6547. Menestrex capsules.    (F.D.C. No. 43564.    S. No. 56-778 P.)
QUANTITY:   660   12-capsule btls. and 108   25-capsule btls. at Atlanta, Ga.
SHIPPED:   6-8-59 and 7-13-59, from Nashville, Tenn., by Rex Laboratory.
LABEL IN PAET : "Menestrex * * * Contains: Potassium Permanganate Qui- 
nine Sulphate."
LIBELED :   9-25-59, N. Dist. Ga.; amended libel filed 2-2-61.
CHARGE: 502(a)-when shipped, the bottle label bore false and misleading 
representations that the article was an adequate and effective treatment for 
easing distress in scanty or functionally difficult menstruation; 502(f) (1) - 
while held for sale, the labeling failed to bear adequate directions for use and 
the article was not exempt from that requirement; 503(b)(4)-while held 
for sale, the article was subject to 503(b) (1) (B) and its label failed to bear 
the statement "Caution: Federal law prohibits dispensing without pre- 
scription."
DISPOSITION : Rex Laboratory, claimant, filed an answer denying that the 
article was misbranded as alleged and moved for a transfer of the case to 
another district    On 12-16-59, the court issued the following order:
HOOPER, District Judge: "Claimant has moved to transfer the trial of this 
action to 'a proper district of reasonable proximity to his principal place of 
business,' his business being located in Nashville, Tennessee, in the Middle 
District of Tennessee.
"He suggests removal to the Winchester Division of the Eastern District of 
Tennessee.
"His motion is based upon provisions of 21 U.8.C.A. ? 334(a), which makes 
it mandatory upon the Court in a case of this nature to transfer the case, but 
there is an exception made in cases 'when such misbranding has been the basis 
of a prior judgment in favor of the United States in a . . . libel for con- 
demnation proceedings under this chapter.'
"The Government resists the removal upon the sole ground that allegedly 
there have been 'prior judgments in this district condemning the exact same 
product.' Attached to the Government response are copies of three libels filed 
in this district concerning the same shipper and the same product and in two 
of the libels there is involved the same alleged misbranding, to-wit, that the 
libels 'are false and misleading since the article is not effective' in the treat- 
ment of the ailments involved.
"However, one of these libels was filed October 20, 1948, and it does not 
appear whether a judgment was taken or whether the proceeding was even 
opposed. The other libel was filed October 28, 1948, nothing appearing but 
copy of the libel petition.
"No cases are cited to this Court containing the language in 21 U.S.CA. 
? 384(a) as to 'such misbranding.' However, this Court does not believe that 
a misbranding made the subject matter of libel proceedings in 1948 can be 
considered as the same misbranding involved in a libel filed September 25, 
1959.   As the record now stands the case would have to be removed.
"Removal of the case will be delayed, however, for a period of twenty days, 
during which the Government may make known to this Court whether or not 
there is any ground for retaining the case in this Court and constituting 'just 
cause' under the aforesaid statute.
"If the case is removed it is not the intent of the law that the defendant 
should be able to select the particular court to which it should be removed, 
that being left to the discretion of this Court. It would be the purpose of 
this Court to remove the case to the United States District Court adjoining 
the one in which defendant's place of business is located which has at the 
present time the smallest number of cases pending, and therefore defense 
counsel is directed to ascertain (from official reports of the Administrative 
Office, or otherwise) which district that would be."
The above order was vacated on 1-22-60, by the following order:
HOOPEE, District Judge: "Order of Court of December 16, 1959 is hereby 
vacated and set aside after further study of this question and briefs submitted 
by all parties.
"The single question confruiting the Court is whether or not claimant of 
the allegedly adulterated goods has a right under 21 U.S.CA., ? 334(a) to 
transfer this action from the Northern District of Georgia (the only District 
in which the goods in question were seized) to 'a district of reasonable prox- 
imity to the claimant's principal place of business' as provided in said statute.
"The Government, contesting the motion to transfer, has now cited for the 
first time the case of Fettig Canning Company vs. StecTcler, 188 F. 2d, 715 in 
which this matter is thoroughly discussed. While the case just cited was a 
motion to transfer trial of a case such as this pursuant to 28 U.S.CA., ? 1404 
(a), a full and complete discussion was also had concerning 21 U.S.CA., 
? 334(a) herein involved.
"The point which was made clear, however, in the Fettig case, supra, is this:
"The Condemnation proceedings in question constitute an action in rem 
and the jurisdiction of the Court is limited to the district in which the goods 
were actually seized. As the goods in the cited case had moved from Indiana 
to Missouri and were seized in the latter state, the Court held that proceedings 
could not be transferred from Missouri to Indiana as attempted, for the 
reason that Indiana was not the jurisdiction where 'the action might have 
been brought' originally (see p. 717). The Court said that were it assured 
that the goods were subject to seizure in the Southern District of Indiana it 
would make no difference.
"While the foregoing applies to the general statute as to transfers, the 
Court further stated:
But when we come to ? 334, the one here involved, the proceeding is 
directed at an article and not a person, and while the person who claims 
to be the owner or interested in the libeled goods is permitted to come 
in as a claimant, it is not necessary that such person be a party to the 
proceeding. All that is required is that the libeled articles be found in 
the District, and this limitation upon jurisdiction appears to have been 
imposed deliberately and not as a result of any inadvertence.
"In the cited case it is also pointed out that 'Congress has made no provisions 
by which such a decree could be made effective beyond the territory of the 
district wherein the case was tried.'
"While ? 334(a) does contain a proviso that no libel for condemnation shall 
be instituted for misbranding 'if there is pending in any court a libel for 
condemnation proceedings . . . based upon the same misbranding,' and also 
provides that 'not more than one such proceeding shall be instituted if no 
such proceeding is pending,' there is an exception to the effect that such limita- 
tions shall not apply 'when such misbranding has been the basis of a prior 
judgment in favor of the United States in a libel for condemnation proceedings
under this chapter.' While a great deal of discussion has been had by counsel 
for both sides on the question of venue, it seems to this Court that it pertains 
not to venue so much as to multiplicity. It makes it clear, however, that the 
fact, as shown by this record, that there have been several prior judgments 
against the same claimant growing out of the same misbranding of the same 
articles, that is no obstacle to the present proceedings. The language relied 
upon by defendant commanding a transfer of the case, must be taken however 
in the light of the limitation that it applies 'in any case where the number of 
libels for condemnation proceedings is limited as above provided.' The lan- 
guage would seem to indicate that if there were more than one seizure it would 
be the duty of the trial judge to transfer the action from a jurisdiction remote 
from the claimant's residence to one in reasonable proximity to the same. 
However, no ruling to this effect is made as the Court could be in error as 
to the meaning of the language.
"The Court's refusal to granting the change of venue is therefore placed 
upon the ground that this is an action in rem and the jurisdiction of this 
Court is based upon the fact that the seizure was had in this district and 
this Court cannot transfer the case to another district where no seizure was 
had, even though a seizure in such other district could have been had.
"Motion for change of venue is denied."
The Government subsequently filed written interrogatories which were 
answered by the claimant on 6-6-60. Thereafter, the libel was amended to 
include the charges of misbranding under 502(f)(1) and 503(b)(4) as set 
forth above, and, on 3-7-61, a motion for summary judgment was filed by the 
Government on the basis that there were no genuine issues of material fact 
precluding judgment for the Government. On 3-22-61, the court granted the 
Government's motion for summary judgment and ordered the article con- 
demned and destroyed.