Opinion
No. 7379. (Original).
October 24, 1969.
Robert D. Power, Boston, Mass., with whom Stanton T. Lawrence, Jr., Charles E. McKenney, New York City, Peabody Arnold, Boston, Mass., and Pennie, Edmonds, Morton, Taylor Adams, New York City, were on petition, for petitioner.
Melvin R. Jenney, Boston, Mass., with whom Kenway, Jenney Hildreth, Boston, Mass., was on brief, for American Biltrite Rubber Co., Inc., respondent.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This is a petition for mandamus by which petitioner seeks review of an order refusing a transfer to another district under 28 U.S.C. § 1404(a). The action appears to be an uncomplicated design patent case; the transfer is sought for the convenience of witnesses.
Petitioner makes a respectable showing. Nonetheless, we do not regard this an exceptional case, warranting what is customarily characterized as extraordinary relief. The existence of interlocutory appeal procedure under 28 U.S.C. § 1292(b) of itself emphasizes the heavy burden on one who seeks mandamus on matters that come within the possible ambit of that statute.
The petition is denied. We do not determine the merits of petitioner's claim. If it does reach us by ordinary process it will be open, if we find the district court committed error in refusing transfer, to consider compensation by way of reimbursement for the expense of bringing essential witnesses to Boston even though, on the ultimate issues, defendant does not prevail.