Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR PERMANENT INJUNCTION AND DEFENDANT’S MOTION TO TRANSFER OR STAY BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION AND BACKGROUND .1340 A. Procedural Background.1340 1. The lawsuits.1340 2. The TRO and the venue motions.1341 3. Further briefing and discovery disputes.1341 B. Findings Of Fact.1343 1. “Bad faith” and “surprise”.1343 2. The forum selection clause.1344 II. LEGAL ANALYSIS.1345 A. Intertwining Of The “First-Filed” And “Transfer” Analyses.1345 1. The “first-filed rule”.1345 2. Exceptions to the rule.1346 a. The “compelling circumstances” exception.1346 b. “Balance of convenience” exception.1348 c. The “dead heat” exception.1350 B. The “Transfer” Analysis.1354 1. The “transfer” statute and its purpose.1355 2. Factors in the “transfer” analysis.1357 a. “Balance of convenience” .1358 b. The “interest of justice” .1362 c. Other “relevant factors”.1364 3. Forum selection clauses.1365 a. The weight to be given the clause in a “transfer” analysis.1365 i. Stewart and its progeny.1366 ii. “Mandatory” and “permissive” forum selection clauses.1370 iii. Is this clause entitled to “significant” weight or “no weight”?_1373 b. Applicability of the forum selection clause.1375 i. The syntactical knot.1375 ii. General scope of forum selection clauses.1377 iii. The forum selection clause in this case.1381 C. Certification For Interlocutory Appeal.1382 III. CONCLUSION.1385 Alexander the Great’s simple solution is unavailable to this court as it confronts the Gordian knot of tangled interests and venue questions in litigation stemming from the catastrophic explosion of a fertilizer plant in northwest Iowa on December 13, 1994. The explosion which caused deaths, injuries, and enormous damage. The plaintiff corporation is the operator of the fertilizer plant. The defendant corporation is the inventor, designer, and licensor of the ammonium nitrate neutralizer technology that allegedly precipitated the explosion. The roles of the parties are reversed in parallel litigation brought by the present defendant in federal court in Mississippi. Presently before the court is the question of where these lawsuits should be litigated. The plaintiff seeks to enjoin permanently the lawsuit brought by the defendant in Mississippi, while the defendant seeks to transfér this lawsuit to Mississippi federal court pursuant to 28 U.S.C. § 1404 or, failing that, to stay the present litigation. Each of the parties at first asserted its own “Alexandrian” solution to cut through the tangle: the plaintiff asserted that the question of the proper forum for this lawsuit could be resolved simply by application of the “first-filed rule,” requiring the enjoining of the defendant’s second-filed action in Mississippi, while the defendant initially asserted, with equal certainty and vehemence, that the venue question could be resolved simply by invoking the forum selection clause in the licensing agreement between the parties. Following filing of many briefs, an evidentiary hearing, and oral arguments, the court still lacks a simple “Alexandrian” solution, yet it must nevertheless unravel the tangled web of complex venue issues assisted by the parties’ excellent briefs and spirited oral arguments. I. INTRODUCTION AND BACKGROUND The court has twice considered the factual and some of the procedural background to this litigation in published rulings. See Terra Int'l Inc. v. Mississippi Chem. Corp., 913 F.Supp. 1306, 1308-13 (N.D.Iowa 1996) (ruling on motion for discovery guidance as to ex parte contacts with current and former employees after same hearing in which the present motions were argued); Terra Int'l Inc. v. Mississippi Chem. Corp., 896 F.Supp. 1468, 1469-72 (N.D.Iowa 1995) (granting TRO to enjoin MCC from seeking to enjoin or restrain Terra’s lawsuit in Iowa). The court will therefore recite only the portions of the procedural history and the facts necessary to provide the background to its consideration of the present venue questions. A. Procedural Background 1. The lawsuits • This lawsuit, filed on August 31, 1995, at 12:35 p.m., arises from the explosion of plaintiff Terra International’s fertilizer plant in Port Neal, Iowa, on December 13, 1994, which caused deaths, injuries, and devastation of the plant. Later on the afternoon of August 31, 1995, MCC also filed suit against Terra in the United States District Court for the Southern District of Mississippi, Western Division, in a ease captioned Mississippi Chem. Corp. v. Terra Int'l Inc., No. 5:95CV127 (S.D.Miss.). The lawsuits are not mirror images of each other, but do involve overlapping claims as well as similar factual and legal issues. Count I of the present lawsuit, filed by Terra against MCC, states a negligence cause of action. It alleges that MCC breached a duty of care and caution in designing the MCC technology for use by Terra and in providing guidance and services to ensure that the technology would be reasonably safe. Count II alleges strict liability of MCC on the grounds that the design of the MCC technology was unreasonably dangerous and defective, that these conditions were unknown to Terra, and that these conditions were the proximate cause of the December 13, 1994, explosion. On both counts, Terra seeks damages in an unspecified amount in excess of $50,000, an award of all costs, .prejudgment and post-judgment interest, and such other and further relief as the court may deem just and proper. Jurisdiction in this lawsuit is founded on diversity of citizenship of the parties pursuant to 28 U.S.C. § 1332, and venue is alleged under 28 U.S.C. § 1391(a) and (c) in that a substantial part of the events or omissions giving rise to the claims occurred in Woodbury County, Iowa, or a substantial part of the property that is the subject of this action is situated in this judicial district, and the defendant is subject to personal jurisdiction and/or resides in this judicial district. In MCC’s lawsuit against Terra, filed in Mississippi federal court, Count I seeks declaratory relief that MCC “did not defectively design the neutralizer [at the center of the Port Neal explosion] ... and is not liable to Terra for damages arising from the explosion under any theory of recovery.” In Count II, MCC seeks damages for a tort, alleging that Terra’s incident investigation committee report, a July 17, 1995, press release, and an address given by Mark Rosenbury, a Terra vice president, were defamatory of MCC. MCC alleges significant loss of business as the result of Terra’s allegedly defamatory communications. 2. The TRO and the venue motions Once both lawsuits had been filed, Terra notified the court of its intention to file a motion for an emergency temporary restraining order (TRO) in this court to enjoin the prosecution of the litigation between the parties brought by MCC in the Mississippi federal court. A written copy of the motion for an emergency TRO was ultimately filed on September 6, 1995, although the court had previously received a written courtesy copy. After preliminary telephone conferences on Labor Day, September 4,1995, and a hearing on September 5, 1995, the court entered a TRO much more limited in scope than Terra had originally requested. The TRO enjoined MCC from seeking to enjoin or restrain Terra’s lawsuit in Iowa for a period of up to 120 days. The court also directed that not later than sixty days from the date of its order granting the TRO, the parties should file motions to transfer or dismiss or for permanent injunctions, that responses be filed within a further twenty-one days, and replies within a further seven days. These deadlines for filing of motions and supporting briefs were later extended by order of the court on October 31, 1995, to allow the parties to file their motions after undertaking depositions of Terra CEO Burton Joyce. In the October 31,1995, order, the court also set a hearing on any pending motions for January 15, 1996, and extended the TRO to and including February 16, 1996, to give the court time to resolve the pending motions. Within the extended deadlines set by the court, Terra moved for a permanent injunction against MCC’s prosecution of its lawsuit in Mississippi on December 15, 1995. That same day, MCC filed a timely motion to transfer this lawsuit to Mississippi federal court or to stay this lawsuit pending disposition of the Mississippi litigation. Terra submitted a brief in support of its own motion on December 15, 1995, and a brief in resistance to MCC’s motion to transfer or stay on January 5, 1996. MCC submitted a brief in support of its motion to transfer or stay on December 15, 1996, and a resistance to Terra’s motion for permanent injunction on January 5, 1996. The parties both filed reply briefs on January 12,1996. This matter, as well as another pending motion disposed of in a prior order, dated January 25, 1996, came on for hearing on January 15, 1996. At the hearing, plaintiff Terra International was represented by counsel George Zelcs and Dean S. Rauchwer-ger of Clausen Miller, P.C., in Chicago, Illinois, and by Terrence C. McRea of Zelle & Larson, in Dallas, Texas, as well as by local counsel Gregg Williams of Heidman, Redmond, Fredregill, Patterson, Schatz & Plaza, L.L.P., in Sioux City, Iowa. Defendant MCC was represented by its local counsel, Steve Eckley and Randy Duncan of Duncan, Green, Brown, Langeness & Eckley, P.C., in Des Moines, Iowa, and by its general counsel Jay Brumfield, of Jackson, Mississippi, and by attorney William L. Smith, of Brunini, Grant-ham, Grower & Hewes in Jackson, Mississippi. 3. Further briefing and discovery disputes The arguments of counsel on the venue issues were spirited and informative, but nonetheless required the court to enter an order for supplemental briefing on the venue issues. Therefore, supplemental briefs on venue issues were originally due on January 25, 1996. A discovery dispute intervened, however, causing the court to order an extension of the deadlines for supplemental briefs until seven days after certain discovery pertinent to the venue issues and the licensing agreement involved here had been provided by MCC and found satisfactory by Terra. Terra filed a status report on February 7, 1996, as required by court order, indicating that satisfactory arrangements had been made between the parties for production of the documents related to the licensing agreement, and that Terra anticipated receiving those documents within the next few days. Terra stated that it was prepared and able to file its supplemental brief within seven days of actual receipt of the withheld documents. On February 22, 1996, Terra filed a further status report, stating that it had received and reviewed the requested documents and found them satisfactory. Therefore, Terra stated that both parties were prepared to file their supplemental briefs on all pending motions on or before February 28, 1996. The parties did in fact file their supplemental briefs on February 28,1996. That, however, was not the end of the impediments to final disposition of the pending motions. Instead, just prior to issuance of a ruling, on March 9, 1996, the court was notified by counsel for MCC that MCC anticipated filing a motion to compel and/or request for in camera inspection of certain documents in Terra’s possession that MCC assumed were relevant to the venue issue currently before the court and which Terra asserted were privileged. The court advised counsel for both parties by letter that the court considered it would be appropriate to withhold its ruling on the venue questions until any discovery dispute related to venue had been resolved. Therefore, the court advised counsel that it would withhold the filing of its ruling until after March 18, 1996, in order to give MCC time to file whatever discovery motion it deemed appropriate. The court advised counsel that if MCC filed a discovery motion pertaining to the venue question on or before March 18, 1996, the court would farther withhold its venue ruling until that discovery motion had been resolved. On March 15,1996, counsel for MCC advised the court by letter that the parties had been unable to resolve the eleventh-hour discovery dispute, and counsel for MCC therefore requested an extension of one day to file its motion for in camera inspection of documents owing to insufficient time after the last-minute breakdown of negotiations to prepare the necessary motion. On March 19, 1996, MCC filed a motion to compel production, or, alternatively, for in camera inspection of documents Terra asserted were privileged. Although the court had at first advised the parties that it would forestall ruling on the pending venue motions until the discovery dispute involving venue-related materials was resolved, upon perusing MCC’s motion to compel, which more fully explained what documents were at issue, the court concluded, in an order dated March 19, 1996, that, even if discoverable, these documents would not be necessary to the court in its disposition of the pending venue motions. The court therefore stayed disposition of MCC’s March 19, 1996 discovery motion until after a determination had been made on the venue motions. On March 21, 1996, the court entered an order extending the TRO for another thirty days or until such time as the court disposed of the pending venue motions. Despite this long and tortuous procedural history, the motions for permanent injunction and to transfer or stay are now fully submitted. B. Findings Of Fact The court finds that the proper analysis of the present venue motions requires, first, identification of the factors relevant to disposition of the motions, then an examination of those factors in light of the facts and circumstances in this case. Thus, it would be more efficient to set forth the pertinent facts and circumstances as the court considers each factor in turn, rather than to set forth a body of facts with little indication of their ultimate significance. Therefore, the court will here set forth only those findings of fact that have overarching significance in this venue dispute. Other necessary findings will appear in the legal analysis to follow. 1. “Bad faith” and “surprise” The parties have each asserted that the filing of the other’s complaint was either a “surprise” or an act in “bad faith.” Before filing the present lawsuit, Terra provided a courtesy copy of its complaint to MCC by sending it Federal Express on August 30, 1995, for next morning delivery. As the court noted above, this lawsuit was filed on August 31, 1995, at 12:35 p.m. Later that same afternoon, MCC’s suit against Terra was filed in Mississippi federal court. MCC alleges that Terra’s lawsuit came as a surprise, because Terra’s CEO, Burton Joyce, had advised MCC CEO and President, Charles Dunn, that Terra was not contemplating any lawsuit against MCC as the result of the Port Neal explosion. Therefore, MCC argues, the filing of Terra’s lawsuit was in “bad faith,” while any “delay” in the filing of its own lawsuit until after Terra’s suit was filed was the result of careful review of information and preparation of a complaint. MCC asserts that the filing of its declaratory judgment and defamation action was not planned as a preemptive strike on which Terra beat MCC to the punch. For its part, Terra states that no assurances concerning its ultimate plans to file or not file any lawsuits were ever given. Rather, Terra characterizes Mr. Joyce as telling Mr. Dunn only that at the time of Terra’s press release on July 17, 1995, presenting Terra’s preliminary conclusions concerning the explosion, he did not personally intend for Terra to take legal action against MCC, although he did not know what legal action Terra’s insurers might be planning. Terra states that the present lawsuit, essentially the long foreseen suit of its insurers, had to be brought in Terra’s name under Iowa law, because it seeks judgment for damages in excess of insurance coverage. Terra, in turn, asserts that it had no notion that MCC was planning to file suit against it in Mississippi until MCC’s declaratory judgment and defamation complaint was filed. The court doubts, from their nature, that either of the complaints was conceived or drafted in a heated rush to win a race to the courthouse, but the court is certain that the complaints would not have been filed the same day by coincidence. Rather, they were filed the same day only because MCC received the courtesy copy of Terra’s complaint. The court also does not find credible the rather disingenuous assertions by each party of surprise that the other had filed suit. As the court observed in its order granting a TRO in this litigation, it has been or should have been apparent to the parties since the explosion on December 13, 1994, or at least since investigations early in 1995 as to the cause of the explosion, that litigation of the sort brought by each party here was likely to be brought, either by Terra or its insurers, or by MCC against Terra, and the sole question was when. Consequently, nothing should have suggested to MCC that the issues raised in this litigation were or would be resolved without litigation instituted by Terra or its insurers. Even accepting that Burton Joyce may have indicated to Charles Dunn that he did not intend to initiate a lawsuit by Terra against MCC, Charles Dunn’s deposition testimony indicates that he clearly understood that Mr. Joyce was not guaranteeing that no suit would ultimately be filed, either by Terra or by Terra’s insurers. Similarly, Terra could hardly be surprised, in light of the finger-pointing at MCC in Terra’s incident investigation report, that MCC would seek to protect itself either from liability or from negative fallout of other kinds by instituting a lawsuit of its own. The court finds no “bad faith” by either party in instituting its own lawsuit. Even so, this “race to the courthouse” is, in realistic terms, a “dead heat,” and the court will consider in the proper place how much difference a few hours in the filing of the two complaints should make in the determination of which of these lawsuits goes forward or where these lawsuits are litigated. 2. The forum selection clause MCC asserts that venue in both this ease and its own lawsuit in Mississippi should be governed by the choice of forum in the licensing agreement whereby Terra acquired MCC’s technology for use in the Port Neal plant. On April 28,1980, the parties entered into a licensing agreement under which MCC agreed to furnish Terra with technical information and services necessary for Terra’s use of MCC’s neutralizer technology at the Port Neal facility. The licensing agreement contained a forum selection clause, which MCC asserts is applicable to both its claims and Terra’s claims, and therefore is either controlling or persuasive on the venue questions before the court. That clause, with emphasis added, reads as follows: This Agreement will be construed in accordance with the laws of the State of Mississippi. Any dispute or disputes arising between the parties hereunder, insofar as the same cannot be settled by friendly agreement, will be determined in the District Court of the United States for the Southern District of Mississippi and, for the purposes of instituting such suit, COMPANY hereby consents to service in connection therewith through the Secretary of State for the State of Mississippi. The court’s findings concerning the asserted ambiguity and applicability of this forum selection clause are stated in the pertinent sections of the following legal analysis. Of more general significance are the circumstances under which the licensing agreement containing the forum selection clause was negotiated. The licensing agreement was negotiated at arms length between two sophisticated companies. The court finds that the parties negotiated the contract from positions of equal bargaining strength. Furthermore, each was represented by legal counsel. Indeed, Terra was represented by a prominent Wall Street law firm. Although Terra sought over thirty changes to the licensing agreement, it did not seek any changes to the forum selection clause, thereby acquiescing to its terms. The circumstances under which the licensing agreement in general, and the forum selection clause in particular, was negotiated give no hint that the agreement or its terms were the products of fraud, influence, or overweening bargaining power. Thus, the forum selection clause represents a negotiated preference of the parties to litigate covered disputes in federal court in Mississippi. Furthermore, the court finds nothing unreasonable about its terms, requiring litigation in the forum where MCC does business, and where Terra was content to contract obligations, seek further business relationships, conduct business of its own, and even to pursue litigation with other parties. Terra has not argued that the forum selection clause is invalid, as opposed to “inapplicable” or entitled to “no weight” in the present controversy, nor does the court find that it could do so. The court therefore finds the forum selection clause to be fairly negotiated, valid, and reasonable. With this brief procedural and factual background in mind the court turns to its effort to succeed where Alexander failed, unraveling rather than slicing through the tangle presented by the pending motions. II. LEGAL ANALYSIS (including pertinent findings of fact) The combination of motions here presents the court with often convoluted and intertwined strands of legal analysis. However, the court finds that the most sensible approach under the circumstances is to identify the separate strands and, if possible, deter-ifiine how they are knotted together. The court may then resolve the issues in this case in a logical fashion. A. Intertwining Of The “First-Filed” And “Transfer” Analyses Invocation of the “first-filed rule” is Terra’s principal argument both for permanently enjoining MCC’s lawsuit in Mississippi federal court and for denying MCC’s motion to transfer this litigation to Mississippi. The court will therefore begin its analysis with a discussion of the purpose of this rule and its applicability in the present litigation. However, as we shall see, the “first-filed” analysis involves factors relevant to MCC’s motion to transfer under 28 U.S.C. § 1404(a). Furthermore, MCC has argued that the “first-filed” and “transfer” questions are entirely separable, because, even if the court could properly invoke the first-filed rule to bring all of the litigation to this forum, MCC could still move for a transfer of this litigation to Mississippi pursuant to § 1404(a). Therefore, MCC argues, it should not be prejudiced in the consideration of its transfer motion by the fact that it has already filed the second-filed action in Mississippi. Indeed, MCC argues that the existence of its action in Mississippi, and the efforts invested by the court there, indicate that there are unusual benefits to transferring this case to Mississippi that might not exist in a case in which the first forum is inconvenient, but no second forum is already entertaining a related case. The second forum, in the circumstances presented here, is prepared to continue litigation of the transferred suit without interruption. 1. The “first-filed rule” The parties have both shown themselves to be aware of this court’s examination of the “first-filed rule” in Brower v. Flint Ink Corp., 865 F.Supp. 564 (N.D.Iowa 1994), and have both framed their arguments, at least in part, in light of the principles stated in that decision. However, the present venue problem requires further consideration of those principles and examination of matters not relevant in the Brower case. Therefore, although this discussion begins with Brower, it certainly doesn’t end there. As this court observed in Brower, 865 F.Supp. at 567, the Eighth Circuit Court of Appeals has recognized the “first-filed rule”: The well-established rule is that in cases of concurrent jurisdiction, “the first court in which jurisdiction attaches has priority to consider the ease.” Orthmann v. Apple River Campground Inc., 765 F.2d 119, 121 (8th Cir.1985). This first-filed rule “is not intended to be rigid, mechanical, or inflexible,” Orthmann, 765 F.2d at 121, but is to be applied in a manner best serving the interests of justice. The prevailing standard is that “in the absence of compelling circumstances,” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir.1982), the first-filed rule should apply. Northwest Airlines v. American Airlines, 989 F.2d 1002, 1005 (8th Cir.1993) (quoting United States Fire Ins. Co. v. Goodyear Tire & Rubber Co., 920 F.2d 487, 488-89 (8th Cir.1990)); see also Midwest Motor Ex press, Inc. v. Central States Southeast and Southwest Areas Pension Fund, 70 F.3d 1014, 1017 (8th Cir.1995) (stating this rule and citing Northwest Airlines); Boatmen’s First Nat’l Bank of Kansas City v. Kansas Pub. Employees Retirement Sys., 57 F.3d 638, 641 (8th Cir.1995) (same); and see generally E.E.O.C. v. University of Pennsylvania, 850 F.2d 969 (3d Cir.1988), aff'd on other grounds, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir.1982); West Gulf Maritime Assoc. v. ILA Deep Sea Local 24, 751 F.2d 721, 730 (5th Cir.1985); Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 407 (5th Cir.1971); William Gluckin & Co. v. Int’l Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969); Brower, 865 F.Supp. t 567. Thus, the “ñrst-filed rule” “ ‘gives priority, for purposes of choosing among possible venues when parallel litigation has been instituted in separate courts, to the party who first establishes jurisdiction.’” Midwest Motor Express, 70 F.3d at 1017 (quoting Northwest Airlines, 989 F.2d at 1006). The “first-filed rule” has the benefit of being a relatively firm rule that, while providing for the exceptional case, avoids in the main the need for ad hoc balancing of innumerable factors on a case-by-case basis [and therefore] is both more predictable for litigants — yielding more speedy, less expensive adjudication — and more easily applied by the courts — preserving scarce judicial resources. These are proper considerations that are consistent with the interests of justice. Berisford Capital Corp. v. Central States, Southeast & Southwest Areas Pension Fund, 677 F.Supp. 220 (S.D.N.Y.1988); see also Brower, 865 F.Supp. at 567 (quoting Beris-ford Capital). Application of the “first-filed rule” is reviewed by the appellate court for abuse of discretion. Northwest Airlines, 989 F.2d at 1005; Goodyear, 920 F.2d at 489; Minnesota Mining & Mfg. Co. v. Rynne, 661 F.2d 722, 724 (8th Cir.1981) (per curiam). 2. Exceptions to the rule The parties do not dispute that Terra’s lawsuit was filed first. What they dispute strenuously is whether filing first should, as Terra argues, suffice to enjoin MCC’s Mississippi lawsuit, or whether, as MCC contends, there is an exception to application of the first-filed rule in this case, which would require a denial of Terra’s motion for a permanent injunction. The court will therefore turn to consideration of what exceptions may or may not arise in the circumstances of these two lawsuits to preclude application of the first-filed rule. a. The “compelling circumstances” exception As the Eighth Circuit Court of Appeals has stated, the first-filed rule is not to be “mechanically” applied, Boatmen’s First Nat’l Bank, 57 F.3d at 641; Northwest Airlines, 989 F.2d at 1005; Orthmann, 765 F.2d at . 121, but should give way to “compelling circumstances” requiring a result different from that obtained by applying the rule. See, e.g., Midwest Motor Express, 70 F.3d at 1017; Boatmen’s First Nat’l Bank, 57 F.3d at 641; Northwest Airlines, 989 F.2d at 1005 (“The rule ... yields to the interests of justice, and will not be applied where a court finds ‘compelling circumstances’ supporting its abrogation.”); Goodyear, 920 F.2d at 488-89; accord Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629 (7th Cir.1995) (“This circuit does not rigidly adhere to a ‘first-to-file’ rule,” and finding the rule could be overcome by the district court’s inherent power to control its docket and a decision to defer to the court of second filing was therefore proper). In Brower, this court attempted to categorize or synthesize from prior decisions what constitutes “compelling circumstances” for disregarding the first-filed rule. Brower, 865 F.Supp. at 568-73. This court found that [t]he Eighth Circuit Court of Appeals has ... recognized two specific factual circumstances in which it will find an exception to the “first-filed rule” and allow the second suit to continue: (1) where the plaintiff in the first-filed action was able to file first only because it had misled the filer of the second-filed action as to its intentions regarding filing suit in order to gain the advantages of filing first; and (2) where the second-filed action is a continuation of a legal process already begun in that court even though another action concerning the same issues has been filed in between in another court and is therefore ostensibly the first-filed action. Brower, 865 F.Supp. at 569 (citing Goodyear, 920 F.2d at 489); see also Midwest Motor Express, 70 F.3d at 1017 (finding “insufficiently compelling” allegations where second filer alleged prematurity of first filer’s claims and false statements of fact in the first filer’s complaint, but failed to produce evidence that the first filer had “promised or indicated in some manner that it would not sue, that [the second filer] relied on this representation, and that [the first filer] then filed a surprise complaint,” also citing Goodyear, 920 F.2d at 489). MCC specifically alleges that Terra’s “bad faith” in Sling this action, despite supposed assurances from Terra’s CEO that Terra would not be filing such a suit, falls within the first kind of “compelling circumstance.” The court, however, concludes that the evidence of Terra’s supposed “bad faith” presented by MCC, as is the “evidence” of Terra’s “surprise” at the filing of MCC’s lawsuit, is at best equivocal, and that arguments by both parties arising from this equivocal evidence are disingenuous. Midwest Motor Express, 70 F.3d at 1017 (failure of proof of filing of first-filed suit contrary to representations of first filer, and contrary to reliance of second filer, means case does not fall within first “compelling circumstances” exception). Thus, the court finds that MCC cannot bring this case within the first “compelling circumstance” exception to the first-filed rule identified in Brower. See Brower, 865 F.Supp. at 569; accord Midwest Motor Express, 70 F.3d at 1017. The court finds no showing of the second kind of “compelling circumstance” in this ease, continuation of a prior action in the second-filed forum so that the intervening lawsuit is only ostensibly the first one filed, id., and, indeed, finds that none could be made in the circumstances of these lawsuits. MCC’s lawsuit is not a continuation of a legal process already begun in Mississippi federal court prior to the filing of Terra’s lawsuit in this court. Id. In Brower, this court noted consideration by various courts of a number of further circumstances proffered as sufficiently compelling to overcome the first-filed rule. Brower, 865 F.Supp. at 569-73. Most of those circumstances fall generally within the so-called “red flags” identified by the Eighth Circuit Court of Appeals in Northwest Airlines. Northwest Airlines, 989 F.2d at 1007; see also Boatmen’s First Nat’l Bank, 57 F.3d at 641 (identifying the Northwest Airlines “red flags”). Those “red flags” are: first, that the “first” suit was filed after the other party gave notice of its intention to sue; and, second, that the action was for declaratory judgment rather than for damages or equitable relief. Boatmen’s First Nat’l Bank, 57 F.3d at 641 (citing Northwest Airlines, 989 F.2d at 1007). Neither “red flag” appears here, because MCC does not claim that Terra only filed suit after receiving notice of MCC’s intention to file suit, nor is Terra’s suit for declaratory judgment rather than for damages or equitable relief. Id. Indeed, it is MCC’s action, the second-filed action, that is at least in part for declaratory relief on the very issues on which Terra seeks damages in this lawsuit. Thus, it is appropriate to consider here whether MCC’s second-Sled action “was brought to vex the plaintiff in the first suit.” Brower, 865 F.Supp. at 570 (emphasis in the original) (citing Berisford Capital, 677 F.Supp. at 225, as posing this question). The circumstances in this case are similar to those in Berisford Capital, in that MCC, the second filer, is critical of the first filer, Terra, for failing to notify MCC of the filing of its suit until just prior to the filing, especially when the filing of Terra’s lawsuit was purportedly a “reneging” on a promise from Terra’s CEO. Cf. Berisford Capital, 677 F.Supp. at 225 & n. 2 (second filer was critical of first filer for not receiving notice of filing of first suit at all until after delay in service by process server, which led second filer to file its complaint in ignorance of the first-filed suit). This court has rejected MCC’s “bad faith” argument, and notes that MCC received some notice of Terra’s filing, which was obviously sufficient for MCC to be able to file its complaint the same day. Thus, although the court considers that, at least in litigation of this size and inevitability, it would perhaps have been more courteous for Terra to give MCC more advance notice of the filing of Terra’s suit, and that nothing would have been lost thereby, because a preemptive strike by MCC in response to notice of the suit would plainly have raised the “red flags” of Northwest Airlines, and would have been little tolerated by this court, MCC still has not shown “compelling circumstances” in this case. The comments of the court in Berisford Capital are as appropriate in these circumstances as they were in the case before that court: “I can understand counsel’s bruised feelings, but no equitable considerations arise. Counsel for both sides were playing hardball; but neither threw bean balls.” Berisford Capital, 677 F.Supp. at 225 n. 2. Furthermore, because of the inevitability of the filing of all of the claims presented in the two lawsuits, this court finds that MCC’s second-filed action was not intended merely to vex Terra, although there was undoubtedly some jockeying for a preferred forum on MCC’s claims in MCC’s decision to file those claims in Mississippi federal court. Finally, MCC’s motion to transfer is not so groundless as to suggest that filing of MCC’s suit in Mississippi was intended only to be vexatious to Terra. Thus, although the court has found little ground so far to deny Terra’s invocation of the first-filed rule in support of its motion to enjoin MCC’s Mississippi lawsuit, the court also has so far found nothing about the filing of MCC’s suit, apart from mere time of filing, that supports barring MCC’s suit by application of the first-filed rule. b. “Balance of convenience” exception As this court observed in Brower, in some cases considering whether or not to allow a second-filed action to proceed, courts have considered an analogy to 28 U.S.C. § 1404(a) to identify factors in a “balance of convenience” to the parties, either before or in addition to considering other special or compelling circumstances in the “first-filed” analysis. See Brower, 865 F.Supp. at 567-68; see also, e.g., United States v. Costello, 809 F.Supp. 56, 59 (E.D.Wis.1992) (listing “balance of convenience” factors found in § 1404(a) without identifying that statute as the source, and determining that only the court of the second-filed action could provide complete relief because only it had jurisdiction over all of the parties); Igloo Prods. Corp. v. The Mounties, Inc., 735 F.Supp. 214, 216 (S.D.Tex.1990) (formulating the § 1404(a) test as whether the first-filed plaintiffs choice of venue creates “such oppressiveness and vexation to a defendant as to be all out of proportion to plaintiffs convenience” or “considerations affecting the court’s own administrative and legal problems,” and citing as using the § 1404(a) analogy Superior Sav. Ass’n v. Bank of Dallas, 705 F.Supp. 326, 330-31 (N.D.Tex.1989), and Merle Norman Cosmetics v. Martin, 705 F.Supp. 296, 298-301 (E.D.La.1988)); Beris-ford Capital, 677 F.Supp. at 222 (§ 1404(a) “balance of convenience” was flat, therefore court considered other special circumstances, but found where, as in that ease, “the circumstances do not clearly call for departure from the first-filed rule, that rule should be applied without apology”). Although the Eighth Circuit Court of Appeals does not appear to have drawn upon this analogy, the inclusion of these further factors is supported by the view of the Eighth Circuit Court of Appeals that the first-filed rule “yields to the interests of justice.” Northwest Airlines, 989 F.2d at 1006; Goodyear, 920 F.2d at 488 (the first-filed rule “is to be applied in a manner best serving the interests of justice”). Therefore, this court cannot read the factors specifically considered by the court in Northwest Airlines or other decisions from this circuit’s court of appeals to be exhaustive of the circumstances that may be found sufficiently “compelling” to overcome the first-filed rule. After all, the purpose of 28 U.S.C. § 1404(a) is also to prevent injustice to a party forced to litigate in an inconvenient forum. 28 U.S.C. § 1404(a) (statute states that transfer may be made “[f]or the convenience of the parties and witnesses, in the interest of justice”). Plainly, it would be “unjust,” and therefore a “compelling circumstance,” if, for example, the “balance of convenience” under 28 U.S.C. § 1404(a) showed an extraordinary burden upon the second filer as the result of litigating in the forum of the first-filed action, or if the transfer analysis under § 1404(a) otherwise dictated transfer. Therefore, this court concludes that in circumstances where a § 1404(a) analysis dictates transfer, the first-filed rule should be abrogated. Northwest Airlines, 989 F.2d at 1006 (rule should be abrogated where appropriate “in the interests of justice”). Thus, a proper consideration of whether Terra may invoke the “first-filed rule” to obtain an injunction against MCC’s Mississippi lawsuit compels this court to consider the factors relevant to MCC’s motion to transfer pursuant to 28 U.S.C. § 1404(a) to see if those § 1404(a) factors indicate “compelling circumstances” precluding application of the first-filed rule. Because of this overlapping of the “first-filed” and “transfer” factors and inquiries, the court must now examine the precise impact of the “transfer” analysis upon application of the first-filed rule. It should be remembered that 28 U.S.C. § 1404(a) is the statute under which MCC has brought its own venue motion, its motion to transfer. Also, MCC’s motion to transfer this litigation to Mississippi is essentially the “obverse” of Terra’s motion, which is based on the first-filed rule, for an injunction against MCC’s Mississippi litigation, because such an injunction would likely result in the “transfer” of MCC’s Mississippi claims to this district by forcing MCC to refile its Mississippi claims as counterclaims in this litigation. Because the “first-filed” analysis necessarily involves consideration of factors relevant to MCC’s transfer motion, the court concludes that it is not the first-filed rule that is dispositive of both motions before the court, as Terra would have it, but the “transfer” analysis that is potentially dis-positive of both motions. To clarify this conclusion, the possible resolutions must be reviewed in turn. First, Terra’s motion for a permanent injunction could be granted, but that is only possible if MCC’s motion to transfer fails, because, as the court concluded above, § 1404(a) grounds for transfer present compelling circumstances creating an exception to the first-filed rule. Second, Terra’s motion for a permanent injunction could fail on an exception to the first-filed rule not involving § 1404(a) grounds. In that situation, unfavorable disposition of Terra’s motion for a permanent injunction would not necessarily require the granting of MCC’s motion to transfer. Each lawsuit could proceed unimpeded by the other. Third, any favorable resolution of MCC’s motion to transfer would require denial of Terra’s motion for a permanent injunction, because, once again, grounds for transfer create exceptions to the first-filed rule, and would consequently require denial of Terra’s motion for a permanent injunction. To reiterate, only denial of MCC’s transfer motion would permit the granting of Terra’s motion for a permanent injunction. What is neither practically nor theoretically possible, therefore, is a situation in which the first-filed rule could “trump” an analysis pursuant to § 1404(a) that dictated transfer of this action to Mississippi. Terra’s arguments notwithstanding, this court has found no authority for the proposition that the first-filed rule would preclude transfer of an action from the forum of first filing where the forum of first filing is found to be inconvenient under § 1404(a). Assuredly, Terra argues that “this action should not be transferred because Terra filed first in the Iowa federal court,” but Terra cites no case standing for that proposition. Rather, Terra’s argument is pieced together from the following chain of conclusions: (1) absent compelling circumstances, the first-filed rule should apply; (2) Terra’s choice of forum is entitled to great weight, and a transfer shifting the inconvenience from one party to another need not be granted; (3) the few “dead heat” or “no winner” eases cited by MCC as establishing that the first-filed rule does not apply when filings are close together do not find an exception unless the filings are “nearly instantaneous” [sic], because in such circumstances application of the first-filed rule “yields no proper resolution,” and only then may recourse be had to an alternative means of resolution, such as consideration of factors other than first filing; and, finally, (4) because this is not a situation involving nearly simultaneous filings, and no other circumstances here are sufficiently compelling, there is no reason to depart from the first-filed rule. Plaintiff [Terra’s] Memorandum In Opposition To [MCC’s] Motion To Transfer Or Stay (hereinafter, “Terra’s Resistance To Transfer”), pp. 3-12. The weak link in this chain of conclusions, however, is the third one. It is apparent from the discussion above that courts do not consider factors other than who filed first only in circumstances in which the first-filed rule cannot be applied because the race to the courthouse was too close to call. Rather, regardless of how close or how distant the racers finished, courts have consistently recognized that the “compelling circumstances” exception to the first-filed rule could erase a victory based solely on the finish results. Indeed, Terra recognizes this proposition in both its first and last conclusions. This court has concluded that among the “compelling circumstances” that suffice to except a case from the first-filed rule are factors under § 1404(a) that dictate transfer of the action, none of which depend upon the time of filing of the suit or suits involved. Thus, application of the first-filed rule cannot “trump” a contrary result under the “transfer” analysis, but is instead dependent upon the “transfer” analysis also favoring retention of the litigation in the first-filed forum. However, before proceeding to the “transfer” analysis, which is potentially dispositive of both motions before the court, because it may provide a “compelling circumstances” exception to the first-filed rule as well as grounds to transfer this litigation to Mississippi, the court will consider yet another exception to the first-filed rule. This exception was not relevant in Brower, but was asserted by MCC in this litigation and has been alluded to above. c. The “dead heat” exception The court must now consider what is perhaps, practically speaking, the anterior question in analysis of Terra’s motion for an injunction based upon the first-filed rule. That question is, is Terra entitled to invoke the first-filed rule at all in the circumstances of this case, or does the proximity of the filings in this case create a third exception to application of the first-filed rule? The court has thus far assumed that Terra is entitled to invoke that rule, because it is undisputed that Terra’s lawsuit was filed a few hours prior to MCC’s filing of its lawsuit in Mississippi. However, MCC asserts that the closeness of the filing times of these two lawsuits makes application of the first-filed rule inappropriate. Terra counters that even if there is a “dead heat” exception to the first-filed rule, it cannot be invoked here. Terra asserts that only filings that are “nearly simultaneous” fall within this exception, and then only because the court is unable to resolve which action was filed first. Courts have indeed recognized as another exception to the first-filed rule what this court describes as a “dead heat” or “no winner” exception. Furthermore, the time frame within which courts will recognize such a “dead heat” is surprisingly large, as the discussion below will demonstrate. However, the court finds no case in which the “dead heat” exception has stood alone as grounds for overcoming the first-filed rule, unless the finish to the race was really just too close to call. MCC’s principal authority for a “dead heat” exception is Mobil Oil Exploration Co. v. Federal Energy Reg. Comm’n, 814 F.2d 998 (5th Cir.1987). MCC reads the case as concluding that filings that are close in time do not require application of the first-filed rule, while Terra reads the ease as requiring an exception to the first-filed rule only in very limited circumstances involving “nearly simultaneous” filings, which are so close that the court cannot determine which came first. In Mobil Oil, the Fifth Circuit Court of Appeals was confronted with a dispute between two parties seeking review of agency action in circumstances where there was a statutory first-filed rule for determining venue of such review actions. Mobil Oil, 814 F.2d at 1000 (finding the first-filed rule in 28 U.S.C. § 2112(a)). One petitioner claimed that it had filed its petition for review in the Fifth Circuit Court of Appeals one second prior to another party’s filing in the District of Columbia Circuit Court of Appeals, while that other party asserted that its filing in the Fifth Circuit Court of Appeals had preceded the Commission’s filing in that circuit by four-tenths of a second and had been “precisely concurrent” with the Commission’s posting in the District of Columbia Circuit Court of Appeals. Id. The frustration of the Fifth Circuit Court of Appeals in attempting to determine which petition for review had been filed first was evident: It should be obvious to even the mechanically inept that if courts let themselves get drug down this slippery slope of splitting minutes on the digital watches worn by parties and timed by calls to the Naval Observatory, the next generation of races will be run by split-second electronic timing devices and laser transmissions or some other esoteric procedures which distort the statutory purpose still further. Id. The court found that the review petitions had been filed “simultaneously or substantially simultaneously,” and that in such situations, the first-filed rule could not resolve in which venue the review should be conducted. Id. The court therefore concluded that “[w]here the first-filing rule yields no proper resolution and the convenience of the parties in the interests of justice appears evenly balanced, chance is a just determinant of where the review should proceed.” Id. at 1001. Thus, Mobil Oil does not stand, as Terra contends, for the proposition that “it is only where the first-filed rule yields no proper resolution to the controversy involving infinitesimal time differences in filing that resort may be had to an alternative means of resolution.” Terra’s Brief In Opposition To Transfer, p. 6 (emphasis in the original; citing Mobil Oil, 814 F.2d at 1001). Plainly, the Fifth Circuit Court of Appeals considered “the convenience of the parties in the interests of justice” as an alternative means to the first-filed rule before turning to a game of chance to resolve the venue question. Mobil Oil, 814 F.2d at 1001 (noting that both the Fifth Circuit Court of Appeals and the District of Columbia Circuit Court of Appeals had resolved cases of “substantially simultaneous filings” under 28 U.S.C. § 2112(a) by lot). This court, as well as the Eighth Circuit Court of Appeals, also embraces the “interests of justice” as a test for an exception or alternative to the first-filed rule. However, the Mobil Oil case also does not stand for the proposition asserted by MCC, which is that any filings that are close in time preclude application of the first-filed rule. Rather, the court in Mobil Oil concluded that it had no means to determine which lawsuit had been filed first, and could not make a dispositive determination on the basis of a balance of convenience. Id. In answer to both parties’ assertions, this court notes, first, that it is able to tell which lawsuit was filed first, Terra’s, but it is also able to make a determination of whether the first-filed rule should be followed or disregarded based on an “interests of justice” or “balance of convenience” analysis under 28 U.S.C. § 1404(a). Thus, although Mobil Oil does identify a “dead heat” exception, it does not identify an exception applicable in the circumstances presented here. Mobil Oil is not the only “dead heat” case identified either by the parties or the court, however. Two of the most recent federal decisions, two district court decisions located by the court, expand the scope of what can be construed to be a “dead heat” obviating automatic application of the first-filed rule. In Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144 (S.D.N.Y.1995), the district court for the Southern District of New York concluded that the fact that one party had filed first, and that filing was not an “improper anticipatory filing,” did not end the issue of application of the first-filed rule. Ontel, 899 F.Supp. at 1153. The court wrote, Even though the instant action was not improper, and therefore can potentially benefit from the first-filed rule, that rule is usually disregarded where the competing suits were filed merely days apart. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Here, because the lawsuits were both filed on the same day, the first-filed rule is inapplicable. Ontel, 899 F.Supp. at 1153 (emphasis added). This case does indeed state a “dead heat” exception comparable to MCC’s formulation of such an exception. However, the court in Ontel went on to note that even where “a significant difference” between the times of filing of two lawsuits existed, “‘temporal precedence is but a factor to consider and is not controlling.’” Id. (quoting National Patent Dev. Corp. v. American Hosp. Supply Corp., 616 F.Supp. 114, 118 (S.D.N.Y.1984)). The court therefore relied instead on “ ‘[essentially the same factors that ... come into play on a motion to transfer under [28 U.S.C. § 1404(a) ]’ ” to make its determination of the proper venue for the litigation before it. Id. (again quoting National Patent Dev.). This theme begins to sound familiar. Similar principles were intoned in another recent decision from the Southern District of New York. In 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128 (S.D.N.Y.1994), the district court again relied upon National Patent Dev. when it concluded, “ ‘[T]he courts should be concerned with what the interests of justice require and not with who won the race [to the courthouse].’ ” 800-Flowers, 860 F.Supp. at 133 (quoting National Patent Dev., 616 F.Supp. at 118). The court found that it was “well-established that district courts need not slavishly adhere to the first filed rule, and that where circumstances dictate, ‘great significance should not be placed upon the dates the actions were filed.’ ” Id. (quoting Ivy-Mar Co. v. Weber-Stephen Prods. Co., 1993 WL 535166, *2 (S.D.N.Y. Dec. 21, 1993)). The court therefore did not resort simply to the first-filed rule to determine which of two lawsuits filed twenty days apart, the first for declaratory judgment, filed in state circuit court, or the second for trademark infringement and unfair competition, filed in the federal court in New York, provided the proper venue for the litigation between the parties. Id. Instead, the court “assessed the balancing of conveniences and practical considerations,” as those factors are applicable to a motion to transfer under 28 U.S.C. § 1404(a), “and [found] that the interests of justice in this case militate in favor of adhering to the first-filed rule.” Id. (emphasis added). Thus, in 800-Flowers, although the first-filed rule was applied, it was not because the first-filed suit was filed twenty days before the second filed lawsuit, but because adherence to the first-filed rule comported with the results of a “transfer” analysis under § 1404(a). The case upon which the Ontel court relied, Factors Etc., Inc., telescoped the “dead heat” exception into another form of the “compelling circumstances” exception. See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). In Factors Etc., Inc., the Second Circuit Court of Appeals was called upon to resolve which forum should entertain the lawsuits of the parties which had been filed a matter of five days apart, the first one in United States District Court for the Northern District of Ohio, for declaratory judgment, and the second in the United States District Court for the Southern District of New York, seeking injunctive relief and damages for misappropriation and unauthorized use of the name and likeness of Elvis Presley. Id. at 217. The plaintiff in the Ohio suit moved to transfer the New York suit to Ohio, asserting the first-filed rule as grounds for the transfer. Id. The Second Circuit Court of Appeals acknowledged the first-filed rule, but noted that it was inapplicable if there are “special circumstances which justify giving priority to the second [lawsuit].” Id. at 218. The court then found such “special circumstances,” in the declaratory and anticipatory nature of the first-filed action, and the filing of two additional lawsuits by the New York plaintiff in the Southern District of New York, upon which it founded its conclusion that the district court had not abused its discretion in allowing the second-filed action to continue in the forum in which it was filed. Id. at 219. Thus, under this line of eases, the timing of the lawsuits is no more than a factor to be considered along with § 1404(a) factors or other “interest of justice” factors, at least where the two lawsuits in question were filed within several days of each other. Certainly, these cases demonstrate that the timing of the lawsuits does not “trump” those other factors, as Terra would advocate. However, this court does not read these cases as allowing a “dead heat” factor to stand alone in creating an exception to the first-filed rule, as MCC would argue, except where the filings were “nearly simultaneous” and it was therefore impossible for the court to tell which lawsuit was filed first. See, e.g., Mobil Oil, 814 F.2d at 1001. Rather, in each case, including Mobil Oil, in which the court disregarded the timing of the filings, the court also carefully considered whether there were “compelling” or “special” circumstances that made application of the first-filed rule inappropriate, see, e.g., Factors Etc., Inc., 579 F.2d at 218-19, or circumstances that dictated a result where the first-filed rule simply could not. See, e.g., Mobil Oil, 814 F.2d at 1001. Although the court concludes that there is no “dead heat” exception which stands alone, except in the circumstances of impossibility of determining who filed first, where the filing of the two lawsuits is, practically speaking, a “dead heat,” as in all other circumstances, the final determination of venue will not depend upon the first-filed rule alone, but upon a balance of the dictates of the rule against other factors. What a “dead heat” should do, the court concludes, is counsel the court to avoid a “slavish adherence” to the first-filed rule, 800-Flowers, 860 F.Supp. at 138, or its “mechanical operation,” Boatmen’s First Nat’l Bank, 57 F.3d at 641; Northwest Airlines, 989 F.2d at 1005; Orthmann, 765 F.2d at 121, and remind the court to examine other considerations besides temporal priority to see if “compelling circumstances” dictate a departure from the rule. Northwest Airlines, 989 F.2d at 1005. Cases cited by Terra do not contradict this court’s conclusion that a “dead heat” exception cannot stand on its own, a conclusion contrary to MCC’s assertions, except in the very narrow circumstances identified in Mobil Oil in which it is impossible for the court to determine which suit was filed first. Nor do Terra’s eases contradict this court’s con-elusion that mere temporal priority will not overcome other considerations whenever a determination of temporal priority can be made, a conclusion contrary to Terra’s arguments. The additional cases Terra cites as showing that there is no “dead heat” exception, except in the circumstances before the court in Mobil Oil, and which Terra argues show that application of the first-filed rule may be based on differences of seconds in the filing of separate lawsuits in separate venues, do involve extremely close temporal proximity, and do apply the first-filed rule to determine venue. Terra points out that the difference in time of filing between the lawsuits in question here is on the order of hours, not seconds. Although this court, too, rejects a “dead heat” exception standing alone in any circumstance other than impossibility of determination of temporal priority, these cases cited by Terra do not stand for the corollary proposition, upon which Terra also relies, that temporal priority on the order of mere seconds or minutes is sufficient to determine venue in the circumstances of this ease. In Formaldehyde Inst., Inc. v. United States Consumer Prod. Safety Comm’n, 681 F.2d 255 (5th Cir.1982), another case involving the same statutory first-filed rule as was applied in Mobil Oil, 28 U.S.C. § 2112(a), a statutory rule applicable to review of agency determinations, one party won the race to the courthouse by a mere ten seconds. Formaldehyde Inst., 681 F.2d at 261-62. The court relied, in the first instance, on its prior decision in Southland Mower Co. v. United States Consumer Prod. Safety Comm’n, 600 F.2d 12 (5th Cir.1979), also cited by Terra here, as holding that the statute had “enacted ‘a mechanical, first filing approach’ to determining venue in eases such as this,” and had therein relied on a one-minute difference. Formaldehyde Inst., 681 F.2d at 261. The court noted prior holdings that ‘“[wjhere one party “succeeds in obtaining an earlier time stamp from the Clerk of one court the agency under review must file there,””’ and applied that rule to priority among two or more