In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1114

IN RE:

DANIEL HUDSON,

Petitioner.

Petition for a Writ of Mandamus to the 

United States District Court for the 

Central District of Illinois.

No. 2:12-cv-02140-HAB-DGB—Harold A. Baker, Judge.

SUBMITTED JANUARY 18, 2013—DECIDED MARCH 5, 2013

Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. Daniel Hudson filed suit in a

federal district court in Illinois under the Federal Tort

Claims Act, charging that medical personnel at a federal

prison in Kansas in which he had been incarcerated

had negligently failed to diagnose a blood clot in his leg

and that as a result he had experienced serious health

problems. The government moved to transfer the case

to the federal district court in Kansas pursuant to 28 U.S.C.

§ 1404(a), on the ground that the principal witnesses are

in Kansas, not Illinois, and also that the District of

Kansas has a lighter caseload per judge than the Central
2 No. 13-1114

District of Illinois. The district court granted the motion.

Hudson has petitioned us for mandamus, arguing that

the case should remain in Illinois because he lives here,

as do his current treating physicians, who he says will

testify about his current health problems and also testify

that those problems stem from the failure to diagnose

his blood clot. Relatives of his in Illinois will also testify

to his continuing health problems. According to the

plaintiff, seven of the potential witnesses (both plaintiff

and defense witnesses) are in Kansas; three are in the

adjacent state of Missouri (and two of them are only

two miles from the border between the two states);

five (three treating physicians plus two relatives) are in

Illinois; and two are in California.

The grant of the government’s motion to transfer the

case was an unappealable interlocutory order, but an

unappealable order can in exceptional circumstances be

reviewed by a mandamus proceeding. The grant of a

motion to transfer is an appealing candidate for such

review. See, e.g., Van Dusen v. Barrack, 376 U.S. 612, 615

n. 3 (1964); In re Apple, Inc., 602 F.3d 909, 912 (8th Cir.

2010) (per curiam); In re Volkswagen of America, Inc., 545

F.3d 304, 309 (5th Cir. 2008) (en banc). As we explained

in Hicks v. Duckworth, 856 F.2d 934, 935 (7th Cir. 1988), “it

is difficult to see how such an error could be corrected

otherwise. The district court to which the case was transferred would be most likely to dismiss it, so that [the

case] would wander between circuits like the Ancient

Mariner” (citation omitted). The dismissal could be

appealed, but what if the court of appeals for the circuit
No. 13-1114 3

to which the case had been transferred upheld the dismissal?

The doctrine of law of the case provides a possible

but incomplete answer. In Christianson v. Colt Industries

Operating Corp., 486 U.S. 800 (1988), the Federal Circuit,

ruling that it lacked jurisdiction over a case, had transferred it to this court—and we had transferred it back,

insisting that the Federal Circuit was wrong: that it

did have jurisdiction. The Federal Circuit was not persuaded, but it felt it had no practical choice but to

decide the merits, lest the case continue bouncing

between the two circuits. The Supreme Court ruled that

the Federal Circuit had been right that it didn’t have

jurisdiction, and so the Court vacated the Federal

Circuit’s merits decision. The Court remarked in

passing that our court’s erroneous jurisdictional ruling

had nevertheless been the law of the case. Id. at 816. Yet

it added that since law of the case, unlike res judicata, is

not a rigid bar to revisiting a prior ruling, the Federal

Circuit hadn’t been compelled to abide by our court’s

jurisdictional ruling. See id. at 817. “A court has the

power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule

courts should be loath to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest

injustice.’ ” Id. So law of the case is not a complete

solution to the problem we discussed in the Hicks case

(for what would have happened had the Federal Circuit

retransferred the Christianson case to us?), and so manda-
4 No. 13-1114

mus remains a potentially important remedy in transfer

cases.

Before the change of venue statute was enacted, 28

U.S.C. § 1404(a), a defendant’s only recourse if sued in

an inconvenient forum had been the common law

doctrine of forum non conveniens. And “a defendant invoking forum non conveniens ordinarily bears a heavy

burden in opposing the plaintiff’s chosen forum.” Sinochem

Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430

(2007); see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501,

508 (1947); In re Factor VIII or IX Concentrate Blood

Products Litigation, 484 F.3d 951, 956 (7th Cir. 2007); In re

Volkswagen of America, Inc., supra, 545 F.3d at 314 n. 10. The

reason for the heavy burden is that if the doctrine is

successfully invoked, the result is not a transfer to

another court but a dismissal, and the plaintiff will not

be able to refile his case in any other court if the statute

of limitations has run. Norwood v. Kirkpatrick, 349 U.S.

29, 31 (1955); Chang v. Baxter Healthcare Corp., 599 F.3d 728,

736-37 (7th Cir. 2010); U.S.O. Corp. v. Mizuho Holding

Co., 547 F.3d 749, 752-53 (7th Cir. 2008). The doctrine is

thus “quite different from Section 1404(a). That doctrine

involves the dismissal of a case because the forum

chosen by the plaintiff is so completely inappropriate

and inconvenient that it is better to stop the litigation

in the place where brought and let it start all over again

somewhere else. It is quite naturally subject to careful

limitation for it not only denies the plaintiff the

generally accorded privilege of bringing an action where

he chooses, but makes it possible for him to lose out
No. 13-1114 5

completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section

1404(a) avoids this latter danger. Its words should be

considered for what they say, not with preconceived

limitations derived from the forum non conveniens doctrine.” Norwood v. Kirkpatrick, supra, 349 U.S. at 31, quoting

All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011

(3d Cir. 1952). And so the change of venue statute has

displaced forum non conveniens when the question is

the superior convenience of litigating a case in one

federal district court rather than another.

Not only is the showing of inconvenience necessary to justify a transfer therefore less exacting than the

showing required to obtain a dismissal on grounds of

forum non conveniens, Norwood v. Kirkpatrick, supra, 349

U.S. at 31-32; Employers Mutual Casualty Co. v. Bartile

Roofs, Inc., 618 F.3d 1153, 1167 n. 13 (10th Cir. 2010); Coffey

v. Van Dorn Iron Works, 796 F.2d 217, 219-20 and n. 3 (7th

Cir. 1986); In re Volkswagen of America, Inc., supra, 545

F.3d at 313-14 and n. 8; but an applicant for mandamus

has an uphill fight whatever the basis for the application. Because of the delay that a grant of mandamus

engenders and the burden on an appellate court of

having to consider whether to grant it, the writ may, in

the transfer context as in other contexts, properly be

used to rescind a transfer only if the applicant can

show that the transfer order is a “violation of a clear and

indisputable legal right, or, at the very least, [is] patently

erroneous.” In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293,

1295 (7th Cir. 1995); see also Cheney v. U.S. District Court,

542 U.S. 367, 381 (2004); In re LimitNone, LLC, 551 F.3d 572,
6 No. 13-1114

575 (7th Cir. 2008); In re Atlantic Marine Construction Co.,

701 F.3d 736, 738 (5th Cir. 2012). 

Although the question of transfer in this case is a

close one, we cannot say that the district judge committed a clear error in holding that the defendants

had made the required showing: More than two-thirds

of the potential witnesses (12 out of 17) are either in

Kansas, just across the border in Missouri, elsewhere in

Missouri, or in California, which is closer to Kansas than

it is to Illinois. The District of Kansas has as we said

a lighter caseload per judge than the Central District of

Illinois. Most of the medical records relating to the case

are in Kansas. And if trial in Kansas were split in two

(“bifurcated”)—a liability trial and (if necessary) a damages trial—and the plaintiff lost the liability trial, his

witnesses, whose testimony would relate to the extent

and persistence of his injuries rather than to the quality of

the medical treatment that he received in Kansas, would

not testify anywhere. The variety of relevant considerations counsels deference to the district court’s ruling. See

Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc.,

626 F.3d 973, 977-78 (7th Cir. 2010), and cases cited there.

In our age of advanced electronic communication,

including high-quality videoconferencing, changes of

venue motivated by concerns with travel inconvenience

should be fewer than in the past. Today documents can

be scanned and transmitted by email; witnesses can be

deposed, examined, and cross-examined remotely and

their videotaped testimony shown at trial. But the

plaintiff does not argue against the transfer on the

ground that the electronic revolution has erased the
No. 13-1114 7

advantages that the Kansas venue would once undoubtedly have had under the facts of this case.

PETITION DENIED.

3-5-13