Opinion
CIVIL ACTION NO. 3:98-CV-2842-G
February 16, 2000
MEMORANDUM ORDER
Before the court is the motion of the plaintiffs FAS Technologies, Ltd., FAStar, Ltd., FAS Technologies, Inc., and Energy Conversion Devices, Inc. ("FAS") to alter or amend this court's judgment, pursuant to FED. R. Civ. P. 59(e). For the following reasons, FAS's motion is granted.
I. BACKGROUND
On December 15, 1999, this court granted the motion of the defendant Dainippon Screen Mfg. Co., Ltd. ("Dainippon") to dismiss this case for lack of personal jurisdiction. See generally FAS Technologies, Ltd. v. Dainippon Screen Mfg. Co., Ltd., 3:98CV2842G, 1999 WL 1204486, at *1 (N.D. Tex. Dec. 15, 1999). Dainippon had also moved, in the alternative, that the case be transferred to the Northern District of California, where Dainippon admits it is subject to personal jurisdiction. Because the court dismissed this action, it did not reach the issue of transfer to the Northern District of California. See id. at *6. FAS now requests that this court transfer the case to the Northern District of California instead of dismissing it outright. See Plaintiffs' Motion to Alter or Amend Judgment to Transfer this Case to the Northern District of California and Brief in Support ("Motion") at 2. Dainippon opposes this motion. See generally Defendant's Opposition to Plaintiffs' Motion to Alter or Amend Judgment to Transfer this Case to the Northern District of California ("Opposition").
Dainippon is an alien corporation which must be served pursuant to the Hague Convention On the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Convention"). Motion at 2. According to FAS, it took almost six months, due to the complex nature of international service, to serve Dainippon in this case under the Hague Convention. Id. Dainippon now refuses to waive service, even though FAS has served it once before, and FAS alleges that this court's dismissal of the case for lack of personal jurisdiction, instead of transferring it to the Northern District of California, will postpone the start of the action in California for another six months. Id. As FAS notes, even though it has already served Dainippon under the Hague Convention, Dainippon's refusal to waive service effectively forces FAS to serve Dainippon under the Hague Convention once more. Id. at 4.
II. ANALYSIS A. Standard of Review Pursuant to FED. R. Civ. P. 59(e)
The clerk entered judgment in this case on December 15, 1999. FAS filed its motion to alter or amend judgment on December 22, 1999. The court treats this motion, filed less than ten days after dismissal, as a motion to alter or amend judgment under FED. R. Civ. P. 59(e). See Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990) (holding that in context of final judgment, motion for "reconsideration" is treated as Rule 59(e) or 60(b) motion, depending on when served), abrogated on other grounds, Little v. Liquid Air Corporation, 37 F.3d 1069 (5th Cir. 1994) (en banc); Artemis Seafood, Inc. v. Butcher's Choice, Inc., 3:98-CV-0282-D, 1999 WL 1032798, at *1 (N.D. Tex. Nov. 10, 1999) (Fitzwater, J.) (same). "Because Rule 59(e) is not subject to the limitations of Rule 60 (b), the district court has considerable discretion in deciding whether to reopen a case in response to a motion for reconsideration arising under the former rule." Lavespere, 910 F.2d at 174.
B. This Case Should be Transferred to the Northern District of California
In Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962), the Supreme Court directly addressed whether lack of personal jurisdiction presents an obstacle to transfer of venue. It held that "[t]he language of [28 U.S.C.] § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not." Id. at 466. It is clear, therefore, that this court's lack of personal jurisdiction does not divest it of the power to transfer this case to the Northern District of California. See, e.g., Bentz v. Recile, 778 F.2d 1026, 1027 (5th Cir. 1985) ("Precedent of this court supports transfer of a case pursuant to section 1406(a) or section 1404(a) from a federal Court lacking personal jurisdiction to one possessing it. . . ."); also Aguacate Consolidated Mines, Inc., of Costa Rica v. Deeprock. Inc., 566 F.2d 523, 524 (5th Cir. 1978) (refusing to limit transfers that comported with the "interest of justice" by imposing barrier of personal jurisdiction).
In Aguacate, the Fifth Circuit decided an issue almost identical to that currently before this court. The plaintiff there originally filed suit in a Georgia state court. The defendant then removed the case to the federal court in the Northern District of Georgia and moved to dismiss it for lack of personal jurisdiction. See 566 F.2d at 524. The Georgia district court dismissed the action because the defendant lacked minimum contacts. Id. Upon motion by the plaintiff, "the court vacated the order of dismissal and transferred the case to the Middle District of Alabama" where personal jurisdiction and venue were proper. Id. The Alabama federal court then dismissed the case because it believed the Georgia federal court could not transfer a case without first acquiring personal jurisdiction. Id. The Fifth Circuit reversed, relying on Goldlawr and concluding that "several considerations make dear that transfer of this case would advance the interest of justice and the procedural simplification underlying §§ 1406(a) and 1404(a)." Id.
Dainippon argues that "applicable Federal Circuit precedent squarely rules out the requested relief" in this case. See Opposition at 4-5. It cites Hollyanne Corporation v. TFT, Inc., 199 F.3d 1304, 1999 WL 1190967, at *1(Fed. Cir. 1999), as that precedent. In Hollyanne, the Federal Circuit held that once a district court decided to dismiss a complaint in a patent infringement suit for lack of personal jurisdiction, it could not then transfer that case to another district. See 1999 WL 1190967 at *2. The district court had first determined that, in patent cases, venue and personal jurisdiction involve the same analysis and do not need to be considered separately. Id. Even if it is assumed arguendo that the present dispute is solely a patent infringement case — and the court notes that FAS's claims against Dainippon include breach of contract, misappropriation of trade secrets, tortious interference, and unfair competition in addition to patent infringement, see 1999 WL 1204486 at *2 — Hollyanne is still distinguishable from the present facts. The court is here not dismissing the case for lack of personal jurisdiction and then transferring it to another venue; rather, it is vacating its previous judgment of dismissal and amending its memorandum order to transfer venue.
In Goldlawr, the Supreme Court noted that "Congress, by the enactment of § 1406(a), recognized that `the interest of justice' may require that the complaint not be dismissed but rather that it be transferred in order that the plaintiff not be penalized by . . . `time-consuming and justice-defeating technicalities.'" Id. at 467 (quoting Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 517 (4th Cir. 1955)). Dainippon's refusal to waive service under these circumstances seems to be a prime example of a "technicalit[y]" that transfer of this case would work to avoid. In the "interest of justice," as authorized by 28 U.S.C. § 1406 (a), this court now vacates its judgment of December 15, 1999 and amends the memorandum order of that date to transfer the venue of this case to the Northern District of California, San Jose Division.
III. CONCLUSION
The judgment of this court dismissing this is VACATED, and the venue of this case, for the reasons stated herein, is TRANSFERRED to the United States District Court for the Northern District of California, San Jose Division.
SO ORDERED.