Mandamus is the proper remedy when a transfer has been ordered in violation of the legal limitations of § 1404(a). Van Dusen v. Barrack, 376 U.S. 612, 615 n. 3, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Johnson Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960). The dissent asserts that mandamus is an extraordinary remedy used only in drastic situations to prevent judicial usurpation of power.
American Concrete Agricultural Pipe Ass'n v. No-Joint Concrete Pipe Co., supra; Shapiro v. Bonanza Hotel Co., supra; CMAX, Inc. v. Hall, 290 F.2d 736 (9th Cir. 1961). General Tire Rubber Co. v. Watkins, 373 F.2d 361 (4th Cir. 1967); McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir. 1965); Cessna Aircraft Co. v. Brown, 348 F.2d 689 (10th Cir. 1965); Johnson Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960); Chicago, R.I. Pac. R.R. v. Igoe, 220 F.2d 299 (7th Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955); In re Josephson, 218 F.2d 174 (1st Cir. 1954); Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873 (1951); Atlantic Coast Line R.R. v. Davis, 185 F.2d 766 (5th Cir. 1950); Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). It is argued that this practice of review by mandamus should be re-examined in light of the Supreme Court's sharp criticism of undue resort to mandamus in Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).
The statute clearly requires that venue be laid where "the defendant * * * has a regular and established place of business," not where the defendant's employee owns a home in which he carries on some of the work that he does for the defendant. See Knapp-Monarch Co. v. Casco Prods. Corp., 342 F.2d 622, 625 (7th Cir. 1965); General Radio Co. v. Superior Elec. Co., 293 F.2d 949, 950-951 (1st Cir. 1961); Johnson Johnson v. Picard, 282 F.2d 386, 388 (6th Cir. 1960). Cyanamid also urges that even if venue does not exist under 28 U.S.C.A. § 1400(b), there is venue under 28 U.S.C.A. § 1391(b) as amended in 1966 to include the phrase, "district * * * in which the claim arose."
Thus, in Blaw-Knox Co. v. Lederle, 6 Cir., 151 F.2d 973, it was held that the District Court did not have jurisdiction of a patent infringement suit against a defendant which had not committed acts of infringement in the state although it had an established place of business therein and therefore a writ of prohibition might be issued requiring the District Court to revoke its order holding the defendant amenable to process and to dismiss the suit; and in Fink v. Igoe, 7 Cir., 279 F.2d 504, a writ of mandamus was issued directed to the District Judge before whom the case had been tried requiring him to dismiss the action of patent infringement, because it was shown that the defendant did not reside in and did not have a regular and established place of business within the district where it was alleged that infringement of the patent had taken place. See also Johnson Johnson v. Picard, 6 Cir., 282 F.2d 386. The action of this court in Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, in denying a petition for a writ of mandamus was based, as our records show, upon the holding that jurisdiction against a corporate defendant in a suit for patent infringement may be based on the general venue provision as to corporations contained in 28 U.S.C. § 1391(c); but this view was subsequently disapproved in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786, holding that this section has no application to cases of patent infringement.
The question is properly presented in this Court by petition for writs of mandamus and prohibition. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254; La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed. 2d 290; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Johnson Johnson v. Picard, 6 Cir., 282 F.2d 386. District Judge Taylor found, in an opinion filed October 6th "It is further of the opinion that, in the interest of justice, plaintiff's motion to transfer should be sustained and the case transferred from Knoxville to Meridian, Mississippi."
Roth, 1978 W.L. 1133 at 1. A transfer is precluded unless jurisdiction and venue can be established against all defendants in the transferee court. Hoffman v. Blaski, 363 U.S. 335, 343-344 (6th Cir. 1960); Johnson Johnson v. Piccard, 282 F.2d 386, 388 (1960); Sunbelt Corp. v. Noble, Denton Assoc., Inc., 5 F.3d 28, 33 (3rd Cir. 1993); Camasso v. Dorado Beach Hotel Corp., 689 F.Supp. 384, 386 (D. Del. 1988); Ferri v. United Aircraft Corp., 357 F.Supp. 814, 816 (D. Conn. 1973). Here, Defendants make a cursory request for transfer under § 1404(a) without offering any analysis or evidence on the elements relevant to the Court's decision.
Grand Kensington, LLC v. Burger King Corp, 81 F.Supp. 2d 834, 836 (E.D. Mich. 2000); Roth v. Bank of Commonwealth, Fed. Sec. L. Rep. (CCH) ¶ 96716, 1978 W.L. 1133, *1 (E.D. Mich. 1978). An action could have been brought in the transferee district if 1) the transferee court has subject matter jurisdiction; 2) venue is proper there; and 3) service of process can be made on the defendants. Roth, 1978 W.L. 1133 at 1. A transfer is precluded unless jurisdiction and venue can be established against all defendants in the transferee court. Hoffman v. Blaski, 363 U.S. 335, 343-344 (1960); Johnson Johnson v. Piccard, 282 F.2d 386, 388 (1960); Sunbelt Corp. v. Noble, Denton Assoc., Inc., 5 F.3d 28, 33 (3rd Cir. 1993); Camasso v. Dorado Beach Hotel Corp., 689 F.Supp. 384, 386 (D. Del. 1988); Ferri v. United Aircraft Corp., 357 F.Supp. 814, 816 (D. Conn. 1973). Plaintiff presented no evidence that venue is proper in North Carolina or that Defendant is subject to service in that jurisdiction.
The court notes that Converse, a resident of Montana, has voiced no objection to the requested transfer. Cognizant of the fact that transfer of a multiple defendant case is appropriate only if the transferee district has jurisdiction over all the defendants, see, Johnson Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960), the court concludes that Converse would be subject to jurisdiction in the State of Washington given his extensive business "ties" in that state. FACTUAL BACKGROUND
Finally, it should be noted that defendant cannot waive venue by moving to transfer the case under 28 U.S.C. § 1404(a). Johnson Johnson v. Picard, 282 F.2d 386, 388 (6th Cir. 1960); Annot., 7 A.L.R. Fed. 9, § 22[b] (1971). For the reasons stated we conclude that the claim in the present case can only be considered to have arisen in the Eastern District of Tennessee and not in Virginia.
The residence test of venue limits the residence of a corporation to its state of incorporation. Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); Johnson Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960). Accompanying its motion to dismiss, Ward attached an affidavit of Joseph B. Cejka, President of Ward. The affidavit states that Ward is incorporated in the State of New York and has no place of business in the Northern District of Ohio. President Cejka lists a number of. normal corporate activities, and alleges that none of them are carried out by Ward in the State of Ohio, including, but not limited to, allegations that Ward does not have an agent or other representative in the State of Ohio, nor does it have a telephone listing, an employee, a license to do business, real estate, or a bank account in the State of Ohio.