Opinion
1:02-cv-120-4(WLS)
September 8, 2003
ORDER
Presently pending before the Court is Plaintiffs' Emergency Motion: 1) For Order Staying Transfer of Original Court File to Eastern District of Missouri to Permit Timely Filing by Plaintiffs of a Motion for Reconsideration and Amendment to Include Certification under 28 U.S.C. § 1292(b) for Interlocutory Appeal; and 2) in the Alternative, for a Request by this Court to the Eastern District of Missouri to Return the Court File to this District so as to Allow this Court to Entertain Plaintiffs' Motion for Reconsideration to Include Certification under 28 U.S.C. § 1292(b) and Brief In Support Thereof. (Doc. No. 365). For the reasons stated below. Plaintiffs' Emergency Motion is DENIED.
I. PROCEDURAL HISTORY
On April 5, 2002, twenty (20) Georgia farmers ("Plaintiffs") filed a complaint against Defendants, Monsato Company ("Monsanto"), its successor by merger Pharmacia Corporation ("Pharmacia"), and Delta and Pine Land Company ("Delta Pine") alleging that the cotton crop grown from seed produced and sold by Delta Pine, which contained the patented gene technology of Monsanto, experienced severe failure or reduction in yield. (Doc No. 1), On May 28, 2002, Defendants filed an initial motion to transfer said action to the United States District Court for the Eastern District of Missouri pursuant to a forum selection clause found in Monsanto's Technology Agreement and 28 U.S.C. § 1404(a) (1993 Supp. 2002). (Doc. No. 9). During the August 8, 2002 discovery and scheduling conference, the parties requested to stay discovery on the merits, but allow discovery as to issues of transfer of venue only. (Doc. No. 27). After completion of discovery, the Court denied Defendants' original motion to transfer without prejudice in lieu of Defendants' amended motion to transfer. (Doc. No. 319). Plaintiffs opposed the transfer and challenged the enforceability of the forum selection clause. (Doc. No. 230). Plaintiffs also filed seven (7) motions to strike statements and/or exhibits submitted by Defendants in support of their amended motion to transfer. (Doc. Nos. 233, 238, 239, 241, 351, 352, and 353). On August 25, 2003, this Court denied Plaintiffs' motions to strike and granted Defendants' amended motion to transfer venue to the United District Court for the Eastern District of Missouri. (Doc. No. 364). This Court thereupon ordered the transfer of this action to the Eastern District of Missouri on August 26, 2003. This Court has determined that the Eastern District of Missouri has already docketed the action asMcNair, et al v. Monsanto Company, et al, Civil Action No. 03-cv-1211 (E.D. Mo. filed August 28, 2003), and has sent each party a "Notice of Case Being Filed" (E.D. Mo. Doc. No. 366).
II. DISCUSSION
In considering a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), the burden is on the moving party to establish the propriety of the transfer. In re Ricoh Corporation, 870 F.2d 1570 (11th Cir. 1989); Martin v. South Carolina Bank, 811 F. Supp. 679 (M.D.Ga. 1992). Section 1404(a) requires the court to consider three factors: (1) the convenience of the parties; (2) the i convenience of the witnesses; and (3) the interest of justice.Bell v. K-Mart Corp., 848 F. Supp. 996, 998 (N.D.Ga. 1994). Merely transferring the burden from one party to another or showing that the action commenced elsewhere is insufficient to transfer venue. Id.
Generally, a plaintiff's choice of forum is not disturbed unless it is outweighed by other considerations. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Robinson v. Giarmarco Bill P.C., 74 F.3d 253, 260 (11th Cir. 1996) (citations omitted); In re Ricoh Corporation, 870 F.2d at 572. Once such consideration, a forum selection clause, while not dispositive, is entitled to substantial consideration. P S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003); Nemo Assocs. v. Homeowners Mktg. Servs. Int'l Inc., 942 F. Supp. 1025, 1028 (E.D.Pa. 1996). The decision to transfer a case under 28 U.S.C. § 1404(a) rests in the sound discretion of the trial judge based upon a "flexible and individualized analysis" of "a number of case-specific factors." Stewart Org., Inc. v. Richoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988).
Once the files in a case are physically transferred to the district court in the transferee Ii district, the transferor court loses all jurisdiction over the case, including the power to review the transfer.Roofing Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 988-89 n. 10 (11th Cir. 1982); In Re Nine Mile Limited, 673 F.2d 242, 243 (8th Cir. 1982); In Re S.W. Mobile Homes, 317 F.2d 65, 66 (5th Cir. 1963) (per curiam). The date the papers in the transferred case are docketed in the transferee court, not the date of the transfer order, determines the effective date that jurisdiction in the transferor court is terminated. Chrysler Credit Corp. v. Country Chrysler. Inc., 928 F.2d 1509, 1517 (10th Cir. 1991). Consequently, the transferor court no longer retains the power to request the return of the files or to rule upon any motions.Id.
Compare Robbins v. Pocket Beverage Co., 779 F.2d 351, 355 (7th Cir. 1985) (the district court retained jurisdiction to vacate its transfer order where the motion for reconsideration was granted before the transferred case was received by the transferee court).
The Clerk's Office for the United States District Court for the Middle District of Georgia, upon entry of the transfer order, forwarded the case to Missouri which divested this court of jurisdiction. There is no local rule in the Middle District of Georgia requiring the Clerk to retain a file for a specified period before sending it on to another district court and no stay of the transfer order was in effect at the time the Clerk sent the file to Missouri. Cf. In Re Nine Mile Limited, 673 F.2d at 244 (the physical transfer of the file was premature because it was sent in violation of the Clerk's own policy andNine Mile's directive to wait a reasonable period of time before transferring case files after a transfer order is entered), Although some circuit courts delay the transfer of case files for a short period of time to permit a motion for reconsideration, no circuit court has held that prompt transfer is unlawful or ineffective. See Chrysler Credit Corp. V. Country Chrysler. Inc., 928 F.2d at 1509; Roofing Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d at 982;Technitrol, Inc. v. McManus, 405 F.2d 84 (8th Cir. 1968).
This Court's interlocutory order was not final, and, therefore, not appealable under 28 U.S.C. § 1291. See, e.g., Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2nd Cir. 2000). Moreover, the transfer order is not appealable under 28 U.S.C. § 1292(b) because the order did not involve a "controlling question of law" which would have materially altered the ultimate termination of the case. Finally, the Eleventh Circuit noted in Roofing Sheet Metal, "when a case is transferred between circuits, Mt is well established that a transferee court cannot directly review the transfer order itself.'" 689 F.2d at 983.
III. CONCLUSION
Plaintiffs' Emergency Motion (Doc. No. 365) should be, and hereby is, DENIED.