in Re Bny Convergex Group, LLC and Bny Convergex Execution Solutions, LLC v. Holland, 346 U.S. 379, 383 1953 "[I]t is established that the extraor- dinary writs…

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE BNY CONVERGEX GROUP, LLC AND BNY
CONVERGEX EXECUTION SOLUTIONS, LLC,
Petitioners.

Miscellaneous Docket No. 961

On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Texas in
case nos. 09-CV-0326, 10-CV-0248, and 10-CV-0426, Judge
Leonard Davis.

ON PETITION FOR WRIT OF MANDAMUS

Before LOURIE, MAYER, and DYK, Circuit Judges.
DYK, Circuit Judge.

## ORDER

BNY ConvergEx Group, LLC et al. (BNY), the defen-
dants in a patent infringement action, seek a writ of
mandamus to direct the United States District Court for
the Eastern District of Texas to vacate its August 26,
2010 order denying BNY's motion to dismiss for lack of
personal jurisdiction, and to direct the court to dismiss

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the underlying complaint. The plaintiff in the action,
Realtime Data, LLC, opposes.

An order denying a motion to dismiss for lack of per-
sonal jurisdiction cannot be appealed as a matter of right
as soon as it is entered. Thus, a party must ordinarily
wait until final judgment has issued before seeking appel-
late review. Still, as is evidenced by this petition, some
defendants seek an end run around the final judgment
rule by asking the court of appeals to issue mandamus.

The petitioners contend that they can demonstrate
that the trial court's jurisdictional decision was clearly
incorrect and further assert that waiting for final judg-
ment would result in a "gross miscarriage of justice,"
presumably meaning that if they are correct then they
will have been forced to expend unnecessary costs associ-
ated with a trial that should have not occurred in the first
place.

To issue mandamus solely for this reason, however,
would clearly undermine the extraordinary nature of its
form of relief. To grant mandamus simply because a
party asserts it will be forced to expend unnecessary costs
would make a large class of interlocutory orders routinely
reviewable. See Bankers Life & Cas. Co. v. Holland, 346
U.S. 379, 383 (1953) ("[I]t is established that the extraor-
dinary writs cannot be used as substitutes for appeals . . .
even though hardship may result from delay and perhaps
unnecessary trial").

For these reasons, mandamus is reserved generally
for those interlocutory orders that are clearly and indis-
putably incorrect and then only if such error cannot be
effectively reviewed at the end of the case. We cannot say
that this is such a case.

Accordingly,

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IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

FOR THE COURT

DEC 0 8 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: John C. O'Quinn, Esq.
Dirk D. Thomas, Esq.
Clerk, United States District Court for the Eastern
District Of Texas
s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
DEC 0 8 2010

JAN HORBALY
CLERK