United States District Court, Northern District of Illinois, W.D
April 18, 1984
EVELYN O'BRIEN, PLAINTIFF,
LAKE GENEVA SUGAR SHACK, INC., A WISCONSIN CORPORATION, DARRYL VINCENTI AND DANA VINCENTI, DEFENDANTS.
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
In the view of this court, the interests of justice do
militate in favor of allowing the plaintiff an opportunity to
have her action adjudicated on the merits. The difficulty for
the court, however, is determining whether the transferee
district would be required, under applicable choice of law
rules, to dismiss the plaintiff's action if the
court was to transfer it. If such is the case, then the
interests of justice would not justify such a futile transfer.
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 ultimately ordered. The court recognized,
There is nothing . . . in the language or policy
of § 1404(a) to justify its use by defendants to
defeat the advantages accruing to plaintiffs who
have chosen a forum which, although it was
inconvenient, was a proper venue. Id. at 633-34, 84
S.Ct. at 818.
The court then held:
. . the transferee district court must be
obligated to apply the state law that would have
been applied if there had been no change of
venue. A change of venue under § 1404(a) generally
should be, with respect to state law, but a change
of courtrooms. Id. at 639, 84 S.Ct. at 821.
In arriving at its decision, the court expressly noted that
it "need not consider whether in all cases § 1404(a) would
require the application of the law of the transferor, as
opposed to the transferee, State." Id.
The lower court decision most heavily relied upon by the
Court was Headrick v. Atchison, T. & S.F.R. Co., 182 F.2d 305
(10th Cir. 1950). In Headrick, the plaintiff, a Missouri
resident, was injured in California. The defendant was a Kansas
corporation doing business in many states, including New
Mexico. After the California statute of limitations had
expired, but before the New Mexico statute had run, the
plaintiff filed suit in New Mexico. The defendant moved to
transfer the action to California pursuant to § 1404(a), but
the district court refused the transfer fearing the plaintiff's
action would be considered time barred in California.
The Tenth Circuit reversed the trial court, holding that the
California statute of limitations would not bar the
plaintiff's cause of action and, therefore, was not a proper
basis for denying the defendant's motion. The court reasoned:
Had the case been tried in the New Mexico state
court, the procedural laws of New Mexico
including the statute of limitations would be
applicable * * * [I]n removal cases the Federal
Court must apply the state law and the state
policy. . . . Upon removal to the Federal Court
in New Mexico, the case would remain a New Mexico
case controlled by the law and policy of that
state, and if § 1404(a) is applicable and a
transfer to the California court is ordered for the
convenience of the parties, the witnesses and the
interests of justice, there is no logical reason
why it should not remain a New Mexico case still
controlled by the law and the policy of that state.
Since Van Dusen lower courts have struggled to determine what
law the transferee court is required to apply when transfer is
ordered pursuant to 28 U.S.C. § 1406 or on the motion of the
plaintiff. See Ellis v. Great Southwestern Corp., 646 F.2d 1099
(5th Cir. 1981); Martin v. Stokes,
623 F.2d 469
(6th Cir. 1980); and Carson v. U-Haul Co.,
434 F.2d 916
(6th Cir. 1970).
Title 28 U.S.C. § 1406(a) provides:
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
In Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8
L.Ed.2d 39 (1962), the Supreme Court interpreted § 1406
broadly, allowing transfer regardless of "whether the court in
which it was filed had personal jurisdiction over the defendant
or not." Id. at 466-67, 82 S.Ct. at 916. Justice Harlan
dissented from the majority's decision, arguing it was:
. . incongruous to consider, as the Court's
holding would seem to imply, that in the
`interests of justice' Congress sought in § 1406(a)
to deal with the transfer of cases where both venue
and jurisdiction are lacking in the district where
the action is commenced, while neglecting to
provide any comparable alleviating measures for the
plaintiff who selects a district where venue is
proper but where personal jurisdiction cannot be
obtained. Id. at 468, 82 S.Ct. at 916.
Responding to the inconsistency pointed out by Justice
Harlan, lower courts have generally held that transfer from a
proper venue is permissible when the plaintiff has been unable
to obtain personal jurisdiction in a proper venue. Dubin v.
United States, 380 F.2d 813
(5th Cir. 1967); Gaither v. Boone
County Board of Education, 465 F. Supp. 712 (S.D.N.Y. 1979); and
Young v. Cuddington, 470 F. Supp. 935 (M.D.Pa. 1979). Courts
have exercised their discretion to transfer timely filed cases
to venues where the defendant is amenable to process, even
though at the time the motions to transfer were granted the
action could not have been refiled in the transferee district
due to the expiration of the statute of limitation. Smith v.
Peters, 482 F.2d 799
(6th Cir. 1973), cert. denied,
415 U.S. 989
, 94 S.Ct. 1587
, 39 L.Ed.2d 886 (1974), and Mayo Clinic v.
Kaiser, 383 F.2d 653
(8th Cir. 1967). In other words, courts
have generally held that where the defendant is not amenable to
personal jurisdiction, actions filed in proper venues toll the
statute of limitations in the transferee district. Id.
Since applying the law of the transferor state in an action
transferred because the plaintiff was unable to obtain
personal jurisdiction over the defendant in the transferor
district would allow the plaintiff to choose a statute of
limitations which ordinarily could not govern the action,
courts have generally held that the law of the transferee
state will apply when the action is transferred because the
defendant is not amenable to process in the original venue.
Carson v. U-Haul Co., 434 F.2d 916, 918 (6th Cir. 1970);
T-Birds, Inc. v. Thoroughbred Helicopter Service, Inc.,
540 F. Supp. 548, 550 (E.D.Ky. 1982).*fn2
In Carson, the plaintiffs originally filed in Georgia, but
could not obtain personal jurisdiction over the defendants in
that forum. Since the statute of limitations prevented them
from originally filing in Kentucky, where the defendants were
amenable to process, plaintiffs sought to transfer the action
to a district in Kentucky. The court refused to allow the law
of the transferor court to apply as in Van Dusen, explaining:
. . plaintiffs want more than merely to obtain
service of process in Kentucky upon parties
apparently not properly subject to service of
process in Georgia; they want to continue to
retain Georgia as the forum state in order to
apply that state's longer statute of limitations.
This would operate to prejudice the defendants as
it has not been established that the Georgia
court ever had any jurisdiction over them. If
plaintiffs had filed suit in Kentucky instead of
in Georgia, the Kentucky statute of limitations
would have barred the claims. To allow the
procedure which plaintiffs are now attempting to
invoke would encourage forum shopping.
Id. at 918.
Applying these various decisions in the present context, the
Sixth Circuit Court of Appeals has held the law to be applied
following a transfer is to be determined by the nature of the
transfer. Martin v. Stokes, 623 F.2d 469
(6th Cir. 1980). When
a transfer is ordered because the plaintiff is unable to obtain
personal jurisdiction over a defendant, the court held that the
law of the transferee district is applicable, and, in transfers
ordered solely on the basis of convenience, the law of the
transferor district is applicable. Id. at 475. Accord Ellis v.
Great Southwestern Corp., 646 F.2d 1099
, 1110 (5th Cir. 1981).
Moreover, the court's opinion in Martin suggests that the same
rule would be applied regardless of which party requested the
transfer. As the court explained,
If . . . the choice of law is based on which
party requested the transfer, then the danger of
improper forum-shopping would still remain in
those situations where the plaintiff had brought
his action in a permissible forum but had
selected one with less favorable state law. 623
F.2d at 472.
See also Ellis v. Great Southwestern Corp., 646 F.2d 1099
(5th Cir. 1981).
In the present case, plaintiff has moved to transfer her
action pursuant to § 1404(a). No objection to personal
jurisdiction has been lodged. Under the Fifth and Sixth
Circuits' approach, the transferee court would be required to
apply Illinois law. In a case such as this, Illinois courts
would apply Illinois' own statute of limitations. Jackson v.
Shuttleworth, 42 Ill. App.2d 257, 192 N.E.2d 217 (3rd Dist.
1963). Thus, if this court was certain the transferee district
was bound to apply Illinois' two year limitation in accordance
with the Fifth and Sixth Circuit approach, the court would be
required to deny the plaintiff's motion to transfer. Transfer
would not serve the interests of justice, since the transferee
court would merely be required to dismiss the action.
This court, however, does not believe the transferee
district is bound to apply the Fifth and Sixth Circuits'
approach in the present situation. The Seventh Circuit has not
passed upon the question and this court is more persuaded by
the approach taken in other district courts than by the
approach taken in the Fifth and Sixth Circuits. While there is
a certain appealing symmetry to the approach taken by the
Fifth and Sixth Circuits, this court is in agreement with the
court in Les Schwimley Motors, Inc. v. Chrysler Motors Corp.,
270 F. Supp. 418 (E.D.Cal. 1967), that such a wooden application
of those rules is unsound. Id. at 420. Unlike in Carson v.
U-Haul Co., 434 F.2d 916 (6th Cir. 1970), the plaintiff is not
attempting to unfairly disadvantage the defendants. Indeed, as
the court pointed out in Young v. Cuddington, 470 F. Supp. 935
(M.D.Pa. 1979), the plaintiff does "not appear to be attempting
to accomplish anything that could not have been accomplished by
filing in [Wisconsin] originally." Id. at 938. Consequently,
this court is inclined to agree with the courts in Schwimley
and Young, that the law of the transferee district should apply
in a case such as this.
The only real criticism of allowing the transferee forum's
law to apply is that the plaintiff would not have been
afforded the same opportunity had she originally filed in
Illinois state court rather than the United States District
Court for this District. This court is not persuaded by such
as argument. The same criticism could be leveled at those
Fifth and Sixth Circuit decisions allowing actions which would
have been timely filed under the transferee district's statute
of limitations to be transferred after the period of refiling
the action in the transferee district had expired. Those
decisions allow transfer simply because the plaintiff was
unable to obtain personal jurisdiction over the defendant in
the transferor district. Smith v. Peters, 482 F.2d 799 (6th
Cir. 1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1587, 39
L.Ed.2d 886 (1974); Dubin v. United States, 380 F.2d 813 (5th
If the same events had transpired in state court, those
plaintiffs' efforts to refile their actions in a state in
which the defendants were amenable to process would have been
defeated by the state's statute of limitations. Thus, this
discrepancy is not unique to the present situation.
Indeed, in the view of this court, this analysis points out
a weakness in the Fifth and Sixth Circuits' approach. If the
defendants in this case had initially objected to personal
jurisdiction, the court would have been free to transfer this
action to the Eastern District of Wisconsin. Under the Fifth
and Sixth Circuit approach, the transferee district would have
been required to apply its own law and the plaintiff's action
would not have been barred. Instead, however, the defendants
cleverly waived an apparently valid jurisdictional defense and
moved to dismiss the plaintiff's action on the merits.*fn3
Thus, under the Fifth and Sixth Circuit approach,
defendants are allowed to manipulate the appropriate statute of
limitations. This court is not persuaded that the interests of
justice are best served by a choice of law rule which depends
upon the litigation strategy employed by the defendants.
While this court obviously favors the application of the
transferee forum's statute of limitations in a case such as
this, the decision as to what law is applicable in the
transferee district ultimately rests with that court. By this
decision, this court is merely deciding that a colorable basis
exists for applying Wisconsin law. Thus, the transfer of this
action is not merely a futile procedural gesture.
While the court is less than inspired by the plaintiff's
attorney's handling of the present action, the court views the
interests of justice as favoring an adjudication on the merits
of the plaintiff's claim. Thus, for the reasons set forth
herein, plaintiff's motion to transfer the present action to
the United States District Court for the Eastern Division of
Wisconsin is granted and defendant's motion is denied.*fn4