The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Lisa O. Marder ("Marder"), an Illinois resident, has filed this
diversity action against Jan Dembinski ("Dembinski"), a
Connecticut resident, for personal injuries arising out of an
April 18, 1978 accident in Williamstown, Massachusetts. Suit was
filed March 19, 1980, one month before the expiration of
Massachusetts' two-year statute of limitations. Because Dembinski
was living in Austria when the Complaint was filed, Marder caused
substitute process to be served on Dembinski's mother in
Connecticut (after the limitations period had expired).
Dembinski has moved to dismiss this action for want of personal
jurisdiction (he is clearly not within the reach of the Illinois
long-arm statute) and for such dismissal to be with prejudice
because limitations have now run on the action. In response,
Marder concedes Dembinski's jurisdictional argument but, in an
effort to salvage the action against the bar of limitations,
urges in a counter-motion that the Court transfer this cause to
the District Court in Connecticut rather than dismiss the action.
For the reasons stated in this memorandum opinion and order,
Dembinski's motion is granted and Marder's is denied.
This Court of course recognizes that it may transfer a cause to
another District Court even though it lacks personal jurisdiction
over all the parties. Goldlawr, Inc. v. Heiman, 369 U.S. 463,
465-66, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962).*fn1 Some courts
have elected to exercise that authority in circumstances
comparable to those here, where dismissal would effectively
foreclose litigation in a court with personal jurisdiction over
the defendant. See, e.g., Founds v. Shedaker, 278 F. Supp. 32,
33 (E.D.Pa. 1968); Callan v. Lillybelle, Ltd., 39 F.R.D. 600,
602 (S.D.N.Y. 1966). Those decisions make it plain that the issue
is one within the court's discretion.
Judge Grady of this District Court reached the opposite result
in Brown v. Grimm, 483 F. Supp. 40 (N.D.Ill. 1979), though he
recognized that dismissal was not proper in all instances
(particularly given the "interest of justice" standard of
28 U.S.C. § 1404(a)). Indeed, Judge Grady noted that "[i]n many
cases, it would be a great injustice for a plaintiff to lose his
cause of action because of the passing of the limitations period
solely because he was unable to determine whether or not a
particular district court would have personal jurisdiction over
the defendant." Id. at 42.
Here Marder claims she brought the action in Illinois because
venue "did clearly lie in Illinois" (her home state) but she
was uncertain whether Dembinski resided in Massachusetts or
Connecticut (and thus uncertain as to what would be the proper
venue based on the defendant's residence). Therefore, Marder
argues, she should not now be penalized when she instituted a
"timely suit to preserve her rights" but was merely mistaken as
to certain jurisdictional facts.
It is not now necessary to consider what circumstances might
justify the exercise of this Court's discretion to grant a
transfer "in the interest of justice,"*fn2 for that is clearly
not appropriate here:
First, Marder's explanation for her improper Illinois filing is
unacceptable for two reasons. For one thing, 28 U.S.C. § 1391
permits diversity venue in the district "where all plaintiffs
reside, or all defendants reside, or in which the claim arose"
(emphasis added). Because the alleged accident took place in
Massachusetts, proper venue there (contrary to Marder's
assertion) was uncontestable.*fn3 For another, Marder alleges
in her Complaint that Dembinski is a resident of Connecticut,
undermining in a different way her contention that filing this
action in Illinois was a result of uncertainty as to proper venue
Second, neither Marder's complaint nor any assertion in
opposition to Dembinski's motion gives the slightest indication
that Marder had reason to believe this Court could assert
personal jurisdiction over Dembinski. Dembinski was a college
student in Massachusetts, where the alleged accident occurred,
resided permanently in Connecticut and, when this action was
filed, temporarily in Austria. Marder fails to allege a single
contact of any nature between Dembinski and the State of
Accordingly, Dembinski's motion to dismiss this action is
granted and Marder's counter-motion for transfer to the ...