Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
This petition for mandamus seeks an order against a judge who has refused to transfer a case under 28 U.S.C. § 1404(a).
The plaintiff sued the defendant in the federal court in New Jersey. The defendant moved to transfer the case to the federal court for the Northern District of Ohio, Eastern Division, claiming, among other reasons, that they had rights against another whom they wished to make a third-party defendant and who was subject to suit in Ohio though not in New Jersey. The trial judge denied the motion.
We start, of course, with the language of the statute. It reads:
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
This is a section which is new in the United States Code. It first appeared September 1, 1948. The course of litigation in these formative years will determine whether the objective clear in the wording of the section is to be accomplished. The statute limits the privilege of the plaintiff to have his lawsuit tried in the forum of his choosing if he can there get jurisdiction over the defendant. The purpose of the limitation is clearly to make the inevitably uncomfortable (for the litigant) judicial process cheaper and more convenient and, if possible, more prompt.
Like many another well-intentioned procedural improvement, this one is in a fair way to be defeated by judicial construction.
In the first place some district judges are applying section 1404(a) with a limitation imposed by the Supreme Court upon the doctrine of forum non conveniens as found in the Gulf Oil and Koster decisions.*fn1
The forum non conveniens doctrine is quite different from Section 1404(a). That doctrine involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else. It is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing an action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section 1404(a) avoids this latter danger. Its words should be considered for what they say, not with preconceived limitations derived from the forum non conveniens doctrine.
The second danger which threatens the usefulness of Section 1404(a) comes from the appellate courts. It is settled in this Circuit and elsewhere that an order either making a transfer or refusing a transfer is not appealable.*fn2 Now the effort is being made both in this court and elsewhere to substitute for appeal a review by mandamus whenever the losing party on a motion to transfer wants an advance review of the ruling on this point.
We think that this practice will defeat the object of the statute. Instead of making the business of the courts easier, quicker and less expensive, we now have the merits of the litigation postponed while appellate courts review the question where a case may be tried.
Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong. It is likely that in some cases an appellate court would think so, too. But the risk of a party being injured either by the granting or refusal of a transfer order is, we think, much less than the certainty of harm through delay and additional expense if these orders are to be subjected to interlocutory review by mandamus.
We do not propose to grant such review where the judge in the district court has considered the interests stipulated in the statute and decided thereon.*fn3 Our policy was indicated in our decision in Gulf Research and Development Company v. Leahy*fn4 which concerned a different section of the Code. The discussion there regarding the reason why caution ...