Posnanski v. Gibney

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES POSNANSKI, 
Plaintiff-Appellant,
v. No. 03-16418
WILLIAM GIBNEY; GIBNEY &  D.C. No.
ASSOCIATES; XL SPECIALTY CV-02-02010-JWS
INSURANCE COMPANY,
Defendants-Appellees.

CHARLES POSNANSKI, 
Plaintiff-Appellee,
v.
WILLIAM GIBNEY; GIBNEY & No. 03-17235
ASSOCIATES,  D.C. No.
Defendants-Appellants, CV-02-02010-JWS
and
XL SPECIALTY INSURANCE COMPANY,
Defendant.

11809
11810 POSNANSKI v. GIBNEY
CHARLES POSNANSKI, 
Plaintiff-Appellee,
v.
No. 03-16477
WILLIAM GIBNEY; GIBNEY &
ASSOCIATES,  D.C. No.
CV-02-02010-JWS
Defendants-Appellants,
OPINION
and
XL SPECIALTY INSURANCE COMPANY,
Defendant.

Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted
February 7, 2005—San Francisco, California
Filed August 30, 2005
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
11812 POSNANSKI v. GIBNEY
COUNSEL
Donald K. Schott and Stacy Y. Hannert, Quarles & Brady
LLP, Madison, Wisconsin, and Phoenix, Arizona, for the
plaintiff-appellant-cross-appellee.
Randal N. Arnold, Russell A. Klingaman, and David J.
Hanus, Hinshaw & Culbertson LLP, Milwaukee, Wisconsin,
for the defendants-appellees-cross-appellants.
OPINION
BYBEE, Circuit Judge:
In this case we consider an issue of first impression in our
circuit: May we review the decision of a district court outside
our circuit to transfer a case into our circuit? We hold that we
may not.
This appeal comes to the court from the District of Arizona,
by way of a transfer from the Western District of Wisconsin.
Charles Posnanski filed suit in federal district court in Wis-
consin against William Gibney, Gibney & Associates, and XL
Insurance (“Defendants”), all of whom are residents of Ari-
zona. When defendants sought summary judgment in the Wis-
consin district court, the court sua sponte transferred the case
to the District of Arizona under 28 U.S.C. § 1404(a), citing
the interests of justice and the convenience of the parties. The
Arizona district court entered judgment against Posnanski,
who appeals a number of issues. In this opinion, we address
POSNANSKI v. GIBNEY 11813
only our authority to review the transfer from Wisconsin to Ari-
zona.1
Posnanski argues that the Western District of Wisconsin
erred when it transferred the case to the District of Arizona.
At the outset, it is unclear that we can review the Wisconsin
district court’s decision. In general, we review a district
court’s decision to transfer a case under § 1404 for abuse of
discretion. See Sparling v. Hoffman Constr. Co., 864 F.2d
635, 639 (9th Cir. 1988). See also King v. Russell, 963 F.2d
1301, 1304 (9th Cir. 1992) (reviewing a district court’s deci-
sion to dismiss, rather than to transfer a case under 28 U.S.C.
§ 1406, for abuse of discretion); Miller v. Hambrick, 905 F.2d
259, 262 (9th Cir. 1990) (reviewing a district court’s decision
not to transfer a case under 28 U.S.C. § 1631 for abuse of dis-
cretion).
[1] So far as we can determine, we have never addressed
whether an out-of-circuit district court’s decision to transfer
a case to a district court within our circuit is appealable to our
circuit, although there is some language suggesting that we
can. The confusion stems from our decision in American
Fidelity Fire Insurance Co. v. United States District Court,
538 F.2d 1371 (9th Cir. 1976). In that case, a cross-claim in
a suit pending in the Northern District of California was trans-
ferred to the United States Court of Claims pursuant to 28
U.S.C. § 1406(c). In the course of explaining why we would
not vacate the transfer order by mandamus, we stated that “a
venue transfer between district courts in different circuits pur-
suant to 28 U.S.C. §§ 1404(a) or 1406(a) can be reviewed as
a matter of right in a court of appeals.” Id. at 1377. Although
we were dealing with an order from a transferor district court
within our circuit, rather than from one outside our circuit,
and were holding that mandamus would not be granted, we
1
We have addressed Posnanski’s other claims in an unpublished dispo-
sition, Posnanski v. Gibney, No. 03-17235, filed concurrently with this
opinion.
11814 POSNANSKI v. GIBNEY
added in a footnote that “[o]n appeal from a final judgment
we may exercise our appellate jurisdiction to review a district
court’s transfer order, even if the transferor court is not within
our circuit.” Id. at 1377 n.4 (emphasis added).
We cited two cases in support of this proposition. In the
first case, Gulf Research & Dev. Co. v. Harrison, 185 F.2d
457, 458-59 (9th Cir. 1950), we did not actually review a
transfer order from an out-of-circuit district court as the trans-
feree court. Rather, petitioner sought a writ of mandamus
compelling a judge in the Southern District of California to
withdraw an order of transfer to the District of Delaware. In
the second case, Magnetic Eng’g & Mfg. Co. v. Dings Mfg.
Co., 178 F.2d 866, 869 (2d Cir. 1950), the Second Circuit dis-
cussed whether it could review an appeal of a transfer from
the Southern District of New York to the Eastern District of
Wisconsin. Again, in that case, the transferor court was within
the reviewing circuit. Thus, neither of the cases relied upon by
American Fidelity actually dealt with a “transferor court . . .
not within our circuit,” 538 F.2d at 1377 n.4, nor did Ameri-
can Fidelity itself deal with a review of a transfer order from
such a court. Our statement in footnote four was both over-
broad and dicta.
[2] Ten years after American Fidelity, we recognized that
footnote four was dicta. “We need not address the dicta that
a civil transfer order is reviewable by the circuit court for the
transferee district. See American Fidelity Fire Ins. Co. v.
United States District Court, 538 F.2d 1371, 1376-77 & n.4
(9th Cir. 1976).” United States v. French, 787 F.2d 1381,
1383 n.3 (9th Cir. 1986) (emphasis added); see also 15
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 3846, at 359
(1986) (“There is dicta suggesting a [view that a transfer order
is appealable to the transferee circuit], but neither [the Ninth
nor Second Circuit] courts has ever in fact reviewed a transfer
order issued by a district court in another circuit.”).
POSNANSKI v. GIBNEY 11815
[3] Footnote four in American Fidelity stands in contrast to
the considered views of the commentators and the seven cir-
cuits to have addressed this issue. Wright & Miller state the
basic rule: “[I]f a transfer was made from a district court in
one circuit to a district court in another, the court of appeals
in the latter circuit cannot directly review the action of the
first district court in ordering transfer.” 15 WRIGHT & MILLER
§ 3855, supra at 474. The First, Fourth, Sixth, Seventh,
Eighth, Eleventh and D.C. Circuits have all held that a trans-
feree circuit does not have jurisdiction to review a transfer
order by a transferor court in another circuit. See United
States v. Copley, 25 F.3d 660, 662 (8th Cir. 1994) (“We lack
jurisdiction to consider Petitioner’s first argument, which con-
cerns the North Carolina district court’s decision to transfer
this case to the Missouri district court. Nevertheless, we can
review the Missouri district court’s implicit denial of Cop-
ley’s motion to retransfer the revocation proceeding.”) (cita-
tions omitted); Brock v. Entre Computer Ctrs., Inc., 933 F.2d
1253, 1257 (4th Cir. 1991) (“This court has held that we have
no jurisdiction to review a decision to transfer venue rendered
by a district court in another circuit.”); Lewelling v. Farmers
Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989)
(“Although plaintiffs argue that this case should not have
been transferred, the California district court’s order transfer-
ring this case to the Southern District of Ohio is not review-
able by this court.”); Reyes v. Supervisor of DEA, 834 F.2d
1093, 1095 (1st Cir. 1987) (“[T]here is substantial authority
to conclude that we are precluded from reviewing an order
[transferring a case into this circuit] by a district court in
another circuit.”); Roofing & Sheet Metal Servs. Inc. v. La
Quinta Motor Inns, Inc., 689 F.2d 982, 986, 989 (11th Cir.
1982) (“Congress has not given us jurisdiction to review deci-
sions of district courts outside this Circuit. . . . Because we
lack appellate jurisdiction, we dismiss the appeal to the extent
that it challenges the order transferring the case to the South-
ern District of Alabama.”) (citations omitted); Linell v. Sloan,
636 F.2d 65, 67 (4th Cir. 1980) (“Under the prevailing view
among the circuits, [plaintiffs] should have moved for retrans-
11816 POSNANSKI v. GIBNEY
fer of their action in the Eastern District of Virginia, the trans-
feree district court, in order to vest us with jurisdiction to pass
on their contention.”); Starnes v. McGuire, 512 F.2d 918, 924
(D.C. Cir. 1974) (en banc) (“[I]t is well established that a
transferee court cannot directly review the transfer order
[from an out-of-circuit district court] itself”); Illinois Tool
Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1188
(7th Cir. 1971) (“Defendants argue that transfer of their ear-
lier filed declaratory judgment action from the United States
District Court for the Southern District of New York was
improper. If it was, defendants should have raised that issue
in the Second Circuit, not here.”); Purex Corp. v. St. Louis
Nat’l Stockyards Co., 374 F.2d 998, 1000 (7th Cir. 1967)
(“Inasmuch as the complaint of plaintiffs is actually directed
against the action of the transferor court which sits in the [8th
Circuit], and as the record fails to show that plaintiffs made,
in the transferee court in Illinois, any motion to retransfer the
case to St. Louis, we have no jurisdiction to act extra-
territorially in order to adjudicate the question now raised by
plaintiff.”); Preston Corp. v. Raese, 335 F.2d 827, 828 (4th
Cir. 1964) (“The rule is well established that a transfer order
is not appealable.”).
[4] The rule adopted by these circuits is correct. We know
of no principle in American law that permits a circuit court of
appeals to review, as such, a transfer order issued by a district
court in another circuit. Such transfer orders, as we now hold,
are reviewable only in the circuit of the transferor district
court. See American Fidelity, 538 F.2d at 1376-77.
[5] We join our sister circuits and hold that we may not
review a transfer under 28 U.S.C. § 1404 by a district court
outside of our circuit to a district court within our circuit. If
Posnanski disagreed with the transfer from the Western Dis-
trict of Wisconsin to the District of Arizona, he should have
sought review, by whatever means were available to him, in
the Seventh Circuit. See Illinois Tool Works, Inc., 436 F.2d at
1188; Purex Corp., 374 F.2d at 1000. His remedy lies in the
POSNANSKI v. GIBNEY 11817
circuit of the transferor court, not the circuit of the transferee
court.2
[6] A party, such as Posnanski, is not without any recourse.
He may move in the transferee court to retransfer the action
to the transferor court and the denial of that motion is review-
able in the transferee circuit. See Song Byrd v. Estate of
Grossman, 206 F.3d 172, 177-78 (2d Cir. 2000); Copley, 25
F.3d at 662; Linnell, 636 F.2d at 67; 15 WRIGHT & MILLER
§ 3846, supra at 359-60 (“A motion to retransfer the action
may be made in the transferee court and the ruling on that
motion is reviewable in the court of appeals to which the
transferee court is responsible.”). Such review may even be
had via a petition for a writ of mandamus in certain circum-
stances. See Hoffman v. Blaski, 363 U.S. 335, 340 n.9 (1960);
Hill v. Henderson, 195 F.3d 671, 677 (D.C. Cir. 1999).
[7] We do not have jurisdiction to review the Western Dis-
trict of Wisconsin’s transfer to the District of Arizona.
AFFIRMED.
2
The Western District of Wisconsin stated in its order that transfer to the
District of Arizona might also be proper under 28 U.S.C. § 1631. We see
no reason why a different rule would apply to transfers pursuant to other
statutes, such as 28 U.S.C. § 1406(a) or 28 U.S.C. § 1631.