The opinion of the court was delivered by: Roszkowski, District Judge.
Before the court is defendant's motion to dismiss and
plaintiff's motion to transfer venue. The court's subject
matter jurisdiction is based upon 28 U.S.C. § 1332. For the
reasons set forth herein, defendant's motion to dismiss is
denied and plaintiff's motion to transfer venue is granted.
The simple facts giving rise to the present controversy are
uncontested. On November 1, 1980, the plaintiff, an Illinois
resident, was injured when she slipped and fell on the
premises of a night club in Wisconsin. On October 11, 1983,
the plaintiff filed suit against the night club and its owners
and operators in this court. On November 21, 1983, the
defendants appeared and moved to dismiss the plaintiff's cause
of action on the grounds that it was barred by Illinois' two
year statute of limitations. Defendants did not raise any
objection to the personal jurisdiction of this court.
Rather than responding to the defendant's motion to dismiss,
the plaintiff filed a motion to transfer her action to the
United States District Court for the Eastern District of
Wisconsin. The plaintiff's motion was made pursuant to
28 U.S.C. § 1404(a). The applicable period of limitations in
Wisconsin is three years.
Title 28 U.S.C. § 1404(a) provides:
For the convenience of parties and witnesses,
in the interests of justice, a district court may
transfer any civil action to any other district
or division where it might have been brought.
If the convenience of the parties and witnesses were the
only consideration here, the court would have little
difficulty in concluding that transfer is appropriate. The
defendants are all allegedly Wisconsin residents and the
occurrence took place in Wisconsin. A view of the stairway
where the plaintiff allegedly fell would only be available
there. Indeed, were it not for the differing statutes of
limitations, the court has little doubt that defendants would
be the ones urging a transfer of venue (or, as shall be
discussed later, a dismissal for lack of personal
The issue, however, is not so simply resolved. For § 1404(a)
also requires the court to consider the "interests of justice".
Pointing out that the plaintiff "elected an Illinois forum" and
exhorting the evils of "forum shopping," the defendants contend
the interests of justice argue against transfer here. Since she
could have filed her action in Wisconsin originally, plaintiff
apparently contends that the interests of justice should not
permit a mistake in filing to bar her cause of action.*fn1
The question of what statute of limitations is applicable in
a transferee district has given rise to tremendous
controversy. Decisions can be found basing the determination
on the party seeking the transfer, the reason for the
transfer, and the provision upon which transfer is based. The
common starting point in each of these decisions is the
Supreme Court's opinion in Van Dusen v. Barrack, 376 U.S. 612,
84 S.Ct. 805, 11 L.Ed.2d 945 (1964).
In Van Dusen, plaintiffs filed numerous diversity actions in
Pennsylvania arising out of an airline crash in Massachusetts.
In the district court, the defendants succeeded in having venue
transferred to Massachusetts pursuant to § 1404(a). Plaintiffs
objected to the transfer on the grounds that the interests of
justice argued against it. Specifically, plaintiffs argued that
Pennsylvania's choice of law rules would result in the
application of substantially more liberal Pennsylvania wrongful
death and punitive damage limitations. Id. at 626, 84 S.Ct. at
The Supreme Court remanded the case for further
consideration, but discussed what law would be applicable if
transfer were ...