### The Honorab le Patrick A. Conmy, United States District Judge 1 

### for the District of North Dakota. ___________ No. 94-3328

___________
* Midwest Motor Express, Inc.; * Midnite Express, Inc.; Express * Cartage, Inc. * * Appellants, * Appeal from the United States * District Court for the v. * District of North Dakota. * Central States Southeast and * Southwest Areas Pension Fund, * * Appellee. *

___________ Submitted: September 14, 1995 Filed: December 4, 1995

___________ Before WOLLMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.

Midwest Motor Express appeals from an order transferring this cas e fromthe District of North Dakota to the Northern District of Illinois

. We affirm the order of the district court. 1

I. Midwest w as obligated under its multiemployer collective bargaining agreement to make contributions to Central State s, a pension fund. During
a labo r strike, Midwest ceased making pension contributions to Centra l States, creating concern at Central States

### The Honorable Dwight C. H. Kautzmann, United State s 2 

### Magistrate Judge for the District of North Dakota. -2- that Mi dwest would withdraw and permanently cease making suc h
con tributions. If an employer withdraws from a multiemployer plan, th e employer is liable to the plan for an amount known as "withdrawa l liability." 29 U.S.C. § 1381(a) (1985). The pa rties litigated the matter of withdrawal liabili ty, but settled the litigation before it reached any conclusion on its merits.

Some time later, the union at Midwest was decertified. Thi s triggered Central States' belief once again that Midwest would withdraw an d cease to make contrib utions. Central States sued Midwest in the Northern District of Illinois and sent Midwest a Notice and Demand of Withdrawa l Liability as providedunder the Multiemployer Pension Plan Amendments Act of 1980. In response to this notice, Midwest in itiated the present action for declaratory and injunctive relief and moved to enjoin Central States froms eeking remedies based on Midwest's failure to pay withdrawa l liab ility. (It seems that the proposed injunction was an attempt t o preve nt Central States from moving ahead in any other forum.) Centra l States then moved to transfer venue to the Northern District of Illinois
un der 28 U.S.C. § 1404(a). A magistrate judge granted the motion t o 2 tra nsfer and dismissed the motion for injunction and the district cour t upheld the magistrate's decision. The district court clerk's office , wit hout waiting a reasonable period of time to give the parties a n opportunityto file a notice of appeal, immediately mailed the case file to the Northern District of Illinois. The Northern District of Illinois dismiss ed the case after transfer on the grounds that it had n o jurisdiction while this appeal was lodged in the Eighth Circuit.

II. We initially address some jurisdictional matters. First, althoug h we generally do not exercise jurisdiction over transfer

### -3-

order s, see, e.g. , United States Fire Ins. Co. v. American Family Lif e Assurance Co. , 787 F. 2d 438, 439 (8th Cir. 1986), we do so when the order to transf er has the effect of refusing an injunction and the motion fo r injunction and the order to transfer are inextricably bound up with each other. See 28 U.S.C. § 1292(a)(1); Nordin v. Nu tra/System, Inc. , 897 F.2d 339, 343 (8th Cir. 1990); Emerson Elec. Co. v. Black & Decker Mfg. Co. , 60 6 F.2d 234, 237 (8th Ci r. 1979). In this case, the order had the effect of refu sing an injunction, and the order and the injunction sought wer e inextricablybound up with each other, because the injunction would have preven ted Central States from proceeding in the Northern District o f Illinois, and the order in fact sent the case to that district.
Second, Central States argues that this court does not hav e jurisdiction because the district court clerk ma iled the court file to the Northern District of Illinois before the notice of appeal was filed in our court. Our circuit takes the view that the physical receipt of the file in the transferee cou rt is the event that signals the end of jurisdiction in the transferor court. In re Nine Mile Limited , 673 F.2d 242, 243-244 & n. 5 (8th Cir. 1982) (per curiam). Central States argues that, unde r Nine Mile , we never acquired jurisdiction becaus e the notice of appeal was filed aft er the district court lost jurisdiction of the case. We note , however, that the physical transfer of the file was premature because it
was sent in violation of Nine Mile 's directive to district court clerk s that they wait a reas onable period before transferring case files after a transfer order is ent ered, 673 F.2d at 244, and also appears to have been
an in advertence since the file was mailed in violation of that clerk' s office's own policy ( presumably in accordance with Nine Mile 's directive) of waiting thirty days before mailing a file pursuant to a transfer.
We question the applicability of Nin e Mile when the clerk's physical transfer of the file was premature, mistaken, and was of

### -4-

no practical effect. The premature mailing in violation of Nine Mile ' s directive renders the transfer of questionable legal effect. Cf. Farrell v. Wyatt , 408 F.2d 66 2, 664 (2d Cir. 1969) ("the question here is whether the district court had power to order the transfer; when that is the issue , we reject the argumen t ... that the clerk's physical transfer of the file destr oyed our jurisdiction"). The mailing also appears to have been a simple mistake, and, frankly, it seems to us odd at best that the clerk's act of mistakenly putting a case file on a mail truck bound for Montan a could divest a federal circuit court of appeals of jurisdiction. The rule that jurisdiction follows the file avoids the procedural and jurisdictiona l snarl that would likely ensue if two courts were simultaneously working on the same case. See 15 Charles A. Wright, Arthur R. Miller & Edward H

. Co oper, Federal Practice & Procedure § 3846 at 358 (2d ed. 1986 ) (excep tions to the rule in question "create possibilities of unseeml y duplic ation of effort, and perhaps even inter-circuit conflict, if a n appeal is going forward in one circuit while the papers are lodged in a district court in another"). We need not worry about any such conflic t here because the Nort hern District of Illinois declined jurisdiction over the transferred file.

The p remature physical transfer of the file in this case was a violation of our directive in Nine Mile ; the Ill inois court recognized the mistake and declined jurisdiction. These two fa cts separate our case from Nin e Mile . To find under these circumstances that we do not hav e jurisd iction because the file was accidentally mailed to Illinois woul d elevate form over substance and serve only to de lay the resolution of this appeal. We conclude that we have acquired jurisdiction.

III. We affirm

the district court and its decision to transfer this case based upon the "first-filed" rule. This rule "gives priority, for purpose s of choosing among possible venues when parallel

### -5-

litigation has been i nstituted in separate courts, to the party who first establishes jurisdiction." Northwest Airlines, Inc. v. American Airlines, Inc. , 989 F.2d 1002, 1006 (8th Cir. 1993). Midw est maintains that Central States' claims were premature when filed and thu s legally nonexistent, and that, as a result, the Illinois forum was not the first to acquir e jurisdiction. Midwest thus asks this court to weigh the merits of th e Illinois action in order to determine whether th at forum has jurisdiction. But t his is a non sequitur. "A court may have jurisdiction over a cas e even though the case is one to which there is no merit. ... Th e jurisdictionof the federal courts is dependent on the subject matter of the action or the sta tus of the parties to it; it is not dependent on the merits of the case." Charles A. Wright, Law of Federal Courts 31 (5th ed. 1994) (footnote omitted); see, e.g. , Venner v. G reat Northern Ry. Co. , 209 U.S. 24, 33-35 (1908). The Illinois court therefore has jurisdiction to decide the issues before it and it obtained this jurisdiction before the North Dakota court did.

Mi dwest also argues that "compelling circumstances" should lead u s to ignore the first-filed rule, see United States Fire Ins. Co. v. Goodyea r Tire & Rubber Co. , 920 F.2d 487, 488-89 (8th Cir. 1990), but we find the proffered circumstanc es insufficiently compelling. Midwest again asserts that Central States' claims were premature when filed, but, if the claims are legally infirm, w e trust the Illinois court to dismiss them. Midwest also alleges that Cen tral States' complaint contained false statements of fact, and that this constitutes a compelling cir cumstance for ignoring the first-filed rule. If these alleged misstatements indeed exist, Midwest ma y move for sanctions in the Illinois court. We might have been be mor e favorablyinclined to Midwest if it had produced evidence that Centra l States pr omised or indicated in some manner that it would not sue, tha t Midwest relied on thi s representation, and that Central States then filed a surprise complaint, see id. at 489, but Midwes t has made no such showing and offers to make none.

### -6- Finally, the district judge suggeste d at the end of his opinion that he was "reasonably ce rtain" that Illinois courts had greater expertise in pensio n benefit matters. Midwest argues that this comment demonstrate s that the district court made its decision on imp roper grounds. The order, however, recited legally sufficient grounds for transfer. The comment has the quality of a mere observation or afterthough t, and does not suggest to us that the district court abused its discretionin making its decision to transfer.

IV. There remains an outstanding matter of contempt sanctions. Central States filed a motionfor a preliminary injunction in the Illinois action seeking to prevent Mi dwest from transferring assets and to compel Midwest to pay all past-due amounts under the withdrawal liability payment schedul e as well as to make future payments under that sc hedule. Midwest responded by apply ing to the Eighth Circuit for an injunction pending appea l preventing Central States from "enforcing, colle cting, accepting, claiming
or directly or in escrow, obtaining interim payments of alleged pensio n withdraw al liability from Midwest in any other forum." We grante d Mid west's motion for an injunction pending appeal. Central States the n modified its motion f or injunction in the Illinois action by dropping the request that Midwest pay withdrawal liability, but pushed ahead with its att empt to forbid Midwest from transferring assets. The Illinois cour t denied the motion and Central States sought revi ew in the Seventh Circuit. Upon Midwest's motion, we found Central States in contempt.

We have reconsidered the order finding Central States in contempt

. Our order did not specifically enjoin Central States from seeking t o prevent Midwest from transferring assets. See Schmidt v. Lessard , 414 U.S
. 473, 476 (1974) (per curiam) (injunction must contain explicit notice of pre ciselywhat conduct is outlawed). We are of the view that Centra l States did not

### -7-

violat e our injunction and therefore reverse our finding of contemp t against Central States.

V. For the foregoing reasons, we affirm . Midwest's motion for leave to supplement the record is granted. All other pending motions are denied.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.