U.S. Supreme Court Hoffman v. Blaski, 363
U.S. 335 (1960) Hoffman v. Blaski No. 25 Argued April 19-20,
1960 Decided June 13, 1960 363
U.S. 335 ast|>* 363
U.S. 335 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH
CIRCUIT Syllabus Under 28 U.S.C. § 1404(a), a federal district court in which a
civil action has been properly brought is not empowered to transfer
the action on the motion of the defendant to a district in which
the plaintiff did not have a right to bring it. Pp. 363 U. S.
335 -344.

															(a) The phrase "where it might have been brought" in § 1404(a)
cannot be interpreted to mean "where it may now be rebrought, with
defendants' consent." Pp. 363 U. S.
342 -343.

															(b) Under § 1404(a), the power of a district court to transfer
an action to another district is made to depend not upon the wish
or waiver of the defendant, but upon whether the transferee
district is one in which the action "might have been brought" by
the plaintiff. Pp. 363 U. S.
343 -344.

															260 F.2d 317, 261 F.2d 467, affirmed.

															MR. JUSTICE WHITTAKER delivered the opinion of the Court.

															To relieve against what was apparently thought to be the
harshness of dismissal, under the doctrine of forum Page 363 U. S. 336 non conveniens, of an action brought in an inconvenient
one of two or more legally available forums, Gulf Oil Corp. v.
Gilbert, 330 U. S. 501 , and
concerned by the reach of Baltimore & Ohio R. Co. v.
Kepner, 314 U. S. 44 ,
[ Footnote 1 ] Congress, in 1948,
enacted 28 U.S.C. § 1404(a), which provides:

															"§ 1404. Change of venue."

															"(a) 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."

															The instant cases present the question whether a District Court
in which a civil action has been properly brought is empowered by §
1404(a) to transfer the action, on the motion of the defendant, to
a district in which the plaintiff did not have a right to bring
it.

															No. 25, Blaski. -- Respondents, Blaski and others,
residents of Illinois, brought this patent infringement action in
the United States District Court for the Northern District of Texas
against one Howell and a Texas corporation controlled by him,
alleging that the defendants are residents of, and maintain their
only place of business in, the City of Dallas, in the Northern
District of Texas, where they are infringing respondents' patents.
After being served with process and filing their answer, the
defendants moved, under § 1404(a), to transfer the action to the
United States District Court for the Northern District of Illinois.
[ Footnote 2 ] Respondents
objected to the Page 363 U. S. 337 transfer on the ground that, inasmuch as the defendants did not
reside, maintain a place of business, or infringe the patents in,
and could not have been served with process in, the Illinois
district, the courts of that district lacked venue over the action
[ Footnote 3 ] and ability to
command jurisdiction over the defendants; [ Footnote 4 ] that therefore that district was not a
forum in which the respondents had a right to bring the action, and
hence the court was without power to transfer it to that district.
Without mentioning that objection or the question it raised, the
District Court found that "the motion should be granted for the
convenience of the parties and witnesses in the interest of
justice," and ordered the case transferred to the Illinois
district. Thereupon, respondents moved in the Fifth Circuit for
leave to file a petition for a writ of mandamus directing the
vacation of that order. That court, holding that

															"[t]he purposes for which § 1404(a) was enacted would be unduly
circumscribed if a transfer could not be made 'in the interest of
justice' to a district where the defendants not only waive venue
but to which they seek the transfer,"

															denied the motion. Ex parte Blaski, 245 F.2d 737,
738.

															Upon receipt of a certified copy of the pleadings and record,
the Illinois District Court assigned the action to Judge Hoffman's
calendar. Respondents promptly moved for an order remanding the
action on the ground that the Texas District Court did not have
power to make the transfer order and, hence, the Illinois District
Court was not thereby vested with jurisdiction of the action. Page 363 U. S. 338 After expressing his view that the "weight of reason and logic"
favored "retransfer of this case to Texas," Judge Hoffman, with
misgivings, denied the motion. Respondents then filed in the
Seventh Circuit a petition for a writ of mandamus directing Judge
Hoffman to reverse his order. After hearing and rehearing, the
Seventh Circuit, holding that,

															"[w]hen Congress provided [in § 1404(a)] for transfer [of a
civil action] to a district 'where it might have been brought,' it
is hardly open to doubt but that it referred to a district where
the plaintiff . . . had a right to bring the case,"

															and that respondents did not have a right to bring this action
in the Illinois district, granted the writ, one judge dissenting.
260 F.2d 317, 320.

															No. 26, Behimer. -- Diversity of citizenship then
existing, respondents, Behimer and Roberts, residents of Illinois
and New York, respectively, brought this stockholders' derivative
action, as minority stockholders of Utah Oil Refining Corporation,
a Utah corporation, on behalf of themselves and others similarly
situated, in the United States District Court for the Northern
District of Illinois against Standard Oil Company and Standard Oil
Foundation, Inc., Indiana corporations but licensed to do and doing
business in the Northern District of Illinois, for damages claimed
to have been sustained through the alleged illegal acquisition by
defendants of the assets of the Utah corporation at an inadequate
price.

															After being served with process and filing their answer, the
defendants moved under § 1404(a) to transfer the action to the
United States District Court for the District of Utah. [ Footnote 5 ] Respondents objected to the
transfer on the Page 363 U. S. 339 ground that, inasmuch as the defendants were not incorporated in
or licensed to do or doing business in, and could not be served
with process in, the district of Utah, the courts of that district
lacked venue over the action [ Footnote 6 ] and ability to command jurisdiction over the
defendants; [ Footnote 7 ] that
therefore that district was not a forum in which the respondents
had a right to bring the action, and, hence, the court was without
power to transfer it to that district. Without mentioning the
question raised by that objection, the court found that the
proposed transfer would be "for the convenience of the parties and
witnesses, and in the interest of justice," and ordered the case
transferred to the district of Utah.

															Respondents then filed in the Seventh Circuit a petition for a
writ of mandamus directing the District Court to reverse its order.
After hearing, the Seventh Circuit, following its decision in Blaski v. Hoffman, supra, granted the writ. 261 F.2d
467.

															To settle the conflict that has arisen among the circuits
respecting the proper interpretation and application of § 1404(a),
[ Footnote 8 ] we granted
certiorari. 359 U.S. 904; 361 U.S. 809. Page 363 U. S. 340 Without sacrifice or slight of any tenable position, the parties
have in this Court commendably narrowed their contentions to the
scope of the only relevant inquiry. The points of contention may be
sharpened by first observing what is not in contest. Discretion of
the district judges concerned is not involved. Propriety of the
remedy of mandamus is not assailed. No claim is made here that the
order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of
mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh
Circuit from remanding that case. [ Footnote 9 ] Petitioners concede that these actions
were Page 363 U. S. 341 properly brought in the respective transferor forums; that
statutory venue did not exist over either of these actions in the
respective transferee districts, [ Footnote 10 ] and that the respective defendants were not
within the reach of the process of the respective transferee
courts. [ Footnote 11 ] They
concede, too, Page 363 U. S. 342 that § 1404(a), being "not unlimited," "may be utilized only to
direct an action to any other district or division where it
might have been brought,'" and that, like the superseded doctrine
of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , 330 U. S. 507 ,
the statute requires "an alternative forum in which plaintiff might
proceed." Petitioners' "thesis" and sole claim is that § 1404(a), being
remedial, Ex parte Collett, 337 U. S.
55 , 337 U. S. 71 ,
should be broadly construed, and, when so construed, the phrase
"where it might have been brought" should be held to relate not
only to the time of the bringing of the action, but also to the
time of the transfer; and that

															"if, at such time, the transferee forum has the power to
adjudicate the issues of the action, it is a forum in which the
action might then have been brought. [ Footnote 12 ]"

															(Emphasis added.) They argue that, in the interim between the
bringing of the action and the filing of a motion to transfer it,
the defendants may move their residence to, or, if corporations,
may begin the transaction of business in, some other district, and,
if such is done, the phrase "where it might have been brought"
should be construed to empower the District Court to transfer the
action, on motion of the defendants, to such other district; and
that, similarly, if, as here, the defendants move to transfer the
action to some other district and consent to submit to the
jurisdiction of such other district, the latter district should be
held one "in which the action might then have been
brought." (Emphasis added.)

															We do not agree. We do not think the § 1404(a) phrase "where it
might have been brought" can be interpreted to mean, as
petitioners' theory would required, Page 363 U. S. 343 "where it may now be rebrought, with defendants' consent." This
Court has said, in a different context, that § 1404(a) is
"unambiguous, direct [and] clear," Ex parte Collett, 337
U.S. at 337 U. S. 58 ,
and that "the unequivocal words of § 1404(a) and the legislative
history . . . [establish] that Congress indeed meant what it said." United States v. National City Lines, Inc., 337 U. S.
78 , 337 U. S. 84 .
Like the Seventh Circuit, 260 F.2d at 322, we think the dissenting
opinion of Judges Hastie and McLaughlin in Paramount Pictures,
Inc. v. Rodney, 186 F.2d 111, 119 (C.A. 3d Cir.), correctly
answered this contention:

															"But we do not see how the conduct of a defendant after suit has
been instituted can add to the forums where 'it might have been
brought.' In the normal meaning of words, this language of Section
1404(a) directs the attention of the judge who is considering a
transfer to the situation which existed when suit was
instituted."

															It is not to be doubted that the transferee courts, like every
District Court, had jurisdiction to entertain actions of the
character involved, but it is obvious that they did not acquire
jurisdiction over these particular actions when they were brought
in the transferor courts. The transferee courts could have acquired
jurisdiction over these actions only if properly brought in those
courts, or if validly transferred thereto under § 1404(a). Of
course, venue, like jurisdiction over the person, may be waived. A
defendant, properly served with process by a court having subject
matter jurisdiction, waives venue by failing seasonably to assert
it, or even simply by making default. Commercial Casualty Ins.
Co. v. Consolidated Stone Co., 278 U.
S. 177 , 278 U. S.
179 -180; Neirbo Co. v. Bethlehem Shipbuilding Corp.,
Ltd., 308 U. S. 165 . But
the power of a District Court under § 1404(a) to transfer an action
to another district is made to depend not upon the wish or waiver
of the defendant, but rather upon whether the transferee district
was one Page 363 U. S. 344 in which the action "might have been brought" by the
plaintiff.

															The thesis urged by petitioners would not only do violence to
the plain words of § 1404(a), but would also inject gross
discrimination. That thesis, if adopted, would empower a District
Court, upon a finding of convenience, to transfer an action to any
district desired by the defendants and in which they were
willing to waive their statutory defenses as to venue and
jurisdiction over their persons, regardless of the fact that such
transferee district was not one in which the action "might have
been brought" by the plaintiff. Conversely, that thesis would not
permit the court, upon motion of the plaintiffs and a like
showing of convenience, to transfer the action to the same
district, without the consent and waiver of venue and personal
jurisdiction defenses by the defendants. Nothing in § 1404(a) or in
its legislative history suggests such a unilateral objective, and
we should not, under the guise of interpretation, ascribe to
Congress any such discriminatory purpose.

															We agree with the Seventh Circuit that:

															"If, when a suit is commenced, plaintiff has a right to sue in
that district, independently of the wishes of defendant, it is a
district 'where [the action] might have been brought.' If he does
not have that right, independently of the wishes of defendant, it
is not a district 'where it might have been brought,' and it is
immaterial that the defendant subsequently [makes himself subject,
by consent, waiver of venue and personal jurisdiction defenses or
otherwise, to the jurisdiction of some other forum]."

															260 F.2d at 321 and 261 F.2d at 469.

															Inasmuch as the respondents (plaintiffs) did not have a right to
bring these actions in the respective transferee districts, it
follows that the judgments of the Court of Appeals were correct,
and must be Affirmed. Page 363 U. S. 345 * Together with No. 26, Sullivan, Chief Judge, U.S. District
Court v. Behimer et al., argued April 20, 1960, also on
certiorari to the same Court.

															[ Footnote 1 ] See the Reviser's Notes following 28 U.S.C. § 1404.

															[ Footnote 2 ]

															The asserted basis of the motion was that trial of the action in
the Illinois District Court would be more convenient to the parties
and witnesses and in the interest of justice because several
actions involving the validity of these patents were then pending
in that court, and that pretrial and discovery steps taken in those
actions had developed a substantial amount of evidence that would
be relevant and useful in this action.

															Defendants also stated in the motion that, if and when the case
be so transferred, they would waive all objections to the venue of
the Illinois District Court over the action and would enter their
appearance in the action in that court.

															[ Footnote 3 ] See 28 U.S.C. § 1400(b), quoted in note 10 infra. [ Footnote 4 ] See Rule 4(f) of the Fed.Rules Civ.Proc., quoted in note 11 infra. [ Footnote 5 ]

															The motion asserted, and the court found, that trial of the
action in the district of Utah would be more convenient to the
parties and witnesses for the reasons, among others, that all of
the officers and directors and a majority of the minority
stockholders of the Utah corporation reside in that district; that
the books and records of the corporation are located in that
district; that the substantive law of Utah governs the action, and
that the calendar of the Utah court was less congested than the
Illinois one.

															As part of their motion, defendants stated that, in the event of
the transfer of the action as requested, they would waive all
objections to the venue of the Utah court and enter appearances in
the action in that court.

															[ Footnote 6 ] See 28 U.S.C. § 1391(c), quoted in note 10, infra.

															[ Footnote 7 ] See Rule 4(f) of the Fed.Rules Civ.Proc., quoted in note 11 infra. [ Footnote 8 ]

															The decisions of the circuits are in great conflict and
confusion. The Second Circuit has held one way on a plaintiff's motion and the other on a defendant's motion. Compare Foster-Milburn Co. v. Knight, 181 F.2d
949, 952-953, with Anthony v. Kaufman, 193 F.2d 85, and Torres v. Walsh, 221 F.2d 319. The Fifth Circuit, too, has
held both ways. Compare Blackmar v. Guerre, 190 F.2d 427,
429, with Ex parte Blaski, 245 F.2d 737. The Ninth Circuit
has held a District Court to be without power to transfer an
action, on plaintiff's motion, to a district in which
plaintiff did not have a legal right to bring it originally. Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 780. The Third
Circuit has held, two of the five judges dissenting, that a
District Court has power to transfer an action, on defendant's motion, to a district in which the plaintiff
did not have a legal right to bring it. Paramount Pictures,
Inc. v. Rodney, 186 F.2d 111. The First Circuit has upheld
transfer, on defendant's motion, to a district in which
venue existed but where process could not be served on defendants
(but defendants had been served in the transferor district). In
re Josephson, 218 F.2d 174.

															[ Footnote 9 ]

															That order did not purport to determine the jurisdiction of the
transferee court, and therefore did not preclude Judge Hoffman of
power to determine his own jurisdiction, nor did it preclude the
power of the Seventh Circuit to review his action. Fettig
Canning Co. v. Steckler, 188 F.2d 715 (C.A. 7th Cir.); Wilson v. Kansas City Southern R. Co., 101 F. Supp.
56 (D.C.W.D.Mo.); United States v.
Reid, 104 F.
Supp. 260 , 266 (D.C.E.D.Ark.). Several reasons why principles
of res judicata do not apply may be stated in a few
sentences. The orders of the Texas and Illinois District Courts on
the respective motions to transfer and to remand, like the orders
of the Fifth and Seventh Circuits on the respective petitions for
mandamus, were (1) interlocutory, (2) not upon the merits, and (3)
were entered in the same case by courts of coordinate jurisdiction.
Here, the sole basis of the right of the Fifth Circuit to entertain
the petition for a writ of mandamus was to protect its appellate
jurisdiction, 28 U.S.C. § 1651(a); Magnetic Engineering &
Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 869-870 (C.A. 2d
Cir.); Foster-Milburn Co. v. Knight, 181 F.2d 949, 951
(C.A. 2d Cir.); In re Josephson, 218 F.2d 174, 177 (C.A.
1st Cir.); Torres v. Walsh, 221 F.2d 319, 321 (C.A. 2d
Cir.), by denying leave to file the petition, it forsook such
right, but it did not thereby determine that the Illinois District
Court had jurisdiction of the action. The question of that court's
jurisdiction still remained subject to attack as of right on appeal
to the Seventh Circuit from any final judgment in the action. When,
therefore, jurisdiction of the District Court was assailed in the
Seventh Circuit, by the petition for mandamus, that court surely
had power to determine whether it would hold, on such an appeal,
that the Illinois District Court did or did not have jurisdiction
of the action and, if not, to say so and thus avoid the delays and
expense of a futile trial.

															[ Footnote 10 ]

															Venue over patent infringement actions is prescribed by 28
U.S.C. § 1400(b), which provides:

															"(b) Any civil action for patent infringement may be brought in
the judicial district where the defendant resides, or where the
defendant has committed acts of infringement and has a regular and
established place of business." See Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 ; Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 .

															General venue over actions against corporations is prescribed by
28 U.S.C. § 1391(c), which provides:

															"(c) A corporation may be sued in any judicial district in which
it is incorporated or licensed to do business or is doing business,
and such judicial district shall be regarded as the residence of
such corporation for venue purposes."

															[ Footnote 11 ]

															General provisions respecting service of the process of federal
courts are prescribed by Rule 4(f) of the Fed.Rules Civ.Proc.,
which provides:

															"(f) Territorial Limits of Effective Service."

															"All process other than a subpoena may be served anywhere within
the territorial limits of the state in which the district court is
held and, when a statute of the United States so provides, beyond
the territorial limits of that state. A subpoena may be served
within the territorial limits provided in Rule 45."

															[ Footnote 12 ]

															A similar view was expressed in Paramount Pictures, Inc. v.
Rodney, 186 F.2d 111 (C.A. 3d Cir.). The court there thought
that the § 1404(a) phrase "might have been brought" means "could
now be brought." Id. at 114.

															MR. JUSTICE STEWART, concurring in No. 25.

															Two Courts of Appeals disagreed about the meaning of a federal
law, as conscientious federal courts sometimes do. From the point
of view of efficient judicial administration, the resulting history
of this litigation is no subject for applause. But, as the Court
points out, no claim was made here that the decision of the Fifth
Circuit precluded Judge Hoffman or the Seventh Circuit from
remanding the case, and, on the merits of that question, I agree
with the Court that principles of res judicata were
inapplicable. In any event, the conflict between the Circuits is
now resolved, and what happened here will not happen again.

															MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE
BRENNAN join, dissenting.*

															My special disagreement with the Court in this case concerns a
matter of judicial administration arising out of the fact that
after the question on the merits had been considered by the Court
of Appeals for the Fifth Circuit, the same question between the
same parties was later independently again adjudicated by the Court
of Appeals for the Seventh Circuit. I cannot join the Court's
approval of the right of the Seventh Circuit to make such a
re-examination. It is true that in its opinion in this case and No.
26, Sullivan v. Behimer, decided today, the Court settles the
question over which the two Courts of Appeals disagreed, so that it
should not recur. This is not, however, an isolated case. A general
principle of judicial administration in the federal courts is at
stake. In addition, while the Court today settles one problem
arising in the application of § 1404(a), other questions involving
that section may readily give rise to conflicting Page 363 U. S. 346 views among the eleven Courts of Appeals. Under the Court's
opinion, for example, transfer always depends upon the meaning of
the federal venue statutes, and upon the jurisdiction of the
transferee court over the person of the defendant, which may be a
problem of constitutional dimensions, and there is obviously a
substantial opportunity for conflict between the Courts of Appeals
over those matters. We ought to forestall in other situations of
potential controversy the kind of judicial unseemliness which this
case discloses.

															Plaintiffs brought this action for patent infringement in the
United States District Court for the Northern District of Texas.
Defendants moved pursuant to 28 U.S.C. § 1404(a) to have it
transferred to the Northern District of Illinois. Finding transfer
to be "for the convenience of parties and witnesses, in the
interest of justice," the Texas District Court granted the motion
and transferred the action to Illinois. Plaintiffs sought a writ of
mandamus in the Court of Appeals for the Fifth Circuit to require
the Texas District Court to set aside the transfer. In plaintiffs'
view, the Northern District of Illinois was not a place where the
action "might have been brought," and thus the Texas District Court
had no power to transfer the action there under § 1404(a). The
Fifth Circuit fully examined the merits of this claim and rejected
it, holding that, in the circumstances before the court, the
Northern District of Illinois was a jurisdiction where the action
"might have been brought." Leave to file a mandamus petition was
therefore denied, and the action was duly transferred. 245 F.2d
737.

															Upon the assignment of the action to the calendar of the United
States District Court for the Northern District of Illinois,
plaintiffs moved that court to disregard the explicit decision of
another District Court in the same case, sustained by the
appropriate Court of Page 363 U. S. 347 Appeals, and to send the case back to Texas. Plaintiffs advanced
precisely the claim already rejected by the Fifth Circuit, namely,
that the Northern District of Illinois was not a place where the
action "might have been brought" within the proper meaning of §
1404(a). Transfer had, in their view, erroneously been ordered by
the Texas District Court and the power to transfer erroneously
approved by the Fifth Circuit. Plaintiffs' application was denied
by the Illinois District Court. Still not accepting the decision
against them, plaintiffs again sought an appellate remedy by way of
mandamus, this time in the Court of Appeals for the Seventh
Circuit. Initially, mandamus was denied. On rehearing, however, the
Seventh Circuit held that the prior decision of the Fifth Circuit
was wrong. It held that § 1404(a) did not authorize transfer to
Illinois, and it ordered the action "remanded" to the Texas
District Court within the Fifth Circuit, from whence it had come,
to go forward there. 260 F.2d 317. That "remand" is the order which
is here on certiorari. 359 U.S. 904.

															The Court of Appeals for the Seventh Circuit has thus refused to
permit an Illinois District Court to entertain an action
transferred to it with the approval, after full consideration of
the problem involved, of the Court of Appeals for the Fifth
Circuit. The Seventh Circuit considered no evidence not before the
Fifth Circuit in so deciding. It considered precisely the same
issue, and reached a contrary legal conclusion. This was after
explicit prior adjudication of the question at the same level of
the federal system in the same case and between the same parties.
Because the question involved is the transferability of the action,
the consequence of the Seventh Circuit's disregard of the Fifth
Circuit's prior decision is not only that a question once decided
has been reopened, with all the wasted motion, delay, and Page 363 U. S. 348 expense which that normally entails. Unless and until this Court
acts, the litigants have no forum in which trial may go forward.
Each Court of Appeals involved has refused to have the District
Court in its Circuit hear the case, and has sent it to a District
Court in the other.

															This is the judicial conduct the Court now approves. The Court
does not suggest that the Court of Appeals for the Fifth Circuit
was powerless, was without jurisdiction, to review, as it did, the
question of the applicability of § 1404(a) to this case. The
occasion for the Fifth Circuit's review by way of mandamus may have
been, as the Court suggests, "to protect its appellate
jurisdiction," but there can be no question that the Fifth Circuit
undertook to and did resolve on its merits the controversy between
the parties regarding the meaning of § 1404(a). Yet the Court
decides that the review in the Fifth Circuit was so much wasted
motion, properly ignored by the Court of Appeals for the Seventh
Circuit in arriving at a contrary result. The case is treated just
as if the Fifth Circuit had never considered the questions involved
in it. I am at a loss to appreciate why all the considerations
bearing on the good administration of justice which underlie the
technical doctrine of res judicata did not apply here to
require the Court of Appeals for the Seventh Circuit to defer to
the previous decision.

															"Public policy dictates that there be an end of litigation; that
those who have contested an issue shall be bound by the result of
the contest; and that matters once tried shall be considered
forever settled as between the parties. We see no reason why this
doctrine should not apply in every case where one voluntarily
appears, presents his case, and is fully heard, and why he should
not, in the absence of fraud, be thereafter concluded by the
judgment of the tribunal to which he has submitted his cause." Baldwin v. Iowa Traveling Men's Ass'n, 283 U.
S. 522 , 283 U. S.
525 -526. One would suppose that these considerations
would be Page 363 U. S. 349 especially important in enforcing comity among federal courts of
equal authority.

															The fact that the issue involved is the propriety of a transfer
of the action only makes the case for deference to the previous
decision of a coordinate court in the same litigation that much
stronger. The course of judicial action now approved by the Court
allows transfer over a persisting objection only when concurred in
by two sets of courts: those in the place where the case begins and
those in the place to which transfer is ordered. Not only does the
place of trial thus remain unsettled for an unnecessarily long time
to accommodate double judicial consideration but, as this case
shows, the result of a disagreement between the courts involved is
that the litigation cannot go forward at all unless this Court
resolves the matter. Surely a seemly system of judicial remedies,
especially appellate judicial remedies, regarding controverted
transfer provisions of the United States Code should encourage, not
discourage, quick settlement of questions of transfer, and should
preclude two Courts of Appeals from creating, through their
disagreement in the same case, an impasse to the litigation which
only this Court can remove. Section 1404(a) was meant to serve the
ends of "convenience" and "justice" in the trial of actions. It
perverts those ends to permit a question arising under § 1404(a),
as here, to be litigated, in turn, before a District Court and
Court of Appeals in one Circuit, and a District Court and Court of
Appeals in another Circuit one thousand miles distant, thereby
delaying trial for a year and a half, only to have the result of
all that preliminary litigation be that trial may not go forward at
all until this Court shall settle the question of where it shall go
forward, after at least another year's delay.

															We are not vouchsafed claims of reason or of the due
administration of justice that require the duplication of Page 363 U. S. 350 appellate remedies approved by the Court in this case. Why is
not a single judicial appellate remedy in a Court of Appeals
entirely adequate for one aggrieved by a transfer? Once the Court
of Appeals for the Fifth Circuit had decided, after due
consideration, that the proper meaning of § 1404(a) included
Illinois as a place where the action "might have been brought,"
this should have ended the matter, except, of course, for this
Court's power of review of that decision through the writ of
certiorari, a power which we declined to exercise in this case. Nor
does such a view of right and wise judicial administration depend
upon the nature of the procedural or even jurisdictional issue in
controversy. Technically, res judicata controls even a
decision on a matter of true jurisdiction.

															"We see no reason why a court, in the absence of an allegation
of fraud in obtaining the judgment, should examine again the
question whether the court making the earlier determination on an
actual contest over jurisdiction between the parties, did have
jurisdiction of the subject matter of the litigation." Stoll v. Gottlieb, 305 U. S. 165 , at 305 U. S. 172 . See also Baldwin v. Iowa Traveling Men's Ass'n, supra, 283 U. S. 522 .
Surely a prior decision of a federal court on the unfundamental
issue of venue ought to receive similar respect from a coordinate
federal court when the parties and the facts are the same. The
question is of the appropriate scheme of judicial remedies for
enforcing rights under a federal remedial statute aimed at
enhancing the fair administration of justice in the federal courts.
It is not consonant with reason to permit a duplicate appellate
procedure for questions under this statute, thereby forestalling
final decision on a pretrial matter which ought to be decided as
expeditiously as possible, causing wasteful delay and expense, and
thus depriving the statutory motion to transfer of effectiveness in
achieving the ends of "convenience" and "justice" for which it was
created. Page 363 U. S. 351 * [This opinion applies only to No. 25, Hoffman v.
Blaski. For opinion of MR. JUSTICE FRANKFURTER, joined by MR.
JUSTICE HARLAN and MR. JUSTICE BRENNAN in No. 26, Sullivan v.
Behimer, see post, p. 363 U. S. 351 .]

															MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE
BRENNAN join, dissenting.*

															The problem in this case is of important concern to the
effective administration of justice in the federal courts. At issue
is the scope of 28 U.S.C. § 1404(a), providing for the transfer of
litigation from one Federal District Court to another. The main
federal venue statutes necessarily deal with classes of cases,
without regard to the occasional situation in which a normally
appropriate venue may operate vexatiously. Section 1404(a) was
devised to avoid needless hardship and even miscarriage of justice
by empowering district judges to recognize special circumstances
calling for special relief. It provides that an action, although
begun in a place falling within the normally applicable venue
rubric may be sent by the District Court to go forward in another
district much more appropriate when judged by the criteria of
judicial justice.

															The terms of § 1404(a) are as follows:

															"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."

															The part of § 1404(a) the meaning of which is at issue here is
its last phrase, "any other district or division where it (the
action) might have been brought." The significance of this phrase
is this: even though a place be found to be an overwhelmingly more
appropriate forum from the standpoint of "convenience" and
"justice," the litigation may not be sent to go forward there
unless it is a Page 363 U. S. 352 place where the action "might have been brought." Upon the scope
to be given this phrase thus depends almost entirely the
effectiveness of § 1404(a) to insure an appropriate place of trial,
when the action is begun in an oppressive forum.

															One would have to be singularly unmindful of the treachery and
versatility of our language to deny that, as a mere matter of
English, the words "where it might have been brought" may carry
more than one meaning. For example, under Rule 3 of the Federal
Rules of Civil Procedure, civil actions are "commenced" by filing a
complaint with the court. As a matter of English, there is no
reason why "commenced," so used, should not be thought to be
synonymous with "brought" as used in § 1404(a), so that an action
"might have been brought" in any district where a complaint might
have been filed, or perhaps only in districts with jurisdiction
over the subject matter of the litigation. As a matter of English
alone, the phrase might just as well be thought to refer either to
those places where the defendant "might have been" served with
process, or to those places where the action "might have been
brought" in light of the applicable venue provision, for those
provisions speak generally of there actions "may be brought." Or
the phrase may be thought. as a matter of English alone. to refer
to those places where the action "might have been brought" in light
of the applicable statute of limitations, or other provisions
preventing a court from reaching the merits of the litigation. On
the face of its words alone, the phrase may refer to any one of
those considerations, i.e., venue, amenability to service,
or period of limitations, to all of them, or to none of them, or to
others as well. [ Footnote 2/1 ] And,
to Page 363 U. S. 353 the extent that these are matters which may or may not be raised
at the defendant's election, the English of the phrase surely does
not tell whether the defendant's actual or potential waiver or
failure to raise such objections is to be taken into account in
determining whether a district is one in which the action "might
have been brought," or whether the phrase refers only to those
districts where the plaintiff "might have brought" the action even
over a timely objection on the part of the defendant, that is,
where he had "a right" to bring it.

															The particular problem in the present case has been a relatively
commonplace one in the application of § 1404(a), and it
demonstrates the failure of the words of the section, considered
merely as words, to define with precision those places where an
action "might have been brought." The problem here is this. Action
was brought by plaintiff in district A, a proper venue under the
applicable venue statute. Defendant objected, and moved for
transfer to district B, submitting that, in the interests of
"convenience" and "justice" to all concerned, the action should go
forward there instead of in district A. District B, however, is one
in which, had the complaint been Page 363 U. S. 354 filed there, the plaintiff would have been unable, without the
defendant's consent, to serve him with process. In addition, the
defendant in district B, had the complaint been filed there, would
have had an objection to the venue under the applicable venue
statute. In moving for transfer to B, the defendant stipulates to
waiving all objections to venue there and to submitting his person
to the jurisdiction of District Court B, should transfer be
ordered. The District Court in A agrees that B, not A, is the
appropriate place for trial, and is disposed to transfer the action
there, for, in light of the defendant's stipulation, there is no
way in which the plaintiff can be prejudiced by the lack of venue
in B or the impossibility, as an original matter, of serving
defendant there. Is B a place where the action "might have been
brought" so that the transfer can be effected? The Court finds it
"plain," from the words of the phrase themselves, that B is not
such a place, and that, for it, is the end of the matter.

															We would all agree that B would be a place where the action
"might have been brought" if it were a place of statutory venue, if
the defendant had always been amenable to process there, and if B
had no other special characteristics whereby the defendant could
prevent consideration there of the merits of the cause of action.
Almost every statute has a core of indisputable application, and
this statute plainly applies to permit transfer to a place where
there could never have been any objection to the maintenance of the
action. But is it clear, as the Court would have it, that, as a
mere matter of English, because potential objections peculiar to
the forum would have been present in B, it is not to be deemed a
place where the action "might have been brought," although
defendant not only might but is prepared to waive, as he
effectively may, such objections? Page 363 U. S. 355 I submit that it is not clear from the words themselves, and the
experience in the lower courts gives compelling proof of it. At
least 28 District Courts, located in all parts of the Nation, have
had to give concrete meaning to the set of words in controversy.
These are the judges who are, to use a familiar but appropriate
phrase, on the firing line, who are in much more intimate,
continuous touch with the needs for the effective functioning of
the federal judicial system at the trial level than is this Court.
They have not found the last phrase of § 1404(a) unambiguous. There
has been anything but the substantial uniformity of views to be
expected in the application of a clear and unambiguous direction.
There have been severe differences with regard to whether § 1404(a)
is ever available as a remedy to a plaintiff forced into an
inconvenient forum, and, if so, under what conditions. [ Footnote 2/2 ] With regard to defendants'
motions to transfer, it has been held that "brought" in § 1404(a)
is synonymous with "commenced" in Rule 3, so that transfer may be
made to virtually any district dictated by "convenience" and
"justice." [ Footnote 2/3 ] It has
been held that the phrase is to be applied as if it read "where it
might have been brought now, " thus giving full effect to a
waiver of objections by defendant Page 363 U. S. 356 in moving for transfer. [ Footnote
2/4 ] It has been said, on the other hand, that "[s]ection
1404(a) . . . contemplates statutory venue, and not consent venue."
[ Footnote 2/5 ]

															With regard to the particular problem in this case, which has
arisen most often, a majority of the District Courts which have
considered the problem have ruled against the Court's "plain"
meaning of the statute. At least seven District Courts have ruled
that, because of the defendant's consent to have the action go
forward there, a district is one where the action "might have been
brought" even though it is a place where the defendant might either
have objected to the venue, or avoided process, or both, had the
action been brought there originally. [ Footnote 2/6 ] At least three District Courts have held
or implied, to the contrary, that the defendant's consent is not
relevant, and that such a district cannot be one where the action
"might have been brought." [ Footnote
2/7 ] Two others have simply denied motions by the defendant on
the ground that the transferee court was not one where the action
"might have been brought," without discussing whether, Page 363 U. S. 357 in moving for transfer, the defendant had consented to go
forward in the transferee court, or what the effect of that consent
would be. [ Footnote 2/8 ] Two
District Courts have granted the defendant's motion to transfer,
making the matter turn on the presence of a number of defendants
and the fact that some of them were suable as of right in the
transferee court. [ Footnote 2/9 ]
Two others have found the amenability of the defendant to service
of process in the place to which transfer is proposed to be wholly
irrelevant to whether the action "might have been brought" there,
and have ordered transfer to such a place on the plaintiff's motion
even though the defendant did not consent. [ Footnote 2/10 ] It simply cannot be said, in the face of
this experience, that the words of the statute are so compellingly
precise, so unambiguous, that § 1404(a), as a matter of "plain
words," does not apply in the present case.

															The experience in the Courts of Appeals is also revealing. Of
the six cases where defendants have moved for transfer, in only two
has it been held that the defendant's consent to the transfer is
not relevant in determining whether the place to which transfer is
proposed is a place where the action "might have been brought," and
these are the two decisions of the Seventh Circuit now before us. Blaski v. Hoffman, 260 F.2d 317 (C.A. 7th Cir. 1958); Behimer v. Sullivan, 261 F.2d 467 (C.A. 7th Cir.
1958). Page 363 U. S. 358 The Third Circuit has ruled in favor of transfer on the
defendant's motion to a place where the defendant might have
objected to the venue, Paramount Pictures, Inc. v. Rodney, 186 F.2d 111 (C.A. 3d Cir. 1951). The First and Second Circuits
have ruled in favor of transfer on defendant's motion to a place
where the defendant could not have been served with process, Torres v. Walsh, 221 F.2d 319 (C.A. 2d Cir. 1955); In
re Josephson, 218 F.2d 174 (C.A. 1st 1954). And the Second and
Fifth Circuits have ruled in favor of transfer on defendant's
motion to a place where there was neither statutory venue nor a
chance to serve the defendant. Anthony v. Kaufman, 193
F.2d 85 (C.A. 2d Cir. 1951); Ex parte Blaski, 245 F.2d 737
(C.A. 5th Cir. 1957). All these courts have considered the meaning
of the phrase in detail, and have held that the place to which
transfer was proposed was a place where the action "might have been
brought." Thus, the Court's view of the meaning of § 1404(a) is
contrary to the rulings of every Court of Appeals but one which has
considered the problem, and is contrary to the view of more than
half the District Courts, as well. Yet the Court maintains that the
statute unambiguously means what it says it does.

															Surely the Court creates its own verbal prison in holding that
"the plain words" of § 1404(a) dictate that transfer may not be
made in this case although transfer concededly was in the interest
of "convenience" and "justice." Moreover, the Court, while finding
the statutory words "plain," decides the case by applying not the
statutory language, but a formula of words found nowhere in the
statute, namely, whether plaintiffs had "a right to bring these
actions in the respective transferee districts." This is the
Court's language, not that of Congress. Although it is, of course,
a grammatically plausible interpretation of the phrase "where it
might have been brought," it has been, I submit, established that
it is not Page 363 U. S. 359 by any means the only plausible interpretation. In fact, the
Court's rephrasing, as distinguished from Congress' phrasing, gives
the narrowest possible scope to the operation of § 1404(a). There
can be expected to be very few, if any, alternative forums in a
given case where the plaintiff has a "right" to sue, considering
that that means places of unobjectionable venue where the defendant
is amenable to service of process and where there are no other
impediments such as a statute of limitations which the defendant
can rely on to defeat the action.

															This case, then, cannot be decided, and is not decided, by the
short way of a mechanical application of Congress' words to the
situation. Indeed, it would be extraordinary if a case which could
be so decided were deemed worthy of this Court's attention twelve
years after the applicable statute was enacted. To conclude, as the
Court does, that the transferee court is inexorably designated by
the inherent force of the words "where it might have been brought"
is to state a conclusion that conceals the process by which the
meaning is, as a matter of choice, extracted from the words.

															The problem in this case is one of resolving an ambiguity by all
the considerations relevant to resolving an ambiguity concerning
the conduct of litigation, and, more particularly, the
considerations that are relevant to resolving an ambiguous
direction for the fair conduct of litigation in the federal
judicial system. At the crux of the business, as I see it, is the
realization that we are concerned here not with a question of a
limitation upon the power of a federal court, but with the place in
which that court may exercise its power. We are dealing, that is,
not with the jurisdiction of the federal courts, which is beyond
the power of litigants to confer, but with the locality of a
lawsuit, the rules regulating which are designed mainly for the
convenience of the litigants.

															"[T]he locality of a law suit -- the place where judicial
authority may be Page 363 U. S. 360 exercised -- though defined by legislation, relates to the
convenience of litigants, and, as such, is subject to their
disposition. . . . [A venue statute] 'merely accords to the
defendant a personal privilege respecting the venue, or place of
suit, which he may assert, or may waive at his election.' Commercial Ins. Co. v. Stone Co., 278 U. S.
177 , 278 U. S. 179 ." Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165 , 308 U. S. 168 .
And, in that case, the Court was merely reiterating considerations
already forcefully set out in General Investment Co. v. Lake
Shore R. Co., 260 U. S. 261 , and Lee v. Chesapeake & Ohio R. Co., 260 U.
S. 653 . This basic difference "between the court's power
and the litigant's convenience is historic in the federal courts."
308 U.S. at 308 U. S.
168 .

															Applying these considerations to a problem under a different
statute but relevant to the present one, namely, whether removal
from a state court to a federal court might be had upon the motion
of the defendant when the federal court was one where the venue
would have been subject to objection had the action originally been
brought there, this Court, speaking unanimously through Mr. Justice
Van Devanter, discriminatingly reminded that

															"[i]t therefore cannot be affirmed broadly that this suit could
not have been brought . . . [in the federal court], but only that
it could not have been brought and maintained in that court over a
seasonable objection by the company to being sued there."

															This analysis has striking application to the present problem
under § 1404(a), and it is also relevant here that the Court
sanctioned removal in that case to a federal court with no
statutory venue, partly because

															"there could be no purpose in extending to removals the personal
privilege accorded to defendants by [the venue statutes], since
removals are had only at the instance of defendants." General Investment Co. v. Lake Shore R. Co., 260 U. S. 261 , 260 U. S. 273 , 260 U. S. 275 . See also, to the same effect, Lee v.
Chesapeake & Ohio R. Co. , 260 Page 363 U. S. 361 U.S. 653, overruling Ex parte Wisner, 203 U.
S. 449 , and qualifying In re Moore, 209 U. S. 490 . The
rule that statutory venue rules governing the place of trial do not
affect the power of a federal court to entertain an action, or of
the plaintiff to bring it, but only afford the defendant a
privilege to object to the place chosen, is now enacted as part of
the Judicial Code. 28 U.S.C. § 1406(b). And, of course, it needs no
discussion that a defendant is always free voluntarily to submit
his person to the jurisdiction of a federal court.

															In light of the nature of rules governing the place of trial in
the federal system, as thus expounded and codified, as
distinguished from limitation upon the power of the federal courts
to adjudicate, what are the competing considerations here? The
transferee court in this case plainly had and has jurisdiction to
adjudicate this action with the defendant's acquiescence. As the
defendant, whose privilege it is to object to the place of trial,
has moved for transfer, and has acquiesced to going forward with
the litigation in the transferee court, it would appear
presumptively, unless there are strong considerations otherwise,
that there is no impediment to effecting the transfer so long as
"convenience" and "justice" dictate that it be made. It does not
counsel otherwise that here, the plaintiff is to be sent to a venue
to which he objects, whereas ordinarily, when the defendant waives
his privilege to object to the place of trial, it is to acquiesce
in the plaintiff's choice of forum. This would be a powerful
argument if, under § 1404(a), a transfer were to be made whenever
requested by the defendant. Such is not the case, and this bears
emphasis. A transfer can be made under § 1404(a) to a place where
the action "might have been brought" only when "convenience" and
"justice" so dictate, not whenever the defendant so moves. A
legitimate objection by the plaintiff to proceeding in the
transferee forum will presumably be reflected in a decision
that Page 363 U. S. 362 the interest of justice does not require the transfer, and so it
becomes irrelevant that the proposed place of transfer is deemed
one where the action "might have been brought." If the plaintiff's
objection to proceedings in the transferee court is not consonant
with the interests of justice, a good reason is wanting why the
transfer should not be made.

															On the other hand, the Court's view restricts transfer, when
concededly warranted in the interest of justice, to protect no
legitimate interest on the part of the plaintiff. And, by making
transfer turn on whether the defendant could have been served with
process in the transferee district on the day the action was
brought, the Court's view may create difficult problems in
ascertaining that fact, especially in the case of noncorporate
defendants. These are problems which have no conceivable relation
to the proper administration of a provision meant to assure the
most convenient and just place for trial.

															Nor is it necessary to reach the Court's result in order to
preserve an appropriate meaning for the phrase "where it might have
been brought." I fully agree that the final words of § 1404(a) are
words of limitation upon the scope of the provision. But to hold,
as I would, that a district is one where the action "might have
been brought" when the defendant consents to going forward with the
litigation there does not remove the quality of those words as a
limitation. The words compel the defendant, in effect, to waive any
objections to going forward in the transferee district which he
might have had if the action had been brought there, in order to
obtain a transfer. The words therefore insure that transfer will
not be a device for doing the plaintiff out of any forum in which
to proceed, no matter how inconvenient. The words, in any case,
plainly limit the plaintiff's right to seek a transfer when the
defendant does not consent to the change of venue. Moreover, the
words may serve to prevent transfer to Page 363 U. S. 363 courts with a lack of federal power to adjudicate the matter of
the dispute which the defendant cannot confer with his consent.
[ Footnote 2/11 ] In light of the
fact that the venue statutes in Title 28 U.S.C. are phrased in
terms of where the action "may be brought," or, in some cases,
where it "shall" or "must" be brought, [ Footnote 2/12 ] the most obvious limiting significance
of the phrase "where it might have been brought" is that it refers
to places where, under the venue provisions, the action, "may,"
"shall," or "must" be brought, assuming the existence of federal
jurisdiction. [ Footnote 2/13 ] In
the meaning of federal venue provisions as expounded by this Court,
and by Congress in § 1406(b), these, as has been said, are not only
places where, under the applicable provision, no objection to the
venue is available to the defendant. They are also places where the
defendant consents to be sued.

															The relevant legislative history of § 1404(a) is found in the
statement in the Reviser's Notes, accompanying the 1948 Judicial
Code, that § 1404(a) "was drafted in accordance with the doctrine
of forum non conveniens." [ Footnote
2/14 ] Under that doctrine, the remedy for an inconvenient Page 363 U. S. 364 forum was not to transfer the action, but to dismiss it. In Gulf Oil Corp. v. Gilbert, 330 U.
S. 501 , 330 U. S.
506 -507, we held that,

															"[i]n all cases in which the doctrine of forum non
conveniens comes into play, it presupposes at least two forums
in which the defendant is amenable to process; the doctrine
furnishes criteria for choice between them."

															It is entirely "in accordance" with this view of the doctrine of forum non conveniens to hold that transfer may be made at
the instance of the defendant regardless of the plaintiff's right,
as an original matter, to sue him in the transferee court, so long
as the defendant stipulates to going forward with the litigation
there. Indeed, to hold otherwise, as the Court does, is to limit §
1404(a) to a much narrower operation than the nonstatutory doctrine
of forum non conveniens. Investigation has disclosed
several forum non conveniens cases, one of them in this
Court, where dismissal of the action on the defendant's motion was
made upon the condition of the defendant's voluntary submission to
the jurisdiction of another more convenient forum when that forum
was not available to the plaintiff as of right over the defendant's
objection. See Canada Malting Co. v. Paterson Steamships,
Ltd., 49 F.2d 802, 804, affirmed, 285 U. S. 285 U.S.
413, 285 U. S. 424 ; Giatilis v. The Darnie, 171 F.
Supp. 751 , 754; Bulkley, Dunton Paper Co. v. The Rio
Salado, 67 F. Supp.
115 , 116; Libby, McNeill & Libby v. Bristol City Line
of Steamships, 41 F. Supp.
386 , 389; The City of Agra, 35 F. Supp.
351 ; Strassburger v. Singer Mfg. Co., 263 App.Div.
518, 33 N.Y.S.2d 424; Wendel v. Hoffman, 258 App.Div.
1084, 259 App.Div. 732, 18 N.Y.S.2d 96. See also Cerro De Pasco
Copper corp. v. Knut Knutsen, 187 F.2d 990, and Swift
& Co. v. Compania Caribe, 339 U.
S. 684 , 339 U. S.
697 -698:

															"it was improper, under the circumstances here shown, to remit a
United States citizen to the courts of a foreign country without
assuring the citizen that respondents would appear in those courts
and that security would be given Page 363 U. S. 365 equal to what had been obtained by attachment in the District
Court. The power of the District Court to give a libellant such
assurance is shown by Canada Malting Co. v. Paterson
Steamships, Ltd., 285 U. S. 413 , 285 U. S.
424 [ supra ]."

															In view of the familiarity of this device of dismissing for forum non conveniens when as of right no other forum was
available to plaintiff, upon the defendant's agreement to appear in
the more convenient forum, it is almost necessary to suppose, in
light of the Reviser's description of § 1404(a) as "in accordance
with the doctrine of forum non conveniens, " that transfer
under § 1404(a) may likewise be made where the defendant consents
to going forward with the case in the transferee court.

															The only consideration of the Court not resting on the "plain
meaning" of § 1404(a) is that it would constitute "gross
discrimination" to permit transfer to be made with the defendant's
consent and over the plaintiff's objection to a district to which
the plaintiff could not similarly obtain transfer over the
defendant's objection. To speak of such a situation as regards this
statute as "discrimination" is a sterile use of the concept.
Mutuality is not an empty or abstract doctrine; it summarizes the
reality of fair dealing between litigants. Transfer cannot be made
under this statute unless it is found to be in the interest of
"convenience" and in the interest of "justice." Whether a party is
in any sense being "discriminated" against through a transfer is
certainly relevant to whether the interest of justice is being
served. If the interest of justice is being served, as it must be
for a transfer to be made, how can it be said that there is
"discrimination" in any meaningful sense? Moreover, the transfer
provision cannot be viewed in isolation in finding
"discrimination." It, after all, operates to temper only to a
slight degree the enormous "discrimination" inherent in our system
of litigation, whereby the sole choice of forum, from among those
where service is possible and venue unobjectionable, Page 363 U. S. 366 is placed with the plaintiff. The plaintiff may choose from
among these forums at will; under § 1404(a), the defendant must
satisfy a very substantial burden of demonstrating where "justice"
and "convenience" lie in order to have his objection to a forum of
hardship in the particular situation respected.

															In summary, then, the "plain meaning" of § 1404(a) does not
conclude the present case against the transfer, for the statute, as
applied in this case, is not "plain" in meaning one way or another,
but contains ambiguities which must be resolved by considerations
relevant to the problem with which the statute deals. Moreover, the
most obvious significance for the set of words here in question,
considered as self-contained words, is that they have regard for
the limitations contained in the regular statutory rules of venue.
Those rules, it is beyond dispute, take into account the consent of
the defendant to proceed in the forum, even if it is not a forum
designated by statute. And the doctrine of forum non
conveniens, "in accordance with" which § 1404 (a) was drafted,
also took into account the defendant's consent to proceed in
another forum to which he was not obligated to submit. Nor can a
decision against transfer be rested upon notions of
"discrimination" or of unfairness to the plaintiff in wrenching him
out of the forum of his choice to go forward in a place to which he
objects. In the proper administration of § 1404(a), such
consequences cannot survive the necessity to find transfer to be in
the interests of "convenience" and "justice," before it can be
made. On the other hand, to restrict transfer, as the Court does,
to those very few places where the defendant was originally
amenable to process and could have had no objection to the venue is
drastically to restrict the number of situations in which § 1404(a)
may serve the interests of justice by relieving the parties from a
vexatious forum. And it is to restrict the operation of the section
capriciously, for Page 363 U. S. 367 such a drastic limitation is not counseled by any legitimate
interest of the plaintiff or by any interest of the federal courts
in their jurisdiction. The defendant's interest, of course, is not
involved, because he is the movant for transfer.

															The essence of this case is to give fair scope to the role of §
1404(a) in our system of venue regulations, that is, a system
whereby litigation may be brought in only a limited number of
federal districts, which are chosen generally upon the basis of
presumed convenience. Two extremes are possible in the
administration of such a system, duly mindful of the fact that, in
our jurisprudence, venue does not touch the power of the court. (1)
All venue may be determined solely by rigid rules, which the
defendant may invoke and which work for convenience in the
generality of cases. In such an extreme situation, there would be
no means of responding to the special circumstances of particular
cases when the rigid venue rules are inappropriate. (2) At the
other extreme, there may be no rigid venue provisions, but all
venue may be determined, upon the defendant's objection to the
plaintiff's choice of forum, by a finding of fact in each case of
what is the most convenient forum from the point of view of the
parties and the court. The element of undesirability in the second
extreme is that it involves too much preliminary litigation; it is
desirable in that it makes venue responsive to actual convenience.
The first extreme is undesirable for according too little -- in
fact nothing -- to actual convenience when the case is a special
one; it is desirable in that it does away with preliminary
litigation.

															If anything is plain, from its history and from its words, it is
that § 1404(a) means to afford a balance, a compromise, between
these two extremes. It is in this spirit that its provisions must
be read. In the ordinary course, the regular venue rules are to
prevail, with no preliminary litigation to determine the actual
convenience. But the Page 363 U. S. 368 statute means to allow for cases where the ordinary rules are
found to work a great hardship; there, actual convenience is to
prevail. We should therefore not, as the Court has done, impose
limitations upon the operation of § 1404(a) which have no relation
to ordinary considerations governing the place of trial in the
federal system and which arbitrarily prevent actual convenience
from determining the place of trial. The limitations upon the
section should only be those which recognize legitimate
countervailing considerations to the free reign of actual
convenience, namely limitations regarding the power of the federal
courts to adjudicate, and limitation recognizing the historic
privilege of the defendant, should be choose to exercise it, to
object to the place of trial unless it is affirmatively designated
by the venue statute.

															It may be urged in answer to this analysis that, if transfer is
available as a matter of "convenience" and "justice" in every case
in which the defendant consents to going forward in the transferee
court, § 1404(a) will entail burdensome preliminary litigation, and
may, if improperly administered, prove vexatious to plaintiffs.
Thus, even arbitrary limitations, such as the Court imposes, may be
said to be warranted. In effect, this argument against transfer in
situations like the present implies distrust in the ability and
character of district judges to hold the balance even -- that is,
to dispose quickly of frivolous contentions and to prevent transfer
from proving unduly prejudicial to plaintiffs while according it
its proper scope to deal with cases of real inconvenience.

															"Such apprehension implies a lack of discipline and of
disinterestedness on the part of the lower courts, hardly a worthy
or wise basis for fashioning rules of procedure. It reflects an
attitude against which we were warned by Mr. Justice Holmes,
speaking for the whole Court, likewise in regard to a question of
procedure: 'Universal distrust creates universal incompetence.' Graham v. United States, 231 U. S. 474 , 231 U. S.
480 ." Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180 ,
185. As in that case, doubts here should be resolved in favor of
the competence of the District Courts wisely to administer §
1404(a). Whatever salutary effect that section is to have must, in
any event, depend upon due appreciation by district judges of the
relevant considerations involved in ordering a transfer. Nothing is
to be gained by parceling out the areas of their discretion
mechanically, making distinctions which have no relevance to the
manner in which venue provisions are ordinarily administered in the
federal courts. I would therefore permit considerations of
"convenience" and "justice" to be operative whenever the defendant
consents to going forward in the transferee court on the same terms
on which he was sued in the original forum. Against a rare abuse,
there will always be available the corrective supervisory power of
the Courts of Appeals, and ultimately of this Court.

															* [This opinion applies only to No. 26, Sullivan v.
Behimer. For opinion of MR. JUSTICE FRANKFURTER, joined by MR.
JUSTICE HARLAN and MR. JUSTICE BRENNAN, in No. 25, Hoffman v.
Blaski, see ante, p. 363 U. S.
345 .]

															[ Footnote 2/1 ] See, e.g., Felchlin v. American Smelting & Refining
Co., 136 F.
Supp. 577 (D.C.S.D.Cal.1955) (transfer denied on defendant's
motion because plaintiff was an executor not qualified in
transferee court); Masterpiece Productions, Inc. v. United
Artists Corp., 90 F. Supp.
750 (D.C.E.D.Pa.1950) (transfer denied on defendant's motion
because, had the action originally been brought in the transferee
court, the alignment of parties would have been different, there
being one involuntary party, thereby destroying complete diversity
of citizenship); Lucas v. New York Central R.
Co., 88 F. Supp.
536 (D.C.S.D.N.Y.1950) (transfer denied on defendant's motion
because defendant's corporate status would have destroyed diversity
of citizenship had the action been brought in the transferee
court). In all of these cases, transfer was denied because the
transferee court was deemed not to be one where the action "might
have been brought." See also Arvidson v. Reynolds Metals
Co., 107 F. Supp.
51 (D.C.W.D.Wash.1952) (denying the defendant's motion for
transfer in part because the action was a local one, and state
courts in the transferee district would not have taken jurisdiction
over it).

															[ Footnote 2/2 ] See, e.g., Dufek v. Roux Distrib. Co., 125 F.
Supp. 716 (D.C.S.D.N.Y.1954); Barnhart v. John B. Rogers
Producing Co., 86 F. Supp.
595 (D.C.N.D.Ohio 1949); Troy v.
Poorvu, 132 F.
Supp. 864 (D.C.Mass.1955); United States v.
Reid, 104 F.
Supp. 260 (D.C.E.D.Ark.1952); Otto v.
Hirl, 89 F. Supp.
72 (D.C.S.D.Iowa 1952); McGee v. Southern Pacific
Co., 151 F.
Supp. 338 (D.C.S.D.N.Y.1957); Rogers v.
Halford, 107 F.
Supp. 295 (D.C.E.D.Wisc.1952); Herzog v. Central Steel Tube
Co., 98 F. Supp.
607 (D.C.S.D.Iowa 1951); Mitchell v.
Gundlach, 136 F.
Supp. 169 (D.C.Md.1955); McCarley v. Foster-Milburn
Co., 89 F. Supp.
643 (D.C.W.D.N.Y.1950).

															[ Footnote 2/3 ] Otto v. Hirl, 89 F. Supp.
72 , 74 (D.C.S.D.Iowa 1952).

															[ Footnote 2/4 ] Cain v. Bowater's Newfoundland Pulp & Paper Mills,
Ltd., 127 F.
Supp. 949 , 950 (D.C.E.D.Pa.1954).

															[ Footnote 2/5 ] Johnson v. Harris, 112 F.
Supp. 338 , 341 (D.C.E.D.Tenn.1953).

															[ Footnote 2/6 ] Hill v. Upper Mississippi Towing Corp., 141 F.
Supp. 692 (D.C.Minn.1956); McGee v. Southern Pacific
Co., 151 F.
Supp. 338 (D.C.S.D.N.Y.1957); Welch v. Esso Shipping
Co., 112 F.
Supp. 611 (D.C.S.D.N.Y.1953); Mire v. Esso Shipping
Co., 112 F.
Supp. 612 (D.C.S.D.N.Y.1953); Cain v. Bowater's
Newfoundland Pulp & Paper Mills, Ltd., 127 F.
Supp. 949 (D.C.E.D.Pa.1954); Anthony v. RKO Radio
Pictures, 103 F. Supp.
56 (D.C.N.Y.1951); Blaski v. Howell (D.C.N.D.Ill.,
March 14, 1958).

															[ Footnote 2/7 ] General Electric Co. v. Central Transit Warehouse
Co., 127 F.
Supp. 817 (D.C.W.D.Mo.1955); Tivoli Realty v. Paramount
Pictures, 89 F. Supp.
278 (D.C.Del.1950); Felchlin v. American Smelting &
Refining Co., 136 F.
Supp. 577 (D.C.S.D.Cal.1955). See also Johnson v.
Harris, 112 F.
Supp. 338 (D.C.E.D.Tenn.1953) (dictum).

															[ Footnote 2/8 ] Silbert v. Nu-Car Carriers, 111 F. Supp. 357
(D.C.S.D.N.Y.1953); Hampton Theaters, Inc. v. Paramount Film
Distributing Corp., 90 F. Supp.
645 (D.C.D.C.1950). See also Arvidson v. Reynolds Metals
Co., 107 F. Supp.
51 (D.C.W.D.Wash.1952) (denying the defendants' motion to
transfer in part because the plaintiff would not have been amenable
to process in the transferee court).

															[ Footnote 2/9 ] Ferguson v. Ford Motor Co., 89 F. Supp.
45 (D.C.S.D.N.Y.1950); Glasfloss Corp. v. Owens-Corning
Fiberglas Corp., 90 F. Supp.
967 (D.C.S.D.N.Y.1950).

															[ Footnote 2/10 ] McCarley v. Foster-Milburn Co., 89 F. Supp.
643 (D.C.W.D.N.Y.1950); Troy v. Poorvu, 132 F.
Supp. 864 (D.C.Mass.1955).

															[ Footnote 2/11 ] See cases cited in 363
U.S. 335 fn2/1|>note 1, supra. [ Footnote 2/12 ] See 28 U.S.C. §§ 1391, 1392(a) and (b), 1393(a) and
(b), 1396-1399, 1400(b), 1401 and 1403.

															[ Footnote 2/13 ] See Chief Judge Magruder's opinion for the Court of
Appeals for the First Circuit in In re Josephson, 218 F.2d
174, 184.

															[ Footnote 2/14 ]

															The whole of the statement in the Reviser's Note dealing with
subsection (a) of § 1404 is as follows:

															"Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more
convenient forum, even though the venue is proper. As an example of
the need of such a provision, see Baltimore & Ohio R. Co.
v. Kepner, . . . 314 U. S. 44 , . . . which was
prosecuted under the Federal Employer's Liability Act in New York,
although the accident occurred and the employee resided in Ohio.
The new subsection requires the court to determine that the
transfer is necessary for convenience of the parties and witnesses,
and further, that it is in the interest of justice to do so."

Summary: The Supreme Court ruled that a federal district court cannot transfer a civil case to another district solely based on the defendant's request if the plaintiff did not have the right to bring the case in that district. The power to transfer a case under 28 U.S.C. § 1404(a) depends on whether the plaintiff could have originally brought the action in the transferee district, regardless of the defendant's wishes or consent.