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UNITED STATES v. SWIFT & CO.

January 9, 1958

UNITED STATES of America
v.
SWIFT & COMPANY, Armour & Company, Wilson & Co., Inc., and the Cudahy Packing Company, et al., Defendants



The opinion of the court was delivered by: MCLAUGHLIN

This is a joint motion of defendants Swift and Armour to transfer the suit to the United States District Court for the Northern District of Illinois, Eastern Division.

The suit is an antitrust action by the United States against defendants Swift, Armour and others. It was filed in this court on February 27, 1920. On the same date the defendants filed answers denying unlawful acts, but also on the same date agreed to the entry of a consent decree, and said consent decree was thereupon filed on February 27, 1920. Thus, the filing of the Government's complaint, the defendants' answer and the consent decree occurred simultaneously on February 27, 1920. There was no trial. By the terms of this consent decree, defendants agreed not to engage in certain types of business activities in connection with the operation of their packing companies.

 On August 10, 1929, Swift and Armour filed petitions for certain modifications of the consent decree, said petitions being supplanted by amended petitions filed on April 2, 1930. On January 31, 1931, after a lengthy trial, Judge Jennings Bailey of this court entered an order granting, in part, the defendants motion for modification of the terms of the consent decree of 1920. The Supreme Court of the United States, on May 2, 1932, reversed the judgment of modification of the decree. United States v. Swift, 286 U.S. 106, 52 S. Ct. 460, 76 L. Ed. 999.

 In the opinion reversing Judge Bailey's order of modification of the 1920 decree the Supreme Court, speaking through Justice Cardozo, said (286 U.S. at page 119, 52 S. Ct. at page 464):

 'We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. * * * Life is never static, and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. * * * Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.'

 Since May 2, 1932, the consent decree of February 27, 1920 has remained unmodified, and so, also, has the decision of the Supreme Court announcing the controlling criterion to be employed in determining applications for modifications of said decree.

 In November and December 1956, defendants Swift, Armour and Cudahy filed motions and petitions for modifications of the consent decree. On September 9, 1957, the Government filed a motion for summary judgment. On the same date defendants Swift and Armour filed the joint motion to transfer, referred to above.

 This suit having been referred to this judge of this court in October, 1957 under special assignment to hear all motions and other proceedings therein, oral arguments on the joint motion of defendants Swift and Armour to transfer this case to the District Court for the Northern District of Illinois, Eastern Division, were fully presented by counsel for the movants, Swift and Armour, and for the respondent the Government.

 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.'

 The determination of the motion to transfer depends on two issues. First, does the court have power under Section 1404(a) to transfer this action and Second, if the court has that power should it exercise its discretion in favor of such transfer.

 The movants' basis for assertion of the possession of power by the court to order transfer rests upon the terms of Section 1404(a) above quoted. Reliance is placed on the grant of power to the court in the words of the statute to transfer 'any civil case' to another court for the reasons set forth in the statute as grounds therefor.

 Respondent makes the following concessions as to the power of transfer granted the ...


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