Before HASTINGS, Chief Judge, SCHNACKENBERG and SWYGERT, Circuit Judges.
We have before us for consideration five original and separate petitions filed herein, each naming the Honorable Joseph Sam Perry, United States District Judge for the Northern District of Illinois, Eastern Division, as respondent. Each petitioner seeks the issuance of a writ of mandamus against respondent. The five proceedings were ordered consolidated for oral argument and will be treated together in this order.
Each petition was supported by a written memorandum brief and attached exhibits. Respondent filed written answers in response to rules to show cause, supporting memorandum briefs and attached exhibits and appendix. Oral arguments were heard by the court and the petitions were thereupon submitted for decision.
Upon careful consideration of the record and briefs, with supporting documents, filed in this court, the oral arguments made in open court by all parties, and having conferred thereon, the court will enter an order that each of said petitions for a writ of mandamus directed to respondent be denied.
The petitions in each of the five mandamus proceedings all involve orders entered by respondent in Civil Action No. 66-C-2125, entitled Brink's Incorporated, et al. v. Grinnell Corporation, et al ., pending in the United States District Court for the Northern District of Illinois, Eastern Division. This underlying suit below is a private antitrust action brought by plaintiffs, Brink's Incorporated and Brink's Express Company of Canada, Limited, under Sections 4 and 16 of the Clayton Act, 15 U.S.C.A. §§ 15, 26, for treble damages and injunctive relief as a result of alleged violations by defendants of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1,2.
Five corporations, petitioners in the instant proceedings, were named as defendants in the suit below: Automatic Fire Alarm Company of Delaware (AFA), Holmes Electric Protective Company (Holmes), Dominion Electric Protection Company (DEP), Grinnell Corporation (Grinnell) and American District Telegraph Company (ADT).
AFA, Holmes and DEP are, respectively, the petitioners in related proceedings, Nos. 16509, 16510 and 16520. On August 8, 1967, respondent entered the contested orders denying the motions of AFA, Holmes and DEP to dismiss for lack of proper venue. In the alternative, Holmes requested and was denied a transfer of its part of the case to the United States District Court for the Southern District of New York.
Grinnell and ADT are, respectively, the petitioners in related proceedings, Nos. 16512 and 16521, in which they request transfer of the action below to the Southern District of New York, pursuant to 28 U.S.C.A. § 1404(a).Transfer was denied by respondent.
Extensive briefs and affidavits were filed by all parties prior to the entry of the contested orders. On August 18, 1967, all five petitioners herein filed motions below for reconsideration, and alternatively, for certification of the orders for an interlocutory appeal, pursuant to 28 U.S.C.A. § 1292(b). Oral argument on such motions was heard by respondent, who then requested all parties to file proposed findings and conclusions, which was done. Subsequently, on October 12, 1967, respondent denied the motions to reconsider and for certification.
The several instant petitions for writs of mandamus were thereafter filed in the court.
A full examination of the record and briefs before us in this matter reveals that there was and now is a material and substantial dispute of the material facts in issue. All such disputes were before respondent in his consideration of the questions raised below. These disputed facts directly relate to relevant matters involved in the determination of motions to quash service of process for insufficient service, the resolution of motions to dismiss for lack of proper venue and the consideration of factors pertinent to the right of transfer to another district.
On questions concerning disputed facts, such matters lie within the province of the trial court and, absent clear error by the trier of the facts, we may not exceed the bounds of our jurisdiction by entering into a trial de novo of such factual questions. Mandamus will not lie to reach such a result.
On questions concerning the right to transfer the action to another district, absent a clear and convincing abuse of discretion by the trial court, mandamus will not lie to reach and reverse a denial of transfer below.
The orders challenged in Nos. 16509, 16510 and 16520, denying motions to dismiss for lack of proper venue are interlocutory and generally not appealable. Petitioners here seek to obtain immediate review by mandamus under the All Writs Act, 28 U.S.C.A. § 1651(a). However, "it is clear that only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Will v. United States , 389 U.S. 90, 94 (1967). We fail to find any claim or evidence of "usurpation of power" by respondent; merely an unestablished assertion at best that respondent erred in his rulings. Such a de novo determination by mandamus may not be utilized to avoid piecemeal appeals, Roche v. Evaporated Milk Ass'n , 319 U.S. 21, 31 (1943), the right to the writ not having been shown to be ...