In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-3831, 01-4018

DAVID JONES and SUSAN JONES,

Plaintiffs-Appellants,

v.

INFOCURE CORPORATION, et al.,

Defendants-Appellees.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP01-0670 C—John D. Tinder, Judge.

____________

ARGUED MAY 13, 2002—DECIDED NOVEMBER 8, 2002

____________

Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. David and Susan Jones,

former owners of PRISM Data Systems, Inc. (PRISM) entered into a contract to sell PRISM to defendant InfoCure

Systems, Inc., in exchange for shares of InfoCure. Unfortunately, the value of InfoCure stock took a nose-dive

after the closing date of the transaction. Believing that

they had been cheated, the Joneses filed suit for damages, rescission, and an injunction against InfoCure and

two of its officers (to whom we refer collectively as InfoCure), alleging breach of contract, common law fraud, and
2 Nos. 01-3831, 01-4018

violation of the Indiana securities laws. The district court

found that a clause in the agreement stipulating that it

would be governed by Georgia law was enforceable; it

therefore dismissed the claims based on Indiana securities law and denied the Joneses’ request for a preliminary injunction. It then transferred the remaining claims

to the Northern District of Georgia. On this appeal, the

Joneses have attempted to challenge the merits of the

district court’s choice of law decision, the transfer order,

and the court’s denial of their requested preliminary

injunction. We conclude that only the ruling on the preliminary injunction request is properly before us, and

as to that, we conclude that the district court did not

abuse its discretion. The rest of the Joneses’ arguments

can be presented in due course to the district court in

Georgia.

I

David and Susan Jones started a successful Indiana

corporation, PRISM, that provided computer systems for

ophthalmologists and other medical practices. In October

1999, one of InfoCure’s officers approached Susan at a

trade show and told her that InfoCure was interested

in acquiring PRISM. The two sides began serious discussions, which culminated in an Agreement and Plan of

Merger that the parties signed on December 28, 1999. Under that agreement, InfoCure promised to pay $5,000,000

for PRISM in the form of InfoCure common stock. The

number of shares needed to meet the $5,000,000 price

tag was to be calculated using the average stock price

over the 20-day period prior to the closing. As it happened, during that time, the shares neared an all-time

high; not long afterward, their value plummeted.

Unhappy about the result of the deal, which left them

with shares representing a fraction of the $5,000,000 they
Nos. 01-3831, 01-4018 3

had expected to gain in exchange for their company, the

Joneses brought this action in the Boone County Superior Court, in Indiana. In it, they alleged among other

things that InfoCure violated Indiana securities laws.

Relying on the diversity jurisdiction of the federal court

(because the Joneses were both citizens of Indiana, InfoCure is a Delaware corporation with its principal place

of business in Georgia, the individual defendants were

citizens of Alabama and Connecticut, and the amount

alleged exceeded $75,000), InfoCure removed the case to

the federal district court for the Southern District of

Indiana. Once in federal court, InfoCure then moved to

dismiss the action, or in the alternative to have it transferred to the Northern District of Georgia under 28 U.S.C.

§ 1404(a). The Joneses moved for a preliminary injunction to prevent InfoCure from taking various actions

that were allegedly irreparably damaging PRISM, so that

the value of the company would be preserved if they

succeeded on their claim for rescission.

II

The jurisdictional posture of this case is convoluted, but

it is central to our disposition of this appeal. The district

court denied the Joneses’ request for a preliminary injunction and entered an order transferring the case to the

Northern District of Georgia on October 15, 2001. In the

order, it directed the clerk of the district court “to administratively effectuate this transfer.” According to the

Southern District of Indiana’s docket, the case was

closed and transferred to Georgia on October 16, 2001.

The Joneses filed their notice of appeal ten days after

the transfer was effectuated. On November 8, 2001, the

record was returned from the Northern District of Georgia to the Southern District of Indiana “for appeal purposes.” The Joneses then filed an amended notice of ap-
4 Nos. 01-3831, 01-4018

peal, including a challenge to the “order of transfer,” on

November 13, 2001. A review of the docket sheet for the

Northern District of Georgia shows that the case is still

considered open there, although as of May 8, 2002, the

court appeared to be confining its actions to administrative matters, mostly having to do with attorney appearances.

The Joneses would like this court to review all three

matters we identified above: the decision of the Indiana

court to transfer the case to Georgia under § 1404(a), the

underlying choice of law issue that influenced the court

in its transfer decision, and its denial of preliminary injunctive relief. In general, appellate jurisdiction exists

over orders denying preliminary injunctive relief. See 28

U.S.C. § 1292(a)(1); Stewart v. Taylor, 104 F.3d 965, 970

(7th Cir. 1997). But one question that arises is which

court of appeals should exercise that jurisdiction? This

case is now functionally in the Northern District of Georgia, within the Eleventh Circuit, but the order denying

the injunction was entered by the court for the Southern District of Indiana, from which appeals go to this

court. See 28 U.S.C. §§ 41, 1294. We discuss in a moment

the consequences for our appellate jurisdiction of this

sequence of events.

Jurisdiction over the transfer order and the choice of

law determination that motivated it is also questionable.

Normally, a decision to transfer a case from one district

to another under the statutory version of forum non conveniens that is found in § 1404(a) is a non-reviewable

interlocutory order. See In re Joint E. & S. Dists. Asbestos

Litig., 22 F.3d 755, 761-64 & n.14 (7th Cir. 1994). The

Joneses invite this court to take a form of pendent appellate jurisdiction over the transfer order, piggy-backing

on the undeniably proper appeal from the denial of the

preliminary injunction. InfoCure agrees that we have jurisdiction over the preliminary injunction ruling, but it ar-
Nos. 01-3831, 01-4018 5

gues that there is no basis for our review of the transfer order or associated matters. (It has also made a perfunctory

challenge to the plaintiffs’ allegation of more than $75,000

in controversy, but we find that to be frivolous on these

facts.)

III

Generally speaking, a district court relinquishes all

jurisdiction over a case when it is transferred to another district court. See In re Joint E. & S. Dists. Asbestos

Litig., 22 F.3d at 761-64 & n.14. The question for us is

whether, as the court of appeals with jurisdiction over

the transferor court, we similarly lose jurisdiction over

orders entered by the district court prior to or contemporaneous with the transfer. Most cases have implicitly held

that appeals from orders granting or denying preliminary

injunctions properly go to the court of appeals encompassing the transferor court’s district, distinguishing the

appealability of the injunction order from that of the

transfer order. See, e.g., United States Aluminum Corp. v.

Kawneer Co., Inc., 694 F.2d 193, 195 (9th Cir. 1982); Emerson Elec. Co. v. Black & Decker Mfg. Co., 606 F.2d 234, 237

(8th Cir. 1979); Codex Corp. v. Milgo Elec. Corp., 553 F.2d

735, 737 (1st Cir. 1977).

Some courts, however, have held that a § 1404(a) transfer ends the jurisdiction of both the transferor court and

the corresponding appellate court at the moment when

the motion has been implemented and the case has been

docketed by the transferee court. See Lou v. Belzberg,

834 F.2d 730, 733 (9th Cir. 1987); In re Sosa, 712 F.2d

1479, 1480 (D.C. Cir. 1983); In re Nine Mile Ltd., 673 F.2d

242, 243 (8th Cir. 1982); In re Southwestern Mobile Homes,

Inc., 317 F.2d 65, 66 (5th Cir. 1963); Drabik v. Murphy, 246

F.2d 408, 409 (2d Cir. 1957). These courts, however, seem

more concerned with the review of the transfer order
6 Nos. 01-3831, 01-4018

itself, rather than with review of a different set of orders,

such as the denial of an injunction.

We are persuaded by the cases holding that an otherwise appealable order remains appealable even if a transfer is ordered at a later time. See TechnoSteel, LLC v.

Beers Constr. Co., 271 F.3d 151, 153 (4th Cir. 2001). Indeed, given the language of 28 U.S.C. § 1294 it is doubtful

that the court of appeals in the transferee area could

exercise jurisdiction over an appealable interlocutory

order entered by a district court outside its region. See,

e.g., Roofing & Sheet Metal Servs., Inc. v. La Quinta

Motor Inns, Inc., 689 F.2d 982, 985-87 (11th Cir. 1982)

(refusing to exercise jurisdiction over a pre-transfer order

from a transferee district court). See also McGeorge v.

Continental Airlines, Inc., 871 F.2d 952, 954 (10th Cir.

1989). But see, e.g., EEOC v. Northwest Airlines, Inc., 188

F.3d 695, 700 (6th Cir. 1999) (reviewing pre-transfer

order of an out-of-circuit district court granting summary judgment on one claim and dismissing other claims);

Chaiken v. VV Publ’g Corp., 119 F.3d 1018, 1025 n.2 (2d

Cir. 1997) (same for dismissal of two defendants for lack

of personal jurisdiction); Tel-Phonic Servs., Inc. v. TBS

Int’l, Inc., 975 F.2d 1134, 1138 (5th Cir. 1992) (same for

dismissal of plaintiff’s RICO claims); Carteret Sav. Bank,

F.A. v. Shushan, 919 F.2d 225, 228 (3d Cir. 1990) (noting

that a transfer order based on a finding by the transferor court that it lacked personal jurisdiction could be

appealed at the conclusion of the case in the transferee

circuit).

In our view, the answer turns on whether the order

entered by the transferor court prior to transfer qualifies

for an immediate appeal, or if it is a more conventional

order that may be appealed only after final judgment. If

it is the former, then any appeal must be taken to the

court of appeals covering the transferor district; if it is

the latter, then the appeal after final judgment will go to
Nos. 01-3831, 01-4018 7

the court of appeals for the district in which the final

judgment was entered. Here, that means that we are

the proper court of appeals to review the decision of the

district court for the Southern District of Indiana to deny

preliminary injunctive relief, even though the case was

transferred to Georgia a short time later.

IV

We move to the denial of the injunction. The Joneses

show an astonishing lack of interest in that ruling in

their briefs. Indeed, one is left with the impression that

they are using the fortuity of the denial of the injunction

to obtain what they really want, which (at least by page

count) is immediate appellate review over the correctness of the district court’s decision with respect to the

contractual choice of law provision and the subsequent

transfer to Georgia. Nowhere in their brief do they review

the standards for granting preliminary injunctions, nor

do they explain how the district court abused its discretion in applying those standards. Appellate briefs must

contain an argument that does more than assert general

error. FED. R. APP. P. 28(a)(9)(A); see also Anderson v.

Hardman, 241 F.3d 544, 545 (7th Cir. 2001); Mathis v.

New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1998)

(per curiam). Claims not properly articulated in a brief

are generally deemed waived. InfoCure, however, has

addressed the injunction explicitly in one section of its

brief (Brief of Appellees at 41-50). Because of this, and

because under a generous interpretation of the Joneses’

brief they might be arguing that the injunction would

have been granted had the court not made these other

alleged errors, we will address the court’s denial of the

preliminary injunction. We review the district court’s

findings of fact for clear error, its balancing of the factors under an abuse of discretion standard, and its legal
8 Nos. 01-3831, 01-4018

conclusions de novo. Anderson v. U.S.F. Logistics (IMC),

Inc., 274 F.3d 470, 474 (7th Cir. 2001).

In considering a motion for a preliminary injunction, a

district court evaluates whether the moving party has

shown (1) a reasonable likelihood of success on the merits

of the underlying claim; (2) no adequate remedy at law;

and (3) irreparable harm if the injunction is not granted.

Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.

2001). If an evaluation of these three points indicates that

an injunction might be proper, the court then weighs the

potential harms to the parties and takes into account

public interest considerations. PepsiCo., Inc. v. Redmond,

54 F.3d 1262, 1267 n.3 (7th Cir. 1995).

The district court, after holding a hearing on the Joneses’

motion for a preliminary injunction, found that the motion was grounded solely on Count I of the complaint,

which charged violations of Indiana’s securities law. The

other counts requested only money damages by way of

relief. Having found that Count I could not survive the

motion to dismiss, it accordingly denied the injunction.

The question whether the court correctly dismissed

Count I technically goes beyond the scope of this appeal,

except insofar as it certainly indicated that the district

court thought that the Joneses had a non-existent likelihood of success on the merits of that claim. But we prefer to resolve the question about the injunction on other

grounds, and to express no opinion about the applicability of the Indiana securities laws to this case or whether

the Joneses had enforceable rights under those laws. Once

all claims of all parties have been resolved in Georgia, the

parties will have an opportunity to test the correctness

of the disposition of Count I on appeal. It is important to

recall, in this connection, that under the rule of Van

Dusen v. Barrack, 376 U.S. 612, 639 (1964), the district

court in the Northern District of Georgia will be obliged
Nos. 01-3831, 01-4018 9

to follow the same choice of law rules that would have

obtained in Indiana, because the basis of this transfer was

§ 1404(a).

For now, it is enough for us to consider whether the

Joneses can show irreparable harm, which is another

essential prerequisite for a preliminary injunction. In our

view, they cannot. It is now too late in the day for them to

seek rescission of the contract, and the only reason they

gave for wanting the injunction was to ensure that PRISM

remained as valuable as possible should rescission be

ordered. Rescission involves a judicial termination of a

party’s contractual obligations; it is a court-ordered “unwinding” of a contract, with the goal of returning the

parties to their positions prior to contracting. This remedy

is possible only if such a status quo ante can be re-established. How could this be achieved in this case, years

after the fact? Rescission is “simply not feasible.” Potomac

Elec. Power Co. v. Electric Motor & Supply, Inc., 262 F.3d

260, 267 (4th Cir. 2001).

No matter which law applies to this case, the Joneses

are in an equally bad position to obtain rescission. Both

Georgia and Indiana require that a party seeking rescission promptly request it and behave in a manner consistent

with the desired relief. See, e.g., Owens v. Union City

Chrysler-Plymouth, Inc., 436 S.E.2d 94, 96 (Ga. Ct. App.

1993); Griffin v. Axsom, 525 N.E.2d 346, 347 (Ind. Ct. App.

1988). The record shows that the Joneses did not meet

this standard. Shortly after the consummation of the

sale, they claimed to have discovered evidence of InfoCure’s fraud and wrongdoing in the transaction. It was

not until April 2001, some fifteen months after the deal

was closed and long after the stock prices collapsed,

that they first advanced their request for rescission. It

is impossible now even to conceive of what a return to

the status quo would entail. PRISM has been merged

into the operations of InfoCure; InfoCure has invested in
10 Nos. 01-3831, 01-4018

the development of products compatible with and alternative to those acquired through PRISM. It is unclear

whether the Joneses still own all the InfoCure shares

they received in the exchange—which they would have

to return if rescission were granted. In a word, it is simply not practical or feasible to undo the sale of this particular company almost three years after the close of the

deal. And if rescission is unavailable, then there is no

ground to enjoin any conduct of InfoCure with respect to

PRISM. Money damages, should the Joneses be able to

prove that they are entitled to any, will be an adequate

remedy.

Because the result with respect to the feasibility of

rescission would be the same under Georgia or Indiana

law, we see no need to delve into the Joneses’ contention

that Georgia law ought not to be applied to this case. This

also means of course that there is no need to certify any

questions to the Indiana Supreme Court, as the Joneses

have asked us to do with respect to the choice of law issue.

V

Recognizing that transfer orders are not ordinarily

appealable, the Joneses urge us to review this particular

order anyway, by exercising “pendent appellate jurisdiction” over it. Such a jurisdictional doctrine has been

recognized in the past; when it is proper to invoke it, it allows a court of appeals to review an otherwise unappealable interlocutory order if it is inextricably intertwined

with an appealable one. See Swint v. Chambers County

Comm’n, 514 U.S. 35, 50-51 (1995); see also 15 CHARLES

A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3855,

at 474 (2d ed. 1986) (“[I]f there is an interlocutory appeal from the grant or denial of a preliminary injunction, the appellate court has power, if it sees fit, to consider

at that time a ruling on a transfer motion.”). The Joneses
Nos. 01-3831, 01-4018 11

claim that the issue of transfer was so closely related to

the denial of the injunction as to warrant our invocation

of this jurisdiction here.

The problem is that the Supreme Court has signaled

that the doctrine of pendent appellate jurisdiction rests

on shaky grounds. In fact, the Court questioned its very

existence in Swint, 514 U.S. at 43-51. This court subsequently described it as a “controversial and embattled

doctrine” in United States v. Board of School Comm’rs, 128

F.3d 507, 510 (7th Cir. 1997), but we have invoked it

at least once since Swint was decided. In Greenwell v. Aztar

Indiana Gaming Corp., 268 F.3d 486, 491 (7th Cir. 2001),

we held that the Supreme Court had revived the doctrine

in Clinton v. Jones, 520 U.S. 681 (1997), where the Court

said that “the Court of Appeals correctly found that pendent appellate jurisdiction over this issue was proper.”

520 U.S. at 707 n.41. Cf. Vermont Agency of Natural Res.

v. United States ex rel. Stevens, 529 U.S. 765, 770 n.2

(2000). In Greenwell, we upheld pendent appellate jurisdiction over a malpractice claim because it was “entwined”

with an indemnity claim that was properly before the

court. 268 F.3d at 491. On those facts, the exercise of pendent jurisdiction served broader purposes of efficiency and

consistent resolution of the case. The Greenwell court

explained that “since we must decide the latter [indemnity

claim], we might as well decide the former at the same

time and head off a second appeal—so this is one of

those cases in which allowing an interlocutory appeal prevents rather than produces piecemeal appeals, while if

the liability and indemnity issues did not overlap there

would be only a limited economy from deciding them in

one rather than two appeals.” Id.

The Federal Circuit also exercised pendent appellate

jurisdiction in a recent case. In Helifix Ltd. v. Blok-Lok,

Ltd., 208 F.3d 1339, 1345 (Fed. Cir. 2000), that court

exercised “discretion to invoke pendent appellate juris-
12 Nos. 01-3831, 01-4018

diction over the interlocutory grant of summary judgment

because it is closely interrelated factually to the preliminary injunction.” Id. (citations and quotations omitted). It

chose to do so because “the district court based its denial

of the preliminary injunction request on its summary judgment ruling.” Id. So here, the Joneses argue, this court

should review the dismissal of Count I, because that is

really what prompted the denial of the injunction. See

also Midwest Motor Express, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 70 F.3d 1014, 1016

(8th Cir. 1995) (finding the transfer order and the denial

of the injunction “inextricably bound up with each other”).

See also Ukiah Adventist Hosp. v. F.T.C., 981 F.2d 543,

548 (D.C. Cir. 1992) (review of transfer order available

discretionarily when closely related to the injunction).

In our view, however, the Joneses’ situation differs significantly from either Greenwell or Helifix. Practically the

entire case is awaiting development before the district

court in Georgia. That court will have the power to make

all necessary rulings in the case, including (subject to law

of the case considerations) entertaining motions to reconsider earlier orders made on the merits. In so doing,

as we noted above, it must follow the same substantive

law that the Indiana federal court would have used.

The only thing our intervention now would accomplish

would be the avoidance of general restrictions on interlocutory review of orders disposing of single claims or orders transferring cases under § 1404(a). It would be quite

inappropriate for us to open the door to an end-run around

these jurisdictional limitations for every case in which a

ruling on injunctive relief is subject to interlocutory review. In any event, as Helifix acknowledged, pendent appellate jurisdiction is a discretionary doctrine, like its

cousin supplemental jurisdiction. See 28 U.S.C. § 1367(c).

Even on the assumption that it would be possible to

assert jurisdiction here, we would choose not to do so. In
Nos. 01-3831, 01-4018 13

our view, the preliminary injunction is not sufficiently

closely related to the transfer order to warrant the exercise of pendent appellate jurisdiction. While the district

court considered the contractual choice of law provision

in both of its decisions, the two issues were quite distinct:

the transfer hinged on whether a different forum would

be better suited to hear the case; the preliminary injunction issue, as discussed above, dealt with the propriety of

such an extreme remedy as rescission. The two issues

can be resolved without reference to each other.

VI

The Joneses brought a proper appeal under § 1292(a)(1)

from the district court’s denial of their requested preliminary injunction, but then they all but abandoned this

aspect of the case on appeal and focused instead on the

allegedly pendent issues. We find no abuse of discretion

in the district court’s ruling with respect to the injunction.

As for the other issues, we conclude that they are not

so closely related to the injunction that they would benefit from review here and now; even if we could review

them, we conclude that such review would undermine the

general policies forbidding interlocutory review. We are

confident that the district court in the Northern District

of Georgia will be able to handle the merits of this case,

including any remaining choice of law issues or arguments about the applicability of the Indiana securities

laws. We therefore AFFIRM the denial of the preliminary

injunction, and DISMISS the remainder of the appeal.
14 Nos. 01-3831, 01-4018

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-8-02