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O'BRIEN v. LAKE GENEVA SUGAR SHACK

April 18, 1984

EVELYN O'BRIEN, PLAINTIFF,
v.
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.

ORDER

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.

Background

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.

Discussion

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 jurisdiction).

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 814.

The Supreme Court remanded the case for further consideration, but discussed what law would be applicable if transfer were ...


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