Petition for Writ of Certiorari — Defense Distributed, et al., Petitioners v. Jennifer Davenport, Attorney General of New Jersey

No. 26In the

Supreme Court of the United States

DEFENSE DISTRIBUTED, et al.,

Petitioners,

v.

JENNIFER DAVENPORT,

ATTORNEY GENERAL OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Third Circuit

APPENDIX VOLUME II

Charles R. Flores

Counsel of Record

Flores Law PLLC

917 Franklin Street,

Suite 600

Houston, TX 77002

(713) 364-6640

cf@chadfloreslaw.com

Counsel for Petitioners

132114

(800) 274-3321 • (800) 359-6859

i

TABLE OF APPENDICES

Page

Volume I

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E T HIRD CIRCU I T, FILED

FEBRUARY 12, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY,

FILED SEPTEMBER 29, 2023 . . . . . . . . . . . . . . . 39a

A PPEN DI X C — OR DER OF T H E

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY, FILED

SEPTEMBER 29, 2023 . . . . . . . . . . . . . . . . . . . . . . .99a

A PPEN DI X D — SU R PET I T ION

FOR REHEA RING OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, FILED APRIL 10, 2026 . . . 101a

APPENDIX E — PLAINTIFFS’ SECOND

A M EN DED C OM PL A I N T OF T H E

UNITED STATES DISTRICT COURT

FOR T H E W EST ERN DIST RICT OF

T EX A S , AUST IN DI V ISION, FILED

NOVEMBER 10, 2020 . . . . . . . . . . . . . . . . . . . . . . . 103a

ii

Table of Appendices

Page

Volume II

APPENDIX F — ORDER OF THE UNITED

STATES DISTRICT COURT, WESTERN

DISTRICT OF TEXAS, AUSTIN DIVISION,

SIGNED APRIL 19, 2021 . . . . . . . . . . . . . . . . . . . . 217a

A P P E N DI X G — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

APRIL 1, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239a

A PPEN DI X H — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR T H E W EST ERN DIST RICT OF

T EX A S , AUST IN DI V ISION, FILED

APRIL 13, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284a

A PPEN DI X I — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR T H E W EST ERN DIST RICT OF

T EX A S , AUST IN DI V ISION, FILED

JULY 22, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286a

A P P E N DI X J — O P I N I O N O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 16, 2022 . . . . . . . . . . . . . . . . . . . . . . 288a

iii

Table of Appendices

Page

A P P E N DI X K — O P I N ION OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

DECEMBER 15, 2022 . . . . . . . . . . . . . . . . . . . . . . . 292a

APPENDIX L — MEMORANDUM ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY,

FILED APRIL 26, 2023 . . . . . . . . . . . . . . . . . . . . . 311a

A PPENDIX M — PLA INTIFFS’ THIRD

A M EN DED C OM PL A I N T OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY,

FILED MAY 5, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 314a

APPENDIX N — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW

JERSEY, FILED JUNE 14, 2023 . . . . . . . . . . . . 394a

A PPEN DI X O — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY,

FILED JUNE 14, 2023 . . . . . . . . . . . . . . . . . . . . . .404a

A PPENDIX P — TEXT ORDER OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

[LIVE], DATED NOVEMBER 2, 2023 . . . . . . . . 406a

217a

Appendix

F UNITED STATES

APPENDIX F — ORDER

OF THE

DISTRICT COURT, WESTERN DISTRICT OF TEXAS,

AUSTIN DIVISION, SIGNED APRIL 19, 2021

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

1:18-CV-637-RP

DEFENSE DISTRIBUTED AND SECOND

AMENDMENT FOUNDATION, INC.,

Plaintiffs,

v.

GURBIR S. GREWAL, et al.,

Defendants.

Signed April 19, 2021

ORDER

Before the Court is Defendant Gurbir S. Grewal, the

Attorney General of New Jersey’s (“NJAG”) motion to

sever and transfer venue to the United States District

Court for the District of New Jersey. (Dkt. 121). Having

considered the parties’ briefs, the record, and the relevant

law, the Court finds that the motion should be granted.

I.

BACKGROUND

Plaintiffs Defense Distributed and the Second

A mendment Foundation, Inc. (“Plaintiffs”) bring

218a

Appendix F

seventeen claims against Defendants United States

Department of State (the “State Department”), Michael

R. Pompeo, former United States Secretary of State,

Directorate of Defense Trade Controls, Sarah Heidema,

Director of the Office of Defense Trade Controls, Mike

Miller, the United States Department of State’s Deputy

Assistant Secretary of State for Defense Trade in the

Bureau of Political-Military Affairs, (collectively, “Federal

Defendants”), and Gurbir Grewal, the NJAG (together

with Federal Defendants, “Defendants”). Plaintiffs brings

this suit against Defendants based on alleged federal and

state law violations. (See 2d Am. Compl., Dkt. 117).

Before joining Federal Defendants to this lawsuit,

Plaintiffs claims as to the NJAG revolved around the

NJAG’s 2018 cease-and-desist letter warning Defense

Distributed that its dissemination of printable gun files to

New Jersey residents constituted a violation of New Jersey

law. (2d Am. Compl., Dkt. 117, at 38–40). Plaintiffs also

filed a lawsuit against the NJAG in the District of New

Jersey (the “New Jersey Suit”), alleging substantially

similarly causes of action. Defense Distributed v. Att’y

Gen. of N.J., No. 3:19-cv-4753, Dkt. 17 (D.N.J. Feb. 2,

2019). That action was stayed pending the resolution of

this first-filed action. Def. Distributed v. Att’y Gen. of

N.J., 972 F.3d 193, 196–97 (3d Cir. Aug. 25, 2020). This

Court previously dismissed Plaintiffs’ claim against the

NJAG for lack of personal jurisdiction. (Order, Dkt. 100,

at 15; Final J., Dkt. 101). Plaintiffs appealed this Court’s

decision to the Fifth Circuit, which found that personal

jurisdiction existed over the NJAG for the claims alleged

in Plaintiffs’ first amended complaint, namely because

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Appendix F

Plaintiffs’ alleged injuries are “directly attributable to

the cease-and-desist letter” the NJAG sent to Defense

Distributed asking them to “to cease and desist from

publishing printable-gun computer files for use by New

Jersey residents.” (Cease-and-Desist Letter, Dkt. 117–8);

Def. Distributed v. Grewal, 971 F.3d 485, 496 (5th Cir.

2020), cert. denied sub nom. Grewal, Att’y Gen. Of NJ v.

Def. Distributed, Et Al., No. 20-984, 141 S. Ct. 1736, 209

L. Ed. 2d 504, 2021 WL 1163750 (U.S. 2021).

Plaintiffs’ second amended complaint, filed after

the Fifth Circuit issued its mandate, added the Federal

Defendants to this action based on their alleged failure

to comply with the terms of a 2018 settlement agreement

between Defense Distributed and the State Department

to resolve litigation in this district regarding federal

regulation of printable gun files. (See 2d Am. Compl.,

Dkt. 117, at 25). Under the terms of the settlement, the

State Department agreed to promulgate rules creating an

exception to various regulations for Defense Distributed’s

publication of printable gun files. (Id. at 25–28; Settlement

Agreement, Dkt. 117–1). In their second amended

complaint, Plaintiffs also complain of the NJAG’s role

in challenging actions taken by the State Department

pursuant to the settlement agreement that would have

allowed Defense Distributed to evade compliance with

federal regulations regarding the international traffic of

arms. (Id. at 19–39).

On July 30, 2018, the NJAG, along with other state

attorneys general, initiated an action in the United

States Court for the Western District of Washington (the

220a

Appendix F

“Washington Suit”), claiming that certain actions taken by

the State Department to fulfill its settlement agreement

with Defense Distributed violated the Administrative

Procedures Act (“APA”). (Dkt, 117, at 30); State of

Washington et al., v. United States Department of State et

al., No. 2:18-cv-1115-RSL (W.D. Wash. 2018). The United

States Court for the Western District of Washington

granted summary judgment to the NJAG and the other

state attorneys general on their APA claims, and vacated

the State Department’s actions that violated the APA.

(Dkt. 117, at 32–33); Washington v. United States Dep’t

of State, 420 F. Supp. 3d 1130, 1148 (W.D. Wash. 2019),

appeal dismissed sub nom. State v. Def. Distributed, No.

20-35030, 2020 U.S. App. LEXIS 22900, 2020 WL 4332902

(9th Cir. July 21, 2020). The Ninth Circuit dismissed

Defense Distributed’s appeal of the decision, as well as

its motion for reconsideration en banc. (Id. at 34); State

v. Def. Distributed, No. 20-35030, Dkt. 32 (9th Cir. Jan.

5, 2021). Plaintiffs now allege that the NJAG’s successful

legal challenge to the State Department’s unlawful actions

constitutes tortious interference. (Dkt. 117, at 80–82). In

their second amended complaint, Plaintiffs also bring

new claims against NJAG based on New Jersey’s passage

of Senate Bill 2465, a portion of which criminalizes the

manufacturing of printable guns in New Jersey (“§ 2C:399(l)(2)”). (2d Am. Compl., Dkt. 117, at 40–44, 79–80).

The NJAG now moves to sever the claims against him

and transfer those claims to the United States District

Court for the District of New Jersey, where Plaintiffs

have filed the New Jersey Suit alleging the same claims

against the NJAG. (Mot. Transfer, Dkt. 121, at 9–10).

221a

Appendix F

Plaintiffs filed two responses in opposition to the NJAG’s

motion, (Dkts. 124, 135), and Federal Defendants also filed

a response, (Dkt. 136). The NJAG filed a reply in support

of their motion, (Dkt. 141).

II. LEGAL STANDARD

A.

Motion to Sever

District courts have broad discretion when deciding

a motion to sever. Anderson v. Red River Waterway

Comm’n, 231 F.3d 211, 214 (5th Cir. 2000). Generally,

courts consider the following factors when evaluating a

motion to sever under Federal Rule of Civil Procedure 21:

“(1) whether the claims arise out of the same transaction or

occurrence; (2) whether the claims present some common

questions of law or fact; (3) whether settlement of the

claims or judicial economy would be facilitated; (4) whether

prejudice would be avoided if severance were granted; and

(5) whether different witnesses and documentary proof

are required for the separate claims.” Paragon Office

Servs., LLC v. UnitedHealthcare Ins. Co., 2012 U.S. Dist.

LEXIS 138217, 2012 WL 4442368, at *1 (N.D. Sept. 26,

2012).

When a motion to sever is combined with a motion

to transfer, however, this analysis is “collapsed into an

inquiry into the relative merits of convenience versus

judicial economy.” In re Rolls Royce Corp., 775 F.3d 671,

680 (5th Cir. 2014). Where an action may have been brought

against defendants in the proposed transferee court, “the

claims against those defendants may be severed and

222a

Appendix F

transferred while the other claims are retained in the

original court.” Balthasar Online, Inc. v. Network Sols.,

LLC, 654 F. Supp. 2d 546, 549–50 (E.D. Tex. 2009).

B. Motion to Transfer

Section 1404 provides that “[f]or 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.” 28 U.S.C.

§ 1404(a). As such, “[t]he threshold question in applying

the provisions of § 1404(a) is whether the suit could have

been brought in the proposed transferee district.” In re

Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004).1 If so,

the Court turns to consideration of “all relevant factors to

determine whether or not on balance the litigation would

more conveniently proceed and the interests of justice be

better served by transfer to a different forum.” Peteet

v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989)

(quoting 15 C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure § 3847, at 370 (1986)).

The relevant factors include matters of both private

and public interest. Volkswagen AG, 371 F.3d at 203;

Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337,

340 (5th Cir. 2004). The private-interest factors include:

(1) the relative ease of access to sources of proof; (2) the

availability of compulsory process to secure witnesses’

1. Plaintiffs have already filed the New Jersey Suit against

the NJAG in the United States District Court for the District of

New Jersey and do not contest that venue is proper there. See Def.

Distributed v. Grewal, D.N.J. No. 3:19-CV-4753, 2019 WL 462758.

223a

Appendix F

attendance; (3) the willing witnesses’ cost of attendance;

and (4) all other practical problems that make the case’s

trial easy, expeditious, and inexpensive. Volkswagen AG,

371 F.3d at 203 (citing Piper Aircraft Co. v. Reyno, 454

U.S. 235, 241 n.6, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)).

The public-interest factors include: (1) the administrative

difficulties flowing from court congestion; (2) the local

interest in having local issues decided at home; (3) the

forum’s familiarity with the governing law; and (4)

the avoidance of unnecessary conflict-of-law problems

involving the application of foreign law. Id. No single factor

is dispositive. Id.

The Court must also “give some weight to the

plaintiffs’ choice of forum.” Atl. Marine Const. Co., Inc.

v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 63

n.6 (2013), 134 S. Ct. 568, 187 L. Ed. 2d 487. However,

the plaintiff’s venue choice “is neither conclusive nor

determinative. In Re: Horsehoe Entertainment, 337 F.

3d 429, 434 (5th Cir. 2003). Rather, the party seeking

transfer must show “good cause”: a moving party, in

order to support its claim for a transfer, must satisfy the

statutory requirements and clearly demonstrate that a

transfer is “[f]or the convenience of parties and witnesses,

in the interest of justice.” Humble Oil & Refining Co. v.

Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963).

Thus, when the transferee venue is “not clearly more

convenient than the venue chosen by the plaintiff, the

plaintiff’s choice should be respected.” In re Volkswagen

of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008). But when

the movant demonstrates that the transferee venue is

clearly more convenient, “it has shown good cause and

the district court should therefore grant the transfer.” Id.

224a

Appendix F

III. DISCUSSION

A.

Motion to Sever

The NJAG argues that Plaintiffs’ claims against

him should be severed because all the Rule 21 factors

“weigh heavily in favor of severance.” (Dkt. 121, at 24).

The Federal Defendants respond that severance is

inappropriate because the NJAG is properly joined and

a necessary party to this action, and “Plaintiffs claims

against State and Grewal are closely related.” (Dkt. 136,

at 5, 9). With regard to severance, Plaintiffs do not offer

their own rebuttal but rather state that they “agree with

and adopt the State Department’s response.” (Dkt. 135, at

2). Given that the NJAG does not argue that Defendants

are improperly joined in this action, the Court will not

address Federal Defendants’ arguments on this point

and will instead examine whether the factors elucidated

in Rule 21 favor severance, with an emphasis placed on

“judicial efficiency.” In re Rolls Royce Corp., 775 F.3d at

680.

First, the parties dispute whether the claims

against the NJAG and the Federal Defendants arise

out of the same transaction or occurrence. The parties’

disagreement centers around whether the NJAG’s filing

of the Washington Suit, which successfully challenged

certain actions taken by the State Department to comply

with the settlement agreement, is part of the same

transaction as the settlement agreement Plaintiffs claim

Federal Defendants have failed to comply with as a result

of the injunction issued in the Washington Suit. Indeed,

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Appendix F

Counts Fourteen and Sixteen complain of the NJAG’s

role in the State Department’s failure to comply with

the settlement agreement. (Dkt. 117, at 78, 80). Yet the

parties all acknowledge that the Washington Suit, joined

by 19 other state attorneys general, did not challenge the

settlement agreement itself but rather certain actions

taken by the State Department that violated with APA.

The Federal Defendants even argue that all of Plaintiffs’

nine claims against the NJAG relate to the 2018 settlement

agreement, including Plaintiffs’ claims regarding the New

Jersey Senate’s passage of a criminal statute, § 2C:39-9(l)

(2), arguing that the NJAG’s actions “are part of a series

of related steps all targeting Plaintiffs.” (Dkt. 136, at 7).

“Transactions or occurrences satisfy the series of

transactions or occurrences requirement of Rule 20(a) if

there is some connection or logical relationship between

the various transactions or occurrences.” Americans

for Fair Patent Use, LLC v. Sprint Nextel Corp., 2011

U.S. Dist. LEXIS 2947, 2011 WL 98279, at *3 (E.D. Tex.

Jan. 12, 2011). A relationship between transactions or

occurrences is “logical” if there is some common nucleus

of operative facts or law. Hanley v. First Investors Corp.,

151 F.R.D. 76, 79 (E.D. Tex. 1993). There is no strict rule

for determining what constitutes the same transaction or

occurrence. Guedry v. Marino, 164 F.R.D. 181, 184 (E.D.

La. 1995) (citing Mosley v. General Motors Corp., 497

F.2d 1330, 1333 (8th Cir. 1974) ); Corkern v. Hammond

City, 2012 U.S. Dist. LEXIS 92760, 2012 WL 2597561, at

*2 (E.D. La. July 5, 2012) (“transaction or occurrence”

requirement is not a rigid test under joinder rules).

226a

Appendix F

Here, Plaintiffs’ claims against the Federal Defendants

and the NJAG do not arise from the same transaction or

occurrence, or series of transactions or occurrences.

Instead, the occurrences that form the bases of Plaintiffs’

claims against the NJAG and the Federal Defendants

involved different parties and occurred in different places

and at different times. Plaintiffs claims against the NJAG

largely stem from the 2018 cease-and-desist letter, and

other comments made by the NJAG, attempting to curb

the dissemination of printable gun files to New Jersey

residents, as well as New Jersey’s recent passage of

§ 2C:39-9(l)(2), a criminal statute regarding printable

gun files. (See 2d Am. Compl., Dkt. 117, at 70–86). While

Plaintiffs also allege in Count Sixteen that the NJAG

committed tortious interference, the NJAG rightly points

out that this claim is likely barred by sovereign immunity.

(Dkt. 141, at 5) (citing Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 98, 106, 104 S. Ct. 900, 79 L.

Ed. 2d 67 (1984)). In any event, the Washington Suit

challenged the State Department’s violations of the APA,

not the separate settlement agreement between Defense

Distributed and the State Department. As such, Plaintiffs

have not “identified any transaction or occurrence that

factually connects all of the Defendants in a relevant or

material way.” Tompkins v. Able Planet Inc., 2011 U.S.

Dist. LEXIS 153068, 2011 WL 7718756, at *2 (E.D. Tex.

Feb. 17, 2011).

Second, the Court finds that the claims against the

NJAG and the Federal Defendants do not involve common

issues of fact and law that would council against severance.

Although the Federal Defendants are correct that many

227a

Appendix F

of Plaintiffs’ claims involve the legal question of whether

Defense Distributed’s actions are protected by the First

Amendment, this is not the case for all of Plaintiffs’ claims

as the Federal Defendants seem to suggest. (Dkt. 136, at 8).

In addition, the distinct facts underlying Plaintiffs’ claims

against Federal Defendants and the NJAG demonstrate

that severance would likely promote judicial economy,

rather than hamper it. Indeed, Plaintiffs’ claims against

the Federal Defendants revolve around a 2018 settlement

agreement regarding Defense Distributed’s compliance

with federal regulations, a settlement agreement to which

the NJAG was not a party. (See 2d Am. Compl., Dkt. 117,

at 49–70). Plaintiffs’ claims against the NJAG, in contrast,

stem from the enforcement actions taken by the NJAG to

prevent Defense Distributed from providing printable gun

files to New Jersey residents. (See 2d Am. Compl., Dkt.

117, at 70–86). Any factual overlap between the claims

against the NJAG and the Federal Defendants stemming

from the Washington Suit will have a miniscule effect on

resolving Plaintiffs’ claims and would hardly serve the

interests of judicial economy. See In re Rolls Royce Corp.,

775 F.3d at 681 (“While judicial economy is not the sole

consideration for a district court facing a severance-andtransfer motion, it retains a cardinal role.”).

These findings also apply to the final factor, which the

Court finds similarly weighs in favor of severance since all

of Plaintiffs’ claims against the NJAG will rely on evidence

distinct from those claims against the Federal Defendants.

While the claims against the NJAG will require discovery

into “the meaning of New Jersey laws and the intent of

the NJAG’s cease-and-desisit letter,” the claims against

228a

Appendix F

the Federal Defendants “largely turn on internal agency

communications and potentially testimony from agency

officials related to the agency’s implementation of the

Settlement Agreement.” (Dkt. 121, at 25). In support of

their position on this factor, the Federal Defendants state

that “there will be substantial overlap in the witnesses

and documentary proofs presented for each claim.” (Dkt.

136, at 13). Having offered no support for their conclusory

statement, the Court rejects the Federal Defendants’ oneline argument and finds that this factor weighs in favor

of severance.

The Court similarly finds that the NJAG is not a

necessary party to this action, as asserted by the Federal

Defendants. (Dkt. 136, at 9). While Federal Defendants

posit that the NJAG must remain in this action to avoid

the potential for “inconsistent obligations,” the Federal

Defendants offer no concrete examples of how this could be

so. The fact that the NJAG, joined by other state attorneys

general, successfully challenged unlawful actions by the

State Department pursuant to its settlement agreement

with Plaintiffs does not mean that inconsistent outcomes

in Texas and New Jersey with regard to unrelated

claims would subject Federal Defendants to “inconsistent

obligations.” Indeed, Plaintiffs claims against the NJAG

largely revolve around the interpretation of New Jersey

law, and this Court sees no reason to cabin its analysis

to the parties present in the Washington Suit—a lawsuit

regarding APA violations by the State Department, not

enforcement actions by the NJAG.

Third, judicial economy, the paramount concern in a

motion to sever brought along with a motion to transfer,

229a

Appendix F

would be best served by severing the NJAG’s claims from

those against the Federal Defendants. Although Plaintiffs

and Federal Defendants contend that the Fifth Circuit

has already ruled that this Court has jurisdiction over

the NJAG for Plaintiffs’ claims challenging New Jersey’s

newly-enacted criminal statute, this is simply not the

case and this Court would undoubtably have to determine

whether jurisdiction exists over the NJAG with regard to

the newly-added claims. (Dkt. 135, at 3). While Plaintiffs

are correct that they referred to § 2C:39-9(l)(2) in their

motion for preliminary injunction, they ignore the fact

that the Fifth Circuit’s opinion did not assess any claims

against the NJAG regarding this criminal statute. (Mot.

PI, Dkt. 67, at 3). Plaintiffs selectively quote from the

Fifth Circuit’s opinion to argue that it addressed then

un-pleaded claims arising from § 2C:39-9(l)(2), when

in reality those passages reveal that the Fifth Circuit

relied on Plaintiffs’ factual allegation that the NJAG

verbally threatened Defense Distributed with criminal

sanctions. (Dkt. 100, at 4) (“[P]laintiffs allege these actions

by Grewal . . . threatening Defense Distributed with

criminal sanctions at a live press conference.”). Nowhere

does the Fifth Circuit state that its decision applies to

any un-pleaded claims regarding § 2C:39-9(l)(2), and the

Court reminds Plaintiffs that specific jurisdiction must

be established for each claim. Seiferth v. Helicopteros

Atuneros, Inc., 472 F.3d 266, 275 (5th Cir. 2006)

(“[S]pecific jurisdiction must be established for each

claim”). The NJAG’s concerns regarding this Court’s

jurisdiction over him with regard to the § 2C:39-9(l)(2)

claims do not reflect an attempt to create “jurisdictional

carveouts,” as Plaintiffs insist, but rather an accurate

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Appendix F

understanding of how specific jurisdiction operates. This

Court will thus save substantial judicial resources by

severing the NJAG from this action and transferring the

claims against him to a Court that clearly has personal

jurisdiction over the NJAG with regard to the claims

stemming from the criminal statute. Severing the NJAG

from this action would further preserve judicial resources

by allowing a New Jersey court to make determinations

regarding the propriety of the NJAG’s enforcement

actions and the interpretation of § 2C:39-9(l)(2).

The fourth factor likewise weighs in favor of severance

because prejudice to Plaintiffs and the Federal Defendants

may be avoided by severing the claims against the

NJAG and transferring them to a court that clearly has

personal jurisdiction over all of Plaintiffs’ claims against

the NJAG. The Federal Defendants argue that it would

suffer prejudice in having to litigate “the claims against

it for allegedly failing to carry out activities under the

settlement agreement without the presence of” the NJAG.

(Dkt. 136, at 13). While Federal Defendants would clearly

like to blame NJAG for their failure to abide by their

settlement agreement with Plaintiffs, their failure to do

so stems from their inability to carry out the settlement

agreement in such a way that did not violate the APA, not

the NJAG’s actions that form the basis of Plaintiffs’ claims

against him. This factor thus weighs in favor of severance.

Based on the foregoing, the Court finds that the

NJAG’s motion to sever should be granted.

231a

Appendix F

B. Motion to Transfer

The NJAG also moves to transfer the now-severed

claims against him to the United States District Court for

the District of New Jersey, where Plaintiffs have brought

the same causes of action against him. The Court will

address the public and private factors relevant to transfer

under 28 U.S.C. § 1404(a) below.

1.

Public Interest Factors

To determine whether to transfer Plaintiffs’ claims

against the NJAG under § 1404(a), this Court must

balance four public interest factors: “(1) the administrative

difficulties flowing from court congestion; (2) the local

interest in having localized interests decided at home; (3)

the familiarity of the forum with the law that will govern

the case; and (4) the avoidance of unnecessary problems

of conflict of laws [or in] the application of foreign law.”

In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004).

The NJAG asserts that transfer is warranted largely

because of “New Jersey’s strong interest in not having an

out-of-state court determine the validity of it laws and the

public interest in avoiding conflicting judgments on novel

issues of constitutional law.” (Dkt. 121, at 12). The Federal

Defendants respond that because the NJAG successfully

sought a stay of the later-filed New Jersey action brought

by Plaintiffs’ against him, the public interest factors weigh

against transfer. Plaintiffs “agree with and adopt” the

Federal Defendants’ response, while adding a handful of

additional arguments challenging the NJAG’s arguments

regarding the risk of conflicting rulings and interest in

judicial economy. (Dkt. 135, at 2, 4).

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Appendix F

The first factor is neutral, as both the District of New

Jersey and the Western District of Texas are among the

busiest judicial districts in the country. (Dkt. 121, at 14;

see also Low Decl., Dkt. 121–1). Evaluating the second

and third factors together, the Court finds that they weigh

in favor of transfer, as New Jersey has a strong interest

in having Plaintiffs’ claims relating to § 2C:39-9(l)(2), a

New Jersey criminal statute, “examined by local state or

federal courts—courts that have expertise interpreting

its laws.” Def. Distributed v. Grewal, 971 F.3d 485, 499 n.3

(5th Cir. 2020 Higginson, J., concurring) (quoting Stroman

Realty, Inc. v. Wercinski, 513 F.3d 476 (5th Cir. 2008))

(“From my review of cases against government officials

who attempt to enforce a state law, so for no personal or

commercial profit, the litigation has taken place in the

governmental official’s state.”). In addition, New Jersey

courts have greater “familiarity with New Jersey’s overall

statutory framework regulating firearms and the public

policies those laws promote” and “have been the primary

fora for deciding legal challenges to New Jersey firearms

laws.” (Dkt. 121, at 13).

The Federal Defendants respond that this Court has

previously examined “complex First Amendment issues”

and is “the most familiar with the lengthy procedural

history and law” of this case. (Dkt. 136, at 17). While this

Court has previously evaluated a First Amendment claim

regarding printable gun files, Plaintiffs’ First Amendment

claims make up only two of Plaintiffs’ seventeen causes

of action in this case. (See Dkt. 117). Furthermore, the

Federal Defendants have not suggested, and the Court is

unaware of any reason to believe that, the District of New

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Jersey is not well equipped to evaluate “complex First

Amendment issues,” especially given that is has heard

challenges to New Jersey firearms laws for over ten years.

(Dkt. 121, at 13). Furthermore, the “lengthy procedural

history and law” to which the Federal Defendants refer

was dominated by questions of personal jurisdiction,

which will be eliminated if the claims against the NJAG

are transferred to the District of New Jersey.

The fourth factor—avoiding unnecessary problems of

conflict of laws—likewise weighs in favor of transfer. The

NJAG argues that transfer to the District of New Jersey

averts the potential for “conflicting rules and a possible

split” between circuits regarding the interpretation of a

New Jersey criminal statute and on constitutional issues.

(Dkt. 121, at 14–15). Plaintiffs respond, without support,

that the NJAG’s arguments on the fourth factor should

be disregarded because “they are not matters of venue.”

(Dkt. 135, at 4). The Court finds this argument curious as

the risk of rulings that create conflicts is explicitly part

of the venue analysis. See In re Volkswagen AG, 371 F.3d

at 203 (“The public concerns include . . . the avoidance

of unnecessary problems of conflict of laws.”). Plaintiffs

further argue, again without citing to any authority, that

“the Court should disregard the concern for conflicting

rulings because preclusion doctrines solve for that

completely.” (Dkt. 135, at 4). While Plaintiffs contend that

“Grewal has no answer to this,” the NJAG rightly responds

that “preclusion rules would only prevent the parties in

this and the New Jersey action from re-litigating these

issues, but would not prevent an inter-circuit conflict

on the meaning of § 2C:39-9(l)(2) that arises when New

234a

Appendix F

Jersey state courts in future actions adopt a meaning of

§ 2C:39-9(l)(2) in conflict with this Court’s interpretation.”

(Reply, Dkt. 141, at 10). Furthermore, the District of New

Jersey’s ability to certify questions regarding § 2C:39-9(l)

(2) to New Jersey state courts, and thus avoid any conflict

in the interpretation of the state statute, weighs in favor

of transfer. (Dkt. 141, at 9).

Lastly, Plaintiffs claim that because the NJAG

successfully sought a stay of the New Jersey Suit pending

the resolution of the instant action, he is estopped from

arguing in favor of transfer. (Dkt. 135, at 4–5). The Court

is once again perplexed by this argument. While Plaintiffs

are correct that “a party should not be allowed to gain

an advantage by litigation on one theory, and then seek

an inconsistent advantage by pursuing an incompatible

theory,” the NJAG sought a stay because this action was

filed first, not on the basis that this Court is the proper

venue for the claims against him. (Dkt. 135, at 5) (quoting

New Hampshire v. Maine, 532 U.S. 742, 742–43, 121 S.

Ct. 1808, 149 L. Ed. 2d 968 (2001)); Def. Distributed v.

Att’y Gen. of N.J., No. 3:19-cv-4753, Dkt. 20 (D.N.J. Feb.

2, 2019). The NJAG’s two arguments are thus entirely

compatible, especially given that at that time he sought

the stay of the New Jersey Suit, Plaintiffs had not added

their § 2C:39-9(l)(2) claims and the NJAG was actively

challenging personal jurisdiction in this Court. Plaintiffs

unsubstantiated arguments must be rejected. The NJAG’s

arguments regarding the risk of conflicting rulings are

thus not estopped, and the fourth factor weighs in favor

of transfer.

235a

Appendix F

Having found that the first public interest factor

is neutral and the remaining factors weigh in favor of

transfer, the Court next addresses the private factors

pertinent to a motion to transfer venue under 1404(a).

2.

Private Interest Factors

The private interest factors this Court must evaluate

to determine whether to transfer a case under 28 U.S.C.

§ 1404(a) include: “(1) the relative ease of access to sources

of proof; (2) the availability of compulsory process to secure

the attendance of witnesses; (3) the cost of attendance for

willing witnesses; and (4) all other practical problems that

make trial of a case easy, expeditious and inexpensive.”

In re Volkswagen AG, 371 F.3d at 203.

The NJAG argues that the first three factors favor

transfer because Plaintiffs’ § 2C:39-9(l)(2) claim and

Commerce Clause claim “turn on the meaning and intent

of New Jersey state laws and on the intent of the NJAG’s

cease-and-desist letter, and the sources of proof relevant

to these issues (including any non-party witnesses) are

all in New Jersey.” (Dkt. 121, at 15–16). The Federal

Defendants respond that the NJAG has failed to meet

his burden on the first three factors, as a “generalized

reference to out-of-state witnesses does not suffice.” (Dkt.

136, at 15). The Federal Defendants cite to Hammers v.

Mayea-Chang, 2019 U.S. Dist. LEXIS 213039, 2019 WL

6728446, at *7 (E.D. Tex. 2019) for the proposition that

the NJAG must “specify the format, relevance, or identity

of particular documents or physical evidence” located in

a different district. (Dkt. 136, at 15). The NJAG asserts

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Appendix F

that the fact that the sources of proof are located in New

Jersey “is obvious from the nature of the claims” since

they challenge actions by state officials. (Dkt. 141, at 10).

While the Court agrees that any documentation relevant

to the preparation of the cease-and-desist letter and the

enactment of § 2C:39-9(l)(2) are invariably located in New

Jersey, because the NJAG did not specifically identify the

“type of documents” or “the format of their storage (e.g.

electronic or physical),” the Court finds that the first factor

is neutral. Hammers, WL 6728446, at *8.

In Hammers, the court noted that although witnesses

are sources of proof in a sense, their availability is properly

evaluated under the second factor. Id. at *9. There, the

court denied transfer where the moving party had made

reference to first responder witnesses to the car accident

at issue, yet the non-moving party disputed that any

of those witnesses lived within the jurisdiction of the

transferee court and there was no other evidence before

the court that would allow it to “determine what and how

important their testimony will be.” Id. Here, in contrast,

there is no such dispute—indeed, the state officials who

prepared the cease-and-desist letter and passed § 2C:399(l)(2) are “necessarily based in New Jersey” and their

testimony is likely necessary in resolving Plaintiffs’ claims

related to the state criminal statute. (Dkt. 141, at 10).

The Federal Defendants also point out that the NJAG

failed to carry his burden on the first three factors by not

considering the evidence to be presented by Plaintiffs, or

the impact of transfer on Federal Defendants. First, while

Plaintiffs may plan to present evidence more conveniently

237a

Appendix F

located in Texas, their decision to initiate a lawsuit in

New Jersey against the NJAG belies any assertion that

they will suffer prejudice in presenting evidence there.

Second, the Federal Defendants have not elucidated how

their ability to present evidence in support of their claims

is hampered by the transfer of claims against the NJAG to

New Jersey. Indeed, even if the Federal Defendants plan

to blame their failure to fulfill the terms of the settlement

agreement on the Washington Suit, information about

that lawsuit is publicly available and does not require the

presence of the NJAG. As such, the second factor weighs

in favor of transfer. Because neither party has briefed the

Court on the cost of attendance for willing witnesses, the

third factor is neutral.

With regard to the fourth factor, the NJAG contends

that transfer to New Jersey “would obviate the need

to adjudicate threshold jurisdictional issues undecided

by the Fifth Circuit and thus make this litigation more

expeditious and less expensive.” (Dkt. 121, at 16). The

Federal Defendants respond that transfer would require

Plaintiffs to litigate their claims in both Texas and New

Jersey. (Dkt. 136, at 16). Yet Plaintiffs are the ones who

chose to file multiple lawsuits against the NJAG and,

as discussed above, their claims against the Federal

Defendants are not so intertwined with those against

the NJAG as to warrant the claims being tried together.

In addition, as the NJAG points out, Plaintiffs may more

immediately seek relief against the NJAG in New Jersey

rather than having to engage in further factual discovery

and briefing regarding jurisdiction over the NJAG for

Plaintiffs’ § 2C:39-9(l)(2) claims in this Court. Accordingly,

the fourth factor weighs in favor of transfer.

238a

Appendix F

Based on the foregoing, the Court finds that because

all the relevant factors are neutral or weigh in favor of

transfer, the NJAG’s motion to transfer the claims against

him to the United States District Court for the District

of New Jersey should be granted.

IV. CONCLUSION

For the reasons given above, IT IS ORDERED that

NJAG’s Motion to Sever and Transfer Venue, (Dkt. 121),

is GRANTED.

IT IS ORDERED that Plaintiffs’ claims against the

NJAG are SEVERED and shall be TRANSFERRED

the United States District Court for the District of New

Jersey.

IT IS FINALLY ORDERED that the NJAG’s

Unopposed Motion for Oral Argument, (Dkt. 144), is

MOOT.

SIGNED on April 19, 2021.

/s/ Robert Pitman

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

239a

Appendix

G

APPENDIX G — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED APRIL 1, 2022

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-50327

DEFENSE DISTRIBUTED; SECOND

AMENDMENT FOUNDATION, INCORPORATED,

Plaintiffs—Appellants,

versus

ANDREW J. BRUCK, ACTING ATTORNEY

GENERAL OF NEW JERSEY, IN HIS OFFICIAL

AND INDIVIDUAL CAPACITIES,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CV-637

Filed April 1, 2022

Before Jones, Elrod, and Higginson, Circuit Judges.

Edith H. Jones, Circuit Judge:

Since 2013, Appellants (collectively, “Defense

Distributed”) have been challenging publication restraints

240a

Appendix G

imposed by the U.S. State Department, federal courts,

and the State of New Jersey after Defense Distributed

published to the Internet computer assisted design

(“CAD”) files for a single-round plastic pistol. Although

Defense Distributed is still prevented from publishing,1

the CAD files it published remain available to this day

on countless other websites internationally. Defense

Distributed has yet to secure a court decision condemning

what appear to be flagrant prior restraints. 2

1. To be more precise, Defense Distributed published the

CAD files to the Internet for a few months from December 2012—

May 2013 before the State Department claimed that to do so

violated International Traffic in Arms Regulations (“ITAR”). See

Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451, 455 (5th

Cir. 2016); id. at 461-63 (Jones, J., dissenting). The company also

published to the Internet for five days in 2018 during a litigation

hiatus. Further, it has published the files by hosting them at a

public library in Austin, Texas, and by distributing USB drives

and SD cards through the Postal Service. To date, the CAD files

are still not available on the internet free from all prior restraint.

As the Supreme Court declared, a “loss of First Amendment

freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373,

96 S. Ct. 2673, 2690, 49 L. Ed. 2d 547 (1976). These Appellants’

First Amendment freedoms have been restrained for years.

2. The injunction motion pending before the panel is denied as

moot. This denial does not imply that the motion lacks merit. The

original preliminary injunction motion before the district court

was denied on the basis of an incorrect finding that the district

court lacked personal jurisdiction over the NJAG. Upon return

of this case to the Western District of Texas, the court should

entertain a motion for preliminary injunction expeditiously.

241a

Appendix G

The instant combined appeal and motion for mandamus

relief stems from a district court order severing the case

against one defendant, the Attorney General of New Jersey

(NJAG), 3 and transferring it to a federal court in New

Jersey. We conclude that mandamus relief is appropriate

in this unusual case. Accordingly, we direct the district

court to request retransfer from its counterpart in New

Jersey and order other relief in accordance herewith.

BACKGROUND

Two previous opinions of this court describe the

litigation history surrounding Defense Distributed’s

publication of then-novel CAD files for a pistol that can

theoretically be “printed” from a computer affixed to the

proper equipment. See Defense Distributed v. Grewal, 971

F.3d 485, 488-90 (5th Cir. 2020); Defense Distributed v.

U.S. Dep’t of State, 838 F.3d 451, 454-58 (5th Cir. 2016);

id. at 461-66 (Jones, J., dissenting). We quote from the

more recent opinion:

Plaintiff Defense Distributed is a Texas

company operated for the purpose of promoting

popular access to firearms. To carry out this

purpose, it produces and makes accessible

information related to the 3D printing of

firearms and publishes and distributes such

information to the public. Plaintiff Second

3. Gurbir Grewal was New Jersey’s Attorney General

when this suit was filed. He is succeeded by Andrew Bruck. For

convenience, we refer to this defendant as the NJAG.

242a

Appendix G

Amendment Foundation, Inc. (“SAF”) is a

nationwide, non-profit membership organization

that “promotes the right to keep and bear arms

by supporting education, research, publications,

and legal efforts about the Constitution’s right

to privately own and possess firearms and

the consequences of gun control.” Across the

nation, SAF members seek the digital firearms

information created by Defense Distributed,

circulate their own digital firearms information

by utilizing Defense Distributed’s facilities,

and republish digital firearms information

independently.

Defense Distributed began distributing

files related to the 3D printing of firearms in

December 2012. It did so by publishing files

to its defcad.org and defcad.com websites and

letting visitors freely download them. It also

distributed digital firearms information via

mail and at a brick-and-mortar public library

in Austin, Texas. Defense Distributed’s efforts

were initially met with opposition from the

United States Department of State.4 But, after

a period of litigation, the parties reached a

settlement agreement that granted Defense

Distributed a license to publish its files.

Shortly thereafter, nine Attorneys General,

4. See Defense Distributed v. U.S. Dep’t of State, 838 F.3d

451 (5th Cir. 2016); id. at 462-76 (Jones, J., dissenting).

243a

Appendix G

including New Jersey Attorney General

Grewal, filed suit on behalf of their respective

states in the Western District of Washington to

enjoin the State Department from authorizing

the release of Defense Distributed’s files. They

argued that the State Department’s license to

Defense Distributed constituted an ultra vires

about-face that violated the Administrative

Procedure Act and jeopardized the states’

statutory and regulatory schemes for firearms.

The Western District of Washington quickly

issued a temporary restraining order, followed

closely by a nationwide preliminary injunction.5

Just before the Attorneys General sued

in Washington, Defense Distributed and SAF

brought the instant action in the Western

District of Texas challenging select enforcement

actions taken by the state Attorneys General.

Of relevance to this appeal, Plaintiffs alleged

these actions by Grewal: (1) sending a ceaseand-desist letter threatening legal action if

Defense Distributed published its files; (2)

sending letters to third-party internet service

providers based in California urging them

5. The Attorneys General later filed a motion for summary

judgment, which the district court granted in part. Washington

v. U.S. Dep’t of State, 420 F. Supp. 3d 1130 (W.D. Wash. 2019).

On appeal, the Ninth Circuit found that the case was moot and

thus dismissed for lack of jurisdiction. Washington v. Defense

Distributed, Nos. 20-35030 & 20-35064, 2020 U.S. App. LEXIS

22900, 2020 WL 4332902 (9th Cir. July 21, 2020).

244a

Appendix G

to terminate their contracts with Defense

Distributed; (3) initiating a civil lawsuit against

Defense Distributed in New Jersey;6 and (4)

threatening Defense Distributed with criminal

sanctions at a live press conference. Further,

these actions, coupled with the injunctive orders

issued in the Washington litigation, have caused

Defense Distributed to cease publication of

its materials. The Plaintiffs asserted, inter

alia, that these actions infringed the exercise

of their First A mendment freedoms and

constituted tortious interference with the State

Department’s settlement agreement.

Grewal moved to dismiss for lack of personal

jurisdiction.7 The Plaintiffs, meanwhile, sought a

preliminary injunction. After holding a hearing

and considering the parties’ arguments, the

court granted Grewal’s motion and dismissed

the action without prejudice.

Defense Distributed v. Grewal, 971 F.3d at 488-89

(footnotes in original). Defense distributed appealed.

6. That lawsuit was removed to federal court before being

administratively terminated in light of the nationwide injunction

issued in Washington. The Plaintiffs have likewise sued in New

Jersey, raising the same claims asserted in the case at bar. See

Defense Distributed v. Grewal, D.N.J. No. 3:19-CV-4753. That

case is currently stayed pending resolution of this one.

7. The other state Attorneys General also moved to dismiss,

and the district court granted their motions. On appeal, the

Plaintiffs challenge only the judgment related to Grewal.

245a

Appendix G

This court held that the NJAG is amenable to personal

jurisdiction in Texas courts. Id. at 488. Accordingly, the

court reversed and remanded for further proceedings. Id.

Following our remand to the district court, Defense

Distributed amended its complaint to join the State

Department as a defendant for its alleged failure to comply

with a Settlement Agreement reached with Defense

Distributed in 2018. Shortly after, the NJAG moved to

sever Defense Distributed’s case against him and transfer

that portion of the case to a New Jersey federal court.

The State Department opposed severance, as did Defense

Distributed. Nonetheless, the district court obliged the

NJAG by written order both severing and transferring

the case against him.

Defense Distributed immediately noticed an appeal

from the severance-and-transfer order and followed with

an alternate request for mandamus relief against the

district judge. This court imposed a temporary stay of the

case pending appeal. The New Jersey district court also

stayed all proceedings pending this appeal.

DISCUSSION

I.

Appellate jurisdiction

We pretermit Defense Distributed’s resort to

the collateral order doctrine as a basis for appellate

jurisdiction in this interlocutory appeal8 because, in this

8. In re Rolls Royce Corp. asserted that our circuit has held

that transfer orders do not fall within the scope of the collateral

246a

Appendix G

circuit, mandamus is the prescribed vehicle for reviewing

rulings on transfers of cases pursuant to 28 U.S.C.

§ 1404(a). See In re Volkswagen of Am., Inc., 545 F.3d 304,

309 (5th Cir. 2008) (en banc); In re Rolls Royce Corp., 775

F.3d 671, 676-77 (5th Cir. 2014).

The twist in this case is the transfer to a district court

outside the Fifth Circuit, a court over which this court

exercises no control. This court lacks power to order a

return of the case to our circuit. But In re Red Baron

Motors, Inc., 794 F.3d 481 (5th Cir. 2015), explained the

path to a cognizable mandamus remedy. Id. at 483-84.

The All Writs Act, 28 U.S.C. § 1651, empowers courts to

issue writs of mandamus if the courts also have appellate

jurisdiction, “although no appeal has been perfected.”

Roche v. Evaporated Milk Ass’n., 319 U.S. 21, 25, 63 S. Ct.

938, 941, 87 L. Ed. 1185 (1943). Because of the transfer, the

Texas transferor court can no longer enter an appealable

order in the case. In re Red Baron, nevertheless, approved

that “several circuits, where appropriate, have endorsed

the method of directing the transferor district court to

request that the transferee district court return the case.”

Id. at 484 (collecting cases). To be sure, to avoid friction

with sister circuits, the court held that “if we even have

the power to reverse such a transfer, we should exercise it

only if faced with ‘a very extreme case.’” Id. (citing In re

order doctrine. 775 F.3d 671, 676 (5th Cir. 2014) (citing Brinar

v. Williamson, 245 F.3d 515, 517 (5th Cir. 2001)). However, other

cases seem to apply the doctrine to transfer orders. See In re

Sepulvado, 707 F.3d 550, 552 (5th Cir. 2013); In re Bradford, 660

F.3d 226, 229 (5th Cir. 2011). We need not weigh into a potential

intra-circuit split.

247a

Appendix G

Sw. Mobile Homes, Inc., 317 F.2d 65, 66-67 (5th Cir. 1963)).

But intercircuit friction was reduced where the transferee

court there, as here, stayed proceedings pending our

appellate panel’s decision. Id. The court concluded by

requiring a party seeking relief from a transfer order to

exercise diligence. Id. at 485. Because the petitioner had

waited three months to file its mandamus petition, the

writ was denied. Id.

In this case, of course, the notice of appeal was filed the

day after the district court’s order and mandamus relief

formally sought within thirty-nine days while briefing was

underway. Because In re Red Baron sets the standard,

we have jurisdiction to consider the mandamus petition.

The NJAG asserts four objections to our jurisdiction.

He asserts that In re Red Baron did not hold what we

just stated it held; that other circuits would not allow a

writ of mandamus where a case is transferred to another

circuit; and that Defense Distributed was not diligent.

Finally, he contends that because Defense Distributed

may eventually challenge the transfer order in courts

of the Third Circuit, the availability of appellate review

disentitles him to an equitable writ. We find none of these

arguments persuasive.

First, In re Red Baron denied the writ only for lack

of petitioner’s diligence. That conclusion would have been

inappropriate had the panel concluded that mandamus is

not available to challenge an out-of-circuit transfer order.

The court’s entire discussion of the writ, and a limitation

where intercircuit friction may occur, would have been

248a

Appendix G

unnecessary. Instead, the court weighed the approaches of

other circuits, noting that in particular cases a circuit court

exercised jurisdiction to vacate a completed intercircuit

transfer. See In re Red Baron, 794 F.3d at 484 n.6. This

discussion would also be extraneous had the court simply

been uttering dicta rather than explaining its rationale.

And of course, the court noted that several circuits have

authorized mandamus relief in these circumstances. Id.

Finally, there is no “assuming arguendo” language that

couches the court’s ruling on mandamus in hypothetical

terms.9 In short, In re Red Baron’s procedural holding is

not predicated on dicta.

Second, other circuits have adopted the same

approach. See, e.g., In re Howmedica Osteonics Corp., 867

F.3d 390, 399-400, 411 (3d Cir. 2017) (asserting jurisdiction

to vacate intercircuit transfer order); In re Warrick, 70

F.3d 736, 739-40 (2d Cir. 1995) (asserting mandamus

jurisdiction and distinguishing In re Drabik, 246 F.2d

408 (2d Cir. 1957), as not justifying denial of all relief “in

these circumstances”); A.C. Nielsen Co. v. Hoffman, 270

F.2d 693, 695 (7th Cir. 1959) (concluding that the court

has mandamus jurisdiction over intercircuit transfer

order). Each of these circuits has applied mandamus to

decide the propriety of intercircuit transfers. Although the

9. The court refers to the “potential availability” of the

writ, but then cites the Supreme Court’s substantive standard

for granting or denying mandamus as applicable to show that the

writ sought by petitioners in In re Red Barn was not “appropriate

under the circumstances.” In re Red Baron, 794 F.3d at 484-85,

485 n.7 (quoting Cheney v. U.S. Dist. Ct. for Dist. of Columbia,

542 U.S. 367, 381, 124 S. Ct. 2576, 2587, 159 L. Ed. 2d 459 (2004)).

249a

Appendix G

Tenth Circuit held that a completed intercircuit transfer

divested it of appellate jurisdiction, Chrysler Credit Corp.

v. Country Chrysler, Inc., 928 F.2d 1509, 1516-17 (10th Cir.

1991), that court went on to recognize that “technically,”

the district court should have deferred effectuating the

transfer so that the parties could seek certification or “file

a mandamus petition.” Id. at 1520 n.9. See also In re Nine

Mile Ltd., 673 F.2d 242 (8th Cir. 1982)(mandamus ordered

where district court erroneously transferred papers to

consummate Section 1404 case transfer before appeal

could be filed in transferor district). Thus, the balance of

circuit court authority, in addition to the cases cited by In

re Red Baron, favors jurisdiction in this case.

Third, the AG questions the diligence of Defense

Distributed because of its failure to seek an immediate

stay in the district court or file an immediate mandamus

petition. Nothing in applicable precedent, however,

mandates the particular method by which a party

disadvantaged by an out-of-circuit transfer must bring

that issue to the circuit court. Defense Distributed filed its

notice of appeal the day after the district court’s transfer

order and promptly sought relief in this court. The

defendants and district court were immediately placed

on notice of Defense Distributed’s intent to challenge the

transfer in this court, and the actual transfer order was

not docketed until the following day. It sought mandamus

relief in briefing to this court, filed thirty-nine days after

the court’s order.10 The Appellants’ diligence comports

10. The NJAG’s contention that Defense Distributed cannot

seek mandamus due to technical noncompliance with FRAP Rule

21 is frivolous. Defense Distributed’s briefing, procedurally and

250a

Appendix G

with this court’s emphasis on “diligence” in In re Red

Baron and with the timing of filings in In re Howmedica,

867 F.3d at 400.

Fourth, it is inaccurate to assert, as the NJAG does, that

Defense Distributed has adequate available alternatives

for appellate court review of the district court’s order,

which render a mandamus remedy unavailable. Unlike

In re Red Baron, this case encompasses severance as a

necessary condition of the transfer.11 On appeal, the Third

Circuit could not review the severance order, much less

attempt to consolidate the case against the NJAG with the

case still pending in Texas against the State Department.

Therefore, on its face, this tandem order is effectively

unreviewable in the transferee circuit.

Moreover, if the potential Third Circuit appeal were

(arbitrarily) limited to the transfer order alone, a premier

procedural treatise notes that review in the transferee

court seems illusory given the application of comity and

law-of-the-case principles. See 15 Charles A lan Wright,

A rthur R. M iller & Edward H. C ooper , F ederal

Practice A nd Procedure [Hereafter, Wright & Miller]

§ 3846 (4th ed. 2021); id. at § 3855 (similar). The likelihood

of securing a retransfer by the transferee district court

seems equally constrained. But even if these propositions

substantively, stated clearly the relief requested and grounds for

seeking mandamus relief.

11. The Red Baron district court transferred an entire case,

with two defendants one of which objected strenuously, to Indiana.

794 F.3d at 483.

251a

Appendix G

are arguable, see SongByrd, Inc. v. Estate of Grossman,

206 F.3d 172, 178 n.7 (2d Cir. 2000) (collecting cases), the

SongByrd decision, like that of other courts, acknowledges

the availability of mandamus review in the Fifth Circuit.

Id. at 176-77, 176 n.5.12

Finally, the fact that the district court here granted

the transfer, rather than denying it, makes no difference.

In this circuit, neither In re Rolls Royce nor In re

Volkswagen limited writs of mandamus according to

whether the district courts granted or denied transfer.13

And in Howmedica, the Third Circuit applied mandamus

to vacate the order granting transfer to the Central

District of California. In re Howmedica, 867 F.3d at

12. See also Hill v. Henderson, 195 F.3d 671, 676-77, 338 U.S.

App. D.C. 456 (D.C. Cir. 1999) (“Transfer orders under § 1404 are

not final appealable orders, nor, generally speaking, reviewable

collateral orders. Commonly, however, courts of appeal in the

circuit of origin entertain mandamus petitions to review such

orders . . . . A possible explanation for finding transfer orders

nonreviewable in the transferee circuit is that such orders are

usually effectively subject to immediate review via mandamus in

the circuit of the transferring court.”) (citations omitted); Nascone

v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir. 1984) (concluding that

“mandamus review is appropriate” over a transfer order after

deciding it did not fall within the collateral order doctrine, and

recognizing the general rule that “the Plaintiff could petition the

transferor appellate court for a writ of mandamus blocking the

transfer”) (citation omitted).

13. In In re Volkswagen, the en banc court emphasized that

review of a transfer order following final judgment was not an

“adequate remedy,” and observed that “venue transfer decisions

are rarely reviewed.” 545 F.3d at 319.

252a

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411. Whatever the possibility of review in the transferee

circuit, this has not been regarded as sufficiently effective

to preclude writs of mandamus in the transferor court.14

II. Mandamus

A writ of mandamus is “a drastic and extraordinary

remedy reserved for really extraordinary cases.” In

re Depuy Orthopaedics, Inc., 870 F.3d 345, 350 (5th

Cir. 2017). This court will grant a petition for a writ of

mandamus only if the petitioner satisfies three conditions.

First, the petitioner must show that there are “no other

adequate means to attain the relief he desires.” Cheney

v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S. Ct. 2576, 159

L.Ed.2d 459 (2004). Second, the court “must be satisfied

that the writ is appropriate under the circumstances.” Id.

at 381, 124 S. Ct. 2576. And third, the petitioner must show

a “clear and indisputable right to the writ.” Id.

Defense Distributed easily satisfies the first two

conditions for mandamus relief. As we just explained,

the Third Circuit transferee court cannot, under normal

appellate standards, exercise appellate review over either

the severance or transfer orders of this Western District

of Texas. E.g., In re Red Baron, at 484-85.

Second, granting the writ would be “especially

appropriate where the issues implicated have importance

14. This court’s decision in Persyn v. United States, 935

F.2d 69 (5th Cir. 1991), offers no help to the NJAG. The court

there explicitly stated that seeking retransfer is not an adequate

alternative to appellate review where, as here, both courts have

subject-matter jurisdiction. Id. at 73.

253a

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beyond the immediate case.” In re JPMorgan Chase &

Co., 916 F.3d 494, 499 (5th Cir. 2019) (quoting In re Lloyd’s

Register N. Am., Inc., 780 F.3d 283, 294 (5th Cir. 2015);

and In re Volkswagen, at 319 (internal quotation marks

omitted). Before this court are “issues that implicate not

only the parties’ interests but those of the judicial system

itself.” United States v. Bertoli, 994 F.2d 1002, 1014 (3d Cir.

1993). Preeminent are questions about the abridgement

of the Plaintiffs’ first amendment rights to publish their

materials. Also critical, however, are tactics suggesting

the abusive manipulation of federal court procedures

in order to delay or altogether avoid meaningful merits

consideration of Plaintiffs’ claims.

What the parties most strenuously debate is whether

Defense Distributed has shown a clear and indisputable

right to the writ or a clear abuse of discretion by the

district court. See Cheney at 381, 2576; see also In re

Volkswagen, at 308. “A district court by definition abuses

its discretion when it makes an error of law.” Koon v.

United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047, 135

L. Ed. 2d 392 (1996) (citing Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461, 110 L. Ed.

2d 359 (1990) (“a district court would necessarily abuse its

discretion if it based its ruling on an erroneous view of the

law”)). We conclude that the district court clearly abused

its discretion by applying the wrong legal standard for

evaluating the NJAG’s conjoined severance and transfer

motions and by egregiously misinterpreting Defense

Distributed’s claims. Moreover, even if the motions are

evaluated wholly independently, the transfer motion cannot

stand if the severance motion was wholly unjustified. See,

254a

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e.g., Chrysler Credit Corp. v. Country Chrysler, 928 F.2d

1509 (10th Cir. 1991); In re Nine Mile Ltd., 673 F.2d at

242 (because transfer order was procedurally incorrect,

mandamus ordered district court to request return of the

case from the transferee court).

A.

Joint Severance and Transfer

To explain this conclusion, we remind that the Federal

Rules of Civil Procedure were enacted to ensure “the just,

speedy and inexpensive determination of every action

and proceeding.” Fed. R. Civ. P. 1. To be more precise,

Fed. R. Civ. P. 21, which authorizes severance of parties,

and 28 USC § 1404(a), governing transfers among federal

district courts, “are [both] designed to facilitate just,

convenient, efficient and less expensive determination.”

In re Nintendo of America, Inc., 756 F.3d 1363, 1365

(Fed. Cir. 2014). Although a district court has broad

discretion to sever parties that were otherwise properly

joined by a Plaintiff,15 “[u]nder the Rules, the impulse is

toward entertaining the broadest possible scope of action

consistent with fairness to the parties; joinder of claims,

parties and remedies is strongly encouraged.” United

Mine Workers v Gibbs, 383 U.S. 715, 724, 86 S. Ct. 1130,

1138, 16 L. Ed. 2d 218 (1966).

On two occasions, this court has discussed standards

for joint severance and transfer motions brought by a

defendant or defendants, the effect of which would require

15. Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th

Cir. 1994).

255a

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a Plaintiff to split its case into two different federal

courts. In a well-known opinion, this court noted that

“our jurisprudence suggests that the severance inquiry is

different—and more focused on judicial efficiency—when

it is combined with a section 1404 motion to transfer than

when the severed case would remain in the original judicial

district.” In re Rolls Royce, 775 F.3d at 680.16 The court

quoted at length Judge Alvin Rubin’s opinion explaining

the problems that can arise in a case involving multiple

defendants when claims against one or some defendants

are severed and transferred while claims against the

remaining defendant are retained in the original court.

Id., (quoting Liaw Su Teng v. Skaarup Shipping Corp.,

743 F.2d 1140, 1148-49 (5th Cir. 1984)). Judge Rubin’s list

of parameters that should inform this type of proposed

transfer bears repeating:

But before thus putting asunder what the

Plaintiff has joined, the court must weigh

carefully whether the inconvenience of splitting

the suit outweighs the advantages to be gained

from the partial transfer. It should not sever

if the defendant over whom jurisdiction is

retained is so involved in the controversy to

be transferred that partial transfer would

16. Judge Higginbotham’s opinion in Rolls Royce has been

cited frequently for its application of sever/transfer considerations

when one of the parties has a forum selection clause. However,

the court’s discussion about severance and transfer orders in

multidefendant cases draws from Liaw Su Teng and other nonforum selection clause cases and is thus more broadly applicable

here.

256a

Appendix G

require the same issues to be litigated in two

places. [See Korbel, The Law of Federal Venue

and Choice of the Most Convenient Forum, 15

Rutgers L.Rev. 607 (1961); Masington, Venue

in the Federal Courts—The Problem of the

Inconvenient Forum, 15 U.Miami L.Rev. 237

(1961); Note, 46 Cornell L.Q. 318 (1961)]. That

being the situation here, the district court

should not have severed the claims if there were

any alternative. Manifestly, the Plaintiffs will

suffer some inconvenience if they are forced

to litigate their claims in two courts, half the

world apart from each other, with not only the

consequent added expense and inconvenience

but also the possible detriment of inconsistent

results. A single forum is also most suitable for

determining possible counter-and cross-claims.

The public also has an interest in facilitating

a speedy and less-expensive determination in

one forum of all of the issues arising out of one

episode.

Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140,

1148-49 (5th Cir. 1984), overruled on other grounds, In

re Air Crash Disaster Near New Orleans, La., on July 9,

1982, 821 F.2d 1147 (5th Cir. 1987).

Several points made in Judge Rubin’s opinion are

common to this species of joint severance and transfer

motions. A court must “weigh carefully” the comparative

inconvenience of splitting the suit versus the advantages

to be gained from a partial transfer. It should not sever

if the defendant not transferred is “so involved” in the

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Appendix G

controversy transferred to another court that partial

transfer would require the same issues to be litigated in

two places. “Manifestly,” Plaintiffs are disadvantaged

by the expense and inconvenience of having to litigate in

two disparate fora and by the possibility of inconsistent

results. And the public has an interest in the comparative

speediness and cost-savings from utilizing a single forum

for the issues arising out of one episode. See also 15 Wright

& Miller, § 3845, at 86 (echoing these factors).

Other courts have agreed with Liaw Su Teng,

and specified that in analyzing severance and transfer

motions, “[b]efore effecting such a severance, a judge

should weigh the convenience to the parties requesting

transfer against the potential inefficiency of litigating

the same facts in two separate forums.” White v. ABCO

Eng’g Corp., 199 F.3d 140, 144 (3d Cir. 1999). Previously,

the Third Circuit, explicitly endorsing Judge Rubin’s view,

denied severance and transfer where the defendant not

transferred was more than “indirectly connected” to the

Plaintiff’s dispute with the defendant seeking transfer.

Sunbelt Corp. v. Noble, Denton and Assoc., Inc., 5 F.3d

28, 34 (3d Cir. 1993). The Second Circuit, which pioneered

using severance and transfer as a permissible strategy

of case management, nonetheless held it appropriate only

“where the administration of justice would be materially

advanced....” and where a defendant in one district is

only “indirectly connected” to the claims that will be

transferred to the other district. Wyndham Assoc. v.

Bintliff, 398 F.2d 614, 618-19 (2d Cir. 1968).17

17. Wright & Miller explains that severance and transfer of

claims or parties enabled courts to avoid the rule that “[i]n suits

against multiple defendants, transfer is proper only to a district

258a

Appendix G

The district court here quoted Rolls Royce, but it

misperceived and thus misapplied this court’s explanation

about “judicial efficiency.” In the above cases, courts

were not deciding ordinary Rule 21 severance motions,

in which parties or claims may be split while the disputes

are maintained before the same court. Severance and

transfer requires two courts to engage in the work of

one, prompting serious concerns about duplication of

judicial resources, the consistency of rulings, and litigation

costs. The circuit courts that discussed severance

and transfer motions in this context have uniformly

indicated an aversion to granting such motions at the

expense of needless duplication of judicial effort. The

rule emanating from Rolls Royce and Liaw Su Teng

is that in most multidefendant cases—other than those

involving forum selection clauses—severance and transfer

makes sense only where the administration of justice

would be materially advanced and a defendant in one

district is not “so involved” in the transferred controversy

that the same issues would have to be litigated twice.18

in which all of them are subject to personal jurisdiction and in

which venue is proper for an action against all of them.” Wright

& Miller § 3845, at 85. The treatise also endorses the cautious

use of such orders. Id. at 86-87.

18. See also Continental Grain Co. v. The FBL-585, 364 U.S.

19, 26, 80 S. Ct. 1470, 1474, 4 L. Ed. 2d 1540 (1960)(“To permit a

situation in which two cases involving precisely the same issues

are simultaneously pending in different District Courts leads to

the wastefulness of time, energy and money that Sec. 1404(a) was

designed to prevent. Moreover, such a situation is conducive to a

race of diligence among litigants for a trial in the District Court

each prefers”).

259a

Appendix G

Consequently, the district court erred legally in finding

that the State Department is only indirectly connected

to claims pled against the NJAG19 and in failing to find

that the administration of justice would not be materially

advanced by transfer.

The direct connection between the Plaintiffs’ claims

against these two defendants contradicts the district

court’s artful dissection of Defense Distributed’s Second

Amended Complaint. The court ignored the major

components of the lawsuit and the overarching connection

alleged between the State Department and the NJAG.

Both government entities have suppressed legal speech

by prohibiting the publication of the company’s digital

firearms files on the internet and into New Jersey. That

the First Amendment protects all of the Plaintiffs’

publications underlies all of their other claims. 20 The

Plaintiffs’ assertion of seventeen separate claims reflects

the consequences of that suppression and the tortuous

path they have been forced to pursue for redress. Yet,

contrary to common sense and heedless of a potential for

disparate constitutional rulings if the case against the

NJAG remains transferred, the court belittled the First

Amendment issues. According to the district court, not

19. The district court found the factual overlap between the

claims pled against each defendant is “minuscule;” and that the

claims have no “logical connection” because the defendants’ actions

occurred “in different places and at different times.”

20. The First Amendment claims, moreover, are complex

factually and legally, as they involve questions about compelling

interest, narrow tailoring, and numerous types of digital firearms

information that Defense Distributed has created.

260a

Appendix G

all of Plaintiffs’ claims involve the First Amendment. The

court overlooked Plaintiffs’ claims that directly involve

both Defendants in the settlement agreement breach

and in censorship under the Second Amendment and

Due Process clause. And the larger point is that none

of Plaintiffs’ claims would exist if they had been allowed

to publish the various digital firearms files continuously

since 2013. The First Amendment is the sine qua non of

this case.

The other larger point ignored by the district court

is that the principal claims against both defendants are

temporally and factually intertwined to the extent that

litigation in separate courts would largely overlap. A

paraphrase of the facts alleged in the Second Amended

Complaint is demonstrative. Just when the Plaintiffs,

after several years of litigation, thought they had obtained

relief from a signed settlement agreement with the State

Department, the NJAG loudly led a bevy of states in

opposition. Within a span of about six months, he filed

suit in Washington state, even more remote from New

Jersey than Texas, and forced the joinder of Defense

Distributed as a defendant there. He evidently thought the

parties’ fates were legally and factually connected when he

sought and obtained an injunction expressly to prevent the

State Department from completing the settlement with

Plaintiffs. The NJAG kept up public pressure against the

settlement with threats of civil and criminal punishment

against Plaintiffs’ president Cody Wilson personally. At

this time, the State Department opted not to complete the

settlement. Accordingly, the State Department did not

modify relevant federal regulations, disavowed the license

261a

Appendix G

and exemption from regulations it had promised Defense

Distributed, and refused to appeal adverse decisions by

the Washington federal court. The extent to which the

NJAG’s campaign influenced the State Department’s

alleged breaches is relevant to the claims against both

defendants. At the same time, the NJAG’s seminal place

in the litigation is a major, though far from the only facet

of his conduct that was designed to derail the settlement

and independently to restrain Plaintiffs’ exercise of free

speech. Plaintiffs’ essential claims for First Amendment

violations, breach of the settlement agreement, and the

NJAG’s interferences cannot be understood by a factfinder

without investigating and telling the whole story. Similarly,

having to tell the same story in two courts would abuse

Plaintiffs and the judicial process. 21

Also plain from the complaint is that the subsidiary

claims are dependent upon the primary claims identified

above. To cite one instance, Defense Distributed pleads

that the State Department violated the Administrative

Procedure Act in various aspects of its settlement

agreement breach. The Washington State litigation was

also based on alleged violations of the Administrative

Procedure Act. The State Department’s noncompliance

may have been caused by the mere fact of the Washington

State litigation or by the imperative of complying with

that court’s injunctive decrees or by the NJAG’s public

campaign against the settlement. Sorting out cause and

21. The NJAG interjects that a sovereign immunity defense

precludes any tortious interference claim asserted by Plaintiffs.

Plaintiffs dispute the assertion. This merits defense has no place

in our analysis.

262a

Appendix G

effect for these claims demands a single factfinder and

judicial resolution.

The district court also erred legally by failing to

conclude that the administration of justice would not be

materially advanced by transfer of the case against the

NJAG to New Jersey. See Rolls Royce, 775 F.3d at 680. The

burden rests on the NJAG as the movant to demonstrate

that proposition, and he did not succeed. First, the

public interest in achieving a single court’s ruling on

Plaintiffs’ First Amendment claims cannot be overstated.

Government instigated censorship of constitutionally

protected speech is abhorrent to self-government; courts

have a duty to prevent illegal censorship. But severance

and transfer enhances the risk of conflicting rulings, which

would seriously injure the Plaintiffs and throw the law in

this important constitutional area into national disarray

for several years.

Second, because of the complex factual interactions

among Plaintiffs and these Defendants, discovery and

trial for the principal claims will require many of the

same witnesses. No efficiency exists from conducting two

fact-based litigations half a continent apart. On the other

hand, no efficiency is gained by having two courts decide

the separate subsidiary claims against each Defendant.

Such claims are largely legal in nature, overlapping in

several instances, and best resolved on briefing to a single

court that has gained familiarity with the intricacies of

Plaintiffs’ dozens of digital firearms files and background

materials that could be published to the internet and in

New Jersey. There is no obvious efficiency advantage,

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Appendix G

much less materially enhanced judicial economy from

forcing Defense Distributed’s case into two separate cases.

The necessity of denying severance conjoined with

transfer is confirmed by proper application of Rolls

Royce and Liaw Su Teng. In addition, the district court’s

separate and independent Rule 21 severance and Section

1404 transfer analyses are plagued with error and

therefore alone justify the rebuke of mandamus. We turn

first to severance.

B. Severance

In the Fifth Circuit, the accepted basis for Rule 21

severance analysis considers five factors: (1) whether

claims arise out of the same transaction, occurrence,

or series of transactions or occurrence; (2) whether

the claims present common questions of law or fact; (3)

whether settlement of the claims or judicial economy

would be facilitated; (4) whether prejudice would be

avoided if severance were granted; and (5) whether

different witnesses and documentary proof are required

for the separate claims.” See Rolls Royce, 775 F.3d at 680;

Paragon Office Servs., LLC v. UnitedHealthcare Ins.

Co., 2012 U.S. Dist. LEXIS 138217, 2012 WL 4442368,

(N.D. Tex. Sept. 26, 2012); Parker v. Louisiana Dep’t of

Pub. Safety & Corr., 2019 U.S. Dist. LEXIS 176879, 2019

WL 5103811 (M.D. La. Oct. 11, 2019); Calhoun v. WA

DHS Child Support Div., 2018 U.S. Dist. LEXIS 97383,

2018 WL 2865315 (N.D. Tex. June 11, 2018); Pouncie v.

Dlorah, Inc., 2015 U.S. Dist. LEXIS 118233, 2015 WL

5178401 (N.D. Tex. Sept. 4, 2015); Cty. of Travis v. Purdue

264a

Appendix G

Pharma, LP, 2018 U.S. Dist. LEXIS 51522, 2018 WL

1518848 (W.D. Tex. Mar. 28, 2018).

First, as has been explained, the district court

misconstrued the Second Amended Complaint. Relevant

to the severance factors, it erroneously found that

there was no common transaction or occurrence or

series of transactions or occurrences giving rise to the

Plaintiffs’ claims against the Defendants. The district

court compounded its error by stating that “the parties

all acknowledge that the Washington Suit” had nothing

to do with the settlement agreement between Defense

Distributed and the State Department. This assertion

is contradicted by the record. As the NJAG put it in

his complaint in the Washington lawsuit, “in sum, the

Government’s covert agreement to deregulate the CAD files

by way of the Settlement Agreement—which culminated

in the enactment of the “temporary modification” on July

27, 2018—are final agency decisions that not only failed to

comply with procedural requirements, but that have farreaching implications for national security and the safety

and security of the State and people of Washington.” The

district court for the Western District of Washington also

stated that at the heart of its decision to grant a TRO,

as requested by the NJAG, was the manner in which the

State Department entered into and followed through on

its settlement agreement with Defense Distributed. State

v. United States Dep’t of State, 315 F. Supp. 3d 1202,

1205 (W.D. Wash. 2018). Defense Distributed’s claims

against both Defendants fundamentally concern the State

Department’s settlement agreement and the NJAG’s

efforts after it was signed to prevent its meaningful

265a

Appendix G

implementation. The interference claims against the

NJAG cannot be proven without initial proof that the

settlement agreement was breached. These transactions

and occurrences both perpetuated the violation of

Plaintiffs’ First Amendment rights. The occurrences and

transactions involved in Plaintiffs’ principal claims are

thus logically, factually, and temporally inextricable. 22

The district court also misapplied the second factor

of the severance analysis in determining that Plaintiffs’

claims do not involve common issues of law or fact. The

court put the matter exactly backward, as it stated that

although “many of Plaintiff’s claims” arise from alleged

First Amendment violations, “this is not the case for all of

Plaintiffs’ claims....” To the contrary, a court is required to

determine whether “there is at least one common question

of law,” not whether all of the claims in a case involve the

same question of law. Acevedo v. Allsup’s Convenience

22. The district court asserted that the claims against the

NJAG largely stem from the 2018 cease-and-desist letter, public

comments by the NJAG directed at dissemination of Plaintiffs’

materials in New Jersey, and the law that criminalizes such

dissemination. This is correct only to the extent that it highlights

the similarity in Plaintiffs’ First Amendment claims against both

Defendants, which, though based on different facts, center on the

same publishable materials and demand uniform resolution.

Further, although we need not consider whether the NJAG is

a necessary party to the litigation in the court below, see Fed. R.

Civ. P. 19, he and his officials are plainly material witnesses to the

Washington litigation, and the State Department’s assertions that

its settlement may have been motivated by actions of the NJAG

cannot be discounted.

266a

Appendix G

Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010). Further,

the district court incorrectly analyzed “judicial economy”

as applied to joint severance and transfer motions:

according to Rolls Royce and Liaw Su Teng, severance

is inappropriate where two parties are as inextricably

entwined in the litigation as these defendants.

The NJAG’s and district court’s other assertions about

the efficiency benefits from severance ring particularly

hollow in light of the course of the litigation. For example,

bifurcation and transfer of the case, the district court

states, would be an economical act since there is already

a case in New Jersey dealing with separate claims

against the NJAG by Defense Distributed. But Defense

Distributed brought that case as a self-protective measure

only after the district court below had (erroneously)

dismissed the NJAG from suit in the Western District of

Texas. The district court cannot claim judicial efficiency

is furthered when its decision directly caused the

inefficient filing of that second suit. Nor is the timing of

the district court’s severance/transfer order persuasive,

as it followed directly on the heels of this court’s decision

upholding jurisdiction in the Western District of Texas.

Judicial economy is also less than credibly asserted

by the NJAG, who chose to travel to the West Coast to

pursue its campaign against Defense Distributed while

simultaneously defending this case and pursuing litigation

and other measures in New Jersey. The multiplication of

venues has disserved judicial economy. At this point, after

essentially seven years of litigation in Texas and at least

two other venues over Defense Distributed’s publications,

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Appendix G

to split this case into two parallel litigation tracks before

two courts is beyond inefficient. 23

The above discussion also shows why the court

erred in regard to the final relevant factor involved in

its severance analysis: finding no prejudice to Defense

Distributed by splitting its case. 24 See Acevedo, 600 F.3d

at 521. The court’s legal and factual errors so permeate its

severance order as to render it a clear abuse of discretion.

C.

Transfer Order

Because the severance order was a clear abuse of

discretion, the district court likewise “lacked authority

23. The final factor in severance analysis, whether the claims

require different witnesses and sources of proof, is neutral.

Plaintiffs will have to make the same proof in two proceedings

about the protected nature of its information, while there is only

some overlap between the witnesses for defendants.

24. The district court embroiders its reasoning on prejudice

by implying that Plaintiffs’ challenge to NJ Stat. Sec 2C:39-9(l)

(2), a claim explicitly pled in their Second Amended Complaint,

would fail for lack of personal jurisdiction over the NJAG. We

do not agree. Plaintiffs’ original allegations included threats by

the NJAG to prosecute Defense Distributed and Cody Wilson to

the maximum extent allowed by state law. That the legislature

added a particular device to enhance such prosecution, in the

form of a criminal statute passed during the pendency of this

case, is comprehended in the scope of the original complaint

and the briefing in the district court and this court. And finally,

as we noted in the previous opinion, the NJAG waived personal

jurisdiction by not asserting that defense. Def. Distributed v.

Grewal, 971 F.3d at 496.

268a

Appendix G

. . . to transfer a portion of the single action . . . for one

purpose while retaining jurisdiction over the remainder.”

Chrysler Credit Corp., 928 F.2d at 1519; In re Nine Mile

Ltd., 673 F.2d at 244. But even setting aside severance

as impermissible, any transfer of this case, in whole or in

part, constitutes an abuse of the district court’s discretion.

A party seeking a transfer under Section 1404(a)

“must show good cause” by “clearly demonstrat[ing] that a

transfer is ‘[f]or the convenience of parties and witnesses,

in the interest of justice.’” In re Volkswagen of Am.,

Inc., 545 F.3d 304, 315 (5th Cir. 2008) (quoting 28 U.S.C.

§ 1404(a)) (emphasis added). “When the transferee venue

is not clearly more convenient than the venue chosen by

the Plaintiff, the Plaintiff’s choice should be respected.” Id.

When a defendant is haled into court, some inconvenience

is expected and acceptable. Assuming that jurisdiction

exists and venue is proper, the fact that litigating would

be more convenient for the defendant elsewhere is not

enough to justify transfer. In other words, the standard

is not met by showing one forum is more likely than not

to be more convenient, but instead the party must adduce

evidence and arguments that clearly establish good cause

for transfer based on convenience and justice. See e.g. id.

314-315.

Courts are required to assess four private interest

factors and four public interest factors pertinent to

a transfer motion. See In re Volkswagen, 545 F.3d at

315. The private interest factors are: “(1) the relative

ease of access to sources of proof; (2) the availability of

compulsory process to secure the attendance of witnesses;

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Appendix G

(3) the cost of attendance for willing witnesses; and (4) all

other practical problems that make trial of a case easy,

expeditious and inexpensive.” Id. The public interest

factors are discussed below. As with its discussion of

Rule 21 severance, the district court abused its discretion

factually and legally in weighing the transfer factors

against the standard.

Regarding the first private interest factor, the movant

has the burden to establish good cause, which requires an

actual showing of the existence of relevant sources of proof,

not merely an expression that some sources likely exist

in the prospective forum. In re Volkswagen, 545 F.3d at

315. Here, however, the district court erred by uncritically

accepting the NJAG’s conclusory assertions that “the

sources of proof relevant to these issues (including any

non-party witnesses) are all in New Jersey.” Defense

Distributed, 1:18-cv-00637, Dkt. 121, at 15-16, 2021 U.S.

Dist. LEXIS 81707 (W.D. Tex.); See e.g. Hammers v.

Mayea-Chang, 2019 U.S. Dist. LEXIS 213039, 2019 WL

6728446, at *7 (E.D. Tex. Dec. 11, 2019). The NJAG’s

conclusory assertions lack that necessary proof, while the

Plaintiffs identified proof, documents, and witnesses that

are located in Texas and support maintaining Texas as the

forum. 25 Weighing the first factor as “neutral” in the face

25. For example, Defense Distributed provided details

on how its activities, including research, design, development,

manufacturing, and publishing, occurred in and around Austin,

and how it also published the same computer files with digital

firearms information at a brick-and-mortar public library in

Austin, Texas by hosting the computer files in formats that patrons

could access via computer workstations. The computer servers on

270a

Appendix G

of the NJAG’s lack of proof and Plaintiffs’ proffer abused

both logic and the court’s discretion. Additionally, the

district court legally erred by introducing a “prejudice”

consideration into the first factor. The first private interest

factor does not ask whether a transfer would “prejudice”

the non-moving party, but which forum provides easier

access to sources of proof. Volkswagen, 545 F.3d at 315.

Access to compulsory process for non-party witnesses

is the gravamen of the second private interest factor. See

e.g. Garrett v. Hanson, 429 F. Supp. 3d 311, 318 (E.D. Tex.

2019). Neither the NJAG nor the district court identified

any witness who is subject to compulsory process in New

Jersey but not in Texas. Yet the court inexplicably weighed

this factor not as neutral but in favor of transfer. “To

show good cause[, however] means that a moving party

. . . clearly demonstrates” the appropriateness of transfer.

Where there is no demonstration by the movant, let alone

a clear one, the court cannot weigh a factor against the

non-movant and in favor of transfer. Besides lacking

support in the record, the district court’s weighing of

this factor in favor of New Jersey does not “reflect[] the

appropriate deference to which the Plaintiff’s choice of

venue is entitled,” In re Volkswagen, 545 F.3d at 315. 26

The fourth private interest factor addresses “all

other practical problems that make trial of a case easy,

which Defense Distributed hosts these files for publication to the

internet are also located in Texas.

26. The third private interest factor, concerning the cost for

willing witnesses, is agreed to be neutral, as the district court

found.

271a

Appendix G

expeditious and inexpensive.” In re Volkswagen, at 315.

The district court weighed this factor in favor of the NJAG

because absent transfer, it would have to decide whether

it has personal jurisdiction over the NJAG to adjudicate

Defense Distributed’s allegedly newly raised claim

challenging the constitutionality of NJ Stat. § 2C:39-9(l)

(2). But as we discussed above that issue is not so novel as

to require a separate analysis of personal jurisdiction. The

district court itself previously recognized that “the instant

action concern[ed]” The NJAG’s “criminal enforcement

actions,” such as “threatening to enforce a criminal law

against Defense Distributed.” 364 F.Supp. 3d, at 686. 27

The public interest factors bearing on transfer are:

“(1) the administrative difficulties flowing from court

congestion; (2) the local interest in having localized

interests decided at home; (3) the familiarity of the

forum with the law that will govern the case; and (4) the

avoidance of unnecessary problems of conflict of laws [or

in] the application of foreign law.” See In re Volkswagen,

at 315. No party disputes that the first factor is neutral.

As an initial matter, the district court erroneously

treated the second and the third factors together. The

district court reasoned that because some of Plaintiffs’

claims against the NJAG implicate New Jersey’s criminal

law, § 2C:39-9(l)(2), the District of New Jersey has a

27. And this court noted that Plaintiffs’ claims encompass

the “criminal actions” that the NJAG threatened “at a live press

conference.” Defense Distributed, 971 F.3d at 489. Appellants’

brief to this court confirms that Section 2C:39-9(l)(2) was the sole

legal basis for the threats.

272a

Appendix G

greater interest in testing the constitutionality of that

statute and is better equipped than Texas courts to

evaluate it. The two factors, however, are distinct in the

law for good reason.

The second public interest factor, which focuses on the

local interest in having localized interests decided at home,

“most notably regards not merely the parties’ significant

connections to each forum writ large, but rather the

significant connections between a particular venue and

the events that gave rise to a suit.” In re Apple Inc., 979

F.3d 1332, 1345 (Fed. Cir. 2020). Important considerations

include the location of the injury, witnesses, and the

Plaintiff’s residence. See Volkswagen, 545 F.3d at 317-18;

Zurich Am. Ins. Co. v. Tejas Concrete & Materials Inc.,

982 F. Supp. 2d 714, 727 (W.D. Tex. 2013). Indeed, “[t]he

place of the alleged wrong is one of the most important

factors in venue determinations.” Watson v. Fieldwood

Energy Offshore, LLC, 181 F. Supp. 3d 402, 412 (S.D.

Tex. 2016).

Texas’s “local interest in having [the] localized

interests” this case implicates “decided at home” cannot be

overstated. Volkswagen, 545 F.3d at 315. The controversy

over New Jersey’s statute is not “localized” to New Jersey.

The AG has “projected himself across state lines and

asserted a pseudo-national executive authority” in Texas

by seeking “to bar Defense Distributed from publishing

its materials anywhere,” chilling its speech, and reducing

“Texans’ access to [its] materials.” Grewal, 971 F.3d at

492-95. In these circumstances, the aggressor state’s

interest is considerably diminished because the Texas

273a

Appendix G

court’s ruling will have no direct effect on New Jersey’s

citizens. If § 2C:39-9(l)(2) were declared unconstitutional

in this litigation, that ruling would preclude the NJAG’s

enforcing the statute against these Plaintiffs. At least the

NJAG would not necessarily be prevented from enforcing

the law in New Jersey. Thus, the strength of New Jersey’s

interest in having this case decided at home is considerably

less than that of Texas citizens whose primary recourse,

as targets of this litigation in Texas, is a suit in Texas.

And Texas courts have a significant interest in assessing

the constitutionality and extraterritorial impact of New

Jersey’s criminal law 28 , especially a law that criminalizes

speech.

The familiarity of the forum with the law that will

govern the case was also improperly weighed in favor

of New Jersey. “Federal judges routinely apply the law

of a State other than the State in which they sit....” This

court is “not aware of any exceptionally arcane features

of Texas, [New Jersey, or constitutional law,] that are

likely to defy comprehension by a federal judge sitting

in [Texas].” Atl. Marine Const. Co. v. U.S. Dist. Ct. for

W. Dist. of Texas, 571 U.S. 49, 67-68, 134 S. Ct. 568, 584,

187 L. Ed. 2d 487 (2013). Moreover, New Jersey courts’

familiarity with New Jersey law produces no meaningful

efficiency rendering New Jersey a more convenient forum.

Defense Distributed pursues no claims arising under

New Jersey law. Plaintiffs’ challenge to Section 2C:39-9(l)

28. The New Jersey statute applies extraterritorially

because it criminalizes “distribution” of speech into the state, and

“distribute” is defined to include any act of “mak[ing] available

via the internet or by any other means.” N.J. Stat. 2C:39-9(l)(2).

274a

Appendix G

(2) is founded in the First Amendment and the extreme

breadth of this criminal law, which purports to render

illegal any speech that reaches the state from other states.

Plaintiffs lodge other claims against the NJAG predicated

on other federal constitutional provisions. Thus, the Texas

court’s superior familiarity with Defense Distributed’s

Texas law claims, and the fact that the New Jersey court

would be bound to Texas law concerning such claims, see

Country Chrysler, 928 F.2d at 1516, more than offsets any

efficiencies that might be gained from New Jersey courts’

familiarity with New Jersey law.

The last public interest factor seeks to avoid

“unnecessary problems of conflict of laws [or in] the

application of foreign law.” Volkswagen, 545 F.3d at

315. There are no risks of such a conflict here. Defense

Distributed brought primarily federal law claims; and the

state law claims involve Texas law, not New Jersey law.

The district court repeatedly weighed the transfer

factors against Plaintiffs by asserting that they could

not be disadvantaged by transfer because they had

“voluntarily” instituted additional litigation in New

Jersey covering similar issues against the NJAG. This is

incredible. Plaintiffs filed suit in New Jersey only because

this district court had erroneously closed the door to their

suit in Western District of Texas. The currently stayed

litigation in New Jersey has no legitimate bearing against

Plaintiffs’ original choice of forum.

Correctly assessed, the NJAG did not carry its

burden to clearly demonstrate that transfer is clearly

275a

Appendix G

more appropriate than the Plaintiffs’ choice of forum.

The district court erred legally and factually in virtually

every aspect of this issue, and its decision, which has

unnecessarily lengthened this litigation even more,

represents a clear abuse of discretion for which mandamus

is an appropriate remedy.

CONCLUSION

For the foregoing reasons, we conclude that the

district court’s order severing and transferring of the

claims against the NJAG to the District of New Jersey was

a clear abuse of discretion giving rise to an appropriate

exercise of the court’s mandamus power.

A writ of mandamus shall issue herein directing the

district court to:

(1) Vacate its order dated April 19, 2021 that severed

Defense Distributed’s claims against the NJAG and

transferred them to the United States District Court for

the District of New Jersey;

(2) Request the District of New Jersey to return the

transferred case to the Western District of Texas, Austin

Division; and,

(3) A f t er retu r n, t o reconsol idat e Defense

Distributed’s case against the NJAG back into the case

still pending against the State Department.

The petition for w r it of mandamus is hereby

GRANTED.

276a

Appendix G

Stephen A. Higginson, Circuit Judge, dissenting:

“Countless ex pressions ca n be found i n the

jurisprudence to support the black-letter proposition that

mandamus is an extraordinary remedy for extraordinary

causes.” United States v. Denson, 603 F.2d 1143, 1146

(5th Cir. 1979) (Rubin, J.). The Supreme Court cautioned

long ago that “[m]andamus, prohibition and injunction

against judges are drastic and extraordinary remedies

. . . reserved for really extraordinary causes.” Ex parte

Fahey, 332 U.S. 258, 259-60, 67 S. Ct. 1558, 91 L. Ed. 2041

(1947). As we have said,

In recognition of the extraordinary nature of

the writ, we require more than showing that the

court misinterpreted the law, misapplied it to

the facts, or otherwise engaged in an abuse of

discretion. And even reversible error by itself

is not enough to obtain mandamus. Rather,

we limit mandamus to only “clear abuses of

discretion that produce patently erroneous

results.”

In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290 (5th

Cir. 2015) (quoting In re Volkswagen of Am., Inc., 545 F.3d

304, 310 (5th Cir. 2008)).

Today, the majority uses that extraordinary remedy

to reverse a district court’s discretionary transfer order,

ruling that it was a clear abuse of discretion.1 This

1. If it takes us more than half a year to explain what the

district court did wrong, it is doubtful the court’s error was a clear

abuse of discretion. See Volkswagen, 545 F.3d at 311.

277a

Appendix G

district court’s interest-of-justice grant of transfer is not

extraordinary cause, and compelling it to be undone is

our indisputable error, for many reasons.

First, Plaintiffs-Appellants Defense Distributed, the

Second Amendment Foundation and Conn Williamson

(hereafter DDSA) never properly requested the mandamus

relief the majority has issued. Compare Fed. R. A pp. P.

21(a), with Notice of Appeal, Defense Distributed, No.

21-50327 (5th Cir. Apr. 23, 2021), and Brief of Appellants,

Defense Distributed, No. 21-50327 (5th Cir. June 17, 2021).

And as DDSA acknowledged in oral argument, they could

not point to any reviewing court that has ever, before

today, deployed mandamus authority to compel a trial

court to undo a Section 1404(a) discretionary, interest-ofjustice, joint severance and transfer grant. Oral Argument

at 4:48, Defense Distributed, No. 21-50327 (5th Cir. Aug.

3, 2021). 2

2. The majority cites four cases from three of our sister

circuits in which a § 1404(a) transfer was reversed on mandamus.

None reversed a grant of joint severance and transfer, and each is

further distinguishable. In In re Warrick, the reversal was based

on the fact that the district court completely failed to consider

one of the § 1404(a) factors and transfer would have unavoidably

brought about dismissal of the claim. 70 F.3d 736, 740-41 (2d Cir.

1995). In In re Nine Mile Ltd., the Eighth Circuit reversed the

transfer grant only so that the district court could rule on the

pending motion to reconsider transfer and the petitioner could

seek review of that decision prior to actual transfer of the case.

673 F.2d 242, 243-44 (8th Cir. 1982). In Sunbelt Corp. v. Noble,

Denton & Assocs., Inc., there were two defendants, one of which

was not subject to personal jurisdiction in the transferee court. 5

F.3d 28, 29, 33 (3d Cir. 1993). The Third Circuit denied the request

278a

Appendix G

A second obstacle is that our court has no authority to

compel a federal district court in New Jersey to return a

case it received and docketed on April 20, 2021, above all

when, over seven weeks later, unopposed by DDSA, that

district court took the additional step of consolidating the

case it received with its pre-existing, parallel litigation,

which DDSA itself filed in 2019. See In re Red Baron

Motors, Inc., 794 F.3d 481, 484-85 (5th Cir. 2015). Here is

the pertinent chronology: After the district court granted

the motion to transfer, DDSA did not, in district court,

seek a stay or reconsideration. Nor did DDSA immediately

seek mandamus of the district court’s transfer order, see

Notice of Appeal, Defense Distributed v. Grewal, No.

21-50327 (5th Cir. Apr. 23, 2021), and, in its initial filings

in this court, DDSA explicitly disclaimed intention to

“enjoin anything about the interlocutory transfer or

severance rulings below,” Appellants’ Reply in Support of

Appellants’ Motion for a Preliminary Injunction, Defense

Distributed, No. 21-50327 (5th Cir. June 21, 2021). DDSA

did not ask the New Jersey district court to return the

case to the Western District of Texas, nor did they

oppose consolidation with the pre-existing New Jersey

case. Hearing no opposition from DDSA, the New Jersey

district court then consolidated the cases in that court.

That was over half a year ago.

of the defendant who was subject to personal jurisdiction in the

transferee court to sever the case and transfer only as to it. Id. at

33-34. In In re Howmedica Osteonics Corp., reversal of transfer

as to some defendants was based on a forum selection clause, and

the court severed the parties and affirmed the transfer only as

to those defendants not subject to the forum selection clause. 867

F.3d 390, 397-98, 411 (3d Cir. 2017).

279a

Appendix G

Third, even if all we order of our district court is a

request to transfer the case back to Texas—so that we

can resolve a constitutional showdown between New

Jersey law and 3D-printed weaponry—and assuming our

court can sua sponte reconfigure an appellant’s notice

of appeal into a non-conforming mandamus petition,

still, here, the district judge painstakingly applied the

Volkswagen transfer factors, which we set forth with the

(short-lived) promise (“we stress”) that “in no case will

we replace a district court’s discretion with our own.” 545

F.3d at 312. The district court’s Volkswagen analysis is

so comprehensive and well-reasoned as to show that had

transfer been refused, a writ for mandamus to compel

transfer would be well supported by the settled precedent

of this court, see Lloyd’s, 780 F.3d 283, In re Rolls Royce

Corp., 775 F.3d 671 (5th Cir. 2014); In re Radmax, Ltd.,

720 F.3d 285 (5th Cir. 2013); Volkswagen, 545 F.3d 304,

which other courts follow and scholars credit, see In re

McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 57

(3d Cir. 2018) (citing Lloyds); In re Hudson, 710 F.3d 716,

717-18 (7th Cir. 2013) (Posner, J.) (citing Volkswagen); In

re Apple, Inc., 602 F.3d 909, 911-12 (8th Cir. 2010) (citing

Volkswagen); In re: Apple, No. 2021-181, 2021 U.S. App.

LEXIS 33788, 2021 WL 5291804, at *2 (Fed. Cir. Nov.

15, 2021); In re: Hulu, LLC, No. 2021-142, 2021 U.S. App.

LEXIS 22723, 2021 WL 3278194, at *2 (Fed. Cir. Aug. 2,

2021); 55 John Bourdeau Et A l., C.J.S. M andamus § 97

(2021).

Notably, severance is not only discretionary and

tied to case management prerogatives, but it is not

itself subject to review through a writ of mandamus. At

280a

Appendix G

all. See In re Rolls Royce, 775 F.3d at 676. And though

Rolls Royce held that a district court’s ruling on a joint

transfer and severance motion may be reviewed through

mandamus, neither DDSA nor the majority opinion cites

any mandamus case, ever, reversing a grant of a joint

severance and transfer motion. Constructed for DDSA,

the novel argument—opposite to indisputable—appears

to be that New Jersey is a necessary party because the

United States Department of State somehow was its pulltoy, allegedly breaching a settlement agreement whose

provisions plaintiffs could not specify at oral argument as

having been breached, much less that New Jersey caused

the federal government to breach. Manifestly, New Jersey

has no role in United States weapons export regulations.

Several additional points highlight our usurpation.

First, the district court here transferred to a court

whose intercession these same plaintiffs had already

sought, had argued on appeal in the Third Circuit to

maintain, and thereafter had kept pending for over two

years. In other words, the transfer was to a receiving court

which had pre-existing jurisdiction over these plaintiffs’

claims, at their initiation and insistence.

Second, that transfer was back to a court within the

only federal circuit authorized to certify questions of

interpretation of New Jersey law to the Supreme Court

of New Jersey, which could interpret that law to avoid,

not force, a novel and difficult constitutional showdown.

See N.J. Court Rules 2:12A-1. Notably, the Supreme

Court recently reversed our court when we tried to

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Appendix G

force resolution of a different First Amendment collision

without deferring first to one of our states’ highest court’s

prerogative to interpret its own law. McKesson v. Doe, 141

S. Ct. 48, 208 L. Ed. 2d 158 (2020). 3

A third related, especially serious point is that

removing discretion to grant transfer undermines our

court’s mandamus transfer precedent, which, hitherto,

we have used to require comity, not defy it. And it does

so imprudently, forcing a constitutional collision that may

well be avoidable through certification of questions of state

law, which we cannot do but the receiving circuit can.

Hereafter, as to other transfer grants, our mandamus,

discordantly, will reduce or remove trial judge discretion

3. The intimation is made that transfer should be undone,

in part, because New Jersey has intentionally delayed this

litigation. As noted, we have not acted promptly ourselves, on a

case docketed in another circuit nearly a year ago and as to a point

of law the majority now, with no precedent, says is so obvious as

to be indisputable. Regardless, sufficient answer to innuendo is

that this litigation, over whether governments have authority to

regulate 3D printable weaponry, commonly known as “ghost guns,”

has spanned three circuits for over a decade, without any court

of original jurisdiction—courts with actual fact-finding authority

over lawyers before them—even hinting of bad faith, much less

making findings to support our ire. In fact, to my knowledge, the

defendants have prevailed in every district court so far, not to

mention twice in this court, Defense Distributed v. U.S. Dep’t of

State, 947 F.3d 870 (5th Cir. 2020); Defense Distributed v. U.S.

Dep’t of State, 838 F.3d 451 (5th Cir. 2016), and before the Third

and Ninth Circuits, see Defense Distributed v. Att’y Gen of N.J.,

972 F.3d 193 (3d Cir. 2020); State v. U.S. Dep’t of State, 996 F.3d

552 (9th Cir. 2021).

282a

Appendix G

to avoid adjudicating the constitutionality of other states’

laws.

Finally, we commit not just an error we told our

district courts in Volkswagen would not occur, but another

one we took pains earlier in this litigation to cabin against.

See Defense Distributed v. Grewal, 971 F.3d 485, 496 (5th

Cir. 2020). Hereafter, state attorneys general, including

those within our own circuit, may not only be hailed into

federal courts across the country to defend their state

laws, but then, if a trial judge assesses interests of justice

to favor transfer—say for consolidation with related

claims already pending in a co-equal court whose circuit

has certification authority—that is indisputable error.4

Consistent with the New Jersey Attorney General’s

express and emphatic denials, twice to our panel, that

it seeks to enforce New Jersey law in Texas, the record

is devoid of enforcement measures, such as a takedown

order or criminal prosecution, against DDSA. Indeed, the

parties point to no prosecution even in New Jersey using

New Jersey’s new law, yet the majority rules today that

mandamus lies to force New Jersey to defend its new law

for the first time in Texas. Because this precedent, now

binding as indisputable, does injury to state sovereignty

and comity, not to mention district court case management

4. Cf. Response Brief of Defendant-Appellee Ken Paxton

in His Official Capacity as Attorney General of Texas at 10-11,

Twitter v. Paxton, 26 F.4th 1119 (9th Cir. 2022) (No. 21-15869)

(“Where, as here, the Attorney General of a sovereign State is sued

for actions to enforce that State’s law in that State, there is ‘only

one obvious locus’ for any constitutional challenge: in that State.”).

283a

Appendix G

discretion, it is small comfort that there is a pending

dismissal motion filed by the Department of State which,

if granted, may lead to re-transfer, albeit after further,

up-down delay protracted by us.

Also specific to this case, it is small comfort that the

most we compel is a request, which the New Jersey federal

district court no doubt will seriously consider, informed by

comity and state law priorities set forth by the Supreme

Court, as well as by its own assessment of whether

litigation resolving New Jersey law should be decided in

Texas as well as delayed and encumbered by the national

security interests implicated in the federal government’s

overseas export munitions restrictions, which are at the

heart of the litigation in the Western District of Texas.

Mandamus rulings announce law inflexibly. Here,

without precedent, our court, seemingly impatient for

the last half decade, to force a difficult First (Second?)

Amendment clash over government regulation of 3D

printable “ghost” weapons, supplants district courts’

long-standing, fact-specific case management discretion

to transfer litigation for consolidation with an existing

case in another circuit, in derogation of state sovereignty,

comity and constitutional avoidance principles, contrary

to instruction given to us by the Supreme Court just last

year.

284a

APPENDIX H —Appendix

ORDER H

OF THE UNITED

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF TEXAS, AUSTIN DIVISION,

FILED APRIL 13, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

1:18-CV-637-RP

DEFENSE DISTRIBUTED AND SECOND

AMENDMENT FOUNDATION, INC.,

Plaintiffs,

v.

ANDREW J. BRUCK, ACTING ATTORNEY

GENERAL OF NEW JERSEY, IN HIS OFFICIAL

AND INDIVIDUAL CAPACITIES, et al.,

Defendants.

Filed April 13, 2022

ORDER

Before the Court is the Judgment and Mandate of

the United States Court of Appeals for the Fifth Circuit

remanding Plaintiffs’ Notice of Appeal, (Dkt. 146).

(Judgment, Dkt. 171).

285a

Appendix H

Pursuant to the Fifth Circuit Judgment, IT IS

ORDERED that the Court’s April 19, 2021, Order, (Dkt.

145), severing Defense Distributed’s claims against the

New Jersey Attorney General and transferring them to

the United States District Court for the District of New

Jersey, is VACATED.

Additionally, pursuant to the Fifth Circuit’s Judgment,

the Court requests the District of New Jersey to return

the transferred case to the Western District of Texas,

Austin Division, to be reconsolidated with this matter.

SIGNED on April 13, 2022.

/s/ Robert Pitman

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

286a

I THE UNITED

APPENDIX I — Appendix

ORDER OF

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF TEXAS, AUSTIN DIVISION,

FILED JULY 22, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

1:18-CV-637-RP

DEFENSE DISTRIBUTED AND SECOND

AMENDMENT FOUNDATION, INC.,

Plaintiffs,

v.

ANDREW J. BRUCK, ACTING ATTORNEY

GENERAL OF NEW JERSEY, IN HIS OFFICIAL

AND INDIVIDUAL CAPACITIES, et al.,

Defendants.

Filed July 22, 2022

ORDER

Before the Court are Plaintiffs Defense Distributed and

Second Amendment Foundation’s (together, “Plaintiffs”)

Motion for Preliminary Injunction, (Dkt. 174), and Motion

to Grant as Unopposed or Set a Hearing, (Dkt. 175).

On April 1, 2022, the judgment and mandate of the

Fifth Circuit was entered in this matter. (Dkt. 171). In

287a

Appendix I

its order, the Fifth Circuit determined that a portion of

this case was improperly severed and transferred to the

District of New Jersey. (Id. 4). The Court directed the

undersigned to “request retransfer from its counterpart

in New Jersey.” (Id. at 4). The undersigned did so by

notice filed on April 13, 2022. (Dkt. 172). As of the date

of this order, the case has not been retransferred to this

Court. Accordingly, the New Jersey Attorney General is

not currently a party to this case.

Given the unusual procedural posture of this case, the

Court remains mindful of the limits on its jurisdiction. (See

Dkt. 171, at 8 (“[The Fifth Circuit] lacks power to order

a return of the case to our circuit.”); see also In re Red

Barn Motors, Inc., 794 F.3d 481, 484 (5th Cir. 2015) (“It

seems uncontroversial in this situation that a transfer to

another circuit removes the case from our jurisdiction.”)).

Absent contrary authority, the Court understands that

it lacks jurisdiction to consider claims against the New

Jersey Attorney General in this matter. Having no power

to adjudicate these motions, the Court must dismiss them.

Accordingly, IT IS ORDERED that Plaintiffs’

Motions for Preliminary Injunction, (Dkt. 174), and to

Grant as Unopposed or Set a Hearing, (Dkt. 175), are

DISMISSED.

SIGNED on July 22, 2022.

/s/ Robert Pitman

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

288a

Appendix

J

APPENDIX J — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 16, 2022

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 22-50669

DEFENSE DISTRIBUTED; SECOND

AMENDMENT FOUNDATION, INCORPORATED,

Plaintiffs—Appellants,

versus

ANDREW J. BRUCK, ATTORNEY GENERAL OF

NEW JERSEY, IN HIS OFFICIAL CAPACITY,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CV-637

Filed September 16, 2022

Before Elrod, Graves, and Ho, Circuit Judges.

Per Curiam:

IT IS ORDERED that Appellants’ motion to expedite

the instant appeal is GRANTED. The Clerk is directed

289a

Appendix J

to schedule this appeal for oral argument before the next

available randomly designated regular merits panel.

IT IS FURTHER ORDERED that all pending

motions are CARRIED WITH THE CASE.

James C. Ho, Circuit Judge, joined by Elrod, Circuit

Judge, concurring:

In Defense Distributed v. Bruck, 30 F.4th 414 (5th

Cir. 2022), we held that the Western District of Texas was

wrong to sever the case against the Attorney General of

New Jersey and transfer it to the District of New Jersey.

Our decision was accompanied by a well-reasoned dissent

from a distinguished colleague. But it is now the law of the

circuit as well as the case.

We can think of no substantive reason—and none has

been offered to us—why this case should nevertheless

proceed in New Jersey rather than Texas, other than

disagreement with our decision in Defense Distributed.

The Attorney General of New Jersey confirmed as much

during oral argument.

So we respectfully ask the District of New Jersey to

honor our decision in Defense Distributed and grant the

request to return the case back to the Western District

of Texas—consistent with the judiciary’s longstanding

tradition of comity, both within and across the circuits, as

repeatedly demonstrated by district courts nationwide.

Federal courts across America have repeatedly

granted requests to return cases back to the original

290a

Appendix J

transferring court, whether the request comes from a

fellow Article III court or even from a litigant. Examples

of such judicial courtesy include, but are far from limited

to, federal courts governing New Jersey and Texas. See,

e.g., In re United States, 273 F.3d 380, 382 n.1 (3rd Cir.

2001) (“We are most appreciative of Judge Campbell’s

accommodation, which enabled this court to consider

the matter and prevented an unseemly tension between

federal jurisdictions.”); CCA Glob. Partners, Inc. v. Yates

Carpet, Inc., 2005 WL 8159381, *2 (N.D. Tex. 2005) (“This

Court will not stand in the way of another district court

attempting to correct what it believes to have been an error

made while the case was under its jurisdiction. Thus, this

Court finds that in the interest of justice, the case should

be transferred back to the Eastern District of Missouri.”).1

This tradition of inter-circuit courtesy should surprise

no one. After all, it’s an easy tradition to respect. These

cases originated elsewhere, and only ended up in the

transferee court as a result of mistake. So the act of

1. See also, e.g., In re Nine Mile Ltd., 692 F.2d 56, 57–58 (8th

Cir. 1982) (request granted returning case from the District of

South Carolina to the Northern District of Iowa), overruled on

other grounds by Mo. Housing Development Comm’n v. Brice, 919

F.2d 1306, 1311 (8th Cir. 1990); Fine v. McGuire, 433 F.2d 499,

500 & n.1 (D.C. Cir. 1970) (request granted returning case from

the District of Maryland to the District of Columbia); United States

v. Petty, 2022 WL 1590609, *3 (W.D.N.Y. 2022) (granting request

to return case to the Western District of Pennsylvania); Tlapanco

v. Elges, 2017 WL 4329789, *3 (S.D.N.Y. 2017) (case stayed in the

Eastern District of Michigan pending reconsideration of transfer);

Herman v. Cataphora Inc., 2013 WL 275960, *2 (N.D. Cal. 2013)

(transferring case back to the Eastern District of Louisiana).

291a

Appendix J

courtesy costs the transferee court nothing. In sum,

there’s every reason in the world for district courts

across the country to avoid, as the Third Circuit has put

it, “unseemly tension between federal jurisdictions.” In

re United States, 273 F.3d at 382 n.1.

So we’re unsurprised that such courtesy appears to

be routine practice in district courts nationwide. In fact,

we’re unaware of any district court anywhere in the nation

to have ever denied such a request. The parties admit they

have not found any. We see no reason why this case should

be the first.

* *

*

We respectfully ask the District of New Jersey

to return the case to the Western District of Texas as

requested, and thereby join its sister district courts

nationwide in this act of inter-district comity, mutual

respect, and courtesy.

292a

Appendix

K UNITED STATES

APPENDIX K — OPINION

OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED DECEMBER 15, 2022

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 22-50669

DEFENSE DISTRIBUTED; SECOND

AMENDMENT FOUNDATION, INCORPORATED,

Plaintiffs—Appellants,

versus

ANDREW J. BRUCK, ATTORNEY GENERAL OF

NEW JERSEY, IN HIS OFFICIAL CAPACITY,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CV-637

Filed December 15, 2022

Before Smith, Barksdale, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:*

* Judge Haynes concurs in the judgment only.

293a

Appendix K

Plaintiffs Defense Distributed and the Second

Amendent Foundation produce, and make accessible,

information related to the 3D printing of firearms.

The U.S. Government and various states have imposed

restraints on the publication of that information. Since

2013, plaintiffs have challenged those restraints in federal

courts as violating the First Amendment.

The instant case involves publication restraints that

the defendant, first as Acting Attorney General, then as

Attorney General, of New Jersey (“NJAG”), has placed

on these plaintiffs.

The case has had a long journey through the justice

system: This is the plaintiffs’ third appeal to the Fifth

Circuit. Plaintiffs initially filed in the Western District of

Texas and included claims against the U.S. Department

of State and NJAG. In the first appeal, we reversed the

district court’s decision that the NJAG was not subject

to the court’s personal jurisdiction. Def. Distributed v.

Grewal, 971 F.3d 485, 488 (5th Cir. 2020), cert. denied,

141 S. Ct. 1736, 209 L. Ed. 2d 504 (2021).

On remand, the district court severed the claims

against the State Department and NJAG and transferred

the claims against NJAG to the District of New Jersey per

28 U.S.C. § 1404. On appeal, we held that that decision was

a clear abuse of discretion and ordered the district court

to vacate its sever-and-transfer order. Because the case

against NJAG now resided in New Jersey, we ordered the

district court to request that the New Jersey district court

transfer the case back to the Western District of Texas.

294a

Appendix K

Def. Distributed v. Bruck, 30 F.4th 414, 421 (5th Cir. 2022).

The New Jersey district court refused. Def. Distributed v.

Platkin (“Platkin-D.N.J.”), Civ. Ac. No. 19-04753 (FLW),

2022 U.S. Dist. LEXIS 133319, 2022 WL 2967304, at *1

(D.N.J. July 27, 2022).1 In response, plaintiffs moved, in

the Western District of Texas, for a preliminary injunction

against the publication restraints imposed by NJAG.

The district court entered a short order holding that it

lacked jurisdiction to consider claims against NJAG and

dismissed the preliminary-injunction motion. Plaintiffs

appealed. Because this court no longer has the power

to hear the case or grant the relief requested, we affirm

that dismissal.

I.

Defense Distributed is a company that “produces

and makes accessible information related to the 3D

printing of firearms and publishes and distributes such

information to the public.” Bruck, 30 F.4th at 422 (quoting

Grewal, 971 F.3d at 488). The U.S. Government and

individual states have not looked kindly upon plaintiffs’

distributing that information to the public. Accordingly,

they have placed publication restraints on plaintiffs

after “Defense Distributed published to the Internet

computer assisted design (‘CAD’) files for a single-round

plastic pistol.” Id. at 421. Since 2013, plaintiffs have been

1. The New Jersey district court rejected plaintiffs’ request

for reconsideration and second motion to transfer. See Def.

Distributed v. Platkin, No. 19-cv-4753, 2022 U.S. Dist. LEXIS

194017, 2022 WL 14558237, at *6 (D.N.J. Oct. 25, 2022).

295a

Appendix K

engaged in substantial litigation focused on removing

those publication restraints. 2 We have noted in dictum

that the governments’ actions “appear to be flagrant prior

restraints.” Id.

After initial litigation, the State Department “reached

a settlement agreement that granted Defense Distributed

a license to publish its files.” Id. at 422. Next, a case

was filed in the Western District of Washington by the

attorneys general of nine states “to enjoin the State

Department from authorizing the release of Defense

Distributed’s files” under the settlement agreement. Id.

Separately and concurrently, Defense Distributed and

associated plaintiffs challenged the enforcement actions

of certain states’ attorneys general, including NJAG. Id.

In the present case, plaintiffs initially sued in 2018

in the Western District of Texas to enjoin NJAG. They

filed an amended complaint joining the U.S. Department

of State as a defendant, alleging that the Department

breached the settlement agreement. The district court

initially dismissed the claims against NJAG, holding that

the court did not have personal jurisdiction. See Grewal,

971 F.3d at 488-90.

2. “Defense Distributed published the CAD files to the

Internet for a few months from December 2012-May 2013

before the State Department claimed that to do so violated

[the Department’s] International Traffic in Arms Regulations

(‘ITAR’).” Bruck, 30 F.4th at 421 n.1 (first citing Def. Distributed

v. U.S. Dep’t of State, 838 F.3d 451, 455 (5th Cir. 2016); and then

citing U.S. Dep’t of State, 838 F.3d at 461-63 (Jones, J., dissenting)).

296a

Appendix K

Plaintiffs then sued in New Jersey, raising similar

claims against NJAG and adding five plaintiffs3 to the

action against NJAG. Platkin-D.N.J., 617 F. Supp. 3d

213, 2022 U.S. Dist. LEXIS 133319, 2022 WL 2967304,

at *3. On appeal, our circuit held that the district court

had improperly dismissed NJAG for want of personal

jurisdiction grounds. Grewal, 971 F.3d at 496.

On remand, the district court granted NJAG’s motion

to sever the claims against him and transferred that portion

of the case to the District of New Jersey. Plaintiffs did not

attempt to stay that transfer, see Bruck, 30 F.4th at 425,

and, as a result, the case was consolidated with the other

lawsuit filed by plaintiffs in New Jersey. Platkin-D.N.J.,

2022 U.S. Dist. LEXIS 133319, 2022 WL 2967304, at *4.

Plaintiffs appealed again, and we held that the severand-transfer order was a clear abuse of discretion. Bruck,

30 F.4th at 433. Nevertheless, because the transfer had

already occurred to a court outside the jurisdiction of

the Fifth Circuit, we could not order its return. Id. at

423-24. Instead, relying on In re Red Baron Motors,

Inc., 794 F.3d 481 (5th Cir. 2015) (per curiam), we issued

a writ of mandamus to vacate the joint sever-and-transfer

order and directed the district court to request that the

transferee district court return the case. Bruck, 30 F.4th

at 423-24, 436-37. We then stated that the district court,

post-return, should “reconsolidate Defense Distributed’s

3. The Firearms Policy Coalition, Inc., the Firearms Policy

Foundation, the Calguns Foundation, the California Association of

Federal Firearms Licensees, Inc., and Brandon Combs, an officer

and founder of several of the organizational plaintiffs.

297a

Appendix K

case against the NJAG back into the case still pending

against the State Department” and should decide the

merits of a preliminary injunction expeditiously. Id. at 437.

Despite principles of comity and the desire to prevent

“unseemly tension between federal jurisdictions,” In re

United States, 273 F.3d 380, 382 n.1 (3d Cir. 2001), the

New Jersey district court refused to transfer the case

back, relying heavily on the dissenting opinion in Bruck.

Platkin-D.N.J., 617 F. Supp. 3d 213, 2022 U.S. Dist. LEXIS

133319, 2022 WL 2967304, at *10-12, *16 (repeatedly citing

Bruck, 30 F.4th at 437-40 (Higginson, J., dissenting)).

So plaintiffs have sought relief against NJAG in our

circuit again, moving for a preliminary injunction in the

remaining case against the State Department. The district

court found it lacked jurisdiction because NJAG had been

terminated from the case against the State Department

in this circuit. Because NJAG was not a party to the suit,

the district court found it had no power to adjudicate.

Plaintiffs appealed. In the meantime, two judges on

the motions panel in this case requested that the New

Jersey district court return the case that our court has

held to be erroneously transferred. Def. Distributed v.

Platkin, 48 F.4th 607, 607 (5th Cir. 2022) (per curiam) (Ho,

J., joined by Elrod, J., concurring). On October 25, 2022,

the New Jersey district court responded to a motion for

reconsideration and a second motion to transfer filed by

plaintiffs, denying the requests. Platkin, 2022 U.S. Dist.

LEXIS 194017, 2022 WL 14558237, at *6.

298a

Appendix K

II.

The key question centers on “[n]ot favoritism, nor

even corruption, but power.” Patchak v. Zinke, 138 S.

Ct. 897, 910, 200 L. Ed. 2d 92 (2018) (plurality opinion)

(citation omitted) (quoting Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 228, 115 S. Ct. 1447, 131 L. Ed. 2d 328

(1995)). Specifically, the question is whether the district

court has the power to adjudicate plaintiffs’ request for a

preliminary injunction, regardless of the transfer. We have

jurisdiction to review denials of preliminary injunctions

under 28 U.S.C. § 1292(a)(1). “We review questions of law

as to jurisdiction de novo.” Ramirez-Molina v. Ziglar, 436

F.3d 508, 513 (5th Cir. 2006) (citations omitted).

“The twist in this case is the transfer to a district

court outside the Fifth Circuit, a court over which this

court exercises no control. This court lacks power to

order a return of the case to our circuit.” Bruck, 30 F.4th

at 423. Because of the transfer, the Western District of

Texas “can no longer enter an appealable order in the

case.” Id. at 424. In Bruck, we attempted to resolve the

issue by ordering the district court to vacate its ruling

and to request the transferee court to return the case. Id.

at 423-24, 436. Nevertheless, the New Jersey transferee

court has refused,4 so plaintiffs remain in a bind.

As a result, plaintiffs have advanced two procedural

theories to establish that the district court now has

jurisdiction over their new request for a preliminary

injunction against NJAG. One is that our court’s order

4. See Platkin-D.N.J., 2022 U.S. Dist. LEXIS 133319, 2022

WL 2967304, at *35-36.

299a

Appendix K

to vacate the district court’s sever-and-transfer order

automatically “revived” plaintiffs’ claims against NJAG

by operation of law. The second is that Federal Rule of

Civil Procedure 15 allows plaintiffs to “refile” their claims

against NJAG, and they did so when they requested leave

to amend to add NJAG to the existing case against the

State Department in the Western District of Texas.

We face a jurisdictional thicket. On the one hand,

claims that we have found were wrongly severed from

an existing case in this circuit are now being adjudicated

improperly in New Jersey. That creates an erroneous

absence of claims in the Western District of Texas and,

concurrently, an errant presence of claims against NJAG

in New Jersey. The breakdown in comity across courts

only adds more thorns to this tangle.

Still, we cannot declare that claims in the New Jersey

district court were duplicated or refiled in some fashion

in Texas. Injunctive relief is not available under plaintiffs’

novel theories.

A.

Plaintiffs allege that when we issued Bruck, the

entry of the order vacating the district court’s sever-andtransfer order automatically revived plaintiffs’ claims

against NJAG in the Fifth Circuit. Plaintiffs defend that

contention by pointing to the black-letter-law definition

of vacatur:

When a judgment has been rendered and later

set aside or vacated, the matter stands precisely

300a

Appendix K

as if there had been no judgment. The vacated

judgment lacks force or effect and places the

parties in the position they occupied before

entry of the judgment, with the underlying case

and the original pleadings intact.

47 A m. Jur. 2d Judgments § 676 (2009) (citations omitted).

Essentially, vacatur would reestablish the status quo

ante: Vacated orders are immediately “null and void.”

United States v. Moree, 928 F.2d 654, 656 (5th Cir. 1991).

Before the severance and transfer, there was a case in the

Western District of Texas, with claims against both NJAG

and the Department of State. Afterward, to recreate the

status quo, the case with claims against NJAG and the

Department of State must be present again in the Western

District of Texas.

Plaintiffs cite Diece-Lisa Industries, Inc. v. Disney

Enterprises, Inc., 943 F.3d 239 (5th Cir. 2019), as the

most procedurally analogous case. They rely on it for

the proposition that vacatur of a party-changing order

automatically restores parties and claims to where they

were before the vacated order. That contention is true in

a typical, run-of-the-mill case, such as the intellectual

property claims at issue in Diece-Lisa. 5 In a vacuum, the

vacatur of a judgment restores the status quo.

5. Diece-Lisa involved a suit by the owner of the “Lots of

Hugs” trademark, used in stuffed bear toys, against subsidiaries

of Disney for trademark infringement. The trademark owner

alleged that Disney entities infringed on the trademark by using

a “Lots-O’-Huggin’ Bear” (“Lotso”) character in Toy Story 3 and

associated merchandise. 943 F.3d at 243-44.

301a

Appendix K

But plaintiffs fire a blank when extending Diece-Lisa

to vacatur of a case that calls into question the territorial

limitations of this circuit’s power. In Diece-Lisa, a district

court misused judicial discretion to dismiss an amended

complaint that added new defendants. See id. at 253-55.

Diece-Lisa restored the status quo through vacatur by

reinstating the defendants to the case so that the district

court could properly rule on its jurisdiction over them

and the validity of the claims against them. See id. At no

point were claims against defendants removed from the

court’s jurisdictional control. The addition of parties in

Diece-Lisa’s vacated order, as compared to the improper

subtraction of a party with a subsequent jurisdiction

transfer here, is a distinction with a difference.

Indeed, transferring the case out of our territorial

jurisdiction is the crux of the issue. In Bruck, we cited

Red Barn, which stated that “[i]t seems uncontroversial

in this situation that a transfer to another circuit removes

the case from our jurisdiction, and numerous circuits

have stated that rule plainly.” Red Baron, 794 F.3d at

484 (citations omitted); see also Bruck, 30 F.4th at 423-24.

“Once the files in a case are transferred physically to the

court in the transferee district, the transferor court loses

all jurisdiction over the case.” Chrysler Credit Corp. v.

Country Chrysler, 928 F.2d 1509, 1516-17 (10th Cir. 1991)

(collecting cases). For that reason, in Bruck, the issuance

of the mandamus merely ordered that the district court

request the return of the case from New Jersey—nothing

more. Bruck, 30 F.4th at 436-37; see also Chrysler, 928

F.2d at 1516-20.

302a

Appendix K

There was a solution to the jurisdictional morass in

which plaintiffs found themselves: They could have moved

for a stay of the district court’s transfer order before the

case was transferred. Now, that is not necessarily fair

to plaintiffs, who had little reason to believe that in the

worst-case scenario, an outside transferee court would

refuse a request to return an improperly transferred

case. See Platkin, 48 F.4th at 608 (Ho, J., joined by Elrod,

J., concurring) (“[W]e’re unaware of any district court

anywhere in the nation to have ever denied such a request.

The parties admit they have not found any.”).

As we have made clear, plaintiffs have acted with

diligence, and “[n]othing in applicable precedent . . .

mandates the particular method by which a party

disadvantaged by an out-of-circuit transfer must bring

that issue to the circuit court.” Bruck, 30 F.4th at 425. It

is unfortunate that these otherwise valid claims cannot

currently be heard in the court chosen by plaintiffs, given

that a plaintiff is the “master of the claim.” Caterpillar

Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96

L. Ed. 2d 318 (1987). Yet here, the failure to seek a stay

appears fatal to their novel revival theory.

Plaintiffs attempt to get around that tricky territorial

issue by positing that we do not need to “bring back to

Texas the claims that are in New Jersey.” Instead, vacatur

would “recreat[e] claims against [NJAG] in Texas.” The

claims in New Jersey against NJAG can remain there and

be dealt with separately. Plaintiffs, in essence, theorize

that transferring the case to New Jersey created a new

case there, with no impact on the transferred case in the

Western District of Texas.

303a

Appendix K

The contention is a reach. NJAG was marked as

terminated on the docket sheet, and the physical (or

electronic) transfer of the docket is not a mere formality.

The transfer ended our control over the case. Bruck, 30

F.4th at 423; see also In re Sw. Mobile Homes, Inc., 317

F.2d 65, 66 (5th Cir. 1963) (per curiam) (holding that once

the transferee court has physically received the papers

governing the case, the transferor court loses jurisdiction).

Accordingly, “[a] court acting under § 1404(a) may not

transfer part of a case for one purpose while maintaining

jurisdiction for another purpose; the section ‘contemplates

a plenary transfer’ of the entire case.” Chrysler, 928 F.2d

at 1518-19 (quoting In re Flight Transp. Corp. Sec. Litig.,

764 F.2d 515, 516 (8th Cir. 1985)).

Note that “[t]he severed case is transferred in its

entirety while the retained case remains in its entirety

in the transferor court.” Id. at 1519 (citing 15 Charles

Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 3845 (4th ed. 2008)). That happened here.

The case against NJAG was severed and transferred in

its entirety to the District of New Jersey. Although this

court has politely requested that the New Jersey district

court return the case, we can do no more. That case exists

in New Jersey, and the retained case against the U.S.

Department of State, sans claims against NJAG, remains

in the Western District of Texas.

Statutory authority goes nowhere, either. Section

1404(a) contains no allusions to any revival-of-claim

304a

Appendix K

theories.6 Plaintiffs have not shown a single example of

any case in any circuit where a court recreated claims that

were transferred to another district. We are unaware of

any paradigmatic cases either.

We are sympathetic to plaintiffs’ concerns, and a

transfer, which this court has asked for from the New

Jersey district court, would resolve the issue neatly.

Nevertheless, under current statutory law and caselaw,

the status quo before the erroneous sever-and-transfer

order cannot be recreated. This court cannot reconstitute

claims that exist elsewhere, and plaintiffs’ novel revival

theory does not currently have a legal basis.

B.

Plaintiffs alternatively allege that we have jurisdiction

over their claims against NJAG because plaintiffs properly

presented their claims by requesting leave to amend

their complaint to re-add NJAG as a party to the case via

Federal Rule of Civil Procedure 15(a)(2). Plaintiffs claim

they properly asked for leave of court by mentioning the

request in a footnote in their motion for a preliminary

injunction after the district court had transferred the

NJAG claims to New Jersey. They also assert that they

asked again for leave of court to amend the pleadings

to add NJAG as a party in their Motion to Grant as

Unopposed or Set a Hearing.

6. It states only, “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 or to any district or division to which all parties have

consented.” 28 U.S.C. § 1404(a).

305a

Appendix K

Plaintiffs aver that Rule 15 is well understood to

permit a plaintiff to add defendants. And because the

court’s obligation to exercise jurisdiction is “virtually

unflagging,” 7 the district court was required to adjudicate

the point and then grant the leave to amend, as district

courts should “freely give leave when justice so requires.”

Fed. R. Civ. P. 15(b)(2). Plaintiffs allege that the district

court failed to provide an adequate reason to deny leave,

and the record contains none. Additionally, plaintiffs

contend that they properly served NJAG with the filings

through the Electronic Case Files (“ECF”) system, which

plaintiffs claim is standard for parties that have waived

objections to the absence of summons or service.

“Ordinarily, this [C]ourt reviews the denial of a

motion for leave to file an amended complaint for abuse of

discretion. However, where, as here, the district court’s

denial of leave to amend was based solely on futility, we

apply a de novo standard of review . . . .” City of Clinton

v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010)

(citing Wilson v. Bruks-Klockner Inc., 602 F.3d 363, 368

(5th Cir. 2010)) (emphasis added). “This [C]ourt may affirm

the district court’s dismissal ‘on any grounds supported

by the record.’” Id. at 153 (quoting Hosein v. Gonzales,

452 F.3d 401, 403 (5th Cir. 2006) (per curiam)).

Plaintiffs’ argument is off target. As discussed

above, the district court was correct that it did not have

jurisdiction over NJAG after the transfer, and that

7. Sprint Communs., Inc. v. Jacobs, 571 U.S. 69, 77, 134

S. Ct. 584, 187 L. Ed. 2d 505 (2013) (quoting Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct.

1236, 47 L. Ed. 2d 483 (1976)).

306a

Appendix K

remains so: The transfer of the case files to the district

court in New Jersey ended the power of this circuit over

the transferred claims. Bruck, 30 F.4th at 433. Again, the

sever-and-transfer order created two separate suits: one

in New Jersey where NJAG was a party and one in Texas

where NJAG was not.

Bruck delineated the path the case would need to take

to proceed in Texas: The district court was to request the

return of the case from New Jersey, and, upon transfer

back to Texas, the case was to be reconsolidated with

the case against the Department of State. Id. at 436-37.

This court did not foresee any other alternative, and an

attempt to refile the same case in the transferor forum

would conflict with our first-to-file rule.

“Under the first-to-file rule, when related cases are

pending before two federal courts, the court in which

the case was last filed may refuse to hear it if the issues

raised by the cases substantially overlap.” Cadle Co. v.

Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir.

1999) (citations omitted). Courts “prophylactically refus[e]

to hear a case raising issues that might substantially

duplicate those raised by a case pending in another court.”

Id. at 604. The rule is intended to “maximize” “the values

of economy, consistency, and comity.”8 Id. That prudential

8. In Cadle, the court held that the district court with

the second-filed action erred in dismissing the action without

transferring it to the first-filed court to “decide whether the

second suit filed must be dismissed, stayed, or transferred and

consolidated.” 174 F.3d at 606 (quoting Sutter Corp. v. P & P

Indus., Inc., 125 F.3d 914, 920 (5th Cir. 1997)). The present case

is distinguishable because plaintiffs did not properly present the

case before the Western District of Texas the second time, and the

307a

Appendix K

rule alone is reason enough to reject plaintiffs’ refiling

theory.

Additionally, nothing that occurred after the transfer

made NJAG a party to the remaining suit in Texas

against the Department of State. First, it is improbable

that inserting a request to grant leave of court to amend

a pleading inside a footnote in a preliminary injunction

motion is proper or follows the local rules. See W.D. Tex.

Civ. R. 7.9

Moreover, plaintiffs have pointed to no cases

indicating that a court must allow a plaintiff to re-add a

party to a complaint that was severed and transferred out

of the jurisdiction. Plaintiffs’ chosen cases do not address

whether a court can, let alone must, allow a plaintiff whose

case has been transferred out of the circuit to refile the

same claims.

same case was already transferred to New Jersey. Unlike in Cadle,

the question presented is not how to proceed with “subsequentially

filed cases involving substantially similar issues,” 174 F.3d at 606

(quoting Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 948

(5th Cir. 1997)), but instead how to deal with the same case that

has already been transferred out of the forum. It would defeat

the rule’s animating purpose of promoting judicial economy to

force the Western District of Texas to transfer the same claims it

already transferred to New Jersey every time the plaintiff moves

to do so. It would create a procedurally recursive loop.

9. “When a motion for leave to file a pleading, motion, or

other submission is required, an executed copy of the proposed

pleading, motion, or other submission shall be filed as an exhibit

to the motion for leave.”

308a

Appendix K

These alone decide the issue, without even going

into the tenuous theory that continuously mentioning a

previously terminated party in captions at the district

court level without leave of court satisfies the rules for

service of process. In response, plaintiffs point to at

least four cases where NJAG added additional parties

to an existing federal civil action and served the motion

through the ECF system under Rule 5. Those examples

are hollow. NJAG sought leave of court to intervene in

each case instead of attempting unilaterally to re-add a

previously terminated party.

As discussed above, the termination of a party is

not a mere formality. It brings into question important

prudential considerations, and endorsing plaintiffs’

theory would encourage future plaintiffs dissatisfied with

transfer decisions to bring duplicative cases continuously.

Our circuit has never held that is permissible. Moreover,

the district’s local rules for properly presenting claims

before the court are entitled to respect.

III.

So NJAG prevails. But there are prudential concerns

with our ruling. As stated before, it is well established that

a plaintiff is the “master of the claim.” Caterpillar, 482

U.S. at 392. This court has already found that the claims

against NJAG should be heard in the Western District of

Texas. As a matter of fairness to plaintiffs, their claims

against NJAG should be heard in Texas. They chose to file

in the Fifth Circuit, and it took an erroneously granted

sever-and-transfer motion to move their claims to New

Jersey. Bruck remains the law of this circuit: Plaintiffs’

309a

Appendix K

claims against NJAG should be heard in the Western

District of Texas.10

Courts have incorrectly transferred cases out of their

jurisdiction in the past; this case is not a new phenomenon.

See Platkin, 48 F.4th at 607-08 (Ho, J., joined by Elrod,

J., concurring) (collecting cases). Comity is an old concept

as well: “[A] term of international law . . . [whose] best

definition, in light of the derivation of the word, is

‘courtesy.’” Arthur March Brown, Comity in the Federal

Courts, 15 Harv. L. Rev. 589, 589 (1915).11

When faced with inter-circuit splits in jurisdiction,

courts have returned the cases to the transferor district in

the interest of comity. Neither side has been able to state

a single case in which a transferee court did not transfer

back a case that a transferor court requested. See Platkin,

48 F.4th at 608 (Ho, J., joined by Elrod, J., concurring).

Instead, the expectation is that circuit courts

direct “the transferor district court to request that the

transferee district court return the case.” Bruck, 30

F.4th at 424 (citing Red Baron, 794 F.3d at 484 (collecting

10. The rule of orderliness means that “one panel of our court

may not overturn another panel’s decision, absent an intervening

change in the law, such as by a statutory amendment, or the

Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intel.

Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (citation omitted).

11. Comity is not a binding rule of law but “one of practice,

convenience, and expediency.” Mast, Foos, & Co. v. Stover Mfg.

Co., 177 U.S. 485, 488, 20 S. Ct. 708, 44 L. Ed. 856, 1900 Dec.

Comm’r Pat. 285 (1900).

310a

Appendix K

cases)). That tradition neatly balances the jurisdictional

powers of the separate circuits with a culture of mutual

respect between the sister circuits. The refusal of the

District of New Jersey to retransfer is unprecedented in

that regard.

The New Jersey court contends that the initial fault

was in our decision to grant mandamus in Bruck. “[T]he

purported lack of precedent with respect to this Court’s

refusal to transfer is preceded by the lack of precedent

as to the mandamus vacating the original severance and

transfer order when jurisdiction had been divested.”

Platkin, 2022 U.S. Dist. LEXIS 194017, 2022 WL

14558237, at *4 (citations omitted). Still, regardless of

the merits of Bruck, it took an error for the New Jersey

court even to hear the case in the first place. The matter

originated in the Western District of Texas and “only

ended up in the transferee court as a result of mistake.”

Platkin, 48 F.4th at 608 (Ho, J., joined by Elrod, J.,

concurring). More importantly, the effect of that decision

permits a New Jersey district court functionally to nullify

a Fifth Circuit decision.

The judgment is AFFIRMED.12

12. Plaintiffs moved for an injunction pending appeal and

to expedite the appeal and to expedite a ruling on the motion.

A motions panel granted the motion to expedite the appeal and

carried the remaining requests with the case. Those remaining

requests are DENIED.

311a

L

APPENDIX L —Appendix

MEMORANDUM

ORDER

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY,

FILED APRIL 26, 2023

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 19-4753 (MAS) (TJB)

(consolidated with No. 21-9867)

DEFENSE DISTRIBUTED et al.,

Plaintiffs,

v.

MATTHEW J. PLATKIN, ATTORNEY GENERAL

OF THE STATE OF NEW JERSEY,

Defendant.

MEMORANDUM ORDER

This matter comes before the Court upon Defendant

Matthew J. Platkin, Attorney General of New Jersey’s

(“Defendant”) Motion to Dismiss Plaintiffs Defense

Distributed and Second Amendment Foundation, Inc.’s

(“Plaintiffs”) Second Amended Complaint (ECF No. 69)

and Plaintiffs’ Motion to Transfer (ECF No. 78). Before

reaching these motions, the Court must address the state

of the docket in this consolidated matter.

On June 11, 2021, Member Case 21-9867 (the “Member

Case”) was consolidated into Lead Case 19-4753 (the

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Appendix L

“Lead Case”). (ECF No. 43.) As a result, on May 17,

2022, the Member Case was closed. (See ECF No. 55.) On

July 27, 2022, all Plaintiffs in the Lead Case voluntary

dismissed the Lead Case, while preserving Plaintiffs’

claims asserted in the previously closed Member Case.

(ECF No. 60.) Plaintiffs then moved to transfer the

Member Case to the Western District of Texas. (ECF

No. 64.) On October 25, 2022, this Court denied Plaintiffs’

Motion to Transfer and ordered Defendant to respond to

Plaintiffs’ Second Amended Complaint in the Member

Case. (ECF No. 66, 67.)

Pursuant to the Court’s inherent authority to control

its docket, and pursuant to Plaintiffs’ voluntary dismissal

of the Lead Case and the Court’s October 25, 2022 Order

making the Second Amended Complaint in the Member

Case the operative pleading in this matter,

IT IS on this 26th day of April 2023, ORDERED as

follows:

1.

This matter is deconsolidated, the Lead Case

(Case No. 19-4753) is closed, and the Member

Case (Case No. 21-9867) is reinstated.

2.

Defendant’s Motion to Dismiss (ECF No. 69) and

Plaintiffs’ Motion to Transfer (ECF No. 78) in the

Lead Case are administratively terminated.

3.

As the operative Second Amended Complaint in

the Member Case (ECF No. 117) includes United

States State Department Defendants that are

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Appendix L

no longer parties to this action, Plaintiffs are

directed to file, within fourteen (14) days, a

Third Amended Complaint in this Member

Case, removing any allegations or claims against

State Department Defendants.

4.

Defendant may refile its Motion to Dismiss in

the Member Case, if it so chooses, after filing of

a Third Amended Complaint by Plaintiffs.1

5.

As the Motion to Transfer has already been fully

brief in the Lead Case, the Court directs the

Clerk’s Office to file Plaintiffs’ Motion to Transfer

from the Lead Case (ECF No. 78), Defendant’s

Opposition (ECF No. 79), and Plaintiffs’ Reply

(ECF No. 80) on the Member Case docket (Case

No. 21-9867).

6.

The Clerk’s Office is also directed to activate

Plaintiffs Motion to Transfer in the Member Case

upon docketing.

/s/ Michael A. Shipp

Michael A. Shipp

United States District Judge

1.  After the Third Amended Complaint is filed, the Court

will decide Plaintiffs’ Motion to Transfer before adjudicating any

Motion to Dismiss filed by Defendant.

314a

Appendix M THIRD AMENDED

APPENDIX M — PLAINTIFFS’

COMPLAINT OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY,

FILED MAY 5, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

No. 3:21-cv-09867-MAS-TJB

Plaintiffs’ Third Amended Complaint

DEFENSE DISTRIBUTED,

SECOND AMENDMENT FOUNDATION, INC.,

Plaintiffs,

v.

MATTHEW J. PLATKIN,

ATTORNEY GENERAL OF NEW JERSEY,

Defendant.

[Tables Intentionally Omitted]

I.

Introduction

1. This case concerns extraordinarily important

questions of free speech regarding the First Amendment

right to speak about the Second Amendment. Defense

Distributed and the Second Amendment Foundation

are peaceful, law-abiding organizations committed

to preserving, protecting, and promoting America’s

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Appendix M

individual right to keep and bear Arms in both traditional

and modern contexts. At stake now is the modern right to

speak about the Second Amendment by sharing computer

files with digital firearms information. Even though

federal free speech laws protect this freedom with full

force, both the United States Department of State and

the New Jersey Attorney General are breaking the law

multiple times over with unprecedented acts of censorship.

2. The State Department can never abridge the

freedom of speech—especially where, as here, the State

Department made a legally-enforceable contract to

protect Defense Distributed and the Second Amendment

Foundation’s right to engage in the speech at issue by

performing a series of administrative obligations. But

instead of performing those critical protective obligations,

the State Department violated administrative law in failing

to comply. The claims against the State Department are

pending elsewhere now, but still form part of the instant

case’s factual background.

3. At issue here is the New Jersey Attorney General

(“NJAG”), who is abridging Defense Distributed and

the Second Amendment Foundation’s freedom of speech

as well. He denies the right to share digital firearms

information because he cannot stand to let people speak

out in favor of the Second Amendment. Through a torrent

of civil and criminal enforcement actions, the NJAG has

punished and threatens to continue punishing Defense

Distributed and the Second Amendment Foundation’s

members for exercising their right to speak freely about

firearms. Hence, Defense Distributed and the Second

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Appendix M

Amendment Foundation sue Grewal to halt his censorship

under 42 U.S.C. § 1983.

II. Parties

A.

Defense Distributed

4. Plaintiff Defense Distributed is a private business

corporation that is headquartered and has its principal

place of business in Austin, Texas. It did so at all relevant

times in the past.

5. Currently and at all relevant times in the past,

most of Defense Distributed’s activities, including

research, design, development, manufacturing, and

publishing occurred in and around Austin.

6. Currently and at all relevant times in the past, all

of Defense Distributed’s employees lived in or near Austin.

7. Currently and at all relevant times in the past,

a public library that displayed Defense Distributed’s

publications from time to time has been in Austin, Texas.

8.

Cody Wilson founded Defense Distributed.

9. Cody Wilson serves as Defense Distributed’s

Director.

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Appendix M

B. Second Amendment Foundation, Inc.

10. Plaintiff Second A mendment Foundation,

Inc. (“SAF”) is a non-profit membership organization

incorporated under the laws of the State of Washington.

SA F’s principal place of business is in Bellevue,

Washington.

11. SAF promotes the right to keep and bear arms

by supporting education, research, publications, and legal

efforts about the Constitution’s right to privately own and

possess firearms and the consequences of gun control.

Some SAF members seek to receive the computer files

that Defense Distributed seeks to publish, and some

SAF members seek to share their own computer files

by utilizing Defense Distributed’s facilities. These SAF

members seek to exchange this information because of its

technical, scientific, artistic, and political value.

12. SAF brings this action on behalf of itself. SAF

also brings this action on behalf of its members because

at least one of its members would have standing to sue

in his own right, the interests the suit seeks to vindicate

are germane to the SAF’s purpose, and neither the

claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.

C.

The NJAG

13. Defendant Matthew J. Platkin is the current

New Jersey Attorney General. In that capacity, he is

responsible for all of the New Jersey civil and criminal

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Appendix M

enforcement efforts at issue. He is sued for declaratory

and injunctive relief in his official capacity.

III. Subject Matter Jurisdiction

14. 28 U.S.C. § 1331 supplies the Court with original

federal question jurisdiction over this action because

it arises under the Constitution and laws of the United

States.

15. 28 U.S.C. § 1332 supplies the Court with original

diversity jurisdiction over this action because the matter

in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs, and is between citizens of

different States.

16. 28 U.S.C. § 1343 supplies the Court with original

federal question jurisdiction over this action because it is

an action to redress the deprivation, under color of state

law, of rights, privileges, and immunities secured by the

Constitution and statutes providing for equal rights of

citizens or of all persons within the jurisdiction of the

United States.

17. 28 U.S.C. § 1367 supplies the Court with

supplemental subject-matter jurisdiction over the

action’s state-law claims because the state-law claims

are so related to claims in the action within the Court’s

original jurisdiction that they form part of the same case

or controversy under Article III of the United States

Constitution. The action’s state-law claims do not raise

novel or complex issues of state law. The action’s state-

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Appendix M

law claims do not substantially predominate over the

claim or claims over which the district court has original

jurisdiction.

18. This action seeks declaratory, injunctive, and

other relief pursuant to the Constitution of the United

States of America, 5 U.S.C. § 702, 5 U.S.C. § 705, 5

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