Plaintiffs sued the corporation in which they are shareholders, and various of the corporate directors, officers and controlling persons, claiming violations of
This court granted permission for a § 1292(b) appeal from the transfer order but reserved ultimate determination of the appropriateness of the appeal for consideration along with the merits. We conclude that leave to appeal was improvidently granted. Also we deny the petition for mandamus.
To attempt to get within § 1292 (b), the plaintiffs grasp for a controlling question of law as to which there is substantial ground for a difference of opinion by contending that a plaintiffs choice of forum should always be respected in actions brought under the Securities Act of 1933 and the Securities Act of 1934. Similar contentions have been rejected in Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949) and United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226 (1949). In Securities Act cases venue has been transferred to other districts in Schneider v. Sears, 265 F.Supp. 257 (S.D.N.Y.1967); Axe-Houghton Fund A, Inc. v. Atlantic Research Corp., 227 F.Supp. 521 (S.D.N.Y. 1964); Sher v. Johnston, 216 F.Supp. 123 (S.D.N.Y.1963); Polaroid Corp. v. Casselman, 213 F.Supp. 379 (S.D.N.Y. 1962).
The plaintiff’s statutory privilege of choosing his forum is a factor, held in varying degrees of esteem, to be weighed against other factors in determining the convenient forum.
Time, Inc. v. Manning, 366 F.2d 690 (5th Cir. 1966). That factor is not controlling. Ultimately the trial judge must use his discretion.2
This court has used the procedure of § 1292(b) to review both questions of law 3 and the discretion of the trial, judge in transfer eases. But we have not squarely adjudicated the propriety of review of discretion under § 1292(b). In Ex parte Chas. Pfizer & Co., Inc., 225 F.2d 720 (5th Cir. 1955), a mandamus ease, without referring to § 1292(b), we said that a transfer order was interlocutory and not appealable. We invited certification in Ex parte Deepwater Exploration Co., 260 F.2d 546 (5th Cir. 1958) but the District Court declined on grounds it was not an available procedure, Deepwater Exploration Co. v. Andrew Weir Ins. Co., 167 F.Supp. 185 (E.D.La.1958). Subsequently we issued another invitation in In re Humble Oil & Refining Co., 306 F.2d 567 (5th Cir. 1962), and this time it was accepted, Humble Oil & Refining Co. v. Bell Marine Service, Inc., 321 F.2d 53 (5th Cir. 1963). In Humble II we recognized that the question whether the District Court opinion in Deepwater correctly stated the law would have to await “a proper case on another day.” Subsequently in Time, Inc. v. Manning, supra, we affirmed the District Judge’s denial of a discretionary transfer, considering it along with a jurisdictional issue clearly appealable under § 1292(b), without consideration of the independent availability of such review. The “proper case on another day” is now at hand. Presumably it was with this thought in mind that the panel which granted leave
We are of the view that § 1292 (b) review is inappropriate for challenges to a judge’s discretion in granting or denying transfers under § 1404(a). The Congressional policy against piecemeal appeals, as expressed in the final judgment rule, 28 U.S.C. § 1291, to which § 1292(b) is a narrow exception, is eroded by permitting- review of exercise of the judge’s discretion under § 1404(a) as a “controlling question of law.” Our conclusion is the same as that already reached by the Second, Third, and Sixth Circuits,4 and by the text writers.5
The temptation is great when an interlocutory appeal is properly taken from one order, and the record is before us, and the parties themselves may desire a declaration on the validity of another interlocutory order not independently appealable under § 1292(b), to consider everything on a sort of ad hoc pendent jurisdiction basis. Apparently this is what happened in Time, Inc. v. Manning. A similar case is Koehring Co. v. Hyde Construction Co., 324 F.2d 295 (5th Cir. 1963), where appellant appealed from denial of a motion to dismiss on grounds of lack of jurisdiction in Mississippi and of alternative § 1404(a) and § 1406(a)6 motions to transfer to Oklahoma. Without considering the question of availability of review, we held that we need not reach the jurisdiction issue because the case should be transferred to Oklahoma. There are several considerations against piecemeal appeals. It is contrary to the language of § 1292(b), which is in terms of the appealability where “such order involves a controlling question of law.” The issue is not one of convenience to the litigants, or even to this court, but of appellate jurisdiction. The ad hoc approach invites the parties to inject a sham issue as the vehicle to bring the case to this court at the interlocutory stage for a declaration on an order not otherwise reviewable. And it confuses the courts and the parties, who assume that because a discretionary transfer order has been reviewed in one case it can be reviewed in any other.
This Circuit has recognized the availability of mandamus as a limited means to test the district courts' discretion in issuing transfer orders. Ex parte Blaski, 245 F.2d 737 (5th Cir.), cert. denied, 355 U.S. 872, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957); Ex parte Chas. Pfizer & Co., supra; Atlantic Coast Line R.R. v. Davis, 185 F.2d 766 (5th Cir. 1950). Cf. Ex parte Deepwater Exploration Co., supra.7
In the voluminous litigation over transfer orders, only a few litigants have surmounted the formidable obstacles and secured the writ.8
There is not shown in this case any failure by the District Judge to correctly construe and apply the statute, or to consider the relevant factors incident to ruling upon a motion to transfer, or any clear abuse of discretion on his part. Blaski, supra; Pfizer, supra; Atlantic Coast Line, supra. While couched in
The transfer order is affirmed. The petition for writ of mandamus is denied.
1.
This case formerly was consolidated with First American Life Insurance Company v. Garner, No. 26266. By opinion entered in the consolidated cases the consolidation was vacated and No. 26266 was decided on the merits. Garner v. Wolfinbarger [Nos. 26168 and 26266, 430 F.2d 1093, 5th Cir., 1970.]
2.
See generally, 1 Moore, Federal Practice If 0.147 (1964).
3.
Continental Grain Co. v. Federal Barge Lines, Inc., 268 F.2d 240 (5th Cir. 1959), aff’d sub nom. Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960).
4.
A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 443 (2d Cir. 1966); Standard v. Stoll Packing Corp., 315 F.2d 626 (3d Cir. 1963); Bufalino v. Kennedy, 273 F.2d 71 (6th Cir. 1959).
5.
1 Barron & Holtzoff, Federal Practice & Procedure, § 86.7 at 434 (Wright ed. 1960); Cf. Moore, Federal Practice, ¶ 0.147 at 1973-74 (1964).
6.
“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”
7.
Some opinions of other circuits are to the contrary. E. g., A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 445-448 (2d Cir. 1966) (dissent); In re Josephson, 218 F.2d 174 (1st Cir. 1954); All States Freight, Inc. v. Modarelli, 196 F.2d 1010 (3d Cir. 1952).
8.
We note 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) (mandamus ordering transfer); Atlantic Coast Line R.R. v. Davis, supra (mandamus preventing retransfer); see also Koehring Co. v. Hyde Construction Co., supra.