Savarirayan v. Brisolara

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 23, 2002
• Docket: 02-60169
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-60169 Summary Calendar

FRANCIS J. SAVARIRAYAN, M.D.,

Plaintiff - Counter-Defendant - Appellee,

versus

DAVID BRISOLARA, ETC.; ET AL.,

Defendants,

DONNY W. GEE; DEBRA GEE,

Defendants - Counter-Claimants - Appellants.

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:01-CV-97-S-D

July 19, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Counter-claimants Donny W. Gee and Debra Gee seek to appeal

the district court’s order transferring their counter-claim, the

only claim remaining in the case, to the United States District

Court of the District of North Dakota pursuant to 28 U.S.C. §

1404(a). The district court certified this order for appeal

pursuant to 28 U.S.C. § 1292(b). Despite this certification,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. however, we lack jurisdiction over this interlocutory appeal of the

district court’s purely discretionary decision to transfer the case

in the interests of justice and for the convenience of parties and

witnesses.

It has long been the law of this circuit “that § 1292(b)

review is inappropriate for challenges to a judge's discretion in

granting or denying transfers under § 1404(a).”1 We have

“recognized the availability of mandamus as a limited means to test

the district courts' discretion in issuing transfer orders.”2 The

Gees, however, have filed only an interlocutory appeal of the

district court’s order—they have not filed a petition for writ of

mandamus.

Moreover, their challenge goes only to the district court’s

exercise of its discretion. Their arguments focused on Dr. Francis

J. Savarirayan’s waiver of any objection to venue in the Northern

District of Mississippi miss the point.3 A section 1404(a)

1 Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970). 2 Id.; see also La. Ice Cream Distributors, Inc. v. Carvel Corp., 821 F.2d 1031, 1033 (5th Cir. 1987) (noting that “we have disclaimed immediate appellate jurisdiction over the grant or denial of a motion to transfer under 28 U.S.C. § 1404(a)”). 3 Cf. 15 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure Jurisdiction § 3844 (2d ed. 1986) (“A party who has waived his objection to venue by failure to assert it at the proper time is not for that reason precluded from moving for a change of venue.”); cf. also Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960) (“But the power of a District Court under § 1404(a) to transfer an action to another district is made to depend not upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action 'might have been brought' by the plaintiff.”).

2 transfer order assumes that venue will lie in either the transferor

or transferee district, such that Dr. Savarirayan’s decision to

file suit against the Gees in Mississippi does not control whether

the district court has the statutory power to exercise its

discretion to transfer the Gees’ counter-claim to North Dakota in

the interests of justice and for the convenience of parties and

Thus, the Gees do not present a proper challenge to the

district court’s power to transfer their counter-claim, over which

we might properly exercise appellate jurisdiction pursuant to a

section 1292(b) certification.4 As such, we have no appellate

jurisdiction over the Gees’ challenge to the district court’s

purely interlocutory order.5

APPEAL DISMISSED FOR LACK OF JURISDICTION.

4 See 15 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure Jurisdiction § 3855 (2d ed. 1986) (“If the action of the district judge on a § 1404(a) motion raises a legal question of whether he has acted within his power, an interlocutory appeal under § 1292(b) is proper.”). Accord Snyder Oil Corp. v. Samedan Oil Corp., 208 F.3d 521 (5th Cir. 2000) (deciding an appeal of the district court’s choice of law determination pursuant to the Outer Continental Shelf Lands Act based on a 28 U.S.C. § 1292(b) certification of a 28 U.S.C. § 1404(a) transfer order). 5 We likewise have no appellate jurisdiction, pursuant to 28 U.S.C. § 1292(b) or otherwise, over the Gees’ challenge to the district court’s denial of their request to supplement their complaint to include three state law malicious prosecution claims.