Am. Plan Adm’rs v. S. Broward Hosp. Dist. 1

22-37-cv
Am. Plan Adm’rs v. S. Broward Hosp. Dist.
1
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 22-37-cv
AMERICAN P LAN ADMINISTRATORS,
Petitioner-Appellant,
v.
S OUTH B ROWARD H OSPITAL D ISTRICT ,
Respondent-Appellee.
On Appeal from the United States District Court
for the Eastern District of New York
S UBMITTED: J UNE 7, 2022
D ECIDED: J ULY 6, 2022
Before: P OOLER, L OHIER, and N ARDINI , Circuit Judges.
This motion to dismiss presents the question of whether an
order transferring a motion to quash a third-party subpoena to the
court that issued the subpoena, pursuant to Federal Rule of Civil

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Procedure 45(f), is immediately appealable under the collateral order
doctrine or is instead a non-final order that may be effectively
reviewed after final judgment. We hold that a Rule 45(f) transfer
order is non-final and not immediately appealable under the
collateral order doctrine because it may be effectively reviewed by the
transferee circuit after final judgment. Accordingly, the motion is
GRANTED and the appeal is DISMISSED.
Joseph S. Hubicki, Law Offices of Joseph S.
Hubicki, New York, NY; Dean H. Malik,
Patrick C. Timoney, Devine Timoney Law
Group, Blue Bell, PA, for Petitioner-Appellant.
Tal J. Lifshitz, Eric S. Kay, Kozyak Tropin &
Throckmorton LLP, Miami, FL, for
Respondent-Appellee.
P ER C URIAM:
Appellant American Plan Administrators (“APA”) appeals an
order transferring to the Southern District of Florida its motion to
quash a third-party subpoena. Appellee South Broward Hospital
District (“South Broward”), which obtained the subpoena, moves to
dismiss the appeal as taken from a non-final order. APA opposes,
arguing that the collateral order doctrine applies to permit our review
of the order.

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We agree with Appellee that the order is not immediately
appealable because the transfer may be reviewed by the transferee
circuit after final judgment. Accordingly, the motion is GRANTED
and the appeal is DISMISSED.
BACKGROUND
In 2020 South Broward filed a putative class action lawsuit
against ELAP Services, LLC and Group & Pension Administrators,
Inc. in the Southern District of Florida, alleging that the defendants,
which help administer claims for employers with self-funded
healthcare plans, engaged in unfair and deceptive trade practices by
systematically underpaying healthcare providers for their services.
In 2021 South Broward subpoenaed APA, a Brooklyn-based
third-party claims administrator that uses ELAP’s auditing services.
The subpoena was issued by the United States District Court for the
Southern District of Florida. As pertinent here, APA moved in the
Eastern District of New York to quash the subpoena. APA asserted
that the Eastern District of New York was the proper venue for its
motion under Federal Rule of Civil Procedure 45 because APA’s
principal place of business was in that district, making it the place for
compliance.
On South Broward’s motion, the District Court transferred the
motion to quash to the Southern District of Florida under Rule 45(f).
Rule 45(f) provides, in pertinent part, that “[w]hen the court where

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compliance is required did not issue the subpoena, it may transfer a
motion under this rule to the issuing court if the person subject to the
subpoena consents or if the court finds exceptional circumstances.”
The Advisory Committee’s notes observe that “[i]n some
circumstances . . . transfer may be warranted [under Rule 45(f)] in
order to avoid disrupting the issuing court’s management of the
underlying litigation, as when that court has already ruled on issues
presented by the motion or the same issues are likely to arise in
discovery in many districts.” Fed. R. Civ. P. 45(f) advisory
committee’s notes to 2013 amendment. The District Court reasoned
that transfer to the Southern District of Florida was warranted
because, among other reasons, the underlying lawsuit is pending in
that court and at least one other similar motion to quash had already
been transferred to that court from the Northern District of Iowa. Am.
Plan Adm’rs v. S. Broward Hosp. Dist., No. 21-MC-2663 (KAM) (TAM),
2021 WL 6064845, at *2–5 (E.D.N.Y. Dec. 22, 2021).
This appeal followed. South Broward now moves to dismiss
the appeal for lack of jurisdiction.
DISCUSSION
This Court has appellate jurisdiction over “final decisions of the
district courts.” 28 U.S.C. § 1291. “A final judgment or order is one
that conclusively determines all pending claims of all the parties to
the litigation, leaving nothing for the [district] court to do but execute
its decision.” Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008).

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No circuit court, including this one, has yet expressly
determined whether a Rule 45(f) transfer order is immediately
appealable. APA urges us to conclude that it is, arguing that this
appeal may be heard under the collateral order doctrine because it
will be otherwise unreviewable. We disagree.
Under the collateral order doctrine, we have jurisdiction to
review an order that “(1) conclusively determine[s] the disputed
question; (2) resolve[s] an important issue completely separate from
the merits of the action; and (3) is effectively unreviewable on appeal
from a final judgment.” United States v. Bescond, 24 F.4th 759, 766 (2d
Cir. 2021) (quotation marks omitted). The order at issue here may be
effectively reviewed after final judgment by the United States Court
of Appeals for the Eleventh Circuit. The Eleventh Circuit, which
reviews district court decisions in the Southern District of Florida, has
held that a transfer order is reviewable by the transferee circuit
following final judgment. Middlebrooks v. Smith, 735 F.2d 431, 433
(11th Cir. 1984); accord SongByrd, Inc. v. Estate of Grossman, 206 F.3d
172, 177 (2d Cir. 2000). Although the Eleventh Circuit cannot directly
reverse a decision of the district court in the Eastern District of New
York, APA can move in the Florida district court for transfer back to
New York and, if that motion is denied, the Eleventh Circuit can
review that order and direct the Florida district court to transfer the
case back to New York.1 See, e.g., Murphy v. Reid, 332 F.3d 82, 84–85
1 Assuming the appeal to the Eleventh Circuit can be taken from a final judgment
in the underlying case, we acknowledge that the Eleventh Circuit may permit
other means of obtaining review, and we express no opinion as to those other
possible means.

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(2d Cir. 2003); Middlebrooks, 735 F.2d at 433 (“[T]he petitioner still has
means available to properly challenge the transfer order, such as
moving the transferee court to retransfer or raising the matter on
appeal after final judgment.”).
This conclusion is supported by our holdings in other cases
with respect to transfer orders issued pursuant to 28 U.S.C. §§ 1404(a),
1406(a), and 1631, none of which are immediately appealable. See
Cruz v. Ridge, 383 F.3d 62, 64–65 (2d Cir. 2004) (§ 1631); Fort Knox
Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001) (§ 1404(a));
Michael v. INS, 48 F.3d 657, 661 (2d Cir. 1995) (§ 1406(a)). Further, both
§ 1291 and Rule 45(f) are primarily focused on avoiding piecemeal
litigation. See P.H. Glatfelter Co. v. Windward Prospects Ltd., 847 F.3d
452, 458 (7th Cir. 2017) (“By allowing for transfers, Rule 45(f) allows
for consolidation of motions in a single appropriate court, thereby
avoiding piecemeal litigation in multiple fora as well as piecemeal
appeals.”).
APA argues that the order before us should be immediately
appealable because it is analogous to an order denying a motion to
compel compliance with a third-party subpoena, which this Court has
held to be immediately appealable if the district court ruling on the
motion is in a different circuit than the district court conducting the
main proceedings. See Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567,
574 n.5 (2d Cir. 2005) (citing prior decisions); Barrick Grp., Inc. v. Mosse,
849 F.2d 70, 73 (2d Cir. 1988). But that rule reflects the simple fact that
orders relating to third-party subpoenas cannot effectively be
reviewed after final judgment. The order that is the subject of the

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present appeal, by contrast, did not grant or deny a discovery request
and did not address the merits of the motion to quash. Instead, it sent
the motion to the forum for the underlying action, ensuring that there
will be no cumbersome parallel proceedings and appeals in different
circuits. The Southern District of Florida will determine whether to
grant this discovery request and others originating in other parts of
the country. Because that court also is presiding over the underlying
proceeding, the order deciding the motion can be effectively reviewed
on final judgment by the Eleventh Circuit.
CONCLUSION
We therefore hold that where a district court transfers a motion
to another jurisdiction under Rule 45(f), that order is not immediately
appealable under the collateral order doctrine.
For the reasons set forth above, we GRANT the Appellee’s
motion and the appeal is DISMISSED for lack of jurisdiction.

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