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Anthony v. Kaufman.

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.


decided: November 28, 1951.

ANTHONY
v.
KAUFMAN.

Author: Frank

Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.

FRANK, Circuit Judge.

Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, is not apposite, as there the district court refused to order a transfer. For where, as here, the order directs a transfer, we have held that a petition for a writ of mandamus will not be entertained if it alleges merely an "abuse" of discretion.*fn1 Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866.*fn2 If, however, the district judge lacked power to make his order of transfer, we will entertain such a petition. See Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949. In that case, the defendant, which could not have been served in the transferee district, objected to the transfer, and we issued a mandamus writ. But here, one defendant could have been served in the transferee district, while the other defendant, which could not there have been served, has joined in the application for, and thus consented to, the transfer. That consent is a waiver of lack of venue; had such a waiver existed before plaintiff commenced suit, it could have been brought there. We think 28 U.S.C. ยง 1404(a) covers such a case.*fn3 Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111.

Petition dismissed.


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