The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Plaintiffs Gary Friedrich Enterprises, LLC ("GFE") and its principal, Gary Friedrich, have moved pursuant to 28 U.S.C. § 1404(a) to transfer this action to the United States District Court for the Eastern District of Missouri. For the reasons set forth below, the motion is denied.
The plaintiffs originally filed their Complaint on April 4, 2007, in the United States District Court for the Southern District of Illinois. The Complaint alleges, in substance, that the defendants infringed the plaintiffs' copyrights by making and selling "Ghost Rider," a 2007 motion picture, and related merchandise.
Mr. Friedrich, a resident of Arnold, Missouri, purports to be the creator of the Ghost Rider story and characters. (Affidavit of Gary Friedrich dated April 29, 2008 ("Friedrich Aff."), attached as Exh. G to Affirmation of Leonard F. Lesser dated May 2, 2008 ("Lesser Aff."), ¶¶ 2, 7). Six days before commencing this action, Mr. Friedrich created GFE, an Illinois limited liability company, and assigned his alleged copyrights to the company. (Memorandum and Order of the Honorable William D. Stiehl, U.S.D.J., Southern District of Illinois, dated Jan. 30, 2008 (the "1/30/08 Order") at 1 & n.1, 6 n.4; Friedrich Aff., ¶ 12). GFE maintains its principal place of business in Columbia, Illinois. (1/30/08 Order at 6, ; Friedrich Aff., ¶¶ 13-14).
The plaintiffs name eleven defendants in their Complaint: (1) Marvel Entertainment, Inc., formerly known as (2) Marvel Enterprises, Inc., is a Delaware corporation, maintaining its principal place of business in New York; (3) Marvel Studios, Inc. and (4) Marvel Characters, Inc. are both wholly owned subsidiaries of Marvel Entertainment (collectively, "Marvel"), with principal places of business in California; (5) Hasbro, Inc. ("Hasbro") is a Rhode Island corporation, with its principal place of business in that state; (6) Take-Two Interactive, Inc. ("Take-Two") is a Delaware corporation, maintaining its principal place of business in New York; (6) Columbia Pictures Industries, Inc. ("Columbia") is an indirect subsidiary of (7) Sony Pictures Entertainment, Inc. ("Sony"), a Delaware corporation, both of which have principal places of business in California; (8) Columbia Tri-Star Motion Picture Group is not a legal entity, has no place of incorporation, and maintains no principal place of business; (9) Crystal Sky Pictures ("Crystal Sky") is a limited liability company, maintaining its only office in California; (10) Relativity Media, LLC ("Relativity") is a California limited liability company, with its principal place of business there; and (11) Michael DeLuca Productions, Inc. ("MDP") is a California corporation, also maintaining its principal place of business in that state. (Declaration of Jodi A. Kleinick dated June 2, 2008 ("Kleinick Decl."), ¶ 2).
In June 2007, the defendants collectively moved to dismiss the Complaint for improper venue and failure to state a claim upon which relief could be granted or, alternatively, to transfer the action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404(a). (Memorandum of Law in Support of Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(3) and (6) or to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) ("Def. Ill. Memo."), attached as Exh. C to Lesser Aff., at 1).*fn1 On September 26, 2007, the Honorable William D. Stiehl, U.S.D.J., denied the defendants' motion to dismiss but found that transferring the action to the Southern District of New York best served the interests of justice. (9/26/07 Order at 9-10).
The plaintiffs subsequently moved for reconsideration of the transfer order, requesting in the alternative that the case be transferred to the United States District Court for the Eastern District of Missouri. (1/30/08 Order at 1). Judge Stiehl denied the motion for reconsideration on the merits and rejected the plaintiffs' application to certify the record for appeal. (1/30/08 Order at 6-7). Finally, because the plaintiffs first asked that the case be transferred to the Eastern District of Missouri in their motion for reconsideration, Judge Stiehl denied the request as untimely. (1/30/08 Order at 6). The case was then transferred to this Court. The plaintiffs now seek to transfer the action to the Eastern District of Missouri.
Pursuant to 28 U.S.C. § 1404(a), "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Congress intended Section 1404(a) "to prevent the waste 'of time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960)).
Motions to transfer "lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoga Equipment Corp., 980 F.2d 110, 117 (2d Cir. 1992); Berman v. Informix Corp., 30 F. Supp. 2d 653, 656 (S.D.N.Y. 1998); Linzer v. EMI Blackwood Music, Inc., 904 F. Supp. 207, 216 (S.D.N.Y. 1995) (citations omitted). However, this being the second transfer determination in this case, the defendants contend that the previous transfer order should be regarded as the law of the case.
A. Law of the Case Doctrine
The "law of the case" doctrine posits that "when a court decides upon a rule of law, that decision should generally continue to govern the same issues in subsequent stages in the same case." Schwartz v. Chan, 142 F. Supp. 2d 325, 329 (E.D.N.Y. 2001) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). Developed as a means of encouraging the settlement of disputes "with reasonable dispatch," Skil Corp. v. Millers Falls Co., 541 F.2d 554, 559 (6th Cir. 1976), the doctrine motivates courts "generally to refuse to reopen what has been decided," Devilla v. Schriver, 245 F.3d 192, 197 (2d Cir. 2001) (internal quotations and citations omitted). However, it is "at best, a discretionary doctrine which does not constitute a limitation on the court's power." Id. (quoting United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000)); accord Arizona, 460 U.S. at 618 ("Law of the case directs a court's discretion, it does not limit the tribunal's power.").
Transferee courts routinely apply the doctrine to the venue determinations of transferor courts. Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816 (1988). Indeed, the Supreme Court has observed that "the policies supporting the doctrine apply with even greater force to transfer decisions than to decisions of substantive law," because "transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation." Id.
Specifically, transferee courts apply the doctrine when a plaintiff moves to re-transfer the action back to the original district. See, e.g., Skil Corp., 541 F.2d at 558-59; Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168-69 (3d Cir. 1982); Repp v. Webber, 142 F.R.D. 398, 400-01 (S.D.N.Y. 1992). Accordingly, the transferee court "should not re-transfer 'except under the most impelling and unusual circumstances' or if the transfer order is 'manifestly erroneous."' In re Cragar Industries, 706 F.2d 503, 505 (5th Cir. 1983) (quoting United States v. Koenig, 290 F.2d 166, 173 n.11 (5th Cir. 1961). However, the typical standard for evaluating a re-transfer application does not necessarily apply where, as here, the movant proposes transfer to a forum other than that from which the case was originally transferred.
In Deep South Pepsi-Cola Bottling Co. v. Pepsico, Inc., No. 88 Civ. 6243, 1989 WL 48400 (S.D.N.Y. May 2, 1989), the court applied the law of the case doctrine to just such a transfer motion. There, the plaintiffs originally filed their complaint in the Western District of Pennsylvania. Following a motion by the defendants, the court transferred the case to the Southern District of New York. Id. at *1-2. The plaintiffs then moved for a second transfer to the Southern District of Mississippi on the basis that one of the plaintiffs, Deep South Pepsi-Cola Bottling Co., Inc. ("Deep South"), had a pending bankruptcy case in that district. Id. at *2. Denying the plaintiffs' motion on other grounds,*fn2 the Honorable Peter K. Leisure, U.S.D.J., noted in dicta that the law of the case doctrine would also have required denial of the motion. Id. at *4. Judge Leisure explained:
Section 1404(a) does not permit parties to hopscotch from one forum to another. Here, the United States District Court for the Western District of Pennsylvania already has decided . . . that the convenience of the litigants and witnesses, as well as the interests of justice, would be best served by transfer to this District.
I respectfully disagree with this analysis. The law of the case doctrine discourages a transferee court from reexamining the determinations of the transferor court, but only to the extent that the transferee court is presented with issues identical to those previously addressed. See Coca-Cola Bottling Co. v. Coca Cola Co., 988 F.2d 414, 429 (3d Cir. 1993) (doctrine only applies to issues actually decided). That is the case where a party seeks to return a case to a district from which it was previously transferred. It is not the situation, however, where the moving party requests transfer to yet a third district, the relative convenience of which has never been considered. In Deep South, for example, the transferor court had weighed the convenience of Pennsylvania as compared to that of New York, not New York as compared to Mississippi. Thus, the law of the case doctrine was inapplicable.
Similarly, because the plaintiffs propose transfer to a new forum in this case, my determination does not entail a reexamination of the previous transfer decision. While Judge Stiehl weighed the convenience of New York as compared to Illinois, he ...