FMC Corp. v. Glouster Engineering Co.

830 F.2d 770, 56 U.S.L.W. 2206
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 1, 1987
DocketNos. 87-8037, 87-8038
StatusPublished
Cited by8 cases

This text of 830 F.2d 770 (FMC Corp. v. Glouster Engineering Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FMC Corp. v. Glouster Engineering Co., 830 F.2d 770, 56 U.S.L.W. 2206 (7th Cir. 1987).

Opinion

POSNER, Circuit Judge.

Three defendants in a suit pending in the federal district court in Massachusetts have asked us (in two applications) for permission under 28 U.S.C. § 1292(b) to appeal from the district court’s order refusing to dismiss the complaint as to them. The request raises a question of first impression: whether, when the panel on multidistrict litigation transfers a case for consolidated pretrial proceedings (see 28 U.S.C. § 1407) and the district court to which the case is transferred makes an order and certifies it for appeal under section 1292(b), the court of appeals for the circuit in which the case was originally filed has jurisdiction to hear the appeal.

FMC Corporation filed this suit, an antitrust suit against several companies some of which are German, in the Northern District of Illinois. The German companies moved to dismiss the case against them on the ground that they did not transact business in the Northern District of Illinois. While the motion was pending, the panel on multidistrict litigation transferred FMC’s lawsuit, for pretrial proceedings only, to the District of Massachusetts, there to be consolidated with the pretrial proceedings in a suit for patent infringement that FMC had brought against one of the domestic defendants in the antitrust suit. The district judge in Massachusetts denied the German defendants’ motion to dismiss them from the antitrust case. He ruled that the Clayton Act’s requirements for personal jurisdiction (§ 12, 15 U.S.C. § 22) are satisfied if a defendant transacts business anywhere in the United States; it needn’t be in the district where the suit is brought, as the defendants had argued. The judge certified his order denying the motion to dismiss for an immediate appeal under 28 U.S.C. § 1292(b). The German defendants have asked us to accept the appeal. At our request the parties have briefed the question whether we have jurisdiction of the appeal.

Section 1292(b) provides that

[771]*771When 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 Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order— [Emphasis added.]

Section 1294 provides so far as pertinent to this case that “appeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows: (1) From a district court of the United States to the court of appeals for the circuit embracing the district — ” The order denying the German defendants’ motion to dismiss the case was made by the district court in Massachusetts; so section 1294, read in isolation, would require that any appeal from that order be taken to the First Circuit rather than to us. However, the italicized words in section 1292(b) point the other way. For after pretrial proceedings are over, the antitrust case, unless terminated at the pretrial stage, will be remanded to the Northern District of Illinois, see 28 U.S.C. § 1407(a), and we will have jurisdiction over the “appeal of such [civil] action.” Added in 1984 by section 412(a) of the Technical Amendments to the Federal Courts Improvement Act of 1982, Public Law 98-620, 98th Cong., 2d Sess., 98 Stat. 3362, the italicized language was intended to make clear that appeals under section 1292(b) in patent-infringement cases would go to the Federal Circuit, which has exclusive appellate jurisdiction in such cases, rather than, as section 1294 read literally would have required, to the court of appeals covering the district in which the case was pending. See H.R.Rep. No. 619, 98th Cong., 2d Sess. 4 (1984), U.S.Code Cong. & Admin.News 1984, at p. 5708.

Although the multidistrict statute does not say which court of appeals has jurisdiction over appeals from orders by the district court to which a case is transferred, most cases hold that it is the court of appeals covering the transferee court rather than the one covering the transferor court. See, e.g., Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341, 1344 (7th Cir.1971) (per curiam); Astarte Shipping v. Allied Steel & Export Service, 767 F.2d 86 (5th Cir.1985) (per curiam); but see Meat Price Investigators Ass’n v. Spencer Foods, 572 F.2d 163, 164 (8th Cir.1978). Cf. In re Corrugated Container Antitrust Litigation, 662 F.2d 875, 879-81 (D.C. Cir.1981). Indirect support for this conclusion comes from the statute’s provision on venue for review by extraordinary writ of post-transfer orders issued by the multidistrict panel. See 28 U.S.C. § 1407(e). However, none of the cases except LeMay involves section 1292(b), which since the 1984 amendment has contained language suggesting a different conclusion for appeals under that section; and LeMay was decided long before the amendment. The amendment is not dispositive. Although written in general terms, it was responding to a specific and distinguishable problem — the anomaly of a system where the Federal Circuit would exercise exclusive jurisdiction over all appeals in patent-infringement suits except appeals under section 1292(b). Nevertheless, Congress’s choice of general language may authorize us to deal with a lesser anomaly.

Confining appellate jurisdiction to the court of appeals for the region where the transferee court is located makes a great deal of sense in every situation we can think of — except possibly an appeal under section 1292(b). The court of appeals for that region is more convenient to the parties and knows the district judges. And many of the issues that arise in pretrial proceedings (and it is only for the pretrial stage of litigation that a transfer under section 1407, that is, an involuntary transfer, is allowed) will involve the practices and procedures of the local district court. Moreover, since most litigation never gets beyond the pretrial stage and most pretrial [772]*772orders are not appealable, there is relatively little likelihood that appellate jurisdiction will be divided between two circuits if the court of appeals for the transferee circuit has jurisdiction over appeals taken while the case is in the transferee district court. There is some likelihood, admittedly.

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Bluebook (online)
830 F.2d 770, 56 U.S.L.W. 2206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fmc-corp-v-glouster-engineering-co-ca7-1987.