No. 26660.United States Court of Appeals, Second Circuit.Motion Argued December 13, 1960.
Decided December 23, 1960.
Kirlin, Campbell Keating, New York City, for petitioner.
DiCostanzo Klonsky, Brooklyn, N.Y., for respondent.
Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges.
The writ is granted.
Petitioner, United States Lines, moved in the District Court for the Southern District of New York, under 28 U.S.C. § 1404(a), to transfer an action in which it was defendant to the District Court for the Eastern District of South Carolina. The motion was denied by Judge MacMahon in a memorandum order of June 28, 1960 because the defendants had failed to specify the names and addresses of the witnesses whose convenience might be served by the transfer. Judge MacMahon stated in his memorandum order that the motion was denied “without leave to renew,” and in a supplemental long form order of July 13, 1960 that the denial was “with prejudice.”
The United States Lines now moves in this court for a writ of mandamus or prohibition ordering Judge MacMahon to strike from his orders the language which prevents a renewal of its motion to transfer.
The writ is granted with directions to strike from the memorandum of June 28, 1960 the words “without leave to renew,” and to strike from the district court’s order of July 13, 1960 the words “with prejudice.” The district court is not precluded from hearing and considering any subsequent motion, if made, for transfer on the facts then presented. Cf. Sypert v. Miner, 7 Cir., 266 F.2d 196, certiorari denied, 1959, 361 U.S. 832, 80 S.Ct. 82, 4 L.Ed.2d 74.
It may well be that facts will be developed in the course of pre-trial procedures which would furnish grounds for further consideration of a motion under 28 U.S.C. § 1404(a).