Before BIGGS, Chief Judge, and MARIS, GOODRICH, MCLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
BIGGS, Chief Judge: The question presented by the cases at bar is whether the United States District Court for the District of Delaware on a motion made by all of the defendants, opposed by the plaintiffs, as the Power under Section 1404(a) of Title 28, United States Code, to transfer to an appropriate United States district court in Texas two suits*fn1 based on the antitrust laws of the United States. The trial court concluded that it lacked the authority to transfer the actions.*fn2 89 F.Supp. 278. We disagree.
Section 1404(a) states that "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district ... where it might have been brought." Section 12 of the Clayton Act, 15 U.S.C.A. § 22, provides that a suit under the antitrust laws against a corporation may be brought not only in the district of which it is an inhabitant but "also in any district where it may be found or transacts business", and that "all process in such cases may be served in the district of which ... [the corporation] is an inhabitant, or wherever it may be found." Cf. Section 4 of the Clayton Act, 15 U.S.C.A. § 15.
There are fourteen defendants, identical in each suit, in the Delaware actions. Ten were incorporated in Delaware; four, in New York. The trial court concluded that only nine defendants were transacting business in Texas and therefore venue could be laid in that State only as to them under Section 12 of the Clayton Act. It also found that five defendants were not inhabitants of Texas, could not be found and did not transact business there, and that "... the actions could not consequently have been originally brought against all of the defendants in any District Court in Texas."*fn3 The trial court interpreted Section 1404(a) in the light of the doctrine of Forum non conveniens which prohibits the dismissal of a suit unless there is a more convenient forum where it may be recommenced and maintained,*fn4,*fn5,*fn6 and limiting the statute by the phrase "might have been brought", refused transfer.
In Neirbo Co. v. Bethlehem Corporation, 308 U.S. 165, 167-168, it was held that the power of the federal courts to adjudicate controversies is granted by Congress and cannot be conferred by the consent of the parties, whereas the place where judicial authority is to be exercised relates only to the convenience of litigants and is subject to their disposition. A venue statute gives a "personal privilege" to a defendant which he may assert or waive at his election. Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179. Moreover, the doctrine of forum non conveniens means no more than that a court may resist an imposition upon its jurisdiction even when that jurisdiction is authorized by a general venue statute. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507.
The suits in the District of Delaware are based, as we have said, on the antitrust laws. Jurisdiction to adjudicate such controversies was conferred on all United States district courts by Sections 41(8) and (23) of Title 28, U.S.C., 1940 ed., now covered into Section 1337 of revised Title 28, United States Code. Suits embracing the identical subject matter could have been brought and, literally, "might have been brought",*fn7 by the plaintiffs against the defendants in any district court in Texas.Moreover, if brought, the suits could have been maintained*fn8 unless there had been seasonable objection to the venue by the defendants, for service of process under Section 12 of the Clayton Act could have been made wherever the defendants could have been found. Even if the doctrine of forum non conveniens be applied under the precise conditions required by Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507 (and Section 1404(a) was not then before the Supreme Court), those conditions are met by the instant circumstances: viz., the Texas court would have had the power to adjudicate the controversies and it would have had jurisdiction of all the defendants. By joining in the motion to transfer the defendants have waived any objection to Texas venue and have agreed to submit themselves to a Texas court. Therefore, suits embracing the same parties and the same subject matter could now be brought and maintained in Texas. Indeed they could have been brought in Texas on November 6, 1947 and March 29, 1948, the dates on which the actions were commenced in the District of Delaware, and could have been maintained in Texas if no objection had been timely made to the venue. The difference between the phrase "might have been brought" of Section 1404(a) and that employed in this opinion, "could now be brought", is no more than one of tense and grammar, the imperfect subjunctive as compared to the pluperfect subjunctive. Surely Congress did not intend the effect of an important remedial statute to turn upon tense or a rule of grammar.*fn9
We do not put our decision on the ground advanced by Judge Ryan in Ferguson v. Ford Motor Company, D.C.S.D.N.Y., 89 F.Supp. 45.*fn10 Both Judge Ryan and Judge Rodney seem to take the position that consent to venue is a nullity where Section 1404(a) is concerned. We think that consent is to be given the same effect under Section 1404(a) as it would receive under any other venue statute. We cannot suppose that Congress could have intended otherwise. Bear in mind that no problem of service of process is presented in connection with private civil antitrust suits for Section 12 of the Clayton Act, as we have indicated, authorizes service wherever a defendant may be found. Service of process has no connection with venue.
Finally and in conclusion on this issue we call attention to the provisions of Section 1406. Subsection (a) provides for transfer of a case in which venue has been laid in the wrong district to any district in which the suit could have been brought. We emphasize the provisions of subsection (b), however, which state that nothing in Chapter 87, the venue chapter of Title 28, "... shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue." If jurisdiction to adjudge the controversy between the parties be in the court in which suit is brought, no matter whether venue be properly laid in that district or not, the court will be deemed to have jurisdiction of the persons of the defendants and they will be treated as having submitted themselves to jurisdiction if there be no seasonable objection. We can conceive of no reason in view of the provisions of Section 1406 why candid-voiced express consent should not be deemed to be as potent an actor in the drama of venue as puling no seasonable objection .*fn11
It has been urged that the District Court has power, irrespective of the defendants' consent, to transfer the Delaware suits to Texas. This is stated upon the broad ground that they "might have been brought" there in the sense that a district court in Texas has jurisdiction of the subject matter and therefore would accept the filing of a complaint in such a suit even though the suit might later fail if an objection to venue were made or if for any reason service upon the defendants could not be had. We neither accept nor reject this contention for we are not here called upon to delimit the extent of the power which Section 1404(a) has conferred upon the district courts. The defendants' consent is sufficient to support the transfer here. Accordingly the extent of the power of a district court to transfer a case under Section 1404(a) to a district to which the defendant does not consent we leave for later determination in cases which squarely present the issue. Cf. McCarley v. Foster-Milburn Co., D.C.W.D.N.Y., 89 F.Supp. 643, and the disposition of the application for mandamus against Judge Knight, sub nom. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949.
The order complained of is not appealable under Section 1291 or Section 1292, Title 28, United States Code. "The general rule is well settled that an order granting or refusing change of venue is not appealable unless expressly made so by statute." Jiffy Lubricator Co. v. Stewart-Warner Corporation, 4 Cir., 177 F.2d 360, 362. The order is interlocutory and there is here no "final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547. As was pointed out in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 330, the order would "... probably be incorrectible on appeal [after final judgment], for petitioners could hardly show that a different result would have been reached had the suit been transferred." The Delaware district court has refused to exercise its authority to determine issues of justice and convenience raised by Section 1404(a) when it is its duty to do so. Ex parte Peru, 318 U.S. 578; Roche v. Evaporated Milk Assn., 319 U.S. 21. The Delaware district court possesses the power to transfer the causes but has refused to exercise that power because it believes it does not possess it. Mandamus is the proper remedy. Cf. Perkins v. Elg, 307 U.S. 325. The writ is as appropriate to compel the exercise of discretion as it is to correct the abuse of discretion. Cf. Webster Eisenlohr v. Kalodner, 3 Cir., 145 F.2d 316.
It will be necessary, therefore, for the district court to consider whether a transfer of the Delaware suits to an appropriate district in Texas will serve the convenience of the parties and witnesses and is in the interest of justice. The principles and conclusions expressed in this opinion will not give the defendants a right to choose their forum, a privilege heretofore exercised at least to some degree by plaintiffs. On the contrary our decision puts in the hands of an impartial federal tribunal the determination as to where the suits can best be tried.
We assume that it will be necessary to issue the writ, unless application for certiorari be made, and that the court below will vacate the order refusing the transfer and will proceed to consider in the light of convenience of the parties and witnesses and in the interest of ...