In this case, a plaintiff whose case has been ordered transferred under 28 U.S.C.
Plaintiff, A. Olinick & Sons (Olinick), is a family partnership engaged in the scrap metal business in Brooklyn. Defendant, Dempster Brothers, Inc. (Dempster), is a Tennessee corporation with its principal place of business in Knoxville, Tennessee, engaged in the manufacture and sale of hydraulically operated equipment, including scrap metal processors. It has never qualified to do business in New York State and maintained no office, telephone listing, or salesmen in the state. According to the affidavits before the District Court, Dempster had 447 employees on August 16, 1965; Olinick had 12 employees on September 30, 1965.
In February 1962, having heard of the virtues of Dempster’s products from a manufacturer’s representative, two Olinick partners, Oscar and David Olinick, went down to Knoxville to investigate the possibility of ordering a large “baler shear” which would both compress and cut scrap metal. Olinick agreed to buy the machine for a total purchase price of $135,000, after negotiations in part in Knoxville and in part by phone and mail between Knoxville and Brooklyn. The parts were delivered in the early part of 1963 and were assembled in Brooklyn by employees of Dempster, working together with employees of Olinick.
From the first use of the machine, Olinick complained that it was defective: that it was not made to specifications, that it did not handle the capacity of scrap originally anticipated, and that it broke down with distressing regularity. On several occasions Dempster sent teams of servicemen to Brooklyn to work on the machine. In January 1963, David and Oscar Olinick went to Knoxville, together with a lawyer from Cincinnati, to discuss the problem with Dempster. Dempster offered to reduce the price of the machine to $35,000, the amount Olinick had already paid. According to Dempster, Olinick agreed to this, provided that Dempster would agree to furnish further parts for the machine. According to Olinick, no agreement was reached in Knoxville, except that Dempster experts were to go to Brooklyn to discuss what could be done to salvage the machine. In any case, Dempster experts did go to Brooklyn and did agree on a list of parts and information to be furnished to Olinick. Dempster’s counsel in Tennessee then drafted a proposed settlement agreement which formed the basis of an agreement between the parties, signed by Dempster in Tennessee and, on February 25, 1964, by Olinick, apparently in Brooklyn.
On July 12, 1965, Olinick brought suit against Dempster in the Supreme Court of New York, County of Kings, seeking damages in the amount of $500,000 for breach of warranty, negligence and failure to perform, all grounded on alleged defects in the machine which “were the result of the negligent design, manufacture, assembly, and inspection thereof by Dempster.” In addition the complaint requested the rescission of the agreement of February 25, 1964, on the grounds that at the time of its execution Dempster had fraudulently failed to disclose the existence of certain grave defects in the machine known by Dempster but not readily discoverable; or, in the alternative, for $300,000 in damages for failure by Dempster. to perform the repairs promised under the agreement of February 25, 1964.
Dempster removed the action to the District Court for the Eastern District of New York and moved that the ease be transferred to the Eastern District of Tennessee, Northern Division (at Knoxville), pursuant to 28 U.S.C. § 1404(a). After hearing oral argument on two occasions and considering affidavits, supplemental affidavits, and memoranda of law, the District Court ordered the case transferred, pointing out among other factors that the defense expected to call more witnesses, and that the case would proceed to trial far more quickly in the Eastern District of Tennessee than in the Eastern District of New York. The
1. The Mode of Review
A threshold question is whether the proper mode of review is by interlocutory appeal or by mandamus. The difference between the two is not necessarily large. Under each, the Court of Appeals has total discretion — akin to that exercised by the Supreme Court on petitions for certiorari — in deciding whether or not to permit review. E. g., In re Josephson, 218 F.2d 174, 183 (1st Cir. 1954); S.Rep. No. 2434, 85th Cong., 2d Sess., 1958 U.S.Code Cong, and Admin.News, p. 5257. Although in mandamus the trial court is named as a party, where the writ is sought simply to review the merits of its transfer order, its participation is purely nominal. See Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965). Moreover, the scope of judicial review under the two procedures may be very much the same. See Humble Oil & Ref. Co. v. Bell Marine Serv. Inc., 321 F.2d 53, 56-57 (5th Cir. 1963).
Nevertheless, litigants aggrieved by the grant or denial of a § 1404(a) motion are entitled to guidance as to which route they should pursue, the more especially because of the frequent pronouncements that mandamus will not lie if review by appeal is available. E. g., Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947); Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); 1 Moore, Federal Practice ¶ 0.147 at p. 1973 (2d ed. 1964).
It is important to note that Olinick here does not urge that the District Court considered an improper factor in deciding the motion to transfer, or that it ordered the case transferred to a district which was not one where the action “might have been brought,” within the meaning of 28 U.S.C. § 1404(a). In the latter case, there may well be “a controlling question of law as to which there is substantial ground for difference of opinion,” and “an immediate appeal from the order may materially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b), since the Court of Appeals for the circuit in which the transferee district is located might hold that the transfer was improper and that a retransfer and a new trial was necessary, even after trial. See Olberding v. Illinois Cent. R. R., 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953); cf. Continental Grain Co. v. The Barge FB L-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960); Foster-Milburn Co. v. Knight, 181 F.2d 949 (2d Cir. 1950).
Instead, Olinick contends that the District Court considered proper factors-— location of parties, witnesses, and documents; convenience to the parties; and docket conditions in the alternative districts, see Gulf Oil Carp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); cf. Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-244, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964) —but reached the wrong result.
The Courts of Appeals have been far from unanimous in deciding whether § 1292(b) is available to one seeking to review the disposition of a § 1404(a) transfer motion for erroneous evaluation |of proper factors. The Fifth Circuit stoutly affirms that it is available, and that mandamus is accordingly inappropriate. Humble Oil & Ref. Co. v. Bell Marine Serv. Inc., 321 F.2d 53 (5th Cir.1963); In re Humble Oil & Ref. Co., 306 F.2d 567 (5th Cir.1962). The Third and Sixth Circuits just as stoutly hold that it is not available. Standard v. Stoll Packing Corp., 315 F.2d 626 (3d Cir.1963); Bufalino v. Kennedy, 273 F.2d 71 (6th Cir.1959). We have not addressed ourselves directly to the problem, although we have suggested that “orders granting or denying motions for transfers pursuant to the provisions of 28 U.S.C. § 1404(a) are * * * not ap
We agree with the Third and the Sixth Circuits that § 1292(b) is not available as a means to review the grant or denial of § 1404(a) motions for incorrect evaluation of proper factors. The correctness of such an evaluation can only with difficulty be described as a “controlling question of law”; and review of such an evaluation is not likely to advance the termination of the litigation since, even if the evaluation were incorrect, no reviewing court would be : likely after a trial on the merits to order ¡ a transfer or retransfer for a new trial; on the merits. See Note, Discretionary Appeals of District Court Interlocutory Orders: A Guided Tour Through Section 1292(b) of the Judicial Code, 69 Yale L.J. 333, 351 (1959). Indeed, review of the disposition of the transfer motion may delay a decision on the merits and so defeat the manifest statutory objective of making litigation quicker and less expensive. Cf. All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011-1012 (3d Cir.1952).
We are mindful of the statement of the House Judiciary Committee that § 1292(b) would permit interlocutory appeals in “causes relating to the transfer of the action where it is claimed that the transfer is not authorized by law.” H. R. Rep. No. 1667, 85th Cong., 2d Sess. 2 (1958). If anything, we read this statement as supporting our conclusion, since there is no question here but that the District Court had the power under § 1404(a) to order the transfer; the only question is whether that power was properly exercised.1
2. The Trial Court’s Exercise of Its Discretion
Once the inappropriateness of appeal under § 1292(b) is established, the questions become whether we have the power to issue mandamus, and if so, whether we should exercise that power in this case.
Although it has been occasionally held that the Courts of Appeals should never review the disposition of a § 1404 (a) transfer motion “where the judge in the district court has considered the interests stipulated in the statute and has decided thereon”, All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1012 (3d Cir.1952); Great Northern R'y v. Hyde, 238 F.2d 852, 857 (8th Cir.1956), adhered to, 245 F.2d 537 (8th Cir.1957), cert. denied, 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77 (1957); cf. Clayton v. Warlick, 232 F.2d 699, 706 (4th Cir. 1956); Loew’s, Inc. v. McGuire, 92 U.S.App.D.C. 319, 205 F.2d 719 (1953), the great majority of recent appellate decisions, including those of our court, indicate that the Courts of Appeals consider themselves possessed of the power to issue mandamus in extraordinary circumstances to correct the disposition of a transfer motion by the District Court, even where the District Court has purported to consider proper factors. E. g„ Ackert v. Bryan, 299 F.2d 65, 67 (2d Cir.1962); Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950) (in which Judge Frank indicated that the test was “abuse of discretion” and Judge Learned Hand indicated that it was whether the order was “clearly erroneous”); In re Josephson, 218 F.2d 174 (1st Cir.1954) (“really extraordinary situations”); General Tire & Rubber Co.
What emerges from a review of the cases is a strong sense of appellate reluctance to interfere with the District Court's exercise of its discretion under 28 U.S.C. § 1404(a). The reasons for this reluctance are not hard to find. The Courts of Appeals understandably wish to reserve power to redress clear-cut abuses of discretion in the handling of § 1404(a) motions, since such abuses cause great inconvenience and expense to the litigants and are almost impossible to correct by review after trial. See Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert, denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). At the same time, the Courts of Appeals are aware that the trial judge, with his superior opportunity to familiarize himself with the nature of the case and the probable testimony on trial, is better able to dispose of § 1404(a) motions; that the statute by its terms vests broad discretion in the trial judge in considering the convenience of the parties and witnesses and the interest of justice; and that extended review by the appellate courts of'the disposition of § 1404(a) motions will prolong litigation and thwart the objectives of speedy and efficient trial which § 1404(a) sought to further. For these reasons, dispositions of § 1404 (a) motions have almost never been overturned for abuse of discretion. Our court thus far has never done so; and other courts have done so only in the most clear-cut cases.2
We do not believe that the District Court so abused its discretion in ordering a transfer as to require the issuance of mandamus. To be sure, a number of factors pointed towards the retention of the case in New York. The plaintiff’s choice of venue is still entitled to substantial consideration, although not so much upon a motion to transfer under 28 U.S.C. § 1404(a) as upon a motion to dismiss for forum non conveniens,
We do not need to decide whether we would have decided the motion for a transfer differently than did the trial court, had the motion been ours to decide.3 Mandamus does not lie to review mere error in the disposition of § 1404 (a) motions, but only to redress a clear-cut abuse of discretion. Butterick Co. v. Will, 316 F.2d 111 (7th Cir.1963); see Ackert v. Bryan, 299 F.2d 65 (2d Cir.1962); cf. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). We cannot hold that the trial court’s decision to transfer the present case, made only after oral argument and the submission of thorough affidavits and memoranda of law, contrast Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267 (3d Cir.1962), and on careful consideration of the convenience of parties and Witnesses and the interest of justice, was a clear-cut abuse of discretion.
Application for leave to appeal denied; petition for writ of mandamus denied.
1.
It is significant that Judge John J. Parker, Chairman of the Judicial Conference’s Committee on Appeals from Interlocutory Orders of the District Courts, in explaining to a subcommittee of the House Judiciary Committee that interlocutory appeals would be useful in cases of transfers “not authorized by law,” referred only to cases in which litigants claimed that the transferee court lacked jurisdiction. Hearings Before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess., Ser. 11 at 9 (1958).
2.
Chicago, R. I. & P. R. R. v. Igoe, 220 F.2d 299 (7th Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955) (personal injury case; district court had denied motion for transfer, even though accident took place, and plaintiff and all witnesses resided, in proposed transferee district, the docket of which was far less crowded than the docket of the district in which plaintiff brought suit); Atlantic Coast Line R. R. v. Davis, 185 F.2d 766 (5th Cir. 1960) (district court ordered transfer from Florida to New York even though accident took place in Florida, and plaintiff and all witnesses resided there); Koehring Co. v. Hyde Constr. Co., 324 F.2d 295 (5th Cir. 1965) (district court had retained suit over construction of plant in Oklahoma, even though view was possible only in Oklahoma, almost all witnesses resided there, and docket was less congested there). Occasionally Courts of Appeals, reversing decisions for other reasons, have indicated that a transfer would be appropriate on remand. Chicago, R. I. & P. R. R. v. Hugh Breeding Inc., 247 F.2d 217, 226 (10th Cir.), petition for cert, dismissed, 355 U.S. 880, 78 S.Ct. 138, 2 L.Ed.2d 107 (1957); Southern R’y v. Madden, 235 F.2d 198 (4th Cir.), cert, denied, 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956).
3.
The Supreme Court had suggested in an analogous ease involving transfer under F.R.Crim.P. 21(b) that “[t]he function of the Court of Appeals * * * was to determine the appropriate criteria and then leave their application to the trial judge on remand,” and that the Court of Appeals should not review the record de novo and itself exercise the discretionary function committed to the trial court. Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 772, 11 L.Ed.2d 674 (1964). However, the Court has shown itself willing to spell out in considerable detail the importance of the relevant factors, see Van Dusen v. Barrack, 376 U.S. 612, 643-646, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); and in Koehring Co. v. Hyde Constr. Co., 383 U.S. 939, 86 S.Ct. 1062, 15 L.Ed.2d 857 (1966), the Court held that under extraordinary circumstances an appellate court, convinced that the trial court erred in failing to transfer a case, could transfer the case itself.