Opinion
No. 02-1811 (JRT/FLN)
March 4, 2003
Justin L. Templin, HOFF, BARRY, KUDERER, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN 55344, for plaintiff.
Quentin M. Rhoades, SULLIVAN, TABARACCI RHOADES, P.C., 1821 So. Avenue West, 3rd Floor, Missoula, MT 59801, and M. Gregory Simpson, SIEGEL, BRILL, GREUPNER, DUFFY FOSTER, P.A., 1300 Washington Square, 100 Washington Avenue South, Minneapolis, MN 55401, for defendant.
ORDER DENYING CERTIFICATION OF INTERLOCUTORY APPEAL
On January 6, 2003, this Court denied defendant's motion to dismiss or transfer venue to the District of Montana. Defendant requested permission to file a motion for reconsideration, which the Court denied on February 10, 2003. Defendant now requests that this Court certify the denial of a change of venue for immediate appeal pursuant to 28 U.S.C. § 1292(b). For the reasons discussed below, defendant's motion for certification of order denying change of venue is denied.
DISCUSSION
Decisions to grant or deny transfer pursuant to 28 § 1404(a) are not "final orders" and as such, they are not immediately appealable under 28 U.S.C. § 1291. See United States Fire Ins. Co. v. American Family Life Assur. Co. of Columbus, Georgia, 787 F.2d 438, 439 (8th Cir. 1986). Nonetheless, "there have been persistent attempts to obtain review of these interlocutory orders regarding transfer . . . under 28 U.S.C. § 1292(b)." 15 Charles Allen Wright et al., Federal Practice Procedure § 3855 (2nd ed. 1987).
Section 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
The section is "designed to allow for sparing exceptions to the final judgment rule." TCF Banking v. Arthur Young Co., 697 F. Supp. 362, 366 (D.Minn. 1988). Several circuits have determined that the judge's discretion in granting or denying a section 1404(a) motion to transfer is not subject to appeal under section 1292(b). See Mohamed v. Mazda Motor Corp., 90 F. Supp.2d 757, 769 (E.D. Texas 2000) (citing Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970); A. Olinick Sons v. Dempster Bros., Inc., 365 F.2d 439, 443 (2nd Cir. 1966); Standard v. Stoll Packing Corp., 315 F.2d 626 (3rd Cir. 1963); Bufalino v. Kennedy, 273 F.2d 71 (6th Cir. 1959)); see also In re: Wyoming Tight Sands Antitrust Cases, 715 F. Supp. 307, 309 (D. Kansas 1989) ("The court believes that interlocutory appeals from rulings on motions to transfer venue should not be certified."). These courts have determined that the exercise of discretion under section 1404(a) cannot be considered a "controlling question of law" and therefore the criteria of section 1292(b) are not met. The Eighth Circuit, however, has not announced such a blanket prohibition. See Toro Co. v. Alsop, 565 F.2d 998, 1000 (8th Cir. 1977) (stating that the court of appeals "has never looked with favor on the use by a disappointed litigant of the extraordinary writ of mandamus to secure an interlocutory review of an order entered pursuant to § 1404(a)," but considering a review pursuant to § 1292(b)), cert. denied, 435 U.S. 952 (1978). The question before this Court is whether this case presents an appropriate case in which section 1292(b) should be applied.
I. Controlling question of law
Defendant admits that the "controlling question of law" standard is not met where the complaint is that the district court abused its discretion. Defendant argues that in this case, the Court did more than abuse its discretion — defendant contends that the Court applied an erroneous legal standard, which if true, defendant argues and the Court agrees, would satisfy the "controlling question of law" standard. Specifically, defendant argues that the Court "applied the wrong legal standard by overlooking the principle that when the heavy majority of percipient witnesses are employees or agents of a party, venue is more convenient under 28 U.S.C. § 1404(a)." Defendant also claims that the Court did not have an adequate factual basis on which to determine the relative convenience of the parties and that lack of evidentiary basis satisfies the "controlling legal question" standard.
There can be no dispute regarding the proper factors to be evaluated in a 1404(a) motion. As the Court discussed in its Order denying defendant's request to transfer, those factors include the statutory factors: the convenience of parties and witnesses and the interest of justice, as well as other factors relevant in a particular case. See 28 U.S.C. § 1404(a); Terra Int'l, Inc. v. Mississippi Chemical Corp., 922 F. Supp. 1334, 1354-64 (N.D.Iowa 1996), aff'd 119 F.3d 688 (8th Cir. 1997) (listing factors including, among others, the location of witnesses, the quality and materiality of the testimony of the witnesses, whether they would be unwilling to appear in one forum or the other and whether deposition testimony would be unsatisfactory; the place in which the conduct occurred; which forum's substantive law is applicable; the plaintiff's choice of forum; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; the possibility of the existence of questions arising in the area of conflict of laws; and the advantage of having a local court determine questions of local law).
The Court therefore rejects defendant's characterization of the Court's decision as applying the "wrong legal standard." Despite defendant's creative argument, at its essence, defendant's complaint is that this Court abused its discretion. As defendant admits, an interlocutory appeal should not be used as a means to review the granting or denial of motions to transfer for incorrect evaluation of proper factors. A. Olinick Sons, 365 F.2d at 443.
Because defendant has not shown that this dispute involves a "controlling question of law," the Court cannot certify the denial of the transfer of venue for immediate appeal pursuant to section 1292(b). See White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (holding that allegations of abuse of discretion do not create legal issue for purposes of section 1292(b)).
II. Substantial ground for difference of opinion
Even if the Court found a "controlling question of law," the Court does not agree that the matter involves a "substantial ground for difference of opinion" as that phrase is intended by section 1292(b). "Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong. It is likely that in some cases an appellate court would think so, too." All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011-1012 (3rd Cir. 1952) (cited in 15 Wright, Federal Practice Procedure § 3855); see also American Corp. v. Al-Nahyan, 948 F. Supp. 1107, 1116 (D.D.C. 1996) (holding that litigant's mere disagreement, even if vehement, with district court's ruling on motion to dismiss does not establish substantial ground for difference of opinion). The fact that another court might decide the issue differently, or that the litigant disagrees with the Court's decision, however, does not satisfy the statutory requirement for a substantial ground for difference of opinion. If it did, nearly every decision made pursuant to 1404(a) would satisfy this prong.
The statute instead requires that the dispute certified for appeal involve a controlling question of law as to which there is substantial ground for difference of opinion. As discussed, there is no ground for difference of opinion regarding the factors considered in a motion to transfer venue pursuant to section 1404(a).
III. Materially advance the ultimate termination of the litigation
Finally, the Court is not persuaded that the granting of certification in this case would materially advance the resolution of this litigation. As other courts have recognized, the committee reports surrounding the enactment of section 1292(b) "reveal that the purpose of the subsection is primarily to avoid unnecessary protracted and complex litigation such as that involved in antitrust suits." Binkley v. Loughran, 714 F. Supp. 774, 776 (M.D.N.C. 1989); see also In re: Wyoming Tight Sands Antitrust Cases, 715 F. Supp. at 309 (declining to issue a certificate of appealability even in antitrust case). Even where there is a risk of a second trial, courts have declined to find this prong satisfied. Mazzella v. Stineman, 472 F. Supp. 432 (E.D. Penn. 1979) (denying to grant certificate of appealability even though "the court of appeals may well adopt plaintiffs' interpretation of the venue statutes" which would necessitate a second trial). This relatively straightforward contract dispute does not present protracted and complex litigation.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that defendant's Motion for Certification of Order Denying Change of Venue and Motion for Stay of Proceedings [Docket No. 19] is DENIED.