346 U.S.

379
74 S.Ct. 145
98 L.Ed. 106

BANKERS LIFE & CASUALTY CO.

v.
HOLLAND, Chief Judge of United States District Court of
Southern District of Fla. et al.
No. 16.
Argued Oct. 12, 13, 1953.
Decided Nov. 30, 1953.

Mr. Charles F. Short, Jr., Chicago, Ill., for petitioners.

Mr. M. H. Blackshear, Jr., Atlanta, Ga., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.

The question here is whether mandamus is an appropriate remedy to vacate a

severance and transfer order entered by a district judge on the ground of
improper venue, under 28 U.S.C. 1406(a), 28 U.S.C.A. 1406(a). 1

This case arises out of a treble damage action brought by petitioner, an Illinois
insurance corporation, in the United States District Court for the Southern
District of Florida, alleging a conspiracy to injure petitioner's business, in
violation of the Sherman and Clayton Acts, 15 U.S.C.A. 1 et seq. The
complaint named as defendants the insurance commissioners of Georgia and
Florida, one other individual, and four insurance companies residing and
transacting business in the Southern District of Florida. The Georgia insurance
commissioner, Cravey, was personally served in the Northern District of
Florida and, without entering his appearance or waiving venue, moved to quash
the summons and return of service and dismiss him from the action for
improper venue.

The applicable venue statute for private treble damage actions brought under
the antitrust laws, 15 U.S.C. 15, 15 U.S.C.A. 15, allows suit 'in any district

court of the United States in the district in which the defendant resides or is
found or has an agent * * *.' It is admitted that Commissioner Cravey was not a
resident of the Southern District of Florida, but petitioner contends that the
Commissioner 'was a member of a conspiracy whose other members were
residing and carrying on the illegal business of the conspiracy in the Southern
District of Florida, * * * that a conspiracy is a partnership and that coconspirators are each other's agents * * *' and that the Commissioner therefore
was 'found' and had 'agents' in the district, within the meaning of the statute. In
furtherance of its theory that the Commissioner was 'found' in the district
petitioner alleged overt acts committed by the Commissioner, as well as his
codefendants, in the district where the suit was filed. The respondent judge held
that the court had jurisdiction of the action and of the Commissioner, under
Rule 4(f) of the Rules of Civil Procedure, 28 U.S.C.A., service of process
having been had on him in the Northern District of Florida. The judge held,
however, that venue was not properly laid and, pursuant to 28 U.S.C. 1406(a),
28 U.S.C.A. 1406(a), ordered the action as to Cravey severed and transferred
to the Northern District of Georgia where Cravey resided. Petitioner then
sought a writ of mandamus from the Court of Appeals to compel the respondent
to vacate and set aside the order of severance and transfer. The Court of
Appeals dismissed the petition for mandamus on the ground that it was not an
appropriate remedy. 5 Cir., 199 F.2d 593. Because of the importance of the
question in the effective administration of federal law we granted certiorari. 345
U.S. 933, 73 S.Ct. 796.
4

At the outset it appears to be agreed that the District Court had jurisdiction over
Commissioner Cravey under the process served on him in the Northern District
of Florida. 2 However, petitioner contends that the respondent judge had 'power'
to order the severance and transfer only if venue was improperly laid and that
when venue is proper that 'power' does not exist. Petitioner insists that venue
was proper on the theory aforesaid that the Commissioner was 'found' or had
'agents' in the district; that the severance and transfer order was therefore void
but being interlocutory no appeal would lie; and that the only effective remedy
is mandamus. While it admits that the order eventually may be reviewed on
appeal from final judgment in the case, petitioner contends that insurmountable
procedural difficulties requiring appeals from, and reversals of, the final
judgments in both the Florida action and the severed action in Georgia render
that remedy speculative, ineffective and inadequate in preventing needless
expense, hardship and judicial inconvenience. Wherefore, it says, the
extraordinary writ of mandamus is appropriate.

We are of the opinion that in the circumstances of this case the writ was
inappropriate.

The All Writs Act grants to the federal courts the power to issue 'all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law.' 28 U.S.C. 1651(a), 28 U.S.C.A. 1651(a).
As was pointed out in Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 26,
63 S.Ct. 938, 941, 87 L.Ed. 1185, the 'traditional use of the writ in aid of
appellate jurisdiction both at common law and in the federal courts has been to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so.' Here, however,
petitioner admits that the court had jurisdiction both of the subject matter of the
suit and of the person of Commissioner Cravey and that it was necessary in the
due course of the litigation for the respondent judge to rule on the motion. The
contention is that in acting on the motion and ordering transfer he exceeded his
legal powers and this error ousted him of jurisdiction. But jurisdiction need not
run the gauntlet of reversible errors. The ruling on a question of law decisive of
the issue presented by Cravey's motion and the replication of the petitioner was
made in the course of the exercise of the court's jurisdiction to decide issues
properly brought before it. Ex parte American Steel Barrel Co., 1913, 230 U.S.
35, 4546, 33 S.Ct. 1007, 1010, 1011, 57 L.Ed. 1379; Ex parte Roe, 1914, 234
U.S. 70, 73, 34 S.Ct. 722, 723, 58 L.Ed. 1217. Its decision against petitioner,
even if erroneouswhich we do not pass uponinvolved no abuse of judicial
power, Roche v. Evaporated Milk Ass'n, supra, and is reviewable upon appeal
after final judgment.3 If we applied the reasoning advanced by the petitioner,
then every interlocutory order which is wrong might be reviewed under the All
Writs Act. The office of a writ of mandamus would be enlarged to actually
control the decision of the trial court rather than used in its traditional function
of confining a court to its prescribed jurisdiction. In strictly circumscribing
piecemeal appeal, 4 Congress must have realized that in the course of judicial
decision some interlocutory orders might be erroneous. The supplementary
review power conferred on the courts by Congress in the All Writs Act is
meant to be used only in the exceptional case where there is clear abuse of
discretion or 'usurpation of judicial power' of the sort held to justify the writ in
De Beers Consolidated Mines v. United States, 1945, 325 U.S. 212, 217, 65
S.Ct. 1130, 1133, 89 L.Ed. 1566. This is not such a case.

It is urged, however, that the use of the writ of mandamus is appropriate here to
prevent 'judicial inconvenience and hardship' occasioned by appeal being
delayed until after final judgment. But it is established that the extraordinary
writs cannot be used as substitutes for appeals, Ex parte Fahey, 1947, 332 U.S.
258, 259 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, even though hardship may
result from delay and perhaps unnecessary trial, United States Alkali Export
Ass'n v. United States, 1945, 325 U.S. 196, 202203, 65 S.Ct. 1120, 1124,
1125, 89 L.Ed. 1554; Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page

31, 63 S.Ct. at page 944, 87 L.Ed. 1185; and whatever may be done without the
writ may not be done with it. Ex parte Rowland, 1882, 104 U.S. 604, 617, 26
L.Ed. 831. We may assume that, as petitioner contends, the order of transfer
defeats the objective of trying related issues in a single action and will give rise
to myriad of legal and practical problems as well as inconvenience to both
courts; but Congress must have contemplated those conditions in providing that
only final judgments are reviewable. Petitioner has alleged no special
circumstances such as were present in the cases which it cites.5 Furthermore,
whatever 'judicial inconvenience and hardship' may exist here will remain, after
transfer, within the realm of the same court of appeals which has denied the
writ, since both of the districts are within that circuit; and it is not clear that
adequate remedy cannot be afforded petitioner in due course by that court to
prevent some of the conflicts and procedural problems anticipated.
8

We note additionally that the petitioner has not met the burden of showing that
its right to issuance of the writ is 'clear and indisputable'. United States v.
Duell, 1899, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559. While a
criminal action under the antitrust laws lies in any district where the conspiracy
was formed or in part carried on or where an overt act was committed in
furtherance thereof,6 Congress by 15 U.S.C. 15, 15 U.S.C.A. 15, placed
definite limits on venue in treble damage actions. Certainly Congress realized
in so doing that many such cases would not lie in one district as to all
defendants, unless venue was waived. It must, therefore, have contemplated
that such proceedings might be severed and transferred or filed in separate
districts originally. Thus petitioner's theory has all the earmarks of a frivolous
albeit ingenious attempt to expand the statute.

We adhere to the language of this Court in Ex parte Fahey, supra, 332 U.S. at
pages 259260, 67 S.Ct. at page 1559, 91 L.Ed. 2041:

10

'Mandamus, prohibition and injunction against judges are drastic and

extraordinary remedies. We do not doubt power in a proper case to issue such
writs. But they have the unfortunate consequence of making the judge a
litigant, obliged to obtain personal counsel or to leave his defense to one of the
litigants before him. These remedies should be resorted to only where appeal is
a clearly inadequate remedy. * * * As extraordinary remedies, they are reserved
for really extraordinary causes.'

11

Affirmed.

12

Mr. Justice DOUGLAS concurs in the result.

13

Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON and Mr. Justice
MINTON join, dissenting.

14

This case presents one of those clear situations where due regard for the canons
governing the exercise of the Court's certiorari jurisdiction calls for dismissal
of the writ as improvidently granted.

15

1. Whatever view one may take of the scope of the venue requirement of 4 of
the Clayton Act, 15 U.S.C. 15, 15 U.S.C.A. 15, it cannot be doubted that
that section precludes the Georgia Commissioner of Insurance from being made
a defendant in this suit unless he 'resides or is found or has an agent' in the
Southern District of Florida, or has consented, by formal appearance or by
some other form of waiver, to be sued there.

16

He has neither consented nor made such a waiver. On the contrary, he has stood
on the right Congress gave him and has resisted his amenability to suit in the
Southern District of Florida.

17

2. The only basis, on the record before us, for the claim that 4 subjected the
Georgia Commissioner to suit is the suggestion that since the complaint
charges a conspiracy between him and co-conspirators who reside in the
Southern District of Florida, the latter thereby became his 'agents' within the
meaning of 4 of the Clayton Act. The Court now characterizes this contention
as 'frivolous.' Presumably that is why this issue was not brought here and the
grant of the writ was restricted to question 1.1 345 U.S. 933, 73 S.Ct. 796.

18

3. If we now had to decide whether a co-conspirator as such is an 'agent' for

purposes of venue under 15 U.S.C. 15, 15 U.S.C.A. 15, it cannot be
doubted that we would have to conclude that the district judge was right in
finding that the Georgia Commissioner could not be kept in the suit. Once it is
clear that the Georgia defendant has the right to be let out, all discussion of the
limits of mandamus becomes irrelevant and gratuitous. Obviously a judge
cannot be mandamused to put a proposed defendant into a litigation when as a
matter of unquestioned law he should be let out.

19

4. Since the mandamus question would not have been brought here had the
volume of business that confronts the Court permitted the record to be
examined in passing on the petition for certiorari as it now has been, we should
not feel ourselves bound to discuss that question after we have had the kind of
careful consideration that is given a case after argument.2

20

5. It is a too easy view that now that the case is here we might as well dispose
of it on the assumption on which it was brought here. The short but important
answer is that which was made by Chief Justice Taft on behalf of the whole
Court in Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,
393, 43 S.Ct. 422, 423, 67 L.Ed. 712.

21

'If it be suggested that as much effort and time as we have given to the
consideration of the alleged conflict would have enabled us to dispose of the
case before us on the merits, the answer is that it is very important that we be
consistent in not granting the writ of certiorari except in cases involving
principles the settlement of which is of importance to the public as
distinguished from that of the parties, and in cases where there is a real and
embarrassing conflict of opinion and authority between the Circuit Courts of
Appeal. The present case certainly comes under neither head.'3

22

The case before us is more compelling for dismissal, since the question on
which we granted certiorari does not here arise.

23

6. Discussion of mandamus in this case is not even useful as dicta for future
guidance on an important issue.

24

The Court's opinion does not help decision when a party is dismissed from a
litigation for reasons not as obviously compelling as those in this case. It
necessarily leaves open the question whether such a ruling by a district judge
may be reviewed by mandamus, without awaiting the completion of the entire
litigation, in circumstances where postponement of review would involve a
protracted trial, entailing heavy costs and great inconvenience. Compare Ex
parte Skinner & Eddy Corp., 265 U.S. 86, 9596, 44 S.Ct. 446, 448, 68 L.Ed.
912, with Ex parte Chicago, R.I. & P.R. Co., 255 U.S. 273, 41 S.Ct. 288, 65
L.Ed. 631. This Court ought not to be called upon to hold that where a district
judge refused to entertain a 'frivolous' claim, mandamus will not issue to
compel him to entertain it. But that is the only holding of the Court's decision
today.

'The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been brought.'

Rule 4(f) of Rules of Civil Procedure:

'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.'
3

See Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302.

28 U.S.C. 1291, 1292, 28 U.S.C.A. 1291, 1292.

Ex parte Simons, 1918, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; United
States Alkali Export Ass'n v. United States, supra; De Beers Consolidated
Mines v. United States, supra. See also Ex parte United States, 1932, 287 U.S.
241, 53 S.Ct. 129, 77 L.Ed. 283; State of Maryland v. Soper, 1926, 270 U.S. 9,
46 S.Ct. 185, 70 L.Ed. 449.

United States v. Trenton Potteries Co., 1927, 273 U.S. 392, 402403, 47 S.Ct.
377, 381, 71 L.Ed. 700; United States v. Socony-Vacuum Oil Co., 1940, 310
U.S. 150, 252253, 60 S.Ct. 811, 857, 858, 84 L.Ed. 1129.

The questions the petition for certiorari presented were as follows:

'1. Is mandamus an appropriate remedy to vacate the order of severance and
transfer as an unwarranted renunciation of jurisdiction which would compel
needless duplicity of trials and appeals to enforce the right to a single trial
against all defendants in a proper forum?
'2. Where venue is properly laid in a district in which a non-resident conspirator
is 'found' and has agents within the meaning of 15 U.S.C. 15 (15 U.S.C.A.
15), is mandamus appropriate to vacate the order of severance and transfer as
being in excess of the power of transfer conferred by 28 U.S.C. 1406(a) (28
U.S.C.A. 1406(a))?
'3. Is a non-resident conspirator 'found' for venue purposes within the meaning
of 15 U.S.C. 15 (15 U.S.C.A. 15), when, although served with process in
another district in the same state, venue is laid in a district where he has, in
person when physically present and at other times through the agency of his
resident co-conspirators, engaged in the business of the conspiracy in violation
of the antitrust laws to the substantial injury of plaintiff's business?
'4. Are the resident co-conspirators of a non-resident conspirator his agents for
venue purposes within the meaning of 15 U.S.C. 15 (15 U.S.C.A. 15) when
venue is laid in a district where he has, through the agency of his resident coconspirators, engaged in the business of the conspiracy in violation of the

antitrust laws to the substantial injury of plaintiff's business?'

2

It should be noted that during the last Term the Court disposed of 1,286 cases.

The case of Hammerstein v. Superior Court, 341 U.S. 491, 71 S.Ct. 820, 95
L.Ed. 1135, is a very recent instance of where the Court after argument took a
more careful look at a grant of certiorari and dismissed the writ as
improvidently granted.