Goodman v. Clancy, United States District Judge, 195 F.2d 235 (2d Cir. 1952)

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U.S. Court of Appeals for the Second Circuit - 195 F.2d 235 (2d Cir. 1952) Petition filed February 20, 1952
Decided March 19, 1952

Ouchterloney & Liebowitz, New York City, for petitioner.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for defendant Southern Ry. Co.

Before SWAN, Chief Judge, and L. HAND and CLARK, Circuit Judges.


On February 7, 1952, we denied without opinion the petitioner's application for a writ of mandamus or prohibition, or both, restraining Judge Clancy from entering an order transferring the action to the Western District of South Carolina. The petition for rehearing requests the court to set forth its reason for denying the motion for a writ in order to enable the petitioner to determine whether to apply for a writ of certiorari. It will suffice to say: (1) all members of the court are of opinion that Judge I. R. Kaufman's order did not preclude Judge Clancy from making the order of transfer; (2) Judge L. Hand thinks that the application for mandamus should be denied on the authority of Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866. Judge Swan and Judge Clark believe that the Dings case is distinguishable, for there the order of transfer had been executed and the cause transferred to the Wisconsin court, while here the order had not yet been entered. They denied the present application because there was no abuse of discretion in ordering the transfer. Judge Clark further regards the Dings case as inoperable and not to be followed. Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457, 459; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766; Gulf Research & Development Co. v. Leahy, 3 Cir., 193 F.2d 302; 50 Col.L.Rev. 537; and Judge Kaufman's discussion in 10 F.R.D. 595.

Petition for rehearing granted to the extent indicated; original denial of application for mandamus reaffirmed.