Nine Mile Limited, In re, 82-1236

• Decision Date: 23 March 1982
• Docket Number: No. 82-1236,82-1236
• Citation: 673 F.2d 242
• Parties: In re NINE MILE LIMITED, d/b/a Serco Administrators and American Warranty Corporation, Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 242

673 F.2d 242

In re NINE MILE LIMITED, d/b/a Serco Administrators and American Warranty Corporation, Petitioner.

No. 82-1236.

United States Court of Appeals Eighth Circuit.

March 23, 1982.

Timothy S. White and J. Richard Johnson, White & Warbasse, Cedar Rapids, Iowa and Kevin P. Tighe, Daniel J. Piliero, II, and Myrrel C. Hendricks, Jr., Washington, D. C., for petitioner.

Richard C. Garberson, Cedar Rapids, Iowa, and William F. Halligan, Columbia, S. C., for Philip Carnes.

Before HEANEY, BRIGHT and HENLEY, Circuit Judges.

PER CURIAM.

On February 18, 1982, the petitioner ¹ filed a petition for a writ of mandamus in this Court which requested that we order the United States District Court for the Northern District of Iowa to "temporarily stay its order" which granted a motion to change the venue of the underlying diversity lawsuit ² from the Northern District of Iowa to the District of South Carolina. The petitioner also requested this Court to order the United States District Court Clerk for the Northern District of Iowa to "request (the clerk for the District of South Carolina) that the physical custody of the original papers and filings" in the underlying lawsuit be returned to the Northern District of Iowa so that review could be had in that district court or in the Eighth Circuit. For the reasons discussed below, we grant the petition and order the district court to request the clerk for the District of South Carolina to return the original file and documents in this case to the clerk for the Northern District of Iowa. Upon return of the file and documents to the Northern District of Iowa, we direct the district court to promptly entertain and rule upon petitioner's motion to reconsider his transfer order. Following a ruling on petitioner's motion to reconsider, review may then, if so desired, be pursued in this Court.

The petitioner filed a diversity action ³ against defendant Philip Earl Carnes in the Northern District of Iowa. Defendant Carnes filed a motion for a change of venue on November 23, 1981, which was resisted by the petitioner. On February 2, 1982, the district court, pursuant to 28 U.S.C. § 1404(a), granted Carnes' motion for change of venue and ordered the case transferred to the District of South Carolina, Columbia Division. Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia. Feb. 2, 1982) (order).

On the same day the transfer order was entered, February 2, 1982, the clerk of the United States District Court for the Northern District of Iowa transferred the case's records to the District of South Carolina, Columbia Division. ⁴

On February 5, 1982, the petitioner filed an application to stay the transfer order and request for extension of time to file motion to reconsider. On February 18, 1982, the district court denied the motion, holding that the federal district court in the Northern District of Iowa lost all jurisdiction when the clerk for the District of South Carolina received the file of the underlying action. Nine Mile Limited v. Carnes, supra. See also n.4.

The petitioner correctly argues that in order to permit adequate and orderly review of one federal district court's decision to transfer a case to another federal district court, physical transfer of the file should be delayed for a period of time after entry of the transfer order so that review may be sought in the transferor circuit. See Starnes v. McGuire, 512 F.2d 918, 924, 935 (D.C.Cir.1974) (en banc). Indeed, this Court previously observed that "the better procedure" is to "hold up the transfer for a reasonable time pending possible petition for reconsideration or review." Technitrol, Inc. v. McManus, 405 F.2d 84, 86 (8th Cir. 1968), cert. denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969). See also 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3846 p. 229 (1976) (because appellate review, if available, "is more appropriate in the circuit in which the transferor court sits than in the circuit to which the case is transferred, the better practice, often codified in local rules, is routinely to stay grants of transfer for a sufficient period for appellate review to be sought").

The reason that physical transfer of a case file from the transferor court to the transferee court should be delayed for a reasonable time is that "physical transfer of the original papers in a case to a permissible transferee forum deprives the transferor circuit of jurisdiction to review the transfer." Starnes v. McGuire, supra, 512 F.2d at 924. Accord, 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3846 pp. 228-229 (1976).

In this case, the clerk for the Northern District of Iowa transferred the case file to the District of South Carolina on the same day that the district court ordered the case transferred there. The case file was received by the District of South Carolina clerk on February 4, 1982-two days after the transfer order was filed in the Northern District of Iowa. Under the principles set forth above, we have no alternative but to grant the petition for a writ of mandamus.

Because the case file has...