District Court is not an Illinois Court that it is in fact an Illinois Court, an Indiana Court and a Wisconsin Court and an Iowa Court in certain instances.

The confusion of the opinion below is such that it would seem to bring into a play in this case the decision of Angel versus Boeing, which is a decision based in a diversity case.

The reason I say that the opinion below brings this case into our case is because the Circuit Judge in rendering his opinion to pay some particular attention to the fact that the Circuit Court of Cook County and the United States District Court or courts of concurrent jurisdiction under the Federal Employers’ Liability Act.

That is under Section 6 of the Federal Employers’ Liability Act, a — a plaintiff has a cause of action may sue in either a state court or a federal court is given that choice of forum and that’s a very valuable choice of forum given to him.

The Circuit Judge Schnackenberg says that his ruling, and I quote from page 86, a one sentence after the full faith and credit determination, “This especially true because if it’s a court of concurrent jurisdiction in administering the Federal Employers’ Liability Act as provided in that Act.

“Now, with all due difference to the court below, that ruling is not true.

That is taking a valuable right given to a plaintiff and interpreting it so that it becomes no right at all, so that it is actually a sword turned inwards and diminishing the plaintiff’s rights.

Now, the second question cited below was the estoppel by verdict.

I would say as to that, the nature of the decision below is such that there is no finality in the matter and I think that basically, the court below again is confused itself.

It is saying that a decision on a motion for forum non conveniens is a decision on a fact.

John J. Naughton:

It’s a decision such as would be involved in saying that a particular piece of paper was a deed of the transfer property to (Inaudible).

That is not what is involved here.

I think that looking at the standards, considering the — maybe this nature of the standards, the individual characteristics of each District Judge and the discretion vested in each judge to decide these questions, we must say that there’s a certain amount of weighing and balancing here as Mr. — Circuit Judge Frank said in the Ford Motor Company decision and that — well, we say that these are determinations of facts we only confuse ourselves.

These are not determinations of facts.

These are matters of — of particular way of looking at deadlocks.

Potter Stewart:

Does state court make any findings of fact?

John J. Naughton:

No, Your Honor.

The state court ruling is —

Potter Stewart:

Simply an order of dismissal?

John J. Naughton:

Simply an order, which can be said to make a finding of fact that it was an inconvenient inappropriate forum, the majority opinion does so find.

Potter Stewart:

But there were no explicit findings were there?

John J. Naughton:

There were no explicit findings.

Potter Stewart:

Of fact?

Under Illinois law, is this matter addressed to the — basically, to the discretion of the Highest Court?

John J. Naughton:

That’s the Cotton versus L. & N. R. R. case cited in the both party’s briefs.

Potter Stewart:

And there is as I understand it an additional — in Illinois law an additional consideration which the Court has required to consider that as when the action was brought to harass or vex the railroad?

John J. Naughton:

Purely vex and harass the railroad.

Potter Stewart:

Is that —

John J. Naughton:

That is the standard.

Potter Stewart:

That’s the only standard?

John J. Naughton:

That is the only standard.

Potter Stewart:

The Court of Appeals here says that that’s a — that the Illinois Court has all the federal standards plus that standard.

John J. Naughton:

Well, that is a —

Potter Stewart:

Maybe I misread the Court of Appeals opinion.

John J. Naughton:

That’s what the Court of Appeals says.

I don’t think that’s accurate, no.

I wouldn’t dispute the result and I would dispute the — their way of writing and what the Supreme Court of Illinois had said the question is purely a question of vexation and harassment.

Now, once that consider — consideration is a consideration, the question is how does the Court ever get to that determination?

I think by getting to that determination, they do consider some of the same issues that is the convenience of the parties, the convenience of the witnesses and what they think were the interest of justice.

I think, for example, they consider the fact that they have a seven-year backlog and it’s part of the determination as — and compare it with the alternative course which of course when the Circuit Court had the matter before it was a state court at Ludington, Michigan whereas as the dissent says when the matter came up before the petitioner, the only court that he could consider was the United States District Court of Grand Rapids which has no connection with the — the litigation with the single exception that Doctor Boelkins is resident there.

John J. Naughton:

The —

Potter Stewart:

The plaintiff was a resident there, isn’t it?

John J. Naughton:

The plaintiff was a resident at Ludington —

Potter Stewart:

Yes.

John J. Naughton:

— where there is a state court.

Potter Stewart:

In the district — in the district?

John J. Naughton:

It is in the district, yes.

Potter Stewart:

— district of Michigan and the accident happened there?

John J. Naughton:

The accident happened there.

The accident happened on a Canadian National Box Car, which is probably in — in Canada at the present time.

There’s been some mentioned on the view of the premises would be helpful.

I don’t see how that would be in this particular case and petitioner decided that it would not under these circumstances.

The matter of commuting between Ludington and Grand Rapids is a matter, which would take some time away from the various witnesses.

Potter Stewart:

Do you quarrel with the — do you question the — do you question the availability of a writ of mandamus in appropriate circumstances and —

John J. Naughton:

Yes.

Potter Stewart:

— of course you know, you do question that?

John J. Naughton:

Yes sir.

Potter Stewart:

At all?

John J. Naughton:

The writ of mandamus and the 1404 (a), yes, sir.

Potter Stewart:

You do?

John J. Naughton:

I do it on two bases, one that I think an interlocutory appeal was the proper method of questioning it and two, I think that this type of discretionary orders are not such — it create extraordinary circumstances that writs of mandamus should be considered by Courts of Appeal.

Potter Stewart:

Haven’t the Courts of Appeals rather generally said that mandamus is available I — and apply different standards as to when the mandamus will be granted?

John J. Naughton:

I would say there’s a conflict in the circuits of course.

Potter Stewart:

As to even the availability of this?

One — one or two of —

John J. Naughton:

Respondent check — cites one of the cases, which says that it is not available.

Potter Stewart:

I think one or two of them, the Second Circuit for instance that made a distinction saying it’s available if the transfer is denied but not available if it’s granted or vice versa, are you (Inaudible) with that?

John J. Naughton:

Yes, sir.

There is such a doctrine, which again is a diminishment of the plaintiff’s rights under the Federal Employers’ Liability Act.

Byron R. White:

Would you — would you concede that if the state court had considered the same facts, say there was a state rules, the federal rules on transfer to say and it had been determined against you in the state court, then would the federal court be bound by these state court’s determinations?

John J. Naughton:

I would say no on that — on the basis, that full faith and credit and estoppel by verdict do not apply.

However, I would say that in those circumstances if the question should arise, one of the petitioner —

Byron R. White:

You would think the District Court would have the absolute obligation of retrying the whole matter and coming to its own conclusion on the motion to transfer?Is there identical rule?

John J. Naughton:

Well —

Byron R. White:

Is there identical rule?

John J. Naughton:

— I would say that the District Court probably as a matter of comity would recognize the — the almost identical determination.

Byron R. White:

Would you — even though he might come out — he might have come out himself to a different conclusion?

John J. Naughton:

It’s — I don’t see how the fact that a District Court has had a — has a case which has a previous state ruling and it can evade this responsibility.

Byron R. White:

From the identical — from the identical question would the identical standards applied?

John J. Naughton:

I would still say that he would not be bound absolutely by that.

Byron R. White:

No, no estoppel — no full faith and credit, there was nothing applies to this?

John J. Naughton:

Well, even in such circumstances, the — these standards are crystal clear. They are matters for the individual judge.

I don’t see why anyone should determine that a district judge with federal statutory standards before him cannot examine those standards.

William J. Brennan, Jr.:

Well, Mr. Naughton, you might — might you have voluntarily dismiss that state court action and then brought this in the District Court?

John J. Naughton:

Yes, sir.

William J. Brennan, Jr.:

And I gather that —

John J. Naughton:

That’s the — that’s a counsel for the plaintiff.

William J. Brennan, Jr.:

That’s what I mean.

As I gather what you’re saying to us is that since that’s the right of the plaintiff under FELA, there can’t be anything res judicata about what the state court has done on a motion to transfer on forum non conveniens beyond perhaps giving some consideration of what the state court did because the issue arose in the state court?

John J. Naughton:

Yes, I would say this is the usual rule.

I have here from Volume 2 on — by into Freeman on Judgments at page 1582 of the statement that judgment is merely a dismissal whether voluntary or involuntary are not on the merits.

They do not operate as a bar or as a —

William J. Brennan, Jr.:

Well, I was going a little (Voice Overlap) —

John J. Naughton:

— subsequent proceedings.

Now, that is the general —

William J. Brennan, Jr.:

I was going a little beyond that.

I was wondering whether you were relying on the fact that under the FELA, the claimant may go in — either into the state or federal court, and you suggest that the fact goes in one does as far as dismissing that action and then going in the other case.

John J. Naughton:

That’s correct.

William J. Brennan, Jr.:

And it’s because —

John J. Naughton:

It would so Your Honor.

William J. Brennan, Jr.:

And because you ought to flow from that is that he’s not bound by anything that happens necessarily short of a decision on the merits of his claim.

John J. Naughton:

Yes.

That is the only decision —

William J. Brennan, Jr.:

(Inaudible)

John J. Naughton:

That is the only decision we would submit that by which it should be bound as a decision on the merits or decision extending estoppel by verdict to questions of fact determined not questions of — really, what our value judgment should not determine these rights in the second forum.

Now, the actual motion made on the case here was made by the respondent, Railroad, and it was a motion addressed to 1404 (a) and it was also a motion of which — on the first motion, it was stated that the doctrine of res judicata apply and clearly it does not apply in this case though respondent is still contending res judicata does apply.

The matter was denied.

Subsequently, an answer was filed by the respondent denying on information and relief, the failure of the handbrake to function as properly.

Then a petition for a rehearing was made by the respondent, and it was that that petition for rehearing that the respondent first raise the questions of full faith and credit.

Now, it seems to — the petitioner here, and what the court below did was to state that 1738 in setting out the provisions of full faith and credit created a situation where something more than res judicata and something more than a estoppel by judgment would be applied by the District Court.

The opinion below seems to indicate that full faith and credit on its own creates situations where federal courts have to give extreme difference to previous rulings for state courts.

I would submit on the basis of the opinion by Mr. Justice Holmes in Remington versus Central Potomac Railroad Company that those sort of rulings are not correct that this is by the rule of practice, it should be given comity but the state court decision should not be given absolute vitality and require to disregard the federal standard.

Earl Warren:

Mr. O’Laughlin.

Charles J. O’Laughlin:

Mr. Chief Justice, may it please the Court.

I suppose that there are three different phases of this argument that I should address myself to.

In the first, did the District Court give the proper recognition to the judgment of the Circuit Court of Cook County dismissing the case under forum non conveniens?

Secondly, did the District Court properly determine that transfer to the Western District of Michigan was not in the language of the statute for the convenience of the parties and the witnesses and the interests of justice?

And thirdly, if either of those two questions should be answered in the negative, was mandamus a proper remedy?

Now, what was the judgment of the Circuit Court of Cook County?

The Circuit Court of Cook County determined that under the doctrine of forum non conveniens, under the common law of doctrine of forum non conveniens, the trial of this case in Cook County was inappropriate and inconvenient.

Now, along with the common law doctrine, the Illinois state courts seem to hold or seem to require based upon this Cotton case, a — a requirement must be present that an addition to be inconvenient and inappropriate, the trial court must find that the plaintiff acted with a motive to vex and harass the railroad.

The Circuit Court of Cook County did dismiss the case.

While there is no finding of fact, the judgment of the Court being a mere judgment of dismissal under Illinois law, the grounds for the judgment can be examined.

And we find this to be the fact that the Court dismissed the action based upon the same allegations, the same affidavits that were present before the United States District Judge.

To support its motion, the Railroad showed that there were five occurrence witnesses and six doctors all of whom resided in and about Ludington, Michigan, two doctors being in Grand Rapids.

The Court found that the case should be dismissed.

Now, instead of going to the convenient forum Ludington, the plaintiff walked down the streets about two blocks and filed suit in the United States District Court.

Arthur J. Goldberg:

(Inaudible)

Charles J. O’Laughlin:

Yes, but I would say that certainly it would be a no rule in Illinois that a case could be dismissed under forum non conveniens, on a pure showing of vexation.

You must build a vexation on the — on the foundation that is that there is inconvenience in presenting testimony.

Charles J. O’Laughlin:

In the Cotton case, the accident as I recall happened in Kentucky and the trial was in East St. Luis and there was an allegation that the — in the motion to dismiss under forum non conveniens that the plaintiff could not get — or the defendant could not produce the medical evidence just as there was here.

On the trial, the — and this was how the case was reviewed, the evidence showed there — there was — but one doctor who testified and he spent less than a day and the Court found that there was no inconvenience and seemed to imply that there should be vexation.

Now, there has been — there have been other forum non conveniens’ decisions in Illinois, but none of them on FELA cases.

Now, I don’t think that there is any differentiation when the case reaches the District Court whether it’s an estoppel by verdict, collateral estoppel, res judicata, full faith and credit or what.

Simply, we urge that the determination by the Circuit Court of Cook County foreclosed was a matter decided between the parties.

William J. Brennan, Jr.:

Well, Mr. O’Laughlin, I gather you didn’t take the position that the plaintiff, the FELA plaintiff could not go down the street two blocks and file his lawsuit there, did you?

Charles J. O’Laughlin:

Well, Your Honor — and I address myself to the same question that you ask the counsel here.

William J. Brennan, Jr.:

Yes.

Charles J. O’Laughlin:

Of course, the plaintiff could sue where — where he could get jurisdiction of the railroad.

He could do it until there was an adjudication.

He could take a voluntary non-suit and start as many times as he chose, but once there was an adjudication, once there was a judgment, once the Court had acted, then something new has happened between the parties.

William J. Brennan, Jr.:

Well, what I want to get clear was, there was nothing about the state court proceeding which barred him from bringing his federal court suit two blocks down the street.

You had to invoke the transfer rule I gather, didn’t you?

Charles J. O’Laughlin:

Yes, Your Honor.

William J. Brennan, Jr.:

The federal transfer rule in order to defeat the trial of this case in the district where he brought it.

Charles J. O’Laughlin:

Yes.

If we have not so moved Your Honor, there would have been no jurisdictional prohibition if that is Your Honor’s question.

William J. Brennan, Jr.:

That’s what I’m trying to get here.

Charles J. O’Laughlin:

No, I would suppose that there was no adjudication on the — on the merits.

Now, while I’m on that, I might say this, that counsel has cited a number of cases in which the question was reexamined and — but if you examine each one of them, you’ll find that there was no final judgment so that the — there was a defect which was not present here.

In other words, if the state court had not made a final judgment, if the case had been submitted and a voluntary dismissal made, then of course there would be no prohibition at all, but the judgment of the Circuit Court of Cook County was a final appealable judgment and therefore, it was res judicata, estoppel by verdict, collateral estoppel, when they — that matter was brought before the District Court.

William J. Brennan, Jr.:

It may not be relevant Mr. O’Laughlin but might the Railroad — might jurisdiction of an action against the Railroad had been obtained in a Federal District Court actually in Grand Rapids?

Charles J. O’Laughlin:

Oh yes, that was clearly a place where the action might have been brought within the language of 1404 (a).

I — I take it that there is a comparatively little argument made or even — the argument is not even particularly addressed to that trial in Grand Rapids was for the convenience of the parties and the witnesses.

There was, but one witness in Illinois and that after the injured man had retained counsel.

A simple 1101 arithmetic indicates the convenience of the parties and the witnesses and I would say here that there is and will be a serious issue as to the extent of this man’s injury.

Six doctors concluded that he was not injured and one found that he was and operated on him.

These men will be called upon by the Railroad to testify.

Were the trial to take place in Cook County, the railroad would be deprived of the in-person evidence of these witnesses.

Justice would be — it would be in the interest of justice that this testimony be available to the railroad.

Charles J. O’Laughlin:

Transfer to Grand Rapids would make that available.

It is, therefore, my conclusion and I believe that the United States Court of Appeals for the Seventh Circuit agreed that failing to transfer based upon that record was a gross abuse of discretion.

Now, counsel has pointed to the opinion and says this is not a square holding.

The petition for writ of mandamus claimed that the judgment of the District Court was an abuse of discretion as well as claiming our rights under the full faith and credit statute.

The Court ruled upon it and under familiar rules, its judgment can be supported both on the grounds of the full faith and credit statute and under the abuse of discretion provision.

I think that the Court did find that it was an abuse of discretion.

Of course, the Court was more — merely acted interested in the collateral estoppel argument.

If we concede that there is grounds to claim that there was error in the District Court, I would like to address myself to the argument that mandamus was an appropriate remedy.

I believe Mr. Justice Stewart asked the counsel if in his judgment he believed that the interlocutory appeal statute was available here.

The interlocutory appeal statutes requires a finding in the order that a controlling principle of law is involved and a finding that the ultimate disposition of a case will be advanced.

There was no such finding in the order.

True, none was requested, but as it stood, there was no way when that order was entered that it could have been appealed under that — under that provision of the statute, but I would say even further an interlocutory appeal here would not be any different, the — the posture of the case would be no different.

It would be exactly the same as it would be under the writ of mandamus proceedings.

Arthur J. Goldberg:

Do you discount the fact that (Inaudible)?

Charles J. O’Laughlin:

I do not discount that Your Honor.

I — traditionally, mandamus is an extraordinary remedy.

Arthur J. Goldberg:

Was there a fact that writ of mandamus (Inaudible), is that correct?

Charles J. O’Laughlin:

Well, I would just to say it is to answer it.

I do not believe this ordinary remedy is readily available.

Arthur J. Goldberg:

Then do you assume (Inaudible) that this writ of mandamus is not (Inaudible)?

Charles J. O’Laughlin:

The reason we did not do so — seek this, of course, it was found in the first requirement.

That is that there is a controlling principle of law.

Control on the litigation?

Charles J. O’Laughlin:

Yes.

On the final (Voice Overlap) —

Charles J. O’Laughlin:

Yes.

And I — and it was our judgment that this was not a controlling principle of law.

This was a — a very un-controlling principle of law.

True on this particular issue, it was controlling, but I read that and as being controlling on the — on the matter of adjudication before the Court, I can see that to be some new noble principle of law with which the Court is concerned in the interpretation of the case that it might conceivably wish the ruling of the reviewing court prior to the taking of testimony and — and involving itself at great length.

But on the issue — issue of the mandamus itself, under the All Writs Act, I believe that it has everywhere been considered that the Court of Appeals does have the power.

Charles J. O’Laughlin:

It’s not a question of power.

And the cases that had been here, I don’t think anyone has urged that the Court under proper circumstances could issue a writ of mandamus.

We, therefore past as to whether writ of mandamus is proper in this type of case.

To a degree of course, this is a matter of policy.

I think that the holding of this Court in La Buy versus Howse is most persuasive.

In that case, Judge La Buy had transferred a case to a master court hearing.

A petition for writ of mandamus was filed in the Seventh Circuit Court of Appeals and it issued.

And this Court affirmed even though the propriety of the issuance of the writ was strongly challenged.

This Court twice has held that a jury demand should be recognized and mandamused, the trial court twice to preserve that remedy even though in both cases, the Courts of Appeal had not acted on the petition for writ of mandamus, in other words, they had denied the writ.

Yet this Court felt that the control of the process of litigation, the jury demand in the two instances was proper.

I would say this that particularly under 1404 (a) cases, if the respondent is ever to have a remedy, it must be by way of mandamus.

If it goes to trial, the inconvenience and the lack of justice has been suffered and then the respondent, defendant, is in the position of trying to show prejudicial error and it’s difficult if not impossible to point to one specific thing and say, prejudicial error has been suffered by the failure to transfer it.

It can always be claimed that the evidence of doctors being presented by way of deposition adequately — was adequate in the defense of the case.

Every trial lawyer faced with convincing the jury knows that depositions are not a persuasive way of presenting key evidence.

The cost has been incurred so that the remedy if we are going to have it appealable at all must be undertaken prior to the time the trial was held.

I think that proper administration of justice indicates that in proper cases, the Courts of Appeal should issue the writ.

Now, I do recognize that there is at least one decision and I believe it’s cited in the brief of the Court of Appeals, I believe in Tenth Circuit holds that even though there was a proper case and abuse of discretion, the writ should not issue.

Most of the other circuits have taken the other view and I think in proper administration of justice that should be the view of this Court.

In conclusion, I would like to say —

Potter Stewart:

If — as you implicitly concede and have been held this for the trial judge is ultimately a matter of his discretion, doesn’t that by definition almost exclude any kind — any idea of res judicata if it’s purely discretionary one way or the other?

Charles J. O’Laughlin:

I think that we — we sometimes overlook what we really mean by discretion.

This isn’t the — a wild whim of a judge.

It’s a — it’s a consideration of the relevant factors between the parties and it’s in a forum discretion. It was adjudicated by the Circuit Court of Cook County relying upon the same factors, which the District Judge must take into consideration.

Now, you may – I may argue a theoretical difference that the subpoena power of the District Court might cross the state lines but in this case, that is only a theoretical difference.

It has no relevance to the case at bar.

Potter Stewart:

Well now, it might also the differences in the calendar congestion in the Cook County Courts as compared to the federal courts.

Again, that might be theoretical in this case?

Charles J. O’Laughlin:

I think that the Illinois courts particularly and perhaps they — they should recognize that, but in the same Cotton case, the — the Court held that the inconvenience of the litigation was tribute on the court system.

In other words, this was not a factor.

One case among 60,000-70,000 was not a factor, which the trial court should take into consideration and that was not urged in this particular case.

Charles J. O’Laughlin:

In other words, the congestion of the calendar in Cook County was not one of the factors relied upon by the Railroad for a dismissal of — under forum non conveniens.

So I would say, —

Potter Stewart:

It’s a congested calendar in the long run that worked to the advantage of the defendant?

Charles J. O’Laughlin:

In theory, but in practice I would say not.

I know that’s traditionally supposed to be a defendant’s gamut but to defend the case, you need fresh evidence.

Potter Stewart:

Yes, yes.

Charles J. O’Laughlin:

I think that congestion hurts both parties.

Potter Stewart:

And impeach justice and —

Charles J. O’Laughlin:

Impeach justice.

Potter Stewart:

— by a very well party, you’re probably right.

But as a matter of fact what is the comparative congestion between the Cook County Courts and the District Court here in Chicago, in civil cases the District —

Charles J. O’Laughlin:

The last civil case that I’ve tried in Cook County with a jury demand was seven years old.

I think that the District Court’s judges in the Northern District of Illinois each maintain its own calendar.

Potter Stewart:

Yes.

Charles J. O’Laughlin:

And I think that the time of trial runs from about a year to maybe two years that they’re reached in rotation and tried when ready.

Potter Stewart:

In civil jury cases?

Charles J. O’Laughlin:

In civil jury cases.

However, I’ll be very frank to admit that if you were really desirous of a very expeditious trial in the federal courts, I know of no judge that wouldn’t accommodate you.

In the same token, if there is a recognized advancement system in the Circuit —

Potter Stewart:

I remember that, in the Cook County Court.

Charles J. O’Laughlin:

Cook County Circuit Court.

Potter Stewart:

But I think if you use that too liberally well, I’m not sure right back where you started.

Charles J. O’Laughlin:

And that has worked out just to the fashion.

The — but it’s suffice for this case that the tribunal itself has not made a factor in forum non conveniens either under Section 1404 (a) or in the state court.

I would, therefore, conclude by saying that the Circuit Court of Cook County adjudicated that Cook County was an inconvenient and inappropriate place to try this case.

I think that the District Court should’ve concluded that a trial in the Western District of Michigan was in — for the convenience of the parties and the witnesses and the interest of justice.

I think that the District Court should’ve afforded full faith and credit to the judgment of the state court.

I think that by walking down the street two blocks, the plaintiff was trifling with the judgment of the Circuit Court of Cook County.

Mr. Naughton.

John J. Naughton:

Mr. Chief Justice, may it please the Court.

John J. Naughton:

In rebuttal, I would merely state that respondent below in its motion in the Circuit Court complained of the crowded dockets of the Court at page 13 of the record.

It also —

Earl Warren:

Oh, the docket of the District Court?

John J. Naughton:

Of the Circuit Court of Cook County Your Honor.

Earl Warren:

Oh, I’m sorry.

John J. Naughton:

I would also state that at page 46 of the record, he complained of the crowded dockets of the United States District Court.

The ruling below seems to imply that the plaintiff was required to appeal the judgment of the Circuit Court.

Such an appeal can only be taken on the basis that the Circuit Court Judge abused his discretion.

If the plaintiff had lost that appeal, he would not have been at any nearer — a resolution of his underlying cause of action.

In the instant case, mandamus has been issued.

The United States District Judge has had to give attention to this matter.

Some of the United States District Judges in our Circuit have even appeared personally before the Courts of Appeals to argue these mandamus action.

There is a remedy available under the Interlocutory Appeals Act and I suggest that it is not a very good procedure in the administration of justice to require the District Judge to give attention to these mandamus actions that the interlocutory appeals between the parties is a much better way of solving any problem created —

Potter Stewart:

That statute wouldn’t apply — well, it might arguably apply in this case where the question was a res judicata controlling question of law.

It wouldn’t apply, would it, in a case where the judge’s action in transferring or refusal to transfer a case under 1404 was thought by the losing party to be simply a flagrant abuse of discretion especially by these terms would not apply, wouldn’t it?

John J. Naughton:

As I understand that Mr. O’Laughlin is wrong, this case would not be in the same posture.

No question of abuse of discretion wouldn’t be involved under the Interlocutory Appeals Act, but we would submit that these questions are matters of judgment and that the Courts of Appeal should not consistently grant these motions.

These writs may have been necessary when 1404 (a) was a new statute, it’s been construed by many courts at the present time, I think that the issuance of such writs and the considerations of such questions should be estopped by this Court.

Thank you.

Earl Warren:

We’ll recess now.