Jay A. Zawatsky, Plaintiff-appellant, v. John Alden Life Insurance Company, Defendant-appellee, 7 F.3d 228 (4th Cir. 1993)

OPINION

Jay A. Zawatsky appeals the district court's order transferring his action from the District of Maryland to the Eastern District of North Carolina. Zawatsky filed this declaratory judgment action seeking an order that he was not liable on a personal guaranty that he executed in connection with a commercial real estate loan. He originally sued John Alden Life Insurance Company (John Alden) in the Circuit Court for Montgomery County, Maryland. John Alden removed the action to the United States District Court for the District of Maryland.

John Alden then moved to dismiss the action for improper venue or to transfer it to the Eastern District of North Carolina where John Alden had filed an action against Zawatsky. (The real estate project that was the subject of the guaranty is located in North Carolina.) The district court granted the motion, transferring the action. Zawatsky appealed.

To the extent that the district court based its decision to transfer the action to the Eastern District of North Carolina on 28 U.S.C. § 1406(a) (1988), it is clear that the order is interlocutory and not appealable. 15 Charles A. Wright et al., Federal Practice and Procedure § 3827, at 277 (1986); Fischer v. First Nat'l Bank of Omaha, 466 F.2d 511 (8th Cir. 1972); Stelly v. Employers Nat'l Ins. Co., 431 F.2d 1251 (5th Cir. 1970), cert. denied, 401 U.S. 908 (1971). Similarly, the order is interlocutory and unappealable to the extent that it was based on 28 U.S.C. § 1404(a) (1988). Ellicott Mach. Corp. v. Modern Welding Co., 502 F.2d 178, 180 (4th Cir. 1974); Clayton v. Warlick, 232 F.2d 699, 704-06 (4th Cir. 1956); see Gower v. Lehman, 799 F.2d 925, 927 (4th Cir. 1986).

Accordingly, we dismiss the appeal for lack of jurisdiction because the order is not appealable. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

DISMISSED