Opinion
8:99CV8
September 1999.
ORDER
This matter is before me pursuant to 28 U.S.C. § 636 and the general order of referral on plaintiff's motion pursuant to 28 U.S.C. § 1404(a) and 1406(a) to transfer this case to the District of Arizona (#10). Having carefully considered the pleadings and the briefs submitted by the parties, I find that the motion should be granted.
BACKGROUND
The complaint (#1) alleges that plaintiff was injured in an automobile accident near Glendale, Arizona on January 15, 1997. Plaintiff resides in Omaha, Nebraska and defendant is believed to reside in Phoenix, Arizona. Plaintiff seeks compensation for hospital and medical expenses in the amount of $30,023.95; lost earnings in the amount of $25,000; and lost earning capacity valued at $80,000.
Defendant filed a motion to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(2), (3) and (5), contending that this court lacks personal jurisdiction over the defendant, venue is improper in the District of Nebraska, and service of process was insufficient. (See #9). In response, plaintiff filed this motion to transfer the case to the District of Arizona, Phoenix Division, pursuant to 28 U.S.C. § 1404(a) and/or 1406(a). Plaintiff explains in his brief that, on the date of the accident, defendant had a Tennessee drivers license, listed an Arizona address, and said he was a graduate student of international business from South America. Although he diligently attempted to do so, plaintiff was unable to ascertain defendant's citizenship or place of residence. Plaintiff filed this action in Nebraska on January 13, 1999 to preserve plaintiff's claims under the two-year Arizona statute of limitations. Defendant was served by publication.
Briefly, defendant argues that the motion to transfer should be denied because plaintiff filed his lawsuit in Nebraska knowing that this court does not have personal jurisdiction over the defendant.
LEGAL ANALYSIS
The federal district courts have original subject matter jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States; [or] (2) citizens of a State and citizens or subjects of a foreign state. . . ." 28 U.S.C. § 1332(a). An alien admitted to the United States for permanent residence is deemed a citizen of the State in which such alien is domiciled. Id.
In a case wherein jurisdiction is founded solely on diversity of citizenship, venue is proper only "(1) in a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . ., or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(a). However, "An alien may be sued in any district." 28 U.S.C. § 1391(d).
Under 28 U.S.C. § 1406(a), "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
Applying these statutes to the information contained in the court file, I find that the federal district court has subject matter jurisdiction over this case pursuant to § 1332(a) and that this case could have been filed in the District of Arizona under 28 U.S.C. § 1391(a)(2).
In this case, the defendant's citizenship and place of residence remain unknown. From the information presented to the court, it could be fairly argued that the defendant is a subject of a foreign state, or a permanent resident alien, or a resident of Tennessee, or a resident of Arizona. Defendant argues in his brief that Arizona is the proper forum. For purposes of this order, therefore, I assume without deciding that this court does not have personal jurisdiction over the defendant.
Transfer of venue under 28 U.S.C. § 1406 is proper only if venue does not lie in the original forum (here, Nebraska). when venue may be technically proper under 28 U.S.C. § 1391, is nevertheless considered "wrong" if lack of personal over a defendant prevents the action from proceeding there. See, e.g., Mayo Clinic v. Kaiser, 383 F.2d 653, 654-55 (8th Cir. ("Section 1406(a) should be construed wherever possible to procedural obstacles which would prevent an expeditious and adjudication of a case on its merits."); Murphy v. Klein Inc., 693 F. Supp. 982, 985 (D.Kan. 1988).
Section 1406 was enacted to avoid "the injustice which had often resulted to plaintiffs from dismissal of their actions merely because they had made an erroneous guess with regard to the existence of some elusive fact of the kind upon which venue provisions often turn." Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962).
The language of § 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. The section is thus in accord with the general purpose which has prompted many of the procedural changes of the past few years — that of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits. When a lawsuit is filed, that filing shows a desire on the part of the plaintiff to begin his case and thereby toll whatever statutes of limitation would otherwise apply. The filing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure. . . .Id. at 466-67 (emphasis added). Under Goldlawr, "the degree of impropriety in the selection of the forum is immaterial." Mayo Clinic, 383 F.2d at 655. See also Jennings v. Entre Computer Centers, Inc., 660 F. Supp. 712 (D.Me. 1987).
The issue presented in this case is whether it is in the "interest of justice" to transfer the case to Arizona. A dismissal without prejudice would be fatal to the plaintiff's case because plaintiff would have to refile the case in Arizona, and the Arizona statute of limitations, Ariz. Rev. Stat. Ann. § 12-542 (West 1992), has expired. Several courts have determined that transfer pursuant to 28 U.S.C. § 1406(a) was in the "interest of justice" under these circumstances.
"The argument that transfer, rather than dismissal, is in the interest of justice is especially compelling in cases which, if dismissed, might be time barred because the statute of limitations has run." Naegler v. Nissan Motor Co., Ltd., 835 F. Supp. 1152, 1158-59 (W.D.Mo. 1993). In McDonald v. Doolittle, 885 F. Supp. 233, 235 (D.Kan. 1995), the court granted the plaintiff's motion to transfer a medical malpractice case from Kansas to Nebraska pursuant to § 1406(a):
Equity plainly favors a transfer here. According to the plaintiff, the statute of limitations on her action has since expired, and Nebraska does not have a statute that would save her action from being untimely if now refiled there. There is no question that a Nebraska court would have personal jurisdiction over the defendant. A transfer, therefore, would make an adjudication on the merits of the plaintiff's claims possible and would eliminate the expense to the plaintiff in discovering and proving personal jurisdiction over the defendant. The defendant himself in his original motion has identified the significant factors that favor transfer in this case, including the convenience of witnesses and the availability of process to compel testimony. The interest of justice is served by transferring this case to the District of Nebraska.Cf. Gray v. Lewis Clark Expeditions, Inc., 12 F. Supp.2d 993, 999 (D.Neb. 1998) (granting motion to transfer case to Wyoming pursuant to 28 U.S.C. § 1631: "Plaintiffs state that this action was filed in Nebraska three days before the Wyoming statute of limitations on tort actions would bar their claim. . . . Because § 1631 allows the filing date of the action to relate back to the date it was filed in this district, I find it in the interest of justice to order the transfer."); O'Neal v. Hatfield, 921 F. Supp. 574, 576 (S.D.Ind. 1996) ("We find that in this case it is in the interest of justice to transfer the action [pursuant to § 1631] to the Northern District of Illinois, which has personal jurisdiction over the Defendant and in which venue properly lies. Otherwise, were we to dismiss the case, plaintiffs would likely be barred by the applicable statute of limitations from re-filing the suit in the proper jurisdiction."); Peterson v. U Haul Co., 421 F.2d 837 (8th Cir. 1969) (plaintiff/appellant granted leave to file a motion pursuant to § 1406(a) to transfer action from Nebraska to North Carolina).
I find that it is in the interest of justice to transfer this case to the District of Arizona pursuant to 28 U.S.C. § 1406(a). The degree of impropriety in plaintiff's selection of Nebraska as the forum is immaterial to this decision. See Mayo Clinic, 383 F.2d at 655. A transfer under § 1406(a) results in the law of the transferee state being applied, Murphy, 693 F. Supp. at 986; therefore, the transfer to Arizona will not permit the plaintiff to avail himself unfairly of a longer limitations period based on Arizona law. The court is not persuaded that defendant will be unfairly prejudiced if the case is transferred to Arizona.
CONCLUSION
IT IS ORDERED:
1. Plaintiff's motion to transfer this case to the District of Arizona (#10) is granted.
2. This case is hereby transferred to the District of Arizona, Phoenix Division, pursuant to 28 U.S.C. § 1406(a).
3. The operation of paragraph 2, above, is stayed for a period of 10 days to allow defendant to file an appeal pursuant to NELR 72.3 if he wishes to do so.
Pursuant to NELR 72.3 any appeal of this order shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this order. Failure to timely appeal may constitute a waiver of any such objection. The brief in support of any appeal shall be delivered to the district judge to whom this case is assigned at the time of filing such appeal. Failure to submit a brief in support of any appeal may be deemed an abandonment of the appeal.