Defense Distributed v. Bruck

Case: 21-50327 Document: 00516263671 Page: 1 Date Filed: 04/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 1, 2022
No. 21-50327
Lyle W. Cayce
Clerk
Defense Distributed;
Second Amendment Foundation, Incorporated,
Plaintiffs—Appellants,
versus
Andrew J. Bruck, Acting Attorney General of New
Jersey, in his official and individual capacities
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-637
Before Jones, Elrod, and Higginson, Circuit Judges.
Edith H. Jones, Circuit Judge:
Since 2013, Appellants (collectively, “Defense Distributed”) have
been challenging publication restraints imposed by the U.S. State
Department, federal courts, and the State of New Jersey after Defense
Distributed published to the Internet computer assisted design (“CAD”)
files for a single-round plastic pistol. Although Defense Distributed is still
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prevented from publishing, 1 the CAD files it published remain available to
this day on countless other websites internationally. Defense Distributed has
yet to secure a court decision condemning what appear to be flagrant prior
restraints. 2
The instant combined appeal and motion for mandamus relief stems
from a district court order severing the case against one defendant, the
Attorney General of New Jersey (NJAG), 3 and transferring it to a federal
court in New Jersey. We conclude that mandamus relief is appropriate in this
unusual case. Accordingly, we direct the district court to request retransfer
from its counterpart in New Jersey and order other relief in accordance
herewith.
1
To be more precise, Defense Distributed published the CAD files to the Internet
for a few months from December 2012 — May 2013 before the State Department claimed
that to do so violated International Traffic in Arms Regulations (“ITAR”). See Defense
Distributed v. U.S. Dep’t of State, 838 F.3d 451, 455 (5th Cir. 2016); id. at 461-63 (Jones, J.,
dissenting). The company also published to the Internet for five days in 2018 during a
litigation hiatus. Further, it has published the files by hosting them at a public library in
Austin, Texas, and by distributing USB drives and SD cards through the Postal Service.
To date, the CAD files are still not available on the internet free from all prior restraint. As
the Supreme Court declared, a “loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.
347, 373, 96 S. Ct. 2673, 2690 (1976). These Appellants’ First Amendment freedoms have
been restrained for years.
2
The injunction motion pending before the panel is denied as moot. This denial
does not imply that the motion lacks merit. The original preliminary injunction motion
before the district court was denied on the basis of an incorrect finding that the district
court lacked personal jurisdiction over the NJAG. Upon return of this case to the Western
District of Texas, the court should entertain a motion for preliminary injunction
expeditiously.
3
Gurbir Grewal was New Jersey’s Attorney General when this suit was filed. He
is succeeded by Andrew Bruck. For convenience, we refer to this defendant as the NJAG.
2
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Background
Two previous opinions of this court describe the litigation history
surrounding Defense Distributed’s publication of then-novel CAD files for a
pistol that can theoretically be “printed” from a computer affixed to the
proper equipment. See Defense Distributed v. Grewal, 971 F.3d 485, 488-90
(5th Cir. 2020); Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451, 454-
58 (5th Cir. 2016); id. at 461-66 (Jones, J., dissenting). We quote from the
more recent opinion:
Plaintiff Defense Distributed is a Texas company
operated for the purpose of promoting popular access to
firearms. To carry out this purpose, it produces and makes
accessible information related to the 3D printing of firearms
and publishes and distributes such information to the public.
Plaintiff Second Amendment Foundation, Inc. (“SAF”) is a
nationwide, non-profit membership organization that
“promotes the right to keep and bear arms by supporting
education, research, publications, and legal efforts about the
Constitution’s right to privately own and possess firearms and
the consequences of gun control.” Across the nation, SAF
members seek the digital firearms information created by
Defense Distributed, circulate their own digital firearms
information by utilizing Defense Distributed’s facilities, and
republish digital firearms information independently.
Defense Distributed began distributing files related to
the 3D printing of firearms in December 2012. It did so by
publishing files to its defcad.org and defcad.com websites and
letting visitors freely download them. It also distributed digital
firearms information via mail and at a brick-and-mortar public
library in Austin, Texas. Defense Distributed’s efforts were
initially met with opposition from the United States
3
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Department of State. 4 But, after a period of litigation, the
parties reached a settlement agreement that granted Defense
Distributed a license to publish its files.
Shortly thereafter, nine Attorneys General, including
New Jersey Attorney General Grewal, filed suit on behalf of
their respective states in the Western District of Washington
to enjoin the State Department from authorizing the release of
Defense Distributed’s files. They argued that the State
Department’s license to Defense Distributed constituted an
ultra vires about-face that violated the Administrative
Procedure Act and jeopardized the states’ statutory and
regulatory schemes for firearms. The Western District of
Washington quickly issued a temporary restraining order,
followed closely by a nationwide preliminary injunction. 5
Just before the Attorneys General sued in Washington,
Defense Distributed and SAF brought the instant action in the
Western District of Texas challenging select enforcement
actions taken by the state Attorneys General. Of relevance to
this appeal, Plaintiffs alleged these actions by Grewal:
(1) sending a cease-and-desist letter threatening legal action if
Defense Distributed published its files; (2) sending letters to
third-party internet service providers based in California
urging them to terminate their contracts with Defense
Distributed; (3) initiating a civil lawsuit against Defense
Distributed in New Jersey; 6 and (4) threatening Defense
4
See Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451 (5th Cir. 2016); id. at
462–76 (Jones, J., dissenting).
5
The Attorneys General later filed a motion for summary judgment, which the
district court granted in part. Washington v. U.S. Dep’t of State, 420 F. Supp. 3d 1130 (W.D.
Wash. 2019). On appeal, the Ninth Circuit found that the case was moot and thus
dismissed for lack of jurisdiction. Washington v. Defense Distributed, Nos. 20-35030 & 20-
35064, 2020 WL 4332902 (9th Cir. July 21, 2020).
6
That lawsuit was removed to federal court before being administratively
terminated in light of the nationwide injunction issued in Washington. The Plaintiffs have
4
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Distributed with criminal sanctions at a live press conference.
Further, these actions, coupled with the injunctive orders
issued in the Washington litigation, have caused Defense
Distributed to cease publication of its materials. The Plaintiffs
asserted, inter alia, that these actions infringed the exercise of
their First Amendment freedoms and constituted tortious
interference with the State Department’s settlement
agreement.
Grewal moved to dismiss for lack of personal
jurisdiction. 7 The Plaintiffs, meanwhile, sought a preliminary
injunction. After holding a hearing and considering the
parties’ arguments, the court granted Grewal’s motion and
dismissed the action without prejudice.
Defense Distributed v. Grewal, 971 F.3d at 488-89 (footnotes in original).
Defense distributed appealed. This court held that the NJAG is amenable to
personal jurisdiction in Texas courts. Id. at 488. Accordingly, the court
reversed and remanded for further proceedings. Id.
Following our remand to the district court, Defense Distributed
amended its complaint to join the State Department as a defendant for its
alleged failure to comply with a Settlement Agreement reached with Defense
Distributed in 2018. Shortly after, the NJAG moved to sever Defense
Distributed’s case against him and transfer that portion of the case to a New
Jersey federal court. The State Department opposed severance, as did
likewise sued in New Jersey, raising the same claims asserted in the case at bar. See Defense
Distributed v. Grewal, D.N.J. No. 3:19-CV-4753. That case is currently stayed pending
resolution of this one.
7
The other state Attorneys General also moved to dismiss, and the district court
granted their motions. On appeal, the Plaintiffs challenge only the judgment related to
Grewal.
5
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Defense Distributed. Nonetheless, the district court obliged the NJAG by
written order both severing and transferring the case against him.
Defense Distributed immediately noticed an appeal from the
severance-and-transfer order and followed with an alternate request for
mandamus relief against the district judge. This court imposed a temporary
stay of the case pending appeal. The New Jersey district court also stayed all
proceedings pending this appeal.
Discussion
I. Appellate jurisdiction
We pretermit Defense Distributed’s resort to the collateral order
doctrine as a basis for appellate jurisdiction in this interlocutory appeal 8
because, in this circuit, mandamus is the prescribed vehicle for reviewing
rulings on transfers of cases pursuant to 28 U.S.C. § 1404(a). See In re
Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc); In re
Rolls Royce Corp., 775 F.3d 671, 676-77 (5th Cir. 2014).
The twist in this case is the transfer to a district court outside the Fifth
Circuit, a court over which this court exercises no control. This court lacks
power to order a return of the case to our circuit. But In re Red Barn Motors,
Inc., 794 F.3d 481 (5th Cir. 2015), explained the path to a cognizable
mandamus remedy. Id. at 483-84. The All Writs Act, 28 U.S.C. § 1651,
empowers courts to issue writs of mandamus if the courts also have appellate
jurisdiction, “although no appeal has been perfected.” Roche v. Evaporated
8
In re Rolls Royce Corp. asserted that our circuit has held that transfer orders do not
fall within the scope of the collateral order doctrine. 775 F.3d 671, 676 (5th Cir. 2014)
(citing Brinar v. Williamson, 245 F.3d 515, 517 (5th Cir. 2001)). However, other cases seem
to apply the doctrine to transfer orders. See In re Sepulvado, 707 F.3d 550, 552 (5th Cir.
2013); In re Bradford, 660 F.3d 226, 229 (5th Cir. 2011). We need not weigh into a potential
intra-circuit split.
6
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Milk Ass’n., 319 U.S. 21, 25, 63 S. Ct. 938, 941 (1943). Because of the
transfer, the Texas transferor court can no longer enter an appealable order
in the case. In re Red Barn, nevertheless, approved that “several circuits,
where appropriate, have endorsed the method of directing the transferor
district court to request that the transferee district court return the case.” Id.
at 484 (collecting cases). To be sure, to avoid friction with sister circuits, the
court held that “if we even have the power to reverse such a transfer, we
should exercise it only if faced with ‘a very extreme case.’” Id. (citing In re
Sw. Mobile Homes, Inc., 317 F.2d 65, 66-67 (5th Cir. 1963)). But intercircuit
friction was reduced where the transferee court there, as here, stayed
proceedings pending our appellate panel’s decision. Id. The court concluded
by requiring a party seeking relief from a transfer order to exercise diligence.
Id. at 485. Because the petitioner had waited three months to file its
mandamus petition, the writ was denied. Id.
In this case, of course, the notice of appeal was filed the day after the
district court’s order and mandamus relief formally sought within thirty-nine
days while briefing was underway. Because In re Red Barn sets the standard,
we have jurisdiction to consider the mandamus petition.
The NJAG asserts four objections to our jurisdiction. He asserts that
In re Red Barn did not hold what we just stated it held; that other circuits
would not allow a writ of mandamus where a case is transferred to another
circuit; and that Defense Distributed was not diligent. Finally, he contends
that because Defense Distributed may eventually challenge the transfer order
in courts of the Third Circuit, the availability of appellate review disentitles
him to an equitable writ. We find none of these arguments persuasive.
First, In re Red Barn denied the writ only for lack of petitioner’s
diligence. That conclusion would have been inappropriate had the panel
concluded that mandamus is not available to challenge an out-of-circuit
7
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transfer order. The court’s entire discussion of the writ, and a limitation
where intercircuit friction may occur, would have been unnecessary. Instead,
the court weighed the approaches of other circuits, noting that in particular
cases a circuit court exercised jurisdiction to vacate a completed intercircuit
transfer. See In re Red Barn, 794 F.3d at 484 n.6. This discussion would also
be extraneous had the court simply been uttering dicta rather than explaining
its rationale. And of course, the court noted that several circuits have
authorized mandamus relief in these circumstances. Id. Finally, there is no
“assuming arguendo” language that couches the court’s ruling on mandamus
in hypothetical terms. 9 In short, In re Red Barn’s procedural holding is not
predicated on dicta.
Second, other circuits have adopted the same approach. See, e.g., In
re Howmedica Osteonics Corp., 867 F.3d 390, 399-400, 411 (3d Cir. 2017)
(asserting jurisdiction to vacate intercircuit transfer order); In re Warrick,
70 F.3d 736, 739-40 (2d Cir. 1995) (asserting mandamus jurisdiction and
distinguishing In re Drabik, 246 F.2d 408 (2d Cir. 1957), as not justifying
denial of all relief “in these circumstances”); A.C. Nielsen Co. v. Hoffman,
270 F.2d 693, 695 (7th Cir. 1959) (concluding that the court has mandamus
jurisdiction over intercircuit transfer order). Each of these circuits has
applied mandamus to decide the propriety of intercircuit transfers. Although
the Tenth Circuit held that a completed intercircuit transfer divested it of
appellate jurisdiction, Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1516-17 (10th Cir. 1991), that court went on to recognize that
“technically,” the district court should have deferred effectuating the
9
The court refers to the “potential availability” of the writ, but then cites the
Supreme Court’s substantive standard for granting or denying mandamus as applicable to
show that the writ sought by petitioners in In re Red Barn was not “appropriate under the
circumstances.” In re Red Barn, 794 F.3d at 484-85, 485 n.7 (quoting Cheney v. U.S. Dist.
Ct. for Dist. of Columbia, 542 U.S. 367, 381, 124 S. Ct. 2576, 2587 (2004)).
8
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transfer so that the parties could seek certification or “file a mandamus
petition.” Id. at 1520 n.9. See also In re Nine Mile Ltd., 673 F.2d 242 (8th Cir.
1982)(mandamus ordered where district court erroneously transferred
papers to consummate Section 1404 case transfer before appeal could be filed
in transferor district). Thus, the balance of circuit court authority, in
addition to the cases cited by In re Red Barn, favors jurisdiction in this case.
Third, the AG questions the diligence of Defense Distributed because
of its failure to seek an immediate stay in the district court or file an
immediate mandamus petition. Nothing in applicable precedent, however,
mandates the particular method by which a party disadvantaged by an out-of-
circuit transfer must bring that issue to the circuit court. Defense Distributed
filed its notice of appeal the day after the district court’s transfer order and
promptly sought relief in this court. The defendants and district court were
immediately placed on notice of Defense Distributed’s intent to challenge
the transfer in this court, and the actual transfer order was not docketed until
the following day. It sought mandamus relief in briefing to this court, filed
thirty-nine days after the court’s order. 10 The Appellants’ diligence
comports with this court’s emphasis on “diligence” in In re Red Barn and
with the timing of filings in In re Howmedica, 867 F.3d at 400.
Fourth, it is inaccurate to assert, as the NJAG does, that Defense
Distributed has adequate available alternatives for appellate court review of
the district court’s order, which render a mandamus remedy unavailable.
Unlike In re Red Barn, this case encompasses severance as a necessary
10
The NJAG’s contention that Defense Distributed cannot seek mandamus due to
technical noncompliance with FRAP Rule 21 is frivolous. Defense Distributed’s briefing,
procedurally and substantively, stated clearly the relief requested and grounds for seeking
mandamus relief.
9
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condition of the transfer. 11 On appeal, the Third Circuit could not review the
severance order, much less attempt to consolidate the case against the NJAG
with the case still pending in Texas against the State Department. Therefore,
on its face, this tandem order is effectively unreviewable in the transferee
circuit.
Moreover, if the potential Third Circuit appeal were (arbitrarily)
limited to the transfer order alone, a premier procedural treatise notes that
review in the transferee court seems illusory given the application of comity
and law-of-the-case principles. See 15 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure [hereafter, Wright & Miller] § 3846 (4th ed.
2021); id. at § 3855 (similar). The likelihood of securing a retransfer by the
transferee district court seems equally constrained. But even if these
propositions are arguable, see SongByrd, Inc. v. Estate of Grossman, 206 F.3d
172, 178 n.7 (2d Cir. 2000) (collecting cases), the SongByrd decision, like that
of other courts, acknowledges the availability of mandamus review in the
Fifth Circuit. Id. at 176-77, 176 n.5. 12
11
The Red Barn district court transferred an entire case, with two defendants one
of which objected strenuously, to Indiana. 794 F.3d at 483.
12
See also Hill v. Henderson, 195 F.3d 671, 676-77 (D.C. Cir. 1999) (“Transfer
orders under § 1404 are not final appealable orders, nor, generally speaking, reviewable
collateral orders. Commonly, however, courts of appeal in the circuit of origin entertain
mandamus petitions to review such orders . . . . A possible explanation for finding transfer
orders nonreviewable in the transferee circuit is that such orders are usually effectively
subject to immediate review via mandamus in the circuit of the transferring court.”)
(citations omitted); Nascone v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir. 1984) (concluding
that “mandamus review is appropriate” over a transfer order after deciding it did not fall
within the collateral order doctrine, and recognizing the general rule that “the Plaintiff
could petition the transferor appellate court for a writ of mandamus blocking the transfer”)
(citation omitted).
10
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Finally, the fact that the district court here granted the transfer, rather
than denying it, makes no difference. In this circuit, neither In re Rolls Royce
nor In re Volkswagen limited writs of mandamus according to whether the
district courts granted or denied transfer. 13 And in Howmedica, the Third
Circuit applied mandamus to vacate the order granting transfer to the Central
District of California. In re Howmedica, 867 F.3d at 411. Whatever the
possibility of review in the transferee circuit, this has not been regarded as
sufficiently effective to preclude writs of mandamus in the transferor court. 14
II. Mandamus
A writ of mandamus is “a drastic and extraordinary remedy reserved
for really extraordinary cases.” In re Depuy Orthopaedics, Inc., 870 F.3d 345,
350 (5th Cir. 2017). This court will grant a petition for a writ of mandamus
only if the petitioner satisfies three conditions. First, the petitioner must
show that there are “no other adequate means to attain the relief he desires.”
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S. Ct. 2576, 159 L.Ed.2d
459 (2004). Second, the court “must be satisfied that the writ is appropriate
under the circumstances.” Id. at 381, 124 S. Ct. 2576. And third, the
petitioner must show a “clear and indisputable right to the writ.” Id.Defense Distributed easily satisfies the first two conditions for
mandamus relief. As we just explained, the Third Circuit transferee court
cannot, under normal appellate standards, exercise appellate review over
13
In In re Volkswagen, the en banc court emphasized that review of a transfer order
following final judgment was not an “adequate remedy,” and observed that “venue
transfer decisions are rarely reviewed.” 545 F.3d at 319.
14
This court’s decision in Persyn v. United States, 935 F.2d 69 (5th Cir. 1991), offers
no help to the NJAG. The court there explicitly stated that seeking retransfer is not an
adequate alternative to appellate review where, as here, both courts have subject-matter
jurisdiction. Id. at 73.
11
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either the severance or transfer orders of this Western District of Texas. E.g.,
In re Red Barn, at 484-85.
Second, granting the writ would be “especially appropriate where the
issues implicated have importance beyond the immediate case.” In re
JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019) (quoting In re
Lloyd's Register N. Am., Inc., 780 F.3d 283, 294 (5th Cir. 2015); and In re
Volkswagen, at 319 (internal quotation marks omitted). Before this court are
“issues that implicate not only the parties' interests but those of the judicial
system itself.” United States v. Bertoli, 994 F.2d 1002, 1014 (3d Cir. 1993).
Preeminent are questions about the abridgement of the Plaintiffs’ first
amendment rights to publish their materials. Also critical, however, are
tactics suggesting the abusive manipulation of federal court procedures in
order to delay or altogether avoid meaningful merits consideration of
Plaintiffs’ claims.
What the parties most strenuously debate is whether Defense
Distributed has shown a clear and indisputable right to the writ or a clear
abuse of discretion by the district court. See Cheney at 281, 2576; see also In
re Volkswagen, at 308. “A district court by definition abuses its discretion
when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100,
116 S. Ct. 2035, 2047 (1996) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405, 110 S. Ct. 2447, 2461 (1990) (“a district court would necessarily
abuse its discretion if it based its ruling on an erroneous view of the law”)).
We conclude that the district court clearly abused its discretion by applying
the wrong legal standard for evaluating the NJAG’s conjoined severance and
transfer motions and by egregiously misinterpreting Defense Distributed’s
claims. Moreover, even if the motions are evaluated wholly independently,
the transfer motion cannot stand if the severance motion was wholly
unjustified. See, e.g., Chrysler Credit Corp. v. Country Chrysler, 928 F.2d 1509(10th Cir. 1991); In re Nine Mile Ltd., 673 F.2d at 242 (because transfer order
12
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was procedurally incorrect, mandamus ordered district court to request
return of the case from the transferee court).
A. Joint Severance and Transfer
To explain this conclusion, we remind that the Federal Rules of Civil
Procedure were enacted to ensure “the just, speedy and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1. To be more
precise, Fed. R. Civ. P. 21, which authorizes severance of parties, and 28
USC § 1404(a), governing transfers among federal district courts, “are
[both] designed to facilitate just, convenient, efficient and less expensive
determination.” In re Nintendo of America, Inc., 756 F.3d 1363, 1365 (Fed. Cir.
2014). Although a district court has broad discretion to sever parties that
were otherwise properly joined by a Plaintiff, 15 “[u]nder the Rules, the
impulse is toward entertaining the broadest possible scope of action
consistent with fairness to the parties; joinder of claims, parties and remedies
is strongly encouraged.” United Mine Workers v Gibbs, 383 U.S. 715, 724,
86 S. Ct. 1130, 1138 (1966).
On two occasions, this court has discussed standards for joint
severance and transfer motions brought by a defendant or defendants, the
effect of which would require a Plaintiff to split its case into two different
federal courts. In a well-known opinion, this court noted that “our
jurisprudence suggests that the severance inquiry is different—and more
focused on judicial efficiency—when it is combined with a section 1404
motion to transfer than when the severed case would remain in the original
judicial district.” In re Rolls Royce, 775 F.3d at 680. 16 The court quoted at
15
Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994).
16
Judge Higginbotham’s opinion in Rolls Royce has been cited frequently for its
application of sever/transfer considerations when one of the parties has a forum selection
13
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length Judge Alvin Rubin’s opinion explaining the problems that can arise in
a case involving multiple defendants when claims against one or some
defendants are severed and transferred while claims against the remaining
defendant are retained in the original court. Id., (quoting Liaw Su Teng v.
Skaarup Shipping Corp., 743 F.2d 1140, 1148-49 (5th Cir. 1984)). Judge
Rubin’s list of parameters that should inform this type of proposed transfer
bears repeating:
But before thus putting asunder what the Plaintiff has joined,
the court must weigh carefully whether the inconvenience of
splitting the suit outweighs the advantages to be gained from
the partial transfer. It should not sever if the defendant over
whom jurisdiction is retained is so involved in the controversy
to be transferred that partial transfer would require the same
issues to be litigated in two places. [See Korbel, The Law of
Federal Venue and Choice of the Most Convenient Forum,
15 Rutgers L.Rev. 607 (1961); Masington, Venue in the Federal
Courts—The Problem of the Inconvenient Forum, 15 U.Miami
L.Rev. 237 (1961); Note, 46 Cornell L.Q. 318 (1961)]. That
being the situation here, the district court should not have
severed the claims if there were any alternative. Manifestly,
the Plaintiffs will suffer some inconvenience if they are forced
to litigate their claims in two courts, half the world apart from
each other, with not only the consequent added expense and
inconvenience but also the possible detriment of inconsistent
results. A single forum is also most suitable for determining
possible counter- and cross-claims. The public also has an
interest in facilitating a speedy and less-expensive
determination in one forum of all of the issues arising out of one
episode.
clause. However, the court’s discussion about severance and transfer orders in
multidefendant cases draws from Liaw Su Teng and other non-forum selection clause cases
and is thus more broadly applicable here.
14
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Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1148–49 (5th Cir.
1984), overruled on other grounds, In re Air Crash Disaster Near New Orleans,
La., on July 9, 1982, 821 F.2d 1147 (5th Cir. 1987).
Several points made in Judge Rubin’s opinion are common to this
species of joint severance and transfer motions. A court must “weigh
carefully” the comparative inconvenience of splitting the suit versus the
advantages to be gained from a partial transfer. It should not sever if the
defendant not transferred is “so involved” in the controversy transferred to
another court that partial transfer would require the same issues to be
litigated in two places. “Manifestly,” Plaintiffs are disadvantaged by the
expense and inconvenience of having to litigate in two disparate fora and by
the possibility of inconsistent results. And the public has an interest in the
comparative speediness and cost-savings from utilizing a single forum for the
issues arising out of one episode. See also 15 Wright & Miller, § 3845,
at 86 (echoing these factors).
Other courts have agreed with Liaw Su Teng, and specified that in
analyzing severance and transfer motions, “[b]efore effecting such a
severance, a judge should weigh the convenience to the parties requesting
transfer against the potential inefficiency of litigating the same facts in two
separate forums.” White v. ABCO Eng'g Corp., 199 F.3d 140, 144 (3d Cir.
1999). Previously, the Third Circuit, explicitly endorsing Judge Rubin’s
view, denied severance and transfer where the defendant not transferred was
more than “indirectly connected” to the Plaintiff’s dispute with the
defendant seeking transfer. Sunbelt Corp. v. Noble, Denton and Assoc., Inc.,
5 F.3d 28, 34 (3d Cir. 1993). The Second Circuit, which pioneered using
severance and transfer as a permissible strategy of case management,
nonetheless held it appropriate only “where the administration of justice
would be materially advanced….” and where a defendant in one district is
15
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only “indirectly connected” to the claims that will be transferred to the other
district. Wyndham Assoc. v. Bintliff, 398 F.2d 614, 618-19 (2d Cir. 1968). 17
The district court here quoted Rolls Royce, but it misperceived and
thus misapplied this court’s explanation about “judicial efficiency.” In the
above cases, courts were not deciding ordinary Rule 21 severance motions, in
which parties or claims may be split while the disputes are maintained before
the same court. Severance and transfer requires two courts to engage in the
work of one, prompting serious concerns about duplication of judicial
resources, the consistency of rulings, and litigation costs. The circuit courts
that discussed severance and transfer motions in this context have uniformly
indicated an aversion to granting such motions at the expense of needless
duplication of judicial effort. The rule emanating from Rolls Royce and Liaw
Su Teng is that in most multidefendant cases—other than those involving
forum selection clauses—severance and transfer makes sense only where the
administration of justice would be materially advanced and a defendant in one
district is not “so involved” in the transferred controversy that the same
issues would have to be litigated twice. 18 Consequently, the district court
erred legally in finding that the State Department is only indirectly connected
17
Wright & Miller explains that severance and transfer of claims or parties
enabled courts to avoid the rule that “[i]n suits against multiple defendants, transfer is
proper only to a district in which all of them are subject to personal jurisdiction and in which
venue is proper for an action against all of them.” Wright & Miller § 3845, at 85.
The treatise also endorses the cautious use of such orders. Id. at 86-87.
18
See also Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26, 80 S. Ct. 1470,
1474 (1960)(“To permit a situation in which two cases involving precisely the same issues
are simultaneously pending in different District Courts leads to the wastefulness of time,
energy and money that Sec. 1404(a) was designed to prevent. Moreover, such a situation
is conducive to a race of diligence among litigants for a trial in the District Court each
prefers”).
16
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No. 21-50327
to claims pled against the NJAG 19 and in failing to find that the administration
of justice would not be materially advanced by transfer.
The direct connection between the Plaintiffs’ claims against these two
defendants contradicts the district court’s artful dissection of Defense
Distributed’s Second Amended Complaint. The court ignored the major
components of the lawsuit and the overarching connection alleged between
the State Department and the NJAG. Both government entities have
suppressed legal speech by prohibiting the publication of the company’s
digital firearms files on the internet and into New Jersey. That the First
Amendment protects all of the Plaintiffs’ publications underlies all of their
other claims. 20 The Plaintiffs’ assertion of seventeen separate claims reflects
the consequences of that suppression and the tortuous path they have been
forced to pursue for redress. Yet, contrary to common sense and heedless of
a potential for disparate constitutional rulings if the case against the NJAG
remains transferred, the court belittled the First Amendment issues.
According to the district court, not all of Plaintiffs’ claims involve the First
Amendment. The court overlooked Plaintiffs’ claims that directly involve
both Defendants in the settlement agreement breach and in censorship under
the Second Amendment and Due Process clause. And the larger point is that
none of Plaintiffs’ claims would exist if they had been allowed to publish the
various digital firearms files continuously since 2013. The First Amendment
is the sine qua non of this case.
19
The district court found the factual overlap between the claims pled against each
defendant is “minuscule;” and that the claims have no “logical connection” because the
defendants’ actions occurred “in different places and at different times.”
20
The First Amendment claims, moreover, are complex factually and legally, as
they involve questions about compelling interest, narrow tailoring, and numerous types of
digital firearms information that Defense Distributed has created.
17
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No. 21-50327
The other larger point ignored by the district court is that the principal
claims against both defendants are temporally and factually intertwined to
the extent that litigation in separate courts would largely overlap. A
paraphrase of the facts alleged in the Second Amended Complaint is
demonstrative. Just when the Plaintiffs, after several years of litigation,
thought they had obtained relief from a signed settlement agreement with the
State Department, the NJAG loudly led a bevy of states in opposition.
Within a span of about six months, he filed suit in Washington state, even
more remote from New Jersey than Texas, and forced the joinder of Defense
Distributed as a defendant there. He evidently thought the parties’ fates
were legally and factually connected when he sought and obtained an
injunction expressly to prevent the State Department from completing the
settlement with Plaintiffs. The NJAG kept up public pressure against the
settlement with threats of civil and criminal punishment against Plaintiffs’
president Cody Wilson personally. At this time, the State Department opted
not to complete the settlement. Accordingly, the State Department did not
modify relevant federal regulations, disavowed the license and exemption
from regulations it had promised Defense Distributed, and refused to appeal
adverse decisions by the Washington federal court. The extent to which the
NJAG’s campaign influenced the State Department’s alleged breaches is
relevant to the claims against both defendants. At the same time, the NJAG’s
seminal place in the litigation is a major, though far from the only facet of his
conduct that was designed to derail the settlement and independently to
restrain Plaintiffs’ exercise of free speech. Plaintiffs’ essential claims for
First Amendment violations, breach of the settlement agreement, and the
NJAG’s interferences cannot be understood by a factfinder without
18
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No. 21-50327
investigating and telling the whole story. Similarly, having to tell the same
story in two courts would abuse Plaintiffs and the judicial process. 21
Also plain from the complaint is that the subsidiary claims are
dependent upon the primary claims identified above. To cite one instance,
Defense Distributed pleads that the State Department violated the
Administrative Procedure Act in various aspects of its settlement agreement
breach. The Washington State litigation was also based on alleged violations
of the Administrative Procedure Act. The State Department’s
noncompliance may have been caused by the mere fact of the Washington
State litigation or by the imperative of complying with that court’s injunctive
decrees or by the NJAG’s public campaign against the settlement. Sorting
out cause and effect for these claims demands a single factfinder and judicial
resolution.
The district court also erred legally by failing to conclude that the
administration of justice would not be materially advanced by transfer of the
case against the NJAG to New Jersey. See Rolls Royce, 775 F.3d at 680. The
burden rests on the NJAG as the movant to demonstrate that proposition,
and he did not succeed. First, the public interest in achieving a single court’s
ruling on Plaintiffs’ First Amendment claims cannot be overstated.
Government instigated censorship of constitutionally protected speech is
abhorrent to self-government; courts have a duty to prevent illegal
censorship. But severance and transfer enhances the risk of conflicting
rulings, which would seriously injure the Plaintiffs and throw the law in this
important constitutional area into national disarray for several years.
21
The NJAG interjects that a sovereign immunity defense precludes any tortious
interference claim asserted by Plaintiffs. Plaintiffs dispute the assertion. This merits
defense has no place in our analysis.
19
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No. 21-50327
Second, because of the complex factual interactions among Plaintiffs
and these Defendants, discovery and trial for the principal claims will require
many of the same witnesses. No efficiency exists from conducting two fact-
based litigations half a continent apart. On the other hand, no efficiency is
gained by having two courts decide the separate subsidiary claims against
each Defendant. Such claims are largely legal in nature, overlapping in
several instances, and best resolved on briefing to a single court that has
gained familiarity with the intricacies of Plaintiffs’ dozens of digital firearms
files and background materials that could be published to the internet and in
New Jersey. There is no obvious efficiency advantage, much less materially
enhanced judicial economy from forcing Defense Distributed’s case into two
separate cases.
The necessity of denying severance conjoined with transfer is
confirmed by proper application of Rolls Royce and Liaw Su Teng. In addition,
the district court’s separate and independent Rule 21 severance and Section
1404 transfer analyses are plagued with error and therefore alone justify the
rebuke of mandamus. We turn first to severance.
B. Severance
In the Fifth Circuit, the accepted basis for Rule 21 severance analysis
considers five factors: (1) whether claims arise out of the same transaction,
occurrence, or series of transactions or occurrence; (2) whether the claims
present common questions of law or fact; (3) whether settlement of the
claims or judicial economy would be facilitated; (4) whether prejudice would
be avoided if severance were granted; and (5) whether different witnesses
and documentary proof are required for the separate claims.” See Rolls Royce,
775 F.3d at 680; Paragon Office Servs., LLC v. UnitedHealthcare Ins. Co.,
2012 WL 4442368, (N.D. Tex. Sept. 26, 2012); Parker v. Louisiana Dep't of
Pub. Safety & Corr., 2019 WL 5103811 (M.D. La. Oct. 11, 2019); Calhoun v.
20
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No. 21-50327
WA DHS Child Support Div., 2018 WL 2865315 (N.D. Tex. June 11, 2018);
Pouncie v. Dlorah, Inc., 2015 WL 5178401 (N.D. Tex. Sept. 4, 2015); Cty. of
Travis v. Purdue Pharma, LP, 2018 WL 1518848 (W.D. Tex. Mar. 28, 2018).
First, as has been explained, the district court misconstrued the
Second Amended Complaint. Relevant to the severance factors, it
erroneously found that there was no common transaction or occurrence or
series of transactions or occurrences giving rise to the Plaintiffs’ claims
against the Defendants. The district court compounded its error by stating
that “the parties all acknowledge that the Washington Suit” had nothing to
do with the settlement agreement between Defense Distributed and the State
Department. This assertion is contradicted by the record. As the NJAG put
it in his complaint in the Washington lawsuit, “in sum, the Government’s
covert agreement to deregulate the CAD files by way of the Settlement
Agreement—which culminated in the enactment of the “temporary
modification” on July 27, 2018—are final agency decisions that not only
failed to comply with procedural requirements, but that have far-reaching
implications for national security and the safety and security of the State and
people of Washington.” The district court for the Western District of
Washington also stated that at the heart of its decision to grant a TRO, as
requested by the NJAG, was the manner in which the State Department
entered into and followed through on its settlement agreement with Defense
Distributed. State v. United States Dep't of State, 315 F. Supp. 3d 1202, 1205
(W.D. Wash. 2018). Defense Distributed’s claims against both Defendants
fundamentally concern the State Department’s settlement agreement and
the NJAG’s efforts after it was signed to prevent its meaningful
implementation. The interference claims against the NJAG cannot be
proven without initial proof that the settlement agreement was breached.
These transactions and occurrences both perpetuated the violation of
Plaintiffs’ First Amendment rights. The occurrences and transactions
21
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No. 21-50327
involved in Plaintiffs’ principal claims are thus logically, factually, and
temporally inextricable. 22
The district court also misapplied the second factor of the severance
analysis in determining that Plaintiffs’ claims do not involve common issues
of law or fact. The court put the matter exactly backward, as it stated that
although “many of Plaintiff’s claims” arise from alleged First Amendment
violations, “this is not the case for all of Plaintiffs’ claims….” To the
contrary, a court is required to determine whether “there is at least one
common question of law,” not whether all of the claims in a case involve the
same question of law. Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d
516, 521 (5th Cir. 2010). Further, the district court incorrectly analyzed
“judicial economy” as applied to joint severance and transfer motions:
according to Rolls Royce and Liaw Su Teng, severance is inappropriate where
two parties are as inextricably entwined in the litigation as these defendants.
The NJAG’s and district court’s other assertions about the efficiency
benefits from severance ring particularly hollow in light of the course of the
litigation. For example, bifurcation and transfer of the case, the district court
states, would be an economical act since there is already a case in New Jersey
dealing with separate claims against the NJAG by Defense Distributed. But
Defense Distributed brought that case as a self-protective measure only after
22
The district court asserted that the claims against the NJAG largely stem from
the 2018 cease-and-desist letter, public comments by the NJAG directed at dissemination
of Plaintiffs’ materials in New Jersey, and the law that criminalizes such dissemination.
This is correct only to the extent that it highlights the similarity in Plaintiffs’ First
Amendment claims against both Defendants, which, though based on different facts, center
on the same publishable materials and demand uniform resolution.
Further, although we need not consider whether the NJAG is a necessary party to
the litigation in the court below, see Fed. R. Civ. P. 19, he and his officials are plainly
material witnesses to the Washington litigation, and the State Department’s assertions that
its settlement may have been motivated by actions of the NJAG cannot be discounted.
22
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No. 21-50327
the district court below had (erroneously) dismissed the NJAG from suit in
the Western District of Texas. The district court cannot claim judicial
efficiency is furthered when its decision directly caused the inefficient filing
of that second suit. Nor is the timing of the district court’s
severance/transfer order persuasive, as it followed directly on the heels of
this court’s decision upholding jurisdiction in the Western District of Texas.
Judicial economy is also less than credibly asserted by the NJAG, who chose
to travel to the West Coast to pursue its campaign against Defense
Distributed while simultaneously defending this case and pursuing litigation
and other measures in New Jersey. The multiplication of venues has
disserved judicial economy. At this point, after essentially seven years of
litigation in Texas and at least two other venues over Defense Distributed’s
publications, to split this case into two parallel litigation tracks before two
courts is beyond inefficient. 23
The above discussion also shows why the court erred in regard to the
final relevant factor involved in its severance analysis: finding no prejudice
to Defense Distributed by splitting its case. 24 See Acevedo, 600 F.3d at 521.
23
The final factor in severance analysis, whether the claims require different
witnesses and sources of proof, is neutral. Plaintiffs will have to make the same proof in
two proceedings about the protected nature of its information, while there is only some
overlap between the witnesses for defendants.
24
The district court embroiders its reasoning on prejudice by implying that
Plaintiffs’ challenge to NJ Stat. Sec 2C:39-9(l)(2), a claim explicitly pled in their Second
Amended Complaint, would fail for lack of personal jurisdiction over the NJAG. We do
not agree. Plaintiffs’ original allegations included threats by the NJAG to prosecute
Defense Distributed and Cody Wilson to the maximum extent allowed by state law. That
the legislature added a particular device to enhance such prosecution, in the form of a
criminal statute passed during the pendency of this case, is comprehended in the scope of
the original complaint and the briefing in the district court and this court. And finally, as
we noted in the previous opinion, the NJAG waived personal jurisdiction by not asserting
that defense. Def. Distributed v. Grewal, 971 F.3d at 496.
23
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No. 21-50327
The court’s legal and factual errors so permeate its severance order as to
render it a clear abuse of discretion.
C. Transfer Order
Because the severance order was a clear abuse of discretion, the
district court likewise “lacked authority . . . to transfer a portion of the single
action . . . for one purpose while retaining jurisdiction over the remainder.”
Chrysler Credit Corp., 928 F.2d at 1519; In re Nine Mile Ltd., 673 F.2d at 244.
But even setting aside severance as impermissible, any transfer of this case,
in whole or in part, constitutes an abuse of the district court’s discretion.
A party seeking a transfer under Section 1404(a) “must show good
cause” by “clearly demonstrat[ing] that a transfer is ‘[f]or the convenience
of parties and witnesses, in the interest of justice.’” In re Volkswagen of Am.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008) (quoting 28 U.S.C. § 1404(a))
(emphasis added). “When the transferee venue is not clearly more
convenient than the venue chosen by the Plaintiff, the Plaintiff's choice
should be respected.” Id. When a defendant is haled into court, some
inconvenience is expected and acceptable. Assuming that jurisdiction exists
and venue is proper, the fact that litigating would be more convenient for the
defendant elsewhere is not enough to justify transfer. In other words, the
standard is not met by showing one forum is more likely than not to be more
convenient, but instead the party must adduce evidence and arguments that
clearly establish good cause for transfer based on convenience and justice.
See e.g. id. 314-315.
Courts are required to assess four private interest factors and four
public interest factors pertinent to a transfer motion. See In re Volkswagen,
545 F.3d at 315. The private interest factors are: “(1) the relative ease of
access to sources of proof; (2) the availability of compulsory process to
secure the attendance of witnesses; (3) the cost of attendance for willing
24
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No. 21-50327
witnesses; and (4) all other practical problems that make trial of a case easy,
expeditious and inexpensive.” Id. The public interest factors are discussed
below. As with its discussion of Rule 21 severance, the district court abused
its discretion factually and legally in weighing the transfer factors against the
standard.
Regarding the first private interest factor, the movant has the burden
to establish good cause, which requires an actual showing of the existence of
relevant sources of proof, not merely an expression that some sources likely
exist in the prospective forum. In re Volkswagen, 545 F.3d at 315. Here,
however, the district court erred by uncritically accepting the NJAG’s
conclusory assertions that “the sources of proof relevant to these issues
(including any non-party witnesses) are all in New Jersey.” Defense
Distributed, 1:18-cv-00637, Dkt. 121, at 15–16 (W.D. Tex.); See e.g. Hammers
v. Mayea-Chang, 2019 WL 6728446, at *7 (E.D. Tex. Dec. 11, 2019). The
NJAG’s conclusory assertions lack that necessary proof, while the Plaintiffs
identified proof, documents, and witnesses that are located in Texas and
support maintaining Texas as the forum. 25 Weighing the first factor as
“neutral” in the face of the NJAG’s lack of proof and Plaintiffs’ proffer
abused both logic and the court’s discretion. Additionally, the district court
legally erred by introducing a “prejudice” consideration into the first factor.
The first private interest factor does not ask whether a transfer would
25
For example, Defense Distributed provided details on how its activities,
including research, design, development, manufacturing, and publishing, occurred in and
around Austin, and how it also published the same computer files with digital firearms
information at a brick-and-mortar public library in Austin, Texas by hosting the computer
files in formats that patrons could access via computer workstations. The computer servers
on which Defense Distributed hosts these files for publication to the internet are also
located in Texas.
25
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No. 21-50327
“prejudice” the non-moving party, but which forum provides easier access
to sources of proof. Volkswagen, 545 F.3d at 315.
Access to compulsory process for non-party witnesses is the gravamen
of the second private interest factor. See e.g. Garrett v. Hanson, 429 F. Supp.
3d 311, 318 (E.D. Tex. 2019). Neither the NJAG nor the district court
identified any witness who is subject to compulsory process in New Jersey
but not in Texas. Yet the court inexplicably weighed this factor not as neutral
but in favor of transfer. “To show good cause[, however] means that a
moving party . . . clearly demonstrates” the appropriateness of transfer.
Where there is no demonstration by the movant, let alone a clear one, the
court cannot weigh a factor against the non-movant and in favor of transfer.
Besides lacking support in the record, the district court’s weighing of this
factor in favor of New Jersey does not “reflect[] the appropriate deference to
which the Plaintiff’s choice of venue is entitled,” In re Volkswagen, 545 F.3d
at 315. 26
The fourth private interest factor addresses “all other practical
problems that make trial of a case easy, expeditious and inexpensive.” In re
Volkswagen, at 315. The district court weighed this factor in favor of the
NJAG because absent transfer, it would have to decide whether it has
personal jurisdiction over the NJAG to adjudicate Defense Distributed’s
allegedly newly raised claim challenging the constitutionality of NJ Stat.
§ 2C:39-9(l)(2). But as we discussed above that issue is not so novel as to
require a separate analysis of personal jurisdiction. The district court itself
previously recognized that “the instant action concern[ed]” The NJAG’s
26
The third private interest factor, concerning the cost for willing witnesses, is
agreed to be neutral, as the district court found.
26
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No. 21-50327
“criminal enforcement actions,” such as “threatening to enforce a criminal
law against Defense Distributed.” 364 F.Supp. 3d, at 686. 27
The public interest factors bearing on transfer are: “(1) the
administrative difficulties flowing from court congestion; (2) the local
interest in having localized interests decided at home; (3) the familiarity of
the forum with the law that will govern the case; and (4) the avoidance of
unnecessary problems of conflict of laws [or in] the application of foreign
law.” See In re Volkswagen, at 315. No party disputes that the first factor is
neutral.
As an initial matter, the district court erroneously treated the second
and the third factors together. The district court reasoned that because some
of Plaintiffs’ claims against the NJAG implicate New Jersey’s criminal law,
§ 2C:39-9(l)(2), the District of New Jersey has a greater interest in testing
the constitutionality of that statute and is better equipped than Texas courts
to evaluate it. The two factors, however, are distinct in the law for good
reason.
The second public interest factor, which focuses on the local interest
in having localized interests decided at home, “most notably regards not
merely the parties’ significant connections to each forum writ large, but
rather the significant connections between a particular venue and the events
that gave rise to a suit.” In re Apple Inc., 979 F.3d 1332, 1345 (Fed. Cir. 2020).
Important considerations include the location of the injury, witnesses, and
the Plaintiff’s residence. See Volkswagen, 545 F.3d at 317–18; Zurich Am. Ins.
Co. v. Tejas Concrete & Materials Inc., 982 F. Supp. 2d 714, 727 (W.D. Tex.
27
And this court noted that Plaintiffs’ claims encompass the “criminal actions”
that the NJAG threatened “at a live press conference.” Defense Distributed, 971 F.3d at
489. Appellants’ brief to this court confirms that Section 2C:39- 9(l)(2) was the sole legal
basis for the threats.
27
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No. 21-50327
2013). Indeed, “[t]he place of the alleged wrong is one of the most important
factors in venue determinations.” Watson v. Fieldwood Energy Offshore, LLC,
181 F. Supp. 3d 402, 412 (S.D. Tex. 2016).
Texas’s “local interest in having [the] localized interests” this case
implicates “decided at home” cannot be overstated. Volkswagen, 545 F.3d at
315. The controversy over New Jersey’s statute is not “localized” to New
Jersey. The AG has “projected himself across state lines and asserted a
pseudo-national executive authority” in Texas by seeking “to bar Defense
Distributed from publishing its materials anywhere,” chilling its speech, and
reducing “Texans’ access to [its] materials.” Grewal, 971 F.3d at 492-95. In
these circumstances, the aggressor state’s interest is considerably diminished
because the Texas court’s ruling will have no direct effect on New Jersey’s
citizens. If § 2C:39-9(l)(2) were declared unconstitutional in this litigation,
that ruling would preclude the NJAG’s enforcing the statute against these
Plaintiffs. At least the NJAG would not necessarily be prevented from
enforcing the law in New Jersey. Thus, the strength of New Jersey’s interest
in having this case decided at home is considerably less than that of Texas
citizens whose primary recourse, as targets of this litigation in Texas, is a suit
in Texas. And Texas courts have a significant interest in assessing the
constitutionality and extraterritorial impact of New Jersey’s criminal law 28,
especially a law that criminalizes speech.
The familiarity of the forum with the law that will govern the case was
also improperly weighed in favor of New Jersey. “Federal judges routinely
apply the law of a State other than the State in which they sit….” This court
is “not aware of any exceptionally arcane features of Texas, [New Jersey, or
28
The New Jersey statute applies extraterritorially because it criminalizes
“distribution” of speech into the state, and “distribute” is defined to include any act of
“mak[ing] available via the internet or by any other means.” N.J. Stat. 2C:39-9(l)(2).
28
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No. 21-50327
constitutional law,] that are likely to defy comprehension by a federal judge
sitting in [Texas].” Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of
Texas, 571 U.S. 49, 67–68, 134 S. Ct. 568, 584 (2013). Moreover, New Jersey
courts’ familiarity with New Jersey law produces no meaningful efficiency
rendering New Jersey a more convenient forum. Defense Distributed
pursues no claims arising under New Jersey law. Plaintiffs’ challenge to
Section 2C:39-9(l)(2) is founded in the First Amendment and the extreme
breadth of this criminal law, which purports to render illegal any speech that
reaches the state from other states. Plaintiffs lodge other claims against the
NJAG predicated on other federal constitutional provisions. Thus, the
Texas court’s superior familiarity with Defense Distributed’s Texas law
claims, and the fact that the New Jersey court would be bound to Texas law
concerning such claims, see Country Chrysler, 928 F.2d at 1516, more than
offsets any efficiencies that might be gained from New Jersey courts’
familiarity with New Jersey law.
The last public interest factor seeks to avoid “unnecessary problems
of conflict of laws [or in] the application of foreign law.” Volkswagen,
545 F.3d at 315. There are no risks of such a conflict here. Defense
Distributed brought primarily federal law claims; and the state law claims
involve Texas law, not New Jersey law.
The district court repeatedly weighed the transfer factors against
Plaintiffs by asserting that they could not be disadvantaged by transfer
because they had “voluntarily” instituted additional litigation in New Jersey
covering similar issues against the NJAG. This is incredible. Plaintiffs filed
suit in New Jersey only because this district court had erroneously closed the
door to their suit in Western District of Texas. The currently stayed
litigation in New Jersey has no legitimate bearing against Plaintiffs’ original
choice of forum.
29
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No. 21-50327
Correctly assessed, the NJAG did not carry its burden to clearly
demonstrate that transfer is clearly more appropriate than the Plaintiffs’
choice of forum. The district court erred legally and factually in virtually
every aspect of this issue, and its decision, which has unnecessarily
lengthened this litigation even more, represents a clear abuse of discretion
for which mandamus is an appropriate remedy.
Conclusion
For the foregoing reasons, we conclude that the district court’s order
severing and transferring of the claims against the NJAG to the District of
New Jersey was a clear abuse of discretion giving rise to an appropriate
exercise of the court’s mandamus power.
A writ of mandamus shall issue herein directing the district court to:
(1) Vacate its order dated April 19, 2021 that severed Defense
Distributed’s claims against the NJAG and transferred them to the United
States District Court for the District of New Jersey;
(2) Request the District of New Jersey to return the transferred case
to the Western District of Texas, Austin Division; and,
(3) After return, to reconsolidate Defense Distributed’s case against
the NJAG back into the case still pending against the State Department.
The petition for writ of mandamus is hereby GRANTED.
30
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No. 21-50327
Stephen A. Higginson, Circuit Judge, dissenting:
“Countless expressions can be found in the jurisprudence to support
the black-letter proposition that mandamus is an extraordinary remedy for
extraordinary causes.” United States v. Denson, 603 F.2d 1143, 1146 (5th Cir.
1979) (Rubin, J.). The Supreme Court cautioned long ago that
“[m]andamus, prohibition and injunction against judges are drastic and
extraordinary remedies . . . reserved for really extraordinary causes.” Ex
parte Fahey, 332 U.S. 258, 259-60 (1947). As we have said,
In recognition of the extraordinary nature of the writ, we
require more than showing that the court misinterpreted the
law, misapplied it to the facts, or otherwise engaged in an abuse
of discretion. And even reversible error by itself is not enough
to obtain mandamus. Rather, we limit mandamus to only
“clear abuses of discretion that produce patently erroneous
results.”
In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015) (quoting
In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008)).
Today, the majority uses that extraordinary remedy to reverse a
district court’s discretionary transfer order, ruling that it was a clear abuse of
discretion. 1 This district court’s interest-of-justice grant of transfer is not
extraordinary cause, and compelling it to be undone is our indisputable error,
for many reasons.
First, Plaintiffs-Appellants Defense Distributed, the Second
Amendment Foundation and Conn Williamson (hereafter DDSA) never
properly requested the mandamus relief the majority has issued. Compare
FED. R. APP. P. 21(a), with Notice of Appeal, Defense Distributed, No. 21-
1
If it takes us more than half a year to explain what the district court did wrong, it
is doubtful the court’s error was a clear abuse of discretion. See Volkswagen, 545 F.3d at 311.
31
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No. 21-50327
50327 (5th Cir. Apr. 23, 2021), and Brief of Appellants, Defense Distributed,
No. 21-50327 (5th Cir. June 17, 2021). And as DDSA acknowledged in oral
argument, they could not point to any reviewing court that has ever, before
today, deployed mandamus authority to compel a trial court to undo a
Section 1404(a) discretionary, interest-of-justice, joint severance and
transfer grant. Oral Argument at 4:48, Defense Distributed, No. 21-50327 (5th
Cir. Aug. 3, 2021). 2
A second obstacle is that our court has no authority to compel a federal
district court in New Jersey to return a case it received and docketed on April
20, 2021, above all when, over seven weeks later, unopposed by DDSA, that
district court took the additional step of consolidating the case it received
with its pre-existing, parallel litigation, which DDSA itself filed in 2019. See
In re Red Barn Motors, Inc., 794 F.3d 481, 484-85 (5th Cir. 2015). Here is the
pertinent chronology: After the district court granted the motion to transfer,
DDSA did not, in district court, seek a stay or reconsideration. Nor did
DDSA immediately seek mandamus of the district court’s transfer order, see
2
The majority cites four cases from three of our sister circuits in which a § 1404(a)
transfer was reversed on mandamus. None reversed a grant of joint severance and transfer,
and each is further distinguishable. In In re Warrick, the reversal was based on the fact that
the district court completely failed to consider one of the § 1404(a) factors and transfer
would have unavoidably brought about dismissal of the claim. 70 F.3d 736, 740-41 (2d Cir.
1995). In In re Nine Mile Ltd., the Eighth Circuit reversed the transfer grant only so that
the district court could rule on the pending motion to reconsider transfer and the petitioner
could seek review of that decision prior to actual transfer of the case. 673 F.2d 242, 243-44
(8th Cir. 1982). In Sunbelt Corp. v. Noble, Denton & Assocs., Inc., there were two defendants,
one of which was not subject to personal jurisdiction in the transferee court. 5 F.3d 28, 29,
33 (3d Cir. 1993). The Third Circuit denied the request of the defendant who was subject
to personal jurisdiction in the transferee court to sever the case and transfer only as to it. Id.
at 33-34. In In re Howmedica Osteonics Corp., reversal of transfer as to some defendants was
based on a forum selection clause, and the court severed the parties and affirmed the
transfer only as to those defendants not subject to the forum selection clause. 867 F.3d 390,
397-98, 411 (3d Cir. 2017).
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Notice of Appeal, Defense Distributed v. Grewal, No. 21-50327 (5th Cir. Apr.
23, 2021), and, in its initial filings in this court, DDSA explicitly disclaimed
intention to “enjoin anything about the interlocutory transfer or severance
rulings below,” Appellants’ Reply in Support of Appellants’ Motion for a
Preliminary Injunction, Defense Distributed, No. 21-50327 (5th Cir. June 21,
2021). DDSA did not ask the New Jersey district court to return the case to
the Western District of Texas, nor did they oppose consolidation with the
pre-existing New Jersey case. Hearing no opposition from DDSA, the New
Jersey district court then consolidated the cases in that court. That was over
half a year ago.
Third, even if all we order of our district court is a request to transfer
the case back to Texas—so that we can resolve a constitutional showdown
between New Jersey law and 3D-printed weaponry—and assuming our court
can sua sponte reconfigure an appellant’s notice of appeal into a non-
conforming mandamus petition, still, here, the district judge painstakingly
applied the Volkswagen transfer factors, which we set forth with the (short-
lived) promise (“we stress”) that “in no case will we replace a district
court’s discretion with our own.” 545 F.3d at 312. The district court’s
Volkswagen analysis is so comprehensive and well-reasoned as to show that
had transfer been refused, a writ for mandamus to compel transfer would be
well supported by the settled precedent of this court, see Lloyds, 780 F.3d 283,
In re Rolls Royce Corp., 775 F.3d 671 (5th Cir. 2014); In re Radmax, Ltd., 729
F.3d 285 (5th Cir. 2013); Volkswagen, 545 F.3d 304, which other courts follow
and scholars credit, see In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d
48, 57 (3d Cir. 2018) (citing Lloyds); In re Hudson, 710 F.3d 716, 717-18 (7th
Cir. 2013) (Posner, J.) (citing Volkswagen); In re Apple, Inc., 602 F.3d 909,
911-12 (8th Cir. 2010) (citing Volkswagen); In re: Apple, No. 2021-181, 2021
WL 5291804, at *2 (Fed. Cir. Nov. 15, 2021); In re: Hulu, LLC, No. 2021-
33
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142, 2021 WL 3278194, at *2 (Fed. Cir. Aug. 2, 2021); 55 JOHN BOURDEAU
ET AL., C.J.S. MANDAMUS § 97 (2021).
Notably, severance is not only discretionary and tied to case
management prerogatives, but it is not itself subject to review through a writ
of mandamus. At all. See In re Rolls Royce, 775 F.3d at 676. And though Rolls
Royce held that a district court’s ruling on a joint transfer and severance
motion may be reviewed through mandamus, neither DDSA nor the majority
opinion cites any mandamus case, ever, reversing a grant of a joint severance
and transfer motion. Constructed for DDSA, the novel argument – opposite
to indisputable – appears to be that New Jersey is a necessary party because
the United States Department of State somehow was its pull-toy, allegedly
breaching a settlement agreement whose provisions plaintiffs could not
specify at oral argument as having been breached, much less that New Jersey
caused the federal government to breach. Manifestly, New Jersey has no role
in United States weapons export regulations.
Several additional points highlight our usurpation.
First, the district court here transferred to a court whose intercession
these same plaintiffs had already sought, had argued on appeal in the Third
Circuit to maintain, and thereafter had kept pending for over two years. In
other words, the transfer was to a receiving court which had pre-existing
jurisdiction over these plaintiffs’ claims, at their initiation and insistence.
Second, that transfer was back to a court within the only federal circuit
authorized to certify questions of interpretation of New Jersey law to the
Supreme Court of New Jersey, which could interpret that law to avoid, not
force, a novel and difficult constitutional showdown. See N.J. COURT RULES
2:12A-1. Notably, the Supreme Court recently reversed our court when we
tried to force resolution of a different First Amendment collision without
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deferring first to one of our states’ highest court’s prerogative to interpret its
own law. McKesson v. Doe, 141 S. Ct. 48 (2020). 3
A third related, especially serious point is that removing discretion to
grant transfer undermines our court’s mandamus transfer precedent, which,
hitherto, we have used to require comity, not defy it. And it does so
imprudently, forcing a constitutional collision that may well be avoidable
through certification of questions of state law, which we cannot do but the
receiving circuit can. Hereafter, as to other transfer grants, our mandamus,
discordantly, will reduce or remove trial judge discretion to avoid
adjudicating the constitutionality of other states’ laws.
Finally, we commit not just an error we told our district courts in
Volkswagen would not occur, but another one we took pains earlier in this
litigation to cabin against. See Defense Distributed v. Grewal, 971 F.3d 485,
496 (5th Cir. 2020). Hereafter, state attorneys general, including those
within our own circuit, may not only be hailed into federal courts across the
country to defend their state laws, but then, if a trial judge assesses interests
of justice to favor transfer—say for consolidation with related claims already
3
The intimation is made that transfer should be undone, in part, because New
Jersey has intentionally delayed this litigation. As noted, we have not acted promptly
ourselves, on a case docketed in another circuit nearly a year ago and as to a point of law
the majority now, with no precedent, says is so obvious as to be indisputable. Regardless,
sufficient answer to innuendo is that this litigation, over whether governments have
authority to regulate 3D printable weaponry, commonly known as “ghost guns,” has
spanned three circuits for over a decade, without any court of original jurisdiction—courts
with actual fact-finding authority over lawyers before them—even hinting of bad faith,
much less making findings to support our ire. In fact, to my knowledge, the defendants
have prevailed in every district court so far, not to mention twice in this court, Defense
Distributed v. U.S. Dep’t of State, 947 F.3d 870 (5th Cir. 2020); Defense Distributed v. U.S.
Dep’t of State, 838 F.3d 451 (5th Cir. 2016), and before the Third and Ninth Circuits, see
Defense Distributed v. Att’y Gen of N.J., 972 F.3d 193 (3d Cir. 2020); State v. U.S. Dep’t of
State, 996 F.3d 552 (9th Cir. 2021).
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pending in a co-equal court whose circuit has certification authority—that is
indisputable error. 4
Consistent with the New Jersey Attorney General’s express and
emphatic denials, twice to our panel, that it seeks to enforce New Jersey law
in Texas, the record is devoid of enforcement measures, such as a takedown
order or criminal prosecution, against DDSA. Indeed, the parties point to no
prosecution even in New Jersey using New Jersey’s new law, yet the majority
rules today that mandamus lies to force New Jersey to defend its new law for
the first time in Texas. Because this precedent, now binding as indisputable,
does injury to state sovereignty and comity, not to mention district court case
management discretion, it is small comfort that there is a pending dismissal
motion filed by the Department of State which, if granted, may lead to re-
transfer, albeit after further, up-down delay protracted by us.
Also specific to this case, it is small comfort that the most we compel
is a request, which the New Jersey federal district court no doubt will seriously
consider, informed by comity and state law priorities set forth by the
Supreme Court, as well as by its own assessment of whether litigation
resolving New Jersey law should be decided in Texas as well as delayed and
encumbered by the national security interests implicated in the federal
government’s overseas export munitions restrictions, which are at the heart
of the litigation in the Western District of Texas.
Mandamus rulings announce law inflexibly. Here, without precedent,
our court, seemingly impatient for the last half decade, to force a difficult
4
Cf. Response Brief of Defendant-Appellee Ken Paxton in His Official Capacity as
Attorney General of Texas at 10-11, Twitter v. Paxton, 26 F.4th 1119 (9th Cir. 2022) (No.
21-15869) (“Where, as here, the Attorney General of a sovereign State is sued for actions
to enforce that State’s law in that State, there is ‘only one obvious locus’ for any
constitutional challenge: in that State.”).
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First (Second?) Amendment clash over government regulation of 3D
printable “ghost” weapons, supplants district courts’ long-standing, fact-
specific case management discretion to transfer litigation for consolidation
with an existing case in another circuit, in derogation of state sovereignty,
comity and constitutional avoidance principles, contrary to instruction given
to us by the Supreme Court just last year.
37