The Honorable 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, Circuit

Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Midwest Motor Express appeals from an order transferring this case

from the District of North Dakota to the Northern District of Illinois.

We affirm the order of the district court.1

I.

Midwest was obligated under its multiemployer collective bargaining

agreement to make contributions to Central States, a pension fund. During

a labor strike, Midwest ceased making pension contributions to Central

States, creating concern at Central States
 The Honorable Dwight C. H. Kautzmann, United States

2

Magistrate Judge for the District of North Dakota.

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that Midwest would withdraw and permanently cease making such

contributions. If an employer withdraws from a multiemployer plan, the

employer is liable to the plan for an amount known as "withdrawal

liability." 29 U.S.C. § 1381(a) (1985). The parties litigated the matter

of withdrawal liability, but settled the litigation before it reached any

conclusion on its merits.

Some time later, the union at Midwest was decertified. This

triggered Central States' belief once again that Midwest would withdraw and

cease to make contributions. Central States sued Midwest in the Northern

District of Illinois and sent Midwest a Notice and Demand of Withdrawal

Liability as provided under the Multiemployer Pension Plan Amendments Act

of 1980. In response to this notice, Midwest initiated the present action

for declaratory and injunctive relief and moved to enjoin Central States

from seeking remedies based on Midwest's failure to pay withdrawal

liability. (It seems that the proposed injunction was an attempt to

prevent Central States from moving ahead in any other forum.) Central

States then moved to transfer venue to the Northern District of Illinois

under 28 U.S.C. § 1404(a). A magistrate judge granted the motion to

2

transfer and dismissed the motion for injunction and the district court

upheld the magistrate's decision. The district court clerk's office,

without waiting a reasonable period of time to give the parties an

opportunity to file a notice of appeal, immediately mailed the case file

to the Northern District of Illinois. The Northern District of Illinois

dismissed the case after transfer on the grounds that it had no

jurisdiction while this appeal was lodged in the Eighth Circuit.

II.

We initially address some jurisdictional matters. First, although

we generally do not exercise jurisdiction over transfer
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orders, see, e.g., United States Fire Ins. Co. v. American Family Life

Assurance Co., 787 F.2d 438, 439 (8th Cir. 1986), we do so when the order

to transfer has the effect of refusing an injunction and the motion for

injunction and the order to transfer are inextricably bound up with each

other. See 28 U.S.C. § 1292(a)(1); Nordin v. Nutra/System, Inc., 897 F.2d

339, 343 (8th Cir. 1990); Emerson Elec. Co. v. Black & Decker Mfg. Co., 606

F.2d 234, 237 (8th Cir. 1979). In this case, the order had the effect of

refusing an injunction, and the order and the injunction sought were

inextricably bound up with each other, because the injunction would have

prevented Central States from proceeding in the Northern District of

Illinois, and the order in fact sent the case to that district.

Second, Central States argues that this court does not have

jurisdiction because the district court clerk mailed 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 court 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, under

Nine Mile, we never acquired jurisdiction because the notice of appeal was

filed after 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 clerks

that they wait a reasonable period before transferring case files after a

transfer order is entered, 673 F.2d at 244, and also appears to have been

an inadvertence 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 Nine Mile when the clerk's physical

transfer of the file was premature, mistaken, and was of
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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 662, 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 argument ... that the clerk's physical transfer of the file

destroyed 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 Montana

could divest a federal circuit court of appeals of jurisdiction. The rule

that jurisdiction follows the file avoids the procedural and jurisdictional

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.

Cooper, Federal Practice & Procedure § 3846 at 358 (2d ed. 1986)

(exceptions to the rule in question "create possibilities of unseemly

duplication of effort, 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"). We need not worry about any such conflict

here because the Northern District of Illinois declined jurisdiction over

the transferred file.

The premature physical transfer of the file in this case was a

violation of our directive in Nine Mile; the Illinois court recognized the

mistake and declined jurisdiction. These two facts separate our case from

Nine Mile. To find under these circumstances that we do not have

jurisdiction because the file was accidentally mailed to Illinois would

elevate form over substance and serve only to delay 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 purposes

of choosing among possible venues when parallel
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litigation has been instituted 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). Midwest maintains that Central

States' claims were premature when filed and thus legally nonexistent, and

that, as a result, the Illinois forum was not the first to acquire

jurisdiction. Midwest thus asks this court to weigh the merits of the

Illinois action in order to determine whether that forum has jurisdiction.

But this is a non sequitur. "A court may have jurisdiction over a case

even though the case is one to which there is no merit. ... The

jurisdiction of the federal courts is dependent on the subject matter of

the action or the status 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. Great 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.

Midwest also argues that "compelling circumstances" should lead us

to ignore the first-filed rule, see United States Fire Ins. Co. v. Goodyear

Tire & Rubber Co., 920 F.2d 487, 488-89 (8th Cir. 1990), but we find the

proffered circumstances insufficiently compelling. Midwest again asserts

that Central States' claims were premature when filed, but, if the claims

are legally infirm, we trust the Illinois court to dismiss them. Midwest

also alleges that Central States' complaint contained false statements of

fact, and that this constitutes a compelling circumstance for ignoring the

first-filed rule. If these alleged misstatements indeed exist, Midwest may

move for sanctions in the Illinois court. We might have been be more

favorably inclined to Midwest if it had produced evidence that Central

States promised or indicated in some manner that it would not sue, that

Midwest relied on this representation, and that Central States then filed

a surprise complaint, see id. at 489, but Midwest has made no such showing

and offers to make none.
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Finally, the district judge suggested at the end of his opinion that

he was "reasonably certain" that Illinois courts had greater expertise in

pension benefit matters. Midwest argues that this comment demonstrates

that the district court made its decision on improper grounds. The order,

however, recited legally sufficient grounds for transfer. The comment has

the quality of a mere observation or afterthought, and does not suggest to

us that the district court abused its discretion in making its decision to

transfer.

IV.

There remains an outstanding matter of contempt sanctions. Central

States filed a motion for a preliminary injunction in the Illinois action

seeking to prevent Midwest from transferring assets and to compel Midwest

to pay all past-due amounts under the withdrawal liability payment schedule

as well as to make future payments under that schedule. Midwest responded

by applying to the Eighth Circuit for an injunction pending appeal

preventing Central States from "enforcing, collecting, accepting, claiming

or directly or in escrow, obtaining interim payments of alleged pension

withdrawal liability from Midwest in any other forum." We granted

Midwest's motion for an injunction pending appeal. Central States then

modified its motion for injunction in the Illinois action by dropping the

request that Midwest pay withdrawal liability, but pushed ahead with its

attempt to forbid Midwest from transferring assets. The Illinois court

denied the motion and Central States sought review 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 to

prevent Midwest from transferring assets. See Schmidt v. Lessard, 414 U.S.

473, 476 (1974) (per curiam) (injunction must contain explicit notice of

precisely what conduct is outlawed). We are of the view that Central

States did not
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violate our injunction and therefore reverse our finding of contempt

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.