In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1114
IN RE:
D ANIEL H UDSON,
Petitioner.
Petition for a Writ of Mandamus to the
United States District Court for the
Central District of Illinois.
No. 2:12-cv-02140-HAB-DGB—Harold A. Baker, Judge.
S UBMITTED JANUARY 18, 2013—D ECIDED M ARCH 5, 2013
Before P OSNER, R IPPLE, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. Daniel Hudson filed suit in a
federal district court in Illinois under the Federal Tort
Claims Act, charging that medical personnel at a federal
prison in Kansas in which he had been incarcerated
had negligently failed to diagnose a blood clot in his leg
and that as a result he had experienced serious health
problems. The government moved to transfer the case
to the federal district court in Kansas pursuant to
28 U.S.C.
§ 1404(a), on the ground that the principal witnesses are
in Kansas, not Illinois, and also that the District of
Kansas has a lighter caseload per judge than the Central
2 No. 13-1114
District of Illinois. The district court granted the motion.
Hudson has petitioned us for mandamus, arguing that
the case should remain in Illinois because he lives here,
as do his current treating physicians, who he says will
testify about his current health problems and also testify
that those problems stem from the failure to diagnose
his blood clot. Relatives of his in Illinois will also testify
to his continuing health problems. According to the
plaintiff, seven of the potential witnesses (both plaintiff
and defense witnesses) are in Kansas; three are in the
adjacent state of Missouri (and two of them are only
two miles from the border between the two states);
five (three treating physicians plus two relatives) are in
Illinois; and two are in California.
The grant of the government’s motion to transfer the
case was an unappealable interlocutory order, but an
unappealable order can in exceptional circumstances be
reviewed by a mandamus proceeding. The grant of a
motion to transfer is an appealing candidate for such
review. See, e.g., Van Dusen v. Barrack,
376 U.S. 612, 615
n. 3 (1964); In re Apple, Inc.,
602 F.3d 909, 912 (8th Cir.
2010) (per curiam); In re Volkswagen of America, Inc.,
545
F.3d 304, 309 (5th Cir. 2008) (en banc). As we explained
in Hicks v. Duckworth,
856 F.2d 934, 935 (7th Cir. 1988), “it
is difficult to see how such an error could be corrected
otherwise. The district court to which the case was trans-
ferred would be most likely to dismiss it, so that [the
case] would wander between circuits like the Ancient
Mariner” (citation omitted). The dismissal could be
appealed, but what if the court of appeals for the circuit
No. 13-1114 3
to which the case had been transferred upheld the dis-
missal?
The doctrine of law of the case provides a possible
but incomplete answer. In Christianson v. Colt Industries
Operating Corp.,
486 U.S. 800 (1988), the Federal Circuit,
ruling that it lacked jurisdiction over a case, had trans-
ferred it to this court—and we had transferred it back,
insisting that the Federal Circuit was wrong: that it
did have jurisdiction. The Federal Circuit was not per-
suaded, but it felt it had no practical choice but to
decide the merits, lest the case continue bouncing
between the two circuits. The Supreme Court ruled that
the Federal Circuit had been right that it didn’t have
jurisdiction, and so the Court vacated the Federal
Circuit’s merits decision. The Court remarked in
passing that our court’s erroneous jurisdictional ruling
had nevertheless been the law of the case.
Id. at 816. Yet
it added that since law of the case, unlike res judicata, is
not a rigid bar to revisiting a prior ruling, the Federal
Circuit hadn’t been compelled to abide by our court’s
jurisdictional ruling. See
id. at 817. “A court has the
power to revisit prior decisions of its own or of a coordi-
nate court in any circumstance, although as a rule
courts should be loath to do so in the absence of extra-
ordinary circumstances such as where the initial deci-
sion was ‘clearly erroneous and would work a manifest
injustice.’ ”
Id. So law of the case is not a complete
solution to the problem we discussed in the Hicks case
(for what would have happened had the Federal Circuit
retransferred the Christianson case to us?), and so manda-
4 No. 13-1114
mus remains a potentially important remedy in transfer
cases.
Before the change of venue statute was enacted,
28
U.S.C. § 1404(a), a defendant’s only recourse if sued in
an inconvenient forum had been the common law
doctrine of forum non conveniens. And “a defendant in-
voking forum non conveniens ordinarily bears a heavy
burden in opposing the plaintiff’s chosen forum.” Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 430
(2007); see also Gulf Oil Corp. v. Gilbert,
330 U.S. 501,
508 (1947); In re Factor VIII or IX Concentrate Blood
Products Litigation,
484 F.3d 951, 956 (7th Cir. 2007); In re
Volkswagen of America, Inc.,
supra, 545 F.3d at 314 n. 10. The
reason for the heavy burden is that if the doctrine is
successfully invoked, the result is not a transfer to
another court but a dismissal, and the plaintiff will not
be able to refile his case in any other court if the statute
of limitations has run. Norwood v. Kirkpatrick,
349 U.S.
29, 31 (1955); Chang v. Baxter Healthcare Corp.,
599 F.3d 728,
736-37 (7th Cir. 2010); U.S.O. Corp. v. Mizuho Holding
Co.,
547 F.3d 749, 752-53 (7th Cir. 2008). The doctrine is
thus “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
No. 13-1114 5
completely, through the running of the statute of limita-
tions 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 doc-
trine.” Norwood v. Kirkpatrick,
supra,
349 U.S. at 31, quoting
All States Freight, Inc. v. Modarelli,
196 F.2d 1010, 1011
(3d Cir. 1952). And so the change of venue statute has
displaced forum non conveniens when the question is
the superior convenience of litigating a case in one
federal district court rather than another.
Not only is the showing of inconvenience neces-
sary to justify a transfer therefore less exacting than the
showing required to obtain a dismissal on grounds of
forum non conveniens, Norwood v. Kirkpatrick,
supra,
349
U.S. at 31-32; Employers Mutual Casualty Co. v. Bartile
Roofs, Inc.,
618 F.3d 1153, 1167 n. 13 (10th Cir. 2010); Coffey
v. Van Dorn Iron Works,
796 F.2d 217, 219-20 and n. 3 (7th
Cir. 1986); In re Volkswagen of America, Inc., supra, 545
F.3d at 313-14 and n. 8; but an applicant for mandamus
has an uphill fight whatever the basis for the applica-
tion. Because of the delay that a grant of mandamus
engenders and the burden on an appellate court of
having to consider whether to grant it, the writ may, in
the transfer context as in other contexts, properly be
used to rescind a transfer only if the applicant can
show that the transfer order is a “violation of a clear and
indisputable legal right, or, at the very least, [is] patently
erroneous.” In re Rhone-Poulenc Rorer, Inc.,
51 F.3d 1293,
1295 (7th Cir. 1995); see also Cheney v. U.S. District Court,
542 U.S. 367, 381 (2004); In re LimitNone, LLC,
551 F.3d 572,
6 No. 13-1114
575 (7th Cir. 2008); In re Atlantic Marine Construction Co.,
701 F.3d 736, 738 (5th Cir. 2012).
Although the question of transfer in this case is a
close one, we cannot say that the district judge com-
mitted a clear error in holding that the defendants
had made the required showing: More than two-thirds
of the potential witnesses (12 out of 17) are either in
Kansas, just across the border in Missouri, elsewhere in
Missouri, or in California, which is closer to Kansas than
it is to Illinois. The District of Kansas has as we said
a lighter caseload per judge than the Central District of
Illinois. Most of the medical records relating to the case
are in Kansas. And if trial in Kansas were split in two
(“bifurcated”)—a liability trial and (if necessary) a dam-
ages trial—and the plaintiff lost the liability trial, his
witnesses, whose testimony would relate to the extent
and persistence of his injuries rather than to the quality of
the medical treatment that he received in Kansas, would
not testify anywhere. The variety of relevant considera-
tions counsels deference to the district court’s ruling. See
Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc.,
626 F.3d 973, 977-78 (7th Cir. 2010), and cases cited there.
In our age of advanced electronic communication,
including high-quality videoconferencing, changes of
venue motivated by concerns with travel inconvenience
should be fewer than in the past. Today documents can
be scanned and transmitted by email; witnesses can be
deposed, examined, and cross-examined remotely and
their videotaped testimony shown at trial. But the
plaintiff does not argue against the transfer on the
ground that the electronic revolution has erased the
No. 13-1114 7
advantages that the Kansas venue would once undoubt-
edly have had under the facts of this case.
P ETITION D ENIED.
3-5-13
