United States District Court, Southern District of New York
May 15, 2003
HILL DERMACEUTICALS, INC., ET ANO., PLAINTIFFS, AGAINST GALDERMA, S.A., DEFENDANT.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
This action was commenced in the Florida state courts, removed to the United States District Court for the Middle District of Florida, and transferred by that court to this district by order dated March 28, 2003. While the transfer order is not entirely clear, it appears that the transfer was made pursuant to 28 U.S.C. § 1406 on the theory that venue was not properly laid in the transferor district in light of the venue provision of the Federal Arbitration Act, 9 U.S.C. § 4.
On April 4, 2003, plaintiffs moved in the transferor court for reconsideration of the transfer order. That motion was unresolved when the original file was received by this Court on April 11, 2003. Accordingly, the motion remains pending here.
"[T]raditional principles of law of the case counsel against the transferee court reevaluating the rulings of the transferor court, including its transfer order." Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991). Nevertheless, such rulings may be reconsidered in the transferee court when the governing law has been changed by an intervening decision of a superior court, when new evidence becomes available, and when a clear error has been committed or to prevent manifest injustice. Id.
Here there has been no intervening decision of a superior court. There is no new evidence. There has been no showing that litigation of this dispute in Orlando rather than New York is necessary to prevent manifest injustice. The only possible basis for seeking reconsideration of the transfer order thus would be commission by the transferor court of clear error. Regardless of whether this Court would have reached the same result as the transferor court, a matter as to which it implies no view, it certainly sees no clear error.
The motion for reconsideration is denied.
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