parties to submit memoranda on whether the Louisiana court should retain the cases for trial or remand the cases to the original transferor courts. See Mem. and Order, dated May 16, 1995, at 3. Pursuant to the May 1995 Order, a majority of the defendants requested that Chief Judge Sear retain the case for trial, and Plaintiffs requested transfer to Nebraska. In an initial order dated October 27, 1995 ("October 1995 Order"), Chief Judge Sear concluded, without discussion, "that pursuant to 28 U.S.C. § 1404(a) Washington National's claims are properly transferred to Nebraska as opposed to New York." See In re Taxable Municipal Bond Secs. Litig., 1995 U.S. Dist. LEXIS 16274, No. MDL 863, 1995 WL 637822, at *2 n.9 (E.D. La. Oct. 30, 1995). Accordingly, Chief Judge Sear ordered that a suggestion of remand be issued to the MDL Panel, specifically recommending that this case be transferred to the District of Nebraska. Id. at *2.
Prior to the entry of a transfer order, however, Defendants moved for reconsideration, arguing that the case should be remanded back to the Southern District of New York as opposed to Nebraska. Chief Judge Sear allowed the parties to brief the issue "on the basis that they were not previously afforded the opportunity to make this argument." In re Taxable Municipal Bond Secs. Litig., 1995 U.S. Dist. LEXIS 18638, *1, No. MDL 863, 1995 WL 731693, at *1 (E.D. La. Dec. 7, 1995). On December 29, 1995, Chief Judge Sear reversed his earlier recommendation and recommended to the MDL Panel that the case be remanded to the Southern District of New York ("December 1995 Order"). See In re Taxable Municipal Bond Secs. Litig., No. MDL 863, 1995 WL 766339, at *3 (E.D. La. Dec. 29, 1995). On January 4, 1996, the MDL Panel issued a conditional remand order adopting Chief Judge Sear's recommendation to remand the case to the Southern District of New York. Within the time permitted by Rule 14 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, Plaintiffs filed a Notice of Opposition to Conditional Remand Order, citing the 1990 Report and the October 1995 Order. On April 12, 1996, the MDL Panel adopted Chief Judge Sear's recommendation and remanded the case to this Court. See Remand Order, dated April 12, 1996, at 1-2.
The transfer issue in this case has come full circle: Plaintiffs move this Court to transfer the case to the District of Nebraska, and Defendants urge the Court to deny any such transfer. As a result, each side finds itself vehemently supporting a position to which it was strenuously opposed when the issue came before the Magistrate Judge in 1990.
I. Law of the Case Doctrine
Under the "law of the case" doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983) (dictum) (citation omitted); see also Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 7-8 (2d Cir. 1996). "Federal courts routinely apply law-of-the-case principles to transfer decisions of coordinate courts. Indeed, the policies supporting the doctrine apply with even greater force to transfer decisions than to decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988) (citations omitted). Although the doctrine does not restrict a court's authority to revisit a previously decided issue, "courts should be loathe to do so in the absence of extraordinary circumstances, such as where the initial decision was 'clearly erroneous and would work a manifest injustice.'" Id. at 817 (quoting Arizona, 460 U.S. at 618 n.8); see also Corporation de Mercadeo Agricola v. Mellon Bank Int'l, 608 F.2d 43, 48 (2d Cir. 1979) (finding law of the case doctrine a rule of practice, not a restriction on a court's jurisdiction); Dictograph Prods. Co. v. Sonotone Corp., 230 F.2d 131, 135 (2d Cir. 1956) (same).
The grounds, or special circumstances, upon which a court may reconsider an issue previously determined in an earlier stage of the same litigation are: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or to prevent manifest injustice. DiLaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992) (citing Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); see also Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516-17 (10th Cir. 1991) (holding that court should not reconsider prior ruling of transferor court unless governing law has changed, new evidence becomes available, clear error has been committed or manifest injustice will result). Thus, absent special circumstances, courts in this Circuit have refused to revisit transfer orders from another court. See, e.g., Herskowitz v. Charney, 1994 U.S. Dist. LEXIS 4857, No. 93 Civ. 5248, 1994 WL 150812, at *2 (S.D.N.Y. April 18, 1994) (denying motion to retransfer because original forum ruled on issue and no special circumstances present to justify reversing law of case); Repp v. Webber, 142 F.R.D. 398, 400-01 (S.D.N.Y. 1992) (refusing to retransfer without impelling and unusual circumstances); BMC Indus., Inc. v. Employers Ins. of Wausau, 1991 U.S. Dist. LEXIS 1243, 1991 WL 12800, at *2 (N.D.N.Y. 1991) (holding that commencement of second action in Minnesota did not constitute "the type of changed circumstances which would warrant retransfer" to Minnesota); Dresser Indus., Inc. v. First Travel Corp., 1990 U.S. Dist. LEXIS 20889, Nos. 88 Civ. 581E, 90 Civ. 470E, 1990 WL 159037, at *3-4 (W.D.N.Y. Oct. 11, 1990) (denying motion to retransfer where movant had full and fair opportunity to litigate matter previously, transferor court's order was not manifestly erroneous and no "impelling and unusual" circumstances existed).
In the December 1995 Order, the Eastern District of Louisiana determined that this case should be remanded back to this Court rather than be transferred to the District of Nebraska. See In re Taxable Municipal Bond, 1995 WL 766339. That transfer decision became the law of this case, to be adhered to by a court of coordinate jurisdiction, including this Court. Absent one of the exceptions enumerated in DiLaura, this Court may not revisit the transfer issue. The Court will address the applicability of each exception in turn.
A. Intervening Change in Law
Courts may reconsider previous holdings in the same litigation if there has been an intervening change in the law. See, e.g., Pescatore, 97 F.3d at 9 (rejecting law of case doctrine where subsequent Supreme Court decision "embodied an intervening change in controlling law"); N.L.R.B. v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir. 1995) (finding that change in agency policy warrants reconsideration of prior holding). Because none of the parties allege a change in the law since the December 1995 Order was issued, this exception does not warrant reconsideration in this case.
B. New Evidence
A court may revisit the law of the case where new evidence has surfaced or a more complete record has developed. See Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996) (holding that new evidence permitted court that denied defendants' motion for summary judgment to later grant defendants' motion to dismiss); Childress v. Taylor, 798 F. Supp. 981, 994 (S.D.N.Y. 1992) (holding that determination of alleged copyright infringer's good faith on summary judgment may be reconsidered based upon new evidence elicited at trial). Plaintiffs argue that "developments since this case left the MDL process require that the transfer issue be revisited de novo." Pls.' Reply Mem. at 7-8. Specifically, Plaintiffs contend that certain developments, "i.e., the recently ascertained unavailability of two critical liability witnesses, were not before Judge Sear, [and] provide a completely independent basis for this Court to review the question of transfer." Id. at 8. The Court disagrees.
In support of their motion, Plaintiffs submit affidavits from the two allegedly "critical" witnesses residing in Nebraska: former NIFA Executive Director Dennis Vellek ("Vellek") and former Senator of the Nebraska Unicameral Loran Schmit ("Schmit"). See Vellek Aff.; Schmit Aff. (attached to Hecht Aff. as Exs. O and T). Plaintiffs maintain that they filed this action in New York because, at that time, they were unaware of Schmit's existence or of Vellek's willingness to speak to them. See Pls.' Mem. at 13. Plaintiffs further contend that, although they became aware of Vellek's and Schmit's proposed testimony during discovery, due to the limited scope of formal discovery in the MDL proceedings they were able to interview, but not depose, these two witnesses. See Pls.' Mem. at 12; Hecht Aff. P 12.
According to Plaintiffs, Vellek now refuses to appear in New York to testify at trial and Schmit may be unable to travel to New York for trial due to a serious illness in his family. See Hecht Aff. P 4. Plaintiffs urge the Court to transfer the case so that a jury will hear the live testimony of these two witnesses who are outside the subpoena power of this Court.
The appearance of both Vellek and Schmit as "critical" witnesses residing in Nebraska is not a development that surfaced after the December 1995 Order. In fact, Plaintiffs concede that they were aware of Vellek's proposed testimony in May 1993 at the latest, and Schmit's proposed testimony within two months of filing their complaint. See Pls.' Mem. at 12-13. Plaintiffs, therefore, contend that the witnesses' unavailability in New York is a recent development. Contrary to Plaintiff's assertions, however, Chief Judge Sear squarely addressed the unavailability of these witnesses in the December 1995 Order:
Washington National urges that two of its key witnesses, Dennis Vellek and Loran Schmit, are beyond the subpoena power of the New York court. However, as defendants point out, this circumstance must have been within Washington National's knowledge at the time it filed suit in the Southern District of New York, and there has been ample opportunity for these witnesses to be deposed. Accordingly, I do not consider this factor to weigh overwhelmingly in favor of the Nebraska forum.