5 F.3d 28 (3rd Cir. 1993), 93-1345, Sunbelt Corp. v. Noble, Denton & Associates, Inc.

Docket Nº:93-1345.
Citation:5 F.3d 28
Party Name:SUNBELT CORPORATION; Sunbelt Enterprises; Cemex, S.A.; and Eagle Cement, Inc., Petitioners, v. NOBLE, DENTON & ASSOCIATES, INC. and Phillyship, Inc., Respondents, Honorable Clarence C. Newcomer, United States District Judge for the Eastern District of Pennsylvania, Nominal Respondent.
Case Date:September 14, 1993
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 28

5 F.3d 28 (3rd Cir. 1993)

SUNBELT CORPORATION; Sunbelt Enterprises; Cemex, S.A.;

and Eagle Cement, Inc., Petitioners,

v.

NOBLE, DENTON & ASSOCIATES, INC. and Phillyship, Inc., Respondents,

Honorable Clarence C. Newcomer, United States District Judge

for the Eastern District of Pennsylvania, Nominal

Respondent.

No. 93-1345.

United States Court of Appeals, Third Circuit

September 14, 1993

Argued July 13, 1993.

Page 29

A. Robert Degen (argued), Krusen, Evans & Byrne, Philadelphia, PA, for petitioners.

Richard Q. Whelan (argued), Palmer, Biezup & Henderson, Philadelphia, PA, for respondent Phillyship, Inc.

Peter A. McLauchlan, Janet M. Williams (argued), Meyer, Orlando & Evans, P.C., Houston, TX, George N. Styliades, Styliades & Mamas, Cherry Hill, NJ, for respondent Noble, Denton & Associates, Inc.

BEFORE: SLOVITER, Chief Judge, NYGAARD and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Senior Circuit Judge.

Sunbelt Corporation, a Texas corporation; Sunbelt Enterprises, a Texas corporation; Cemex, S.A., a Mexican corporation; and Eagle Cement, Inc., a Delaware corporation, (collectively "petitioners") seek a writ of mandamus under 28 U.S.C. Sec. 1651 ordering the district court to vacate its order transferring their underlying action in the district court to the Southern District of Texas. Respondent Noble, Denton & Associates, Inc. ("Noble Denton"), a defendant, asks that we uphold the district court's transfer order and requests in the alternative that we instruct the district court to sever the action so that petitioners' claims against it can be transferred to the United States District Court for the Southern District of Texas.

I. BACKGROUND

Petitioners instituted the underlying breach of contract and negligence action against Noble Denton, a Texas corporation, and Phillyship, Inc. ("Phillyship"), a Pennsylvania corporation, seeking compensation for damages allegedly caused to their cargo (a modular ship and cement unloader) by, inter alia, Noble Denton's failure to design adequately a seafastening plan and Phillyship's failure to perform proper engineering and rigging services prior to the transportation of the cargo from Philadelphia to San Diego.

Petitioners' complaint alleged that "one or more of them" entered into a contract with Noble Denton under which Noble Denton was to develop a stability and seafastening plan for loading the cargo. 1 Phillyship was

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not a party to this contract. Sunbelt entered into a separate contract with Phillyship whereby Phillyship would execute the plan to be developed by Noble Denton. This contract was sought by Sunbelt and negotiated and executed in Philadelphia. All work under this contract was performed under Noble Denton's supervision in Philadelphia.

After answering the complaint, Noble Denton moved to transfer the action under 28 U.S.C. Sec. 1404(a) to the Southern District of Texas, based primarily on a forum selection clause contained in the contract between Sunbelt and Noble Denton. 2 The district court granted this motion and thereafter denied petitioners' and Phillyship's motions for reconsideration. Petitioners then filed this petition for a writ of mandamus. 3

II. JURISDICTION

The district court possessed admiralty and maritime jurisdiction of the underlying action under 28 U.S.C. Sec. 1333. Generally, "orders transferring venue are not immediately appealable." Carteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 228 (3d Cir.1990); see McCreary Tire & Rubber Co. v. Ceat, S.p.A., 501 F.2d 1032, 1034 (3d Cir.1974) ("An order transferring an action pursuant to 28 U.S.C. Sec. 1404(a) ... is interlocutory and unappealable under Sec. 1291."). 4 Mandamus is therefore the appropriate mechanism for reviewing an allegedly improper transfer order. See Bloom v. Barry, 755 F.2d 356, 357 (3d Cir.1985); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168-69 (3d Cir.1982); Shutte v. Armco Steel Corp., 431 F.2d 22, 23 (3d Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971). We have plenary review of the legal determinations underlying the district court's transfer order. See In re School Asbestos Litig., 977 F.2d 764, 778 n. 15 (3d Cir.1992).

III. MANDAMUS

Our review of the district court's transfer order on a petition for a writ of mandamus is governed by familiar principles. A writ of mandamus is an extraordinary remedy, the issuance of which is generally committed to the sound discretion of the issuing court. Carteret, 919 F.2d at 232-33; In re School Asbestos Litig., 977 F.2d at 772. A writ will only issue when the party seeking the writ has no other adequate means of obtaining the relief sought. Carteret, 919 F.2d at 232-33. We have held that the possibility of an appeal in the transferee forum following a final judgment there is not an adequate alternative to obtain the relief sought. See Carteret, 919 F.2d at 233. Thus, petitioners have met this prerequisite to obtaining a writ of mandamus.

Generally, a writ will only issue if the district court did not have the power to enter the order, and then "only if the party seeking the writ meets its burden to demonstrate that its right to the writ is clear and indisputable." Id. at 232. Thus, we turn to whether or not the district court had the power to transfer this action.

Petitioners allege that mandamus is warranted here because (1) the district court erred in concluding that Phillyship is subject to personal jurisdiction in Texas; and (2) the district court abused its discretion in transferring the action on the basis of a forum selection clause contained in a contract to which Phillyship was not a party. As the parties concede, if we find that Phillyship is not amenable to process in the Southern District of Texas we will not need to reach the second issue.

  1. Transfer Under 28 U.S.C. Sec. 1404(a)

Section 1404(a) provides that a district court "[f]or the convenience of parties and...

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