When a motion for transfer under 28 U.S.C.A. § 1404(a) is granted and the papers are lodged with the clerk of the transferee court, the transferor court and the appellate court for the circuit in which that court sits lose jurisdiction over the case and may not proceed further with regard to it. Indeed, some courts have held that jurisdiction vests in the transferee court upon receipt of a certified copy of the order of transfer, even though that court has not received the transfer papers from the transferor court. Appellate review of the transfer order, if available at all, seems more appropriate, however, in the court of appeals in which the transferor court sits than in the court of appeals to which the case is transferred. Thus, the better practice, codified in some local district court rules, is to stay the effect of transfer orders for a sufficient period to enable appellate review to be sought.
There may be two limited exceptions to the generally accepted doctrine, both of which provide for review of a transfer by the appellate court in which the transferor court sits. If an appeal from a transfer order has been filed and docketed at the time the physical transfer between districts takes place, the transferor district is without power to complete a valid physical transfer and the appeal may go forward. In a related vein, if a party contends that the district court lacked power to order the transfer—for example, when it transfers to a district in which the suit could not have been brought—then its purported transfer is a nullity, and can be reviewed by the circuit in which the transferor court sits. The case authority for these two escape valves is very slim, and each creates possibilities of unseemly duplication of effort by all concerned, and perhaps even inter-circuit conflict, if an appeal is going forward in one circuit while the papers are lodged in a district court in another. Thus it would be risky to rely on these precedents, and a stay of the transfer order is a safer procedure. Failing all else, the transferor court informally may request the transferee court to return the papers so that the transfer order can be reconsidered or reviewed.
The transfer order is not subject to direct review by the transferee court or its court of appeals, at least if the change of venue is to a different circuit. But an order of transfer is not completely immune from further consideration, nor is it subject to the principle of issue preclusion, or collateral estoppel. 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 in which the transferee district court sits.
Not surprisingly, transferee courts have expressed a strong reluctance to review a transfer order indirectly by means of a motion to retransfer. They have the power to do so if the contention is that the transferor court lacked the power to order the transfer rather than merely that the transferor court abused its discretion in applying the statute. Even then, though, the doctrine of law of the case and notions of judicial comity ordinarily suggest that the decision of a coordinate court should not be reconsidered. But such restraint is not universally exhibited. A motion to retransfer is perfectly appropriate, however, on a showing of changed circumstances, particularly when such developments would frustrate the purpose of the change of venue.
. Why would you do this to this poor wholesome probably obese man.
