Here’s a weird one:

A party files a motion with a trial judge to transfer a case to a different venue. That motion is made under 28 U.S.C. Sec. 1404, for the convenience of the parties and witnesses. The trial judge denies the motion. Can the party then file a new motion, with the Judicial Panel on Multidistrict Litigation, seeking to transfer the same case (to the same proposed transferee court) based on the MDL transfer statute, 28 U.S.C. Sec. 1407?

This is a hard question for us — not because it’s a particularly tough legal issue, but because we might find ourselves on either side of the question some day. So we’re not going to commit to the correct answer, because we might (unfairly) be forced to eat those words in some case years from now. We’ll just describe the lay of the legal landscape.

Presented with this issue, what would we scratch our heads about?

First, are the legal questions presented by the two motions identical? Section 1404 authorizes transfer “for the convenience of parties and witnesses, in the interest of justice.” Section 1407, in dull contrast, authorizes transfer “for the convenience of parties and witnesses” where transfer “will promote the just and efficient conduct of such actions.”

Is there a difference there?

We decline to say; it’s up to you.

Second, are there non-statutory differences in the standards governing transfer? The MDL Panel has said that it can consider, for example, the effect that transfer could have on the likelihood of settling the coordinated cases. See, e.g., David F. Herr, Multidistrict Litigation Manual Sec. 5.48, at 161 (2007). That is not a factor that courts consider in deciding whether to transfer under Section 1404.

Does that change the analysis?

We decline to say; it’s up to you.

Third, would the law of the case control the result before the MDL Panel? The second motion is, after all, being filed in the same case as the original one, although circumstances may have changed before the later motion was filed.

Absent changed circumstances, should law of the case control?

We decline to say; it’s up to you.

Fourth, transfer under Section 1404 is for all purposes, including trial of the transferred case. Transfer under Section 1407 is for pretrial purposes only.

Does that matter?

In In re Air Crash Disaster, 346 F. Supp. 533, 534 (J.P.M.L. 1972), the Northern District of Illinois denied a motion to transfer under Section 1404, and the MDL Panel later granted a motion to transfer (to the same transferee court) under Section 1407 in part because MDL transfer is for pretrial purposes only.

And in In re American Financial Corp. Litig, 434 F. Supp. 1232, 1234 (J.P.M.L. 1977), a trial court had denied transfer under Section 1404. The MDL Panel said that the considerations for transfer under Section 1407 were different from the considerations under Section 1404, but the Panel nonetheless agreed with the earlier decision that transfer should be denied. See also In re Radioshack Corp. “ERISA” Litig., 528 F. Supp. 2d 1348, 1349 (J.P.M.L. 2007) (Granting a motion to coordinate under Section 1407 after earlier denial of motion to transfer under Section 1404: “Factors in a denial of a Section 1404(a) transfer are different from the criteria for Section 1407 centralization.”)

One last point: David Herr notes in his treatise that many judges are reluctant to order transfer under Section 1404 until discovery has taken place and likely trial witnesses can be identified. Transfer under Section 1407, which is for pretrial purposes only, does not depend on the identity of trial witnesses. See Herr, Sec. 5:9, at 116. If the trial judge expressly declines to order transfer under Section 1404 until discovery has started, that would offer an easy point of distinction in a later motion to the MDL Panel. Even if the trial judge did not expressly make that point, counsel could argue that this distinction permits different results in the two motions.

Please don’t assume that this little post offers comprehensive research on this point; it does not.
It’s just that someone asked us this question recently, and we couldn’t resist poking around.

Are we weird, or what?

We can only hope that we’ll personally face this issue some day, and at least we’ll have this starting point for research when the time comes around.

If only we remember, years from now, that we posted on this topic.