Shibo Hayashi v. Red Wing Peat Corporation

Appellee moved to dismiss an antitrust action, as to appellee, for improper venue. The motion was granted. We affirm on the ground stated in the district court’s opinion, Hayashi v. Sunshine Garden Products, Inc., 285 F.Supp. 632 (W. D.Wash.1967).

Appellants contend that the district court erroneously believed that it was required to pass upon the motion without allowing discovery.

Of course the trial court may permit discovery on such a motion, and indeed should do so where discovery may be useful in resolving issues of fact presented by the motion, particularly since the necessity of resolving such issues is created by the movant himself and the relevant evidence is peculiarly within the movant’s possession. H. L. Moore Drug Exchange, Inc. v. Smith, Kline & French Lab., 384 F.2d 97 (2d Cir. 1967); Surpitski v. Hughes-Keenan Corporation, 362 F.2d 254, 255 (1st Cir. 1966); Collins v. New York Central System, 117 U.S.App. D.C. 182, 327 F.2d 880, 883 (1963) ; Monteiro v. Sociedad Mar San Nicolas, S.A., 254 F.2d 514, 517 (2d Cir. 1958); Urquhart v. American-La France Foamite Corporation, 79 U.S.App.D.C. 219 , 144 F. 2d 542, 544 (1944); 4 Moore, Federal Practice fí 26.09 [.2-3] at…