United States Court of Appeals
For the First Circuit
No. 06-2386
ALSTOM CARIBE, INC., F/K/A
COMBUSTION ENGINEERING CARIBE, INC., ET AL.,
Plaintiffs, Appellees,
v.
GEO. P. REINTJES CO., INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and DiClerico,* District Judge.
Paul G. Schepers, with whom Gregory S. Gerstner, John P.
Lynch, and Seigfreid, Bingham, Levy, Selzer & Gee, P.C. were on
brief, for appellant.
José A. Axtmayer, with whom G. William Quatman, William E.
Quirk, and Shughart Thomson & Kilroy, P.C. were on brief, for
appellees.
Robert C. Niesley, with whom Donna R. Tobar and Watt, Tieder,
Hoffar & Fitzgerald, L.L.P. were on brief, for provisional
intervenor.
April 18, 2007
*
Of the District of New Hampshire, sitting by designation.
SELYA, Senior Circuit Judge. We are confronted with a
procedural motley, in which a district judge took a short-cut that
resulted in the issuance of an inherently self-contradictory order.
That order (together with an implementing order issued the same
day) commanded the deposit of certain funds into the registry of
the district court; denied intervention by a corporation that
claimed a right to the funds; transferred the funds — but not the
case — to a different court in a different circuit; and, finally,
entered a judgment of dismissal.
A party to the case had expected to receive the funds in
settlement of pending claims. That party's ambitions were
frustrated by the order, and it moved for reconsideration. Upon the
denial of its motion, it filed this timely appeal.
The short-cut taken by the district court has created a
number of complications, some jurisdictional in nature. Once we
clear the jurisdictional hurdles, we conclude that the order
appealed from is legally insupportable in at least one respect and
internally inconsistent in other respects. We then explain why
those bevues are not harmless and address a further complication as
to choice of remedy. In the end, we vacate the order and remand
with specific instructions as to future proceedings.
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I.
Background
This case has a long and tortured history. For present
purposes, however, the details of the original dispute are no more
than marginally relevant. Accordingly, we offer only a decurtate
summary.
In the summer of 2000, the Alstom parties1 retained a
contractor, Geo. P. Reintjes Co. (Reintjes), to perform work on a
power plant located in Puerto Rico. A surety company, St. Paul
Fire & Marine Insurance Co. (St. Paul), furnished payment and
performance bonds for Reintjes in connection with the work.
In the fullness of time, the contracting parties'
relationship shifted from the board room to the courtroom. Each
sued the other. Alstom's suit (which named St. Paul as an
additional defendant) claimed faulty workmanship while Reintjes's
suit claimed non-payment for work performed. These actions were
brought in different federal venues: Alstom chose the District of
Puerto Rico (where the power plant was located) whereas Reintjes
chose the Western District of Missouri (where it maintained its
principal place of business). The Missouri court eventually
transferred the latter suit, see 28 U.S.C. § 1404(a), and it was
1
Both Alstom Power, Inc. and Alstom Caribe, Inc. (formerly
known as Combustion Engineering Caribe, Inc.) are parties to this
case. For ease in reference, we do not distinguish between them
but, rather, refer to them collectively as "Alstom."
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consolidated with the former suit in Puerto Rico's federal district
court. This history explains why the caption of this case lists
Alstom as the plaintiff, even though the issues on appeal concern
claims made by Reintjes against Alstom.
Late in 2003, St. Paul settled with Alstom for
$2,925,000. In return, Alstom dropped its claims against both St.
Paul and Reintjes. Reintjes proceeded with its suit against Alstom
but disclaimed any obligation to reimburse St. Paul.
By April of 2005, Reintjes's claims against Alstom were
still unresolved. At that time, St. Paul brought a new suit
against Reintjes in the Western District of Missouri. That suit
sought indemnification for the sums expended by St. Paul in
reaching a settlement with Alstom. Reintjes denied any liability
for indemnification.
Matters came to a head in the summer of 2006 when Alstom
agreed to pay Reintjes $2,000,000 in settlement of Reintjes's
claims against it. With the sweet smell of money wafting through
the air, St. Paul claimed an interest in the settlement proceeds on
theories of indemnification and equitable subrogation. Based on
those claims, it sought to intervene in the pending Puerto Rico
action. See Fed. R. Civ. P. 24. Alstom opposed intervention but,
in the alternative, asked that it be allowed to deposit the
settlement amount with the district court on the understanding
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that, by doing so, it would be deemed to have complied fully with
its obligations under the settlement agreement.
Reintjes objected to the other parties' motions. It
opposed intervention on the ground that St. Paul was, in effect,
seeking an unwarranted prejudgment attachment; it opposed Alstom's
exit strategy on the ground that payment of the funds into the
registry of the court would violate the terms of the settlement
agreement.
On July 28, 2006, the Puerto Rico district court denied
St. Paul's motion to intervene but nonetheless instructed Alstom to
pay the settlement amount into the registry of the court (thereby
satisfying all of its obligations under the settlement agreement).
In the same order, the court commanded the clerk, immediately upon
receipt of Alstom's deposit, to remit the funds to the Western
District of Missouri (the court in which St. Paul's indemnification
action was pending). The court did not cite any authority for the
transfer of the funds, nor did it purport to transfer any claim or
cause of action from the District of Puerto Rico to the Western
District of Missouri. That same day, the Puerto Rico district
court entered a final judgment dismissing the Puerto Rico
litigation.2 The court subsequently denied Reintjes's motion for
reconsideration without elaboration.
2
For simplicity's sake, we treat this implementing order as
part and parcel of the main order.
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Reintjes did not move to stay the contemplated transfer
of the funds. Thus, when Alstom made the deposit, the clerk of the
Puerto Rico district court promptly forwarded the funds to the
Western District of Missouri, and that court assumed control of
them. Reintjes asked the transferee court to release the funds to
it, but that motion was denied pending an adjudication of the
merits of St. Paul's claims.
Meanwhile, Reintjes initiated this appeal. In it,
Reintjes beseeches us to reverse the multi-faceted order of the
Puerto Rico district court and to instruct the transferee court to
disburse the deposited funds to it. We have allowed St. Paul to
participate in this proceeding as a provisional intervenor.
Because it has become apparent that St. Paul has a substantial
stake in the outcome and that its interests are not fairly
represented by any other party, we today grant St. Paul's motion
and authorize its intervention in these proceedings as an appellee.
See Mangual v. Rotger-Sabat, 317 F.3d 45, 62 (1st Cir. 2003)
(confirming the existence of "discretion to permit intervenors at
the appellate level").
II.
Appellate Jurisdiction
As a threshold matter, St. Paul asserts that we lack
jurisdiction to entertain this appeal. Its principal
jurisdictional argument is that the Puerto Rico district court's
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order was not final and, thus, not immediately appealable. See 28
U.S.C. § 1291 (limiting appellate jurisdiction in most instances to
"final decisions").
For this purpose, a "final decision" is one that "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). Given this definition, there is no doubt that, had the
district court granted St. Paul's motion to intervene and then
transferred the case (along with the funds) to the Western District
of Missouri, we would not have jurisdiction to hear this appeal.
After all, transfer orders typically are not regarded as final
orders and, accordingly, are not subject to challenge by way of an
immediate appeal.3 See Subsalve USA Corp. v. Watson Mfg., Inc.,
462 F.3d 41, 47 (1st Cir. 2006).
With this case law in mind, St. Paul suggests that the
July 28 order was the functional equivalent of a transfer order
and, thus, should be treated as non-final in determining its
eligibility for immediate appellate review. This suggestion
overlooks the particulars of the events that transpired here.
3
The same is generally true of deposit orders under Federal
Rule of Civil Procedure 67. Orders granting or denying Rule 67
motions are not immediately reviewable unless they satisfy the
strictures of the collateral order doctrine or qualify as
injunctions. See Baxter v. United Forest Prods. Co., 406 F.2d
1120, 1123 (8th Cir. 1969).
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Chronicling those events exposes the implausibility of St. Paul's
suggestion.
To begin, the Puerto Rico district court denied St.
Paul's motion to intervene. This is significant because, without
St. Paul in the case, the court's approval of the settlement
resolved all the outstanding claims between those who were then
parties to the case and, therefore, concluded the controversy. It
is impossible to reconcile the denial of intervention with the
notion that the district court impliedly transferred St. Paul's
claims to the Western District of Missouri. Without St. Paul in
the case, there was no cause of action remaining to be transferred.
In all events, at no point did the Puerto Rico district
court say that it intended to transfer the case to the Western
District of Missouri. It simply directed the clerk to forward the
funds to the Missouri court. District courts speak to appellate
courts primarily through the orders that they enter, see, e.g.,
Subsalve, 462 F.3d at 44; Advance Fin. Corp. v. Isla Rica Sales,
Inc., 747 F.2d 21, 26 (1st Cir. 1984), and the order in question
here does not bespeak any such intention.
If more were needed — and we doubt that it is — other
indicia in the record make it pellucid that the Puerto Rico
district court did not think that it had transferred the case to
the Western District of Missouri. The most telling indicium is
that, on the same day that it issued the Rule 67 order, the Puerto
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Rico district court dismissed all of the claims then pending before
it. The order of dismissal would have been entirely superfluous
had the court intended to transfer the action.
To say more on this point would be to paint the lily.
Simply put, the July 28 order concluded the Puerto Rico litigation
in Puerto Rico, and no remnant of it lives on in the Western
District of Missouri. Because the district court acted to end the
litigation, not to transfer it, the order appealed from constitutes
a final decision. See Tootle v. Sec'y of Navy, 446 F.3d 167, 173
(D.C. Cir. 2006); cf. Subsalve, 462 F.3d at 44-47 (finding an
internally inconsistent order that purported both to dismiss and to
transfer a case immediately appealable for the purpose of resolving
the inconsistency). Consequently, we have jurisdiction to review
that order under 28 U.S.C. § 1291.
St. Paul advances two other arguments of a jurisdictional
nature. Neither argument is persuasive.
First, St. Paul contends that our jurisdiction is limited
by the language of Reintjes's notice of appeal, which identifies
the denial of its motion for reconsideration rather than the July
28 order itself. See, e.g., Constructora Andrade Gutiérrez v. Am.
Int'l Ins. Co., 467 F.3d 38, 43-44 (1st Cir. 2006) (holding that in
some circumstances, enumeration of particular rulings in a notice
of appeal precludes appellate litigation of unenumerated rulings).
Here, however, the propriety of denying reconsideration is
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inextricably intertwined with the correctness of the original
order; hence, no party could conceivably have been prejudiced by
Reintjes's awkward locution. Given that circumstance, we do not
think that the wording of the notice of appeal presents a
jurisdictional bar. See Young v. Gordon, 330 F.3d 76, 80 (1st Cir.
2003) (holding reference to denial of a motion for reconsideration
in a notice of appeal adequate to ground an appeal from the
underlying judgment when the "desire to appeal from the underlying
judgment [was] sufficiently plain" and the opposing parties "were
not misled by the inartfully drafted notice of appeal"); see also
Kotler v. Am. Tobacco Co., 981 F.2d 7, 11 (1st Cir. 1992) (noting
that "we do not examine the notice [of appeal] in a vacuum" but,
rather, determine whether, in context, it "adequately apprised" one
party of the other's intention to appeal a given order).
Second, St. Paul mentions a qualitatively different
impediment to our jurisdiction. It posits that we must stay our
hand because we no longer have any authority over the settlement
funds. We accept the premise of that argument — our lack of
authority over the funds on deposit — but we reject the conclusion
that St. Paul draws from that premise.
It cannot be gainsaid that our supervisory authority is
circumscribed by circuit boundaries. See 28 U.S.C. § 1294. For
that reason, we lack the raw power to order the Missouri district
court — a court that sits within the Eighth Circuit — to disburse
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the sum on deposit to Reintjes (or any other party, for that
matter) or transfer the funds back to the Puerto Rico district
court. See Matrix Grp. Ltd. v. Rawlings Sporting Goods Co., 378
F.3d 29, 32 (1st Cir. 2004). But although this limitation affects
the nature of the relief that we may decree, it does not divest us
of jurisdiction. See id.
In pressing for a different outcome, St. Paul relies on
the decision in Fultz v. Rose, 833 F.2d 1380 (9th Cir. 1987). It
cites Fultz for the proposition that an "appellate court has no
authority to review where the property that is subject of the
appeal is transferred outside the court's jurisdiction."
Intervenor's Br. at 4. But unlike the instant case, Fultz was a
case in which the controversy was rendered moot because the court
could not grant "any effective relief from the order" of which the
appellant complained. Id. at 1380 (emphasis supplied); see In re
Nat'l Mass Media Telecomm. Sys., Inc., 152 F.3d 1178, 1180 (9th
Cir. 1998) (discussing Fultz).
The case at hand is a horse of a quite different hue.
Reintjes has asked us to reverse the district court's allowance of
the Rule 67 motion and to wipe away its exoneration of Alstom.
Regardless of whether or not we can recall the funds, we can
effectively reverse, modify, or vacate the July 28 order in many of
its aspects — and those aspects have independent legal
significance.
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In short, a district court within this circuit has
entered a final order that has continuing legal significance
regardless of what court has custody of the deposited funds. No
more is exigible to keep our jurisdiction intact. Although our
inability to ensure a recapture of the funds is regrettable, that
circumstance is by no means inimical to our exercise of appellate
jurisdiction.
III.
The Merits
In the last analysis, this appeal poses the following
question: Does the multi-purpose July 28 order — which denied
intervention, mandated deposit of the settlement funds pursuant to
Rule 67, transmitted those funds to the Western District of
Missouri, dismissed the Puerto Rico action, and exonerated Alstom
from any further liability — have a sound basis in law? We answer
that question in the negative.
We start this phase of our inquiry with Rule 67, under
which the Puerto Rico district court authorized the deposit of the
funds. The rule states:
In an action in which any part of the relief
sought is a judgment for a sum of money or the
disposition of a sum of money or the
disposition of any other thing capable of
delivery, a party, upon notice to every other
party, and by leave of court, may deposit with
the court all or any part of such sum or thing
. . . .
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Fed. R. Civ. P. 67. The core purpose of Rule 67 is to relieve a
party who holds a contested fund from responsibility for
disbursement of that fund among those claiming some entitlement
thereto. See 12 Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice & Procedure § 2991 (2d ed. 1997). It
follows logically that a district court should not grant a Rule 67
motion unless the question of entitlement is genuinely in dispute.
See, e.g., Gulf States Utils. Co. v. Ala. Power Co., 824 F.2d 1465,
1475 (5th Cir. 1987). Moreover, the entitlement dispute must be
live; that is, the dispute must be extant at the time the court is
asked to grant the Rule 67 motion. See Mfrs. Hanover Overseas
Capital Corp. v. Southwire Co., 589 F. Supp. 214, 221 (S.D.N.Y.
1984).
Alstom argues that, given the rancorous dispute between
St. Paul and Reintjes over the settlement proceeds, it had a perfect
right to avail itself of the prophylaxis of Rule 67; invoking that
rule permitted it to avoid the specter of duplicative liability.
St. Paul echoes Alstom's refrain. It adds, moreover, that the
transfer of the Rule 67 funds to the Western District of Missouri
was a prudent step, ensuring that the real parties in interest could
air their differences and enabling a court of competent jurisdiction
to resolve the entitlement dispute.
Reintjes demurs. It asserts that St. Paul's claim to the
funds is made up out of whole cloth and that the Puerto Rico
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district court's denial of St. Paul's motion to intervene is the
proof of the pudding. Additionally, it notes that Alstom's request
for Rule 67 relief was contingent upon the district court's granting
of the motion to intervene (which Alstom opposed). Building on this
foundation, Reintjes asseverates that allowing the deposit and
transferring the deposited funds after denying the motion to
intervene exceeded the district court's authority.
As a general proposition, it is within a district court's
sound discretion to accept a deposit of settlement funds in order
to allow a settling defendant to withdraw from litigation while
competing claimants continue to squabble over their entitlement to
the settlement proceeds. See Garrick v. Weaver, 888 F.2d 687, 694
(10th Cir. 1989). As a corollary of this proposition, a defendant
may be allowed to tender a Rule 67 deposit even if one or more of
the competing claimants is not a party to the action. See, e.g.,
U.S. Overseas Airlines, Inc. v. Compania Aerea Viajes Expresos de
Venezuela, 161 F. Supp. 513, 516 (S.D.N.Y. 1958). At first blush,
the challenged order may appear to fit within the confines of these
precedents.
Wise men have recognized for more than twenty-five
centuries that appearances sometimes can be deceiving, see Aesop,
The Wolf in Sheep's Clothing (circa 550 B.C.), and that is the case
here. The Puerto Rico district court did more than grant the motion
for deposit. It simultaneously denied St. Paul's request for
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intervention, transferred the deposited funds to another district,
and dismissed the case. As we explain below, one part of the
court's order is contrary to law and, in all events, the various
components of the order are internally inconsistent.
The most glaring defect in the order is the transmittal
of the deposited funds to the Western District of Missouri without
a concomitant transfer of any case or cause of action. Rule 67
instructs that deposited funds are to be withdrawn only in
accordance with certain enumerated statutes.4 None of those
statutes authorizes the type of naked transfer employed here.
The fact that one such statute states that deposited
funds are to be disbursed by "order of court," 28 U.S.C. § 2042,
does not salvage the transfer. That language cannot conceivably be
read to give the district court carte blanche to dispose of
deposited funds as it sees fit, without regard either to the rights
of the parties or to the applicable law. Funds deposited pursuant
to Rule 67 are not at the disposal of the judge but, rather, are
held in trust for their rightful owner. See In re Casco Chem. Co.,
335 F.2d 645, 649 (5th Cir. 1964). Their disbursement must be in
accordance with the law.
4
The rule states that such funds are to be "withdrawn in
accordance with the provisions of Title 28, U.S.C., §§ 2041, and
2042; the Act of June 26, 1934, c. 756, § 23, as amended (48 Stat.
1236, 58 Stat. 845), U.S.C., Title 31, § 725v; or any like
statute." See Fed. R. Civ. P. 67. It appears that the relevant
provision of the Act of June 26, 1934, as amended, is currently
codified at 28 U.S.C. § 2043, which superseded 31 U.S.C. § 725v.
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Here, the Puerto Rico district court flouted this
principle. It cited no authority that allowed it to make a naked
transfer of Rule 67 funds to another court. Doing so was error:
there is no statute, rule, or legal precedent that authorizes a
court to effect a non-consensual transfer of Rule 67 funds to a
different court without a concomitant transfer of the entire case
(or, at least, some cause of action). Because the monetary transfer
here was unaccompanied by a shifting of either the case or a cause
of action within it, that transfer was legally insupportable.
Of course, it can be argued — and St. Paul makes the
argument with vigor — that the Puerto Rico district court likely
recognized the genuineness of St. Paul's claims, knew that those
claims had been asserted in the Western District of Missouri, and
thus saw a transfer of the deposited funds as an efficacious way to
resolve Alstom's dilemma. This argument is bolstered by the court's
observation that "the controversies raised by way of the proposed
intervention can be adequately disposed of" within the four corners
of the litigation pending in the Western District of Missouri.
But such an argument flies in the teeth of the express
provisions of the July 28 order. To read that order as a de facto
grant of St. Paul's motion to intervene and a de facto transfer of
the case to the Western District of Missouri would require turning
a blind eye to the district court's explicit directions. After all,
the court flatly denied St. Paul's motion to intervene and then
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dismissed the case. We cannot disregard express rulings simply as
a matter of guesswork or in an effort to suit interpretive
convenience. See generally In re Thinking Machs. Corp., 67 F.3d
1021, 1026 (1st Cir. 1995) ("Court orders are customarily important
events in the life of a judicial proceeding; they are the primary
means through which courts speak, and they should carry commensurate
weight." (internal citation omitted)); Lefkowitz v. Fair, 816 F.2d
17, 22 (1st Cir. 1987) (enforcing court order that "contained not
the slightest ambiguity" over claim that authoring judge "must" have
meant something different). The most that can be said is that the
court's statements and the naked transfer of the deposited funds,
when juxtaposed against the denial of intervention and the dismissal
of the case, render the July 28 order internally inconsistent.
St. Paul and Alstom also argue, in effect, that the
district court recognized the existence of conflicting claims to the
settlement proceeds; that those claims are now before the court in
the Western District of Missouri; and that, therefore, any error in
the July 28 order should be viewed as harmless. Vacating the order
and remanding the case to the Puerto Rico district court, they say,
would constitute mindless formalism.
We do not agree. While the Puerto Rico district court
did make some suggestive statements, the court appears not to have
weighed the merits of St. Paul's motion for intervention. See,
e.g., Pub. Serv. Co. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998);
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see also Fed. R. Civ. P. 24. By like token, the court appears not
to have made an express finding on the appropriateness of St. Paul
achieving what Reintjes considered to be a back-door prejudgment
attachment.
Nor did the subsequent order of the Missouri court cure
either the error or the inconsistencies in the July 28 order. When
Reintjes moved in that court for release of the funds, its motion
was denied on the principal ground that "it was clearly the
intention of the court in Puerto Rico for [the Missouri court] to
. . . determine what to do with the funds." Given the Missouri
court's understandable deference to the order of the Puerto Rico
district court — an order that we have found to be internally
inconsistent — we cannot plausibly say that the Missouri proceedings
cured the original error.
St. Paul also argues in passing that Reintjes, which
moved in Missouri for release of the funds, thereby accepted the
jurisdiction of that court and waived its right to argue against the
transfer. This argument is far off the mark. The only case St.
Paul cites, In re Durham, 114 F. 750 (D. Md. 1902), is completely
inapposite. And, even assuming that such a waiver might be possible
under some circumstances, Reintjes filed its motion in the context
of the indemnity action already pending in Missouri. Thus,
submitting the motion did not constitute a fresh invocation of or
submission to the authority of a different court.
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That ends this aspect of the matter. On this tenebrous
record, there is no principled way for us to hold that the Puerto
Rico district court's error was harmless. Consequently, we turn
to the question of relief. In that regard, we must endeavor to find
a remedy suitable to the unusual circumstances of this case.
Normally, we would vacate the challenged order, nullify
any action taken thereunder, and remand to the district court for
further proceedings. See Subsalve, 462 F.3d at 45 (noting that
"[o]rdinarily, an appellate court confronted with an internally
inconsistent order would vacate the offending order and return the
case to the authoring court for clarification"). Here, however,
there is no way to squeeze all of the toothpaste back into the tube.
The Rule 67 funds have been physically transferred to the Western
District of Missouri; that court has assumed control over them; and
we have no authority to order a district court in another circuit
to take a specific action (say, returning the funds). See Matrix
Grp., 378 F.3d at 32. The Puerto Rico district court likewise lacks
any authority to recall the funds. Still, Reintjes's rights must
be protected, and we feel confident that we can rely on the district
courts in the two affected districts to act cooperatively so that
the ends of justice will be served.
In this spirit, we conclude that the most sensible course
is to vacate the July 28 order, remand the case, and direct the
Puerto Rico district court to consider, on the merits, the questions
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of intervention and transfer of the case. Should the court grant
St. Paul's motion to intervene, it may then transfer the entire
action — or what remains of it after dismissing the claims against
Alstom — to the Western District of Missouri under 28 U.S.C. §
1404(a).5 That would validate the original (unauthorized) transfer
of the deposited funds by bringing procedural reality into alignment
with practical reality.
If, however, the Puerto Rico district court determines
that no grounds for intervention exist, it must then advise the
transferee court that the deposited funds were transferred
improvidently and request their return. Requests of this sort have
been made in other circumstances, see, e.g., In re Warrick, 70 F.3d
736, 740-41 (2d Cir. 1995), and we have no reason to doubt that the
transferee court would honor such a request here. The effect, then,
should be to return matters, as closely as is now possible, to the
status quo ante.
5
Section 1404(a) allows a district court to transfer an action
to any district in which the suit "might have been brought."
Obviously, such a transfer is possible here because the suit
originally was brought in the Western District of Missouri and
later transferred to Puerto Rico. While retransfer ordinarily is
to be avoided, see Christianson v. Colt Indus. Oper'g Corp., 486
U.S. 800, 816 (1988), the intervening five years of litigation have
sufficiently altered matters that comity would not be offended by
returning the suit to the original court.
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IV.
Conclusion
We need go no further. We hold, without serious
question, that the naked transfer of the Rule 67 funds was unlawful.
We also hold that the July 28 order, taken as a whole, is internally
inconsistent: the denial of intervention and the dismissal of the
action simply cannot be squared with the order for deposit and the
sending of the deposited funds to the Western District of Missouri.
Given the peculiar circumstances of this case, our error-correction
function must operate under severe constraints. There is simply no
way that we can replicate exactly the situation that existed on July
27, 2006. We can, however, clear away the confusion created by the
district court's erroneous and internally inconsistent order and
give the parties an opportunity to re-present their arguments. We
take no view as to the relative merit of the choices that will
confront the district court on remand.
The motion of St. Paul Fire & Marine Ins. Co. to
intervene in this appeal is granted. The order appealed from is
vacated and the cause is remanded to the district court with
instructions. All parties shall bear their own costs.
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