Anderson and Feinberg, Circuit Judges, and Mansfield, District Judge.*fn*
In July 1967, a Boeing 727 jet airplane collided with a smaller Cessna 310 aircraft over Hendersonville, North Carolina. There were 74 passengers and five crew members in the larger plane and two passengers and the pilot in the smaller. All were killed. That tragedy led to various lawsuits, one of which is the subject of this petition for a writ of mandamus or prohibition by plaintiffs-administrators. The petition seeks to vacate two orders of the United States District Court for the Southern District of New York, Inzer B. Wyatt, J., which transferred an action to the United States District Court for the Western District of North Carolina. For reasons given below, we deny the petition.
The action in question was brought in the Southern District on behalf of the estates of thirteen decedents; none of them or their beneficiaries is, or was, a citizen of New York, although the plaintiffs-administrators are New York residents. Defendants named in the complaint are The Boeing Company, owner, designer and manufacturer of the 727 jet; Piedmont Aviation, Inc., operator of that plane; Lanseair, Inc., owner of the Cessna; Rapidair, Inc., employer of its pilot; and the United States, employer of air traffic controllers in the vicinity of the crash. Complete diversity existed between the four corporate defendants and plaintiffs' decedents and their beneficiaries.*fn1 The action in New York was but one of many, the great bulk of which are pending in the above mentioned federal court in North Carolina, the state in which the crash occurred.
Pursuant to 28 U.S.C. § 1404(a), defendants the United States and Piedmont moved to transfer the action to that court. Judge Wyatt granted the motions on November 27, 1968, holding that:
Every consideration of convenience and efficiency suggests that all litigation arising from this tragic disaster should be concentrated in one district. Logically, the Western District of North Carolina is that one district. It would be wasteful judicial administration for judges in two or more districts to be occupied at the same time by the same problems of fact and law.
Plaintiffs-petitioners do not quarrel with this finding and do not claim that the judge abused his discretion in deciding that transfer served "the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a).*fn2 They argue instead that the judge lacked power to transfer. Before addressing ourselves to this claim on the merits, however, there are procedural issues to be considered.
On December 5, 1968, well before any application to us, the clerk of the Southern District mailed the file in plaintiffs' action to the federal district court in Asheville, North Carolina, in accordance with Judge Wyatt's orders. The United States moves to dismiss the petition for a writ of mandamus on the ground that this court does not have "jurisdiction" to hear it because the action is no longer pending in the Southern District. The question thus posed is not an easy one, for we have indicated that if a case has actually been physically transferred before application for a stay or a writ is made, petitioner is too late and the application will be denied. See Drabik v. Murphy, 246 F.2d 408 (2d Cir. 1957). But cf. A.C. Nielson Co. v. Hoffman, 270 F.2d 693, 695 (7th Cir. 1959). The stated reason given in Drabik was that, after physical transfer, there is nothing left for the district court to act upon. Obviously, there is a practical justification for requiring immediate application for interim relief, such as a stay; doing so prevents unnecessary delay in resolving the confusion that a mandamus proceeding inevitably entails, particularly when it involves a transfer of a case to another district. Cf. In re Southwestern Mobile Homes, Inc., 317 F.2d 65 (5th Cir. 1963) (per curiam). Since General Rule 7 of the Southern District,*fn3 upon which the United States relies, contemplates a period of five days between an order of transfer and the physical execution thereof, it is unfortunate that plaintiffs sought no stay. Certainly, were the issue before us abuse of discretion, plaintiffs' inaction would at the very least weigh most heavily with us in deciding whether to consider the application for relief. But we do not see how the district court rule can affect our jurisdiction.
In any event, the question here is whether the district court had power to order the transfer; when that is the issue, we reject the argument of the United States that the clerk's physical transfer of the file destroyed our jurisdiction. As we said in Foster-Milburn Co. v. Knight, 181 F.2d 949, 951 (2d Cir. 1950), if the district court had no power to transfer, "the transfer will be a nullity," the transferee court "will have no jurisdiction . . ., and any judgment it may enter will be void." The contrary intimations of lack of jurisdiction in Drabik and Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 178 F.2d 866 (2d Cir. 1950), were expressed in the context of a claimed abuse of discretion. Of course, we do not mean to condone delay or to encourage efforts to overturn orders of district courts granting or denying transfer under section 1404(a); we have apparently never reversed such an order for abuse of discretion. See American Flyers Airline Corp. v. Farrell, 385 F.2d 936, 938 (2d Cir. 1967), cert. denied, 390 U.S. 1012, 20 L. Ed. 2d 162, 88 S. Ct. 1262 (1968); A. Olinick & Sons v. Dempster Bros., 365 F.2d 439, 444 (2d Cir. 1966). Even where the issue is lack of power, those attacking a transfer order should move swiftly for interim relief rather than allow two months to go by, as here, before seeking to set it aside.*fn4 Moreover, when the question is the district court's power, a proper, although not exclusive, procedural approach is to seek an interlocutory appeal under 28 U.S.C. § 1292(b), see A. Olinick & Sons v. Dempster Bros., supra, 365 F.2d at 442-43, as was done in Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir. 1968), cert. denied, 393 U.S. 977. 89 S. Ct. 444, 21 L. Ed. 2d 438, 37 U.S.L.W. 3209 (1968). However, because of the fundamental nature of the objections raised to Judge Wyatt's transfer orders, we have decided to deal with the substance of the application.
Petitioners' arguments on the merits stem from the interaction of North Carolina state law and the fact that six of the plaintiffs' decedents died intestate. North Carolina law requires any action for the wrongful death of an intestate decedent to be brought by a resident of North Carolina appointed as administrator by a North Carolina court.*fn5 Plaintiffs-petitioners, all New York residents, argue that at least some of them could not have filed suit in North Carolina because of that local law and, since defendant Piedmont is a North Carolina corporation, diversity jurisdiction would have been lacking had North Carolina residents been appointed administrators. Petitioners' claim that Judge Wyatt exceeded his powers runs as follows: (1) Section 1404(a) allows transfer of an action only to a district "where it might have been brought"; (2) for the reasons stated above, some plaintiffs could not have sued in the first instance in the district court in North Carolina; (3) therefore, the judge had no power to transfer the action to that court.
Judge Wyatt held that the issue is governed by Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964). In that case, 40 wrongful death actions arising out of an airplane disaster in Massachusetts had been instituted in the Eastern District of Pennsylvania by the personal representatives of the crash victims. Defendants moved to transfer the actions to the District of Massachusetts; plaintiffs resisted on the ground that Massachusetts was not a district in which the actions "might have been brought" because the plaintiffs had not qualified -- although they could have -- to bring such a suit under the laws of Massachusetts. Upon petition for a writ of mandamus, the court of appeals sustained this objection and vacated the district court's order of transfer. The Supreme Court reversed, holding, 376 U.S. at 624, that
the words "where it might have been brought" must be construed with reference to the federal laws delimiting the districts in which such an action "may be brought" and not with reference to laws of the transferee State concerning the capacity of fiduciaries to bring suit.
Accordingly, the transferee district was a place where suit "might have been brought" because there was no question of the propriety of venue, service of process, or jurisdiction of the parties.
We agree with Judge Wyatt that Van Dusen controls and permits the transfer ordered here. As the quoted language makes clear, the Court was there engaged in statutory construction, concluding that the phrase "where it might have been brought" simply does not refer to such state law rules as those concerning ...