Subsalve USA Corp. v. Watson Manufacturing, Inc.

United States Court of Appeals
For the First Circuit

No. 05-2645

SUBSALVE USA CORPORATION,

Plaintiff, Appellant,

v.

WATSON MANUFACTURING, INC. AND LYNDEN C. COX,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Torruella, Selya and Dyk,** Circuit Judges.

Jeffrey K. Techentin, with whom R. Bart Totten and Adler
Pollock & Sheehan P.C. were on brief, for appellant.
John P. Gyorgy, with whom Thomas R. Noel and Noel & Gyorgy LLP
were on brief, for appellees.

September 7, 2006

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. This appeal presents the conundrum

of what to do when a district court order purports both to grant a

motion to dismiss and to transfer the action to a different

district. Based on clear evidence of the district judge's intent,

we hold that the order should be construed as a transfer order and

that, therefore, immediate appellate review of the underlying

findings is unavailable.

I. BACKGROUND

On December 21, 2004, plaintiff-appellant Subsalve USA

Corporation (Subsalve), a Rhode Island company, instituted a civil

action in the United States District Court for the District of

Rhode Island. The complaint named as defendants Watson

Manufacturing, Inc., a Florida corporation, and Lynden C. Cox, a

Watson functionary residing in Florida. Subsalve's statements of

claim sounded in trademark and copyright infringement, unfair

competition, and cybersquatting.

The defendants moved to dismiss for want of personal

jurisdiction. See Fed. R. Civ. P. 12(b)(2). The district court

referred the motion to a magistrate judge. See 28 U.S.C. §

636(b)(1)(B). After conducting an evidentiary hearing, the

magistrate judge concluded that the defendants' contacts with the

forum state were too attenuated to sustain an assertion of personal

jurisdiction. In an apparent effort to ameliorate the terminal

effect of this jurisdictional defect, the magistrate judge

-2-
recommended — inconsistently — granting the motion to dismiss and

transferring the action to the Northern District of Florida.1

In due course, the district judge overrode Subsalve's

objections to the magistrate judge's recommendation. See Subsalve

USA Corp. v. Watson Mfg., Inc., 392 F. Supp. 2d 221 (D.R.I. 2005).

His rescript stated explicitly that he adopted the magistrate

judge's "ultimate conclusions: the Court lacks personal

jurisdiction over both Watson and Cox, and this matter should be

transferred to the Northern District of Florida." Id. at 222. In

the penultimate paragraph, labeled "Transfer", the district judge

observed that the arguments opposing transfer were "unpersuasive."

Id. at 224. He added: "The decision to transfer rests within the

Court's discretion . . . . This Court agrees with the analysis of

Magistrate Lovegreen as well as his recommendation to transfer this

matter." Id. The district judge made no similar mention of the

recommended granting of the motion to dismiss.

1
The statute that the magistrate judge invoked provides in
pertinent part:

Whenever a civil action is filed in a [federal] court .
. . and that court finds that there is a want of
jurisdiction, the court shall, if it is in the interest
of justice, transfer such action . . . to any other such
court in which the action . . . could have been brought
at the time it was filed . . . , and the action . . .
shall proceed as if it had been filed in . . . the court
to which it is transferred . . . .

28 U.S.C. § 1631.

-3-
 Notwithstanding these clear indicia of his intention to

transfer the action, the district judge issued the following order:

"For the foregoing reasons, Defendants' Motion to Dismiss for Lack

of Personal Jurisdiction is GRANTED. This matter shall be

transferred to the Northern District of Florida." Id. This order

is contradictory on its face: after all, the order purports both to

terminate the action (by dismissal) and to continue it (by

transfer) in another district. As we explain below, this deviated

from the usual procedure under 28 U.S.C. § 1631, quoted supra note

1.

The statute authorizes the transfer of an action whenever

the court finds that it lacks jurisdiction and that a transfer is

consistent with the interest of justice. 28 U.S.C. § 1631. This

language furnishes a court that lacks jurisdiction over an action

with a choice between transfer and dismissal. See Britell v.

United States, 318 F.3d 70, 72-76 (1st Cir. 2003). That choice is

subject to a rebuttable presumption in favor of the transfer

alternative. See id. at 73. A dismissed action is a nullity, so

a court desirous of effectuating a transfer under section 1631

should not dismiss the action but, rather, after making a finding

that it lacks jurisdiction, should order transfer based on that

finding. See, e.g., id. at 72-76; Capital Bank Int'l Ltd. v.

Citigroup, Inc., 276 F. Supp. 2d 72, 79 (D.D.C. 2003); Enter. Rent-

A-Car Co. v. Stowell, 137 F. Supp. 2d 1151, 1159 (E.D. Mo. 2001).

-4-
 Here, the district court's failure to follow the usual

praxis sparked a firestorm of activity. After receiving

notification of the transfer, the clerk in the Northern District of

Florida opened a docket on October 6, 2005. Five days later, the

clerk in the District of Rhode Island entered a judgment that read

in its entirety:

Judgment is hereby entered in favor of
defendants, Watson Manufacturing, Inc. and
Lynden C. Cox against plaintiff, Subsalve USA
Corporation pursuant to this court's decision
and order entered on September 29, 2005
granting defendants' motion to dismiss. This
matter shall be transferred to the Northern
District of Florida. (Emphasis omitted).

On October 19, the clerk physically transferred the case file to

the Northern District of Florida.

Seizing upon the district court's awkward locution,

Subsalve filed a notice of appeal on October 26. It asserted that

the September 29 order effected a final dismissal of the action on

the merits and, thus, was immediately appealable. See 28 U.S.C. §

1291. Realizing what had happened, the district judge, acting sua

sponte, purposed to issue a corrective order. That order, which

invoked Fed. R. Civ. P. 60(a), vacated the October 11 judgment.

The next day, Subsalve's appeal was docketed in this court. See

Fed. R. App. P. 12(a).

II. ANALYSIS

Although the parties are in agreement as to the

historical facts, they vouchsafe markedly different interpretations

-5-
of where the case now stands. Subsalve argues that the September

29 order was a final order of dismissal, immediately appealable,

which should be reversed because the district court did, in fact,

have in personam jurisdiction over the parties sued. The

defendants counter that the September 29 order was an interlocutory

transfer order, not immediately appealable, and that we lack

appellate jurisdiction to consider the existence vel non of

personal jurisdiction at this juncture.

To wend our way through this labyrinth, we begin with the

order itself. We then consider what, at this point in time, lies

within the compass of our appellate jurisdiction.

A. The September 29 Order.

The threshold question in this case is whether the

September 29 order effectuated a dismissal or a transfer of the

action. Because this preliminary inquiry bears on the permissible

scope of our review, we have jurisdiction to undertake it. See USM

Corp. v. GKN Fasteners, Ltd., 574 F.2d 17, 18 (1st Cir. 1978); see

also Lane v. United States, 727 F.2d 18, 21 (1st Cir. 1984). Put

simply, we have jurisdiction to determine the existence and extent

of our own subject-matter jurisdiction.

A trial court's conversation with an appellate court

proceeds primarily through its decrees. See Berkovitz v. Home Box

Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996); Advance Fin. Corp. v.

Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984).

Consequently, the September 29 order itself is "the most likely

-6-
source of enlightenment in our quest to understand its nature."

Berkovitz, 89 F.3d at 29.

Subsalve emphasizes that the first clause of the

September 29 order purports to grant the defendants' motion to

dismiss and argues, on this basis, that the order must be read as

a final order of dismissal. Under its construction, everything

that follows the first clause — including the statement purporting

to transfer the action — must be ignored because the dismissal put

an end to the case and left nothing upon which the district court

could continue to act.

The defendants take a more holistic view. They say that

the order should be read in its entirety and in light of the

district judge's statements (both contemporaneous and subsequent).

So read, they assert, the order must be construed as a transfer

order. Under their construction, the "no jurisdiction" finding is

important, but the order of dismissal itself must be disregarded as

an imprecise locution — a lapsus linguae, as it were. On balance,

we find the defendants' position more persuasive.

There are times when courts must be practical. Cf. Gibbs

v. Buck, 307 U.S. 66, 78 (1939) (declining to order "useless"

remand when the district court had attempted, albeit belatedly, to

correct its own error and had thereby made clear what a remand

would yield); Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989)

(refusing to force the parties "round and round the mulberry bush"

for no better reason than "ceremonial punctiliousness"). Subsalve

invites us, in effect, to ignore the reality of events and to

-7-
accord decretory significance to the sequencing of the September 29

order. We decline the invitation to put on blinders and take so

struthious a view. The reality is that the two contradictory

clauses were written as part of a single order; that order, on its

face, was internally inconsistent; and the judge could not have

intended that both commands be obeyed. Given the facts, we fail to

see how grammatical happenstance (which, in this instance, gives

full meaning to one clause while emasculating the other) provides

a principled basis for resolving the inconsistency. We think,

rather, that court orders, like statutes, should be read as a

whole. See United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52

(1st Cir. 1985) (explaining that, in general, "[a]ll words and

provisions of statutes" should "be given effect" and constructions

that "would render . . . words or phrases meaningless, redundant,

or superfluous" should be avoided).

This leaves us with an order which, fairly read, directs

two incompatible results. Ordinarily, an appellate court

confronted with an internally inconsistent order would vacate the

offending order and return the case to the authoring court for

clarification. See, e.g., United States v. Rodríguez, 327 F.3d 52,

54-56 (1st Cir. 2003); United States v. Davis, 261 F.3d 1, 62-63

(1st Cir. 2001). An appellate tribunal, however, should not

mechanically resort to this remedy when doing so would accomplish

nothing more than the undue prolongation of the litigation. See,

e.g., Gibbs, 307 U.S. at 78; Aoude v. Mobil Oil Corp., 862 F.2d

890, 895 (1st Cir. 1988).

-8-
 This is such a case. The record of the proceedings below

dispels any uncertainty as to the district judge's intent in

issuing the September 29 order. In his memorandum decision, the

judge twice emphasized that he was adopting the magistrate judge's

recommendation to transfer the action. See Subsalve, 392 F. Supp.

2d at 222, 224. In contrast, he eschewed any mention of the

recommendation to grant the motion to dismiss. To cinch matters,

the judge, upon realizing the scrivener's error that had crept into

the September 29 order, immediately undertook to clarify the matter

by vacating the judgment of dismissal. His November 1 order left

no doubt but that his intent, all along, was to effectuate a

transfer — not to dismiss the action.2

In an effort to blunt the force of this reasoning,

Subsalve asserts, without any citation to relevant authority, that

the district judge's intent has no bearing on whether the order

dismissed or transferred the action. This assertion comprises more

cry than wool. The case law makes pellucid that the dispositive

2
Subsalve argues that the November 1 order cannot figure into
the decisional calculus because the district court lacked power to
act (after all, Subsalve had previously filed a notice of appeal
and Fed. R. Civ. P. 60(a), under which the district judge purported
to act, only authorizes district courts to correct clerical errors
in orders and judgments). But the order that the judge drafted on
November 1 provides a valuable window into his intent with respect
to the internally inconsistent September 29 order. Thus, even if
it is a legal nullity — a matter on which we take no view — we are
entitled to weigh the statements therein as part of our inquiry
into whether a remand would serve any useful purpose. See, e.g.,
Jusino, 875 F.2d at 990 (concluding, based on a district court's
granting of a motion for reconsideration at a time when the court
lacked jurisdiction, that remand was unnecessary).

-9-
consideration in interpreting a self-contradictory order — at least

where neither construction of the order does more violence to its

language than the other — is the issuing judge's intent. See

Tootle v. Sec'y of Navy, 446 F.3d 167, 172-73 (D.C. Cir. 2006)

(construing, in line with the district court's "clear[] inten[t],"

an order that dismissed and transferred the action); Advance Fin.,

747 F.2d at 26 & n.10 (construing ambiguous order as one for

summary judgment where the district court "plainly considered

itself to be granting summary judgment"); see also United States v.

F. & M. Schaefer Brewing Co., 356 U.S. 227, 232 (1958) (holding

that a pronouncement amounts to a final judgment where it "clearly

evidences the judge's intention that it shall be his final act in

the case"); United States v. Higginson, 238 F.2d 439, 442 (1st Cir.

1956) (similar).

Subsalve also suggests that the decision in Tootle v.

Secretary of the Navy dictates a conclusion that the dismissal

clause trumps the transfer clause. This suggestion lacks merit.

In Tootle, as here, the district judge issued an order

that purported both to dismiss and to transfer the action. See 446

F.3d at 172. But that order, unlike the order in this case,

explicitly stated that it was final and appealable. See id. Given

this unmistakable indicium of the district court's primary intent,

the court of appeals held that the order effectuated a dismissal

rather than a transfer, reasoning that, having dismissed the action

and set the stage for an immediate appeal, "the trial court was

-10-
without authority to transfer [it]." Id. at 173. Taking a narrow

view of this quoted language, Subsalve posits that Tootle creates

a general rule that an order purporting both to dismiss and to

transfer an action is a final order of dismissal, simpliciter.

This is pie in the sky. It simply is not the case, as

Subsalve would have it, that the Tootle court aspired to fashion a

universal rule to the effect that an inconsistent order of the type

at issue here must be read as a final order of dismissal. Rather,

the court relied on the discernible intent of the district judge,

interpreting the self-contradictory order as a final order of

dismissal because "the District Court clearly intended to grant the

. . . motion to dismiss for want of subject matter jurisdiction."

Id. (emphasis supplied). So viewed, the Tootle court's approach to

deciphering an internally inconsistent order is in perfect harmony

with the course that we chart today.

So too the decision in HollyAnne Corp. v. TFT, Inc., 199

F.3d 1304 (Fed. Cir. 1999). Although HollyAnne held that an order

purporting to both dismiss and transfer an action effected a

dismissal, the HollyAnne court ruled on an opaque record that

contained no evidence of the district court's intent. See id. at

1306-07. "When the district court's order is unilluminating, the

appellate court must fend for itself." Camilo-Robles v. Hoyos, 151

F.3d 1, 8 (1st Cir. 1998). Here, unlike in HollyAnne, the record

presents unmistakable signs of the district court's abiding intent.

That distinction is critically important.

-11-
 B. Appellate Jurisdiction.

Having concluded that the September 29 order should be

construed as effectuating a transfer of the action as opposed to a

dismissal, we turn next to the question of whether we have

jurisdiction to review the substance of that order. Although the

issue is one of first impression in this circuit, every court of

appeals to have confronted it has concluded that section 1631

transfer orders are not immediately appealable. See, e.g., In re

Carefirst of Md., Inc., 305 F.3d 253, 262 (4th Cir. 2002); Brinar

v. Williamson, 245 F.3d 515, 518 (5th Cir. 2001); FDIC v.

McGlamery, 74 F.3d 218, 221-22 (10th Cir. 1996); Ukiah Adventist

Hosp. v. FTC, 981 F.2d 543, 546-48 (D.C. Cir. 1992); Alimenta

(USA), Inc. v. Lyng, 872 F.2d 382, 383-85 (11th Cir. 1989).3 This

outcome comports with the general rule of nonappealability

referable to transfer orders entered under other statutes. See,

e.g., Codex Corp. v. Milgo Elec. Corp., 553 F.2d 735, 737 (1st Cir.

1977) (noting that immediate appellate review of transfer orders

entered under 28 U.S.C. § 1404(a) is ordinarily unavailable).

3
An earlier Fourth Circuit case, Gower v. Lehman, 799 F.2d 925
(4th Cir. 1986), concluded that a district court's order
transferring a case to the Claims Court (now the Court of Federal
Claims) was immediately appealable under the collateral order
doctrine. See id. at 928. But that decision rests in material
part on a nuance in the subject-matter jurisdiction of the Claims
Court. See id. at 926-28. In all events, Gower has been limited
effectively to its facts by subsequent Fourth Circuit case law.
See In re Carefirst, 305 F.3d at 257-58; see also McGlamery, 74
F.3d at 221-22 (taking a similar view of Gower).

-12-
 This rule makes sense. In the ordinary course, our

jurisdiction extends only to appeals from "final decisions" of the

district courts. 28 U.S.C. § 1291. A district court's decision is

"final" if it "ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment." Catlin v. United

States, 324 U.S. 229, 233 (1945). The entry of a section 1631

transfer order does not satisfy this standard; it does not

terminate the litigation on the merits but, rather, ensures its

continuation in a different forum.4 See In re Carefirst, 305 F.3d

at 255; Ukiah Adventist Hosp., 981 F.2d at 54.

To say more would be to paint the lily. Like our sister

circuits, we can envision no warrant for treating section 1631

transfer orders differently from other transfer orders with respect

to the availability of interim appellate review. Consequently, we

hold that a section 1631 transfer order is not immediately

appealable. This means that, in this case's current procedural

posture, we lack jurisdiction to review Subsalve's claim that the

district court erred in concluding that it could not exercise

personal jurisdiction over the defendants.

4
To be sure, the finality principle admits of certain limited
exceptions, some statutory and some judge-made. See Espinal-
Dominguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003); In re
Carefirst, 305 F.3d at 259-60 (collecting cases). None of these
exceptions applies to a section 1631 transfer order. See In re
Carefirst, 305 F.3d at 260.

-13-
III. CONCLUSION

We need go no further.5 For the foregoing reasons, we

hold that the September 29 order effected a transfer of the action

under 28 U.S.C. § 1631 and that, therefore, the substance of the

order is not immediately reviewable. Accordingly, we dismiss the

remainder of Subsalve's appeal, without prejudice, for want of

appellate jurisdiction.

So Ordered.

5
Given the outcome that we reach, we find it unnecessary to
address whether the physical transfer of the case file to the
Northern District of Florida divested us of jurisdiction over any
aspect of this appeal. See McGlamery, 74 F.3d at 220 n.1 (noting
that appellate jurisdiction in the transferor circuit ordinarily
ends when the case file is docketed in the transferee court). By
like token, we need not resolve any lingering question as to
whether section 1631 authorizes transfers to cure a want of
personal jurisdiction, as opposed to a want of subject-matter
jurisdiction. See Cimon v. Gaffney, 401 F.3d 1, 7 n.21 (1st Cir.
2005) (collecting conflicting authorities, while supporting the
view that section 1631 authorizes transfers to allay any
jurisdictional defect).

-14-