Coffey v. Van Dorn Iron Works

Decision Date14 July 1986
Docket NumberNo. 85-1728,85-1728
Citation796 F.2d 217
PartiesMargaret E. COFFEY, Plaintiff-Appellant, v. VAN DORN IRON WORKS, an Ohio Corporation, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas N. Mote, Lawson, Pushor, Mote & Coriden, Columbus, Ind., for plaintiff-appellant.

David T. Kasper, Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., for defendants-appellees.

Before EASTERBROOK, Circuit Judge, ESCHBACH, Senior Circuit Judge, and GRANT, Senior District Judge. *

ESCHBACH, Senior Circuit Judge.

The primary issue presented in this appeal from a judgment for the defendant in this personal-injury diversity suit is whether the district court improperly denied the plaintiff's motion for transfer pursuant to 28 U.S.C. Sec. 1404(a). For the reasons stated below, we will affirm.

I

The plaintiff, Margaret E. Coffey, is a citizen of Indiana. The defendant, Van Dorn Company ("Van Dorn"), is incorporated in Ohio, with its principal place of business in that state. On February 3, 1981, the plaintiff's left hand was crushed while she operated in Indiana a molding press manufactured by the defendant. Several months later, following a series of unsuccessful operations, the plaintiff's left arm had to be amputated at the elbow.

On February 2, 1983, one day before the two-year statute of limitations for personal-injury suits was to expire, the plaintiff brought this action in Indiana state court. Her complaint alleged claims based on negligence, strict liability, and breach of implied warranties. The plaintiff's filing in Indiana state court was ill-advised, however, because Ind.Code Sec. 34-4-20A-5 bars product-liability actions, whether sounding in negligence or strict liability, initiated more than ten years after delivery of the product to the initial user or consumer. 1 See also Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215 (7th Cir.1984); Monsanto Co. v. Miller, 455 N.E.2d 392 (Ind.App. 1st Dist.1983). Ohio, which has a two-year statute of limitations for commencing a personal-injury suit once the action accrues, has no such repose statute for product-liability claims. The defendant removed the suit on the basis of diversity of citizenship to the United States District Court for the Southern District of Indiana on February 28, 1983. On April 8, 1983, the defendant moved for summary judgment on the plaintiff's tort claims on the ground that they were barred by Indiana's products-liability repose statute. 2 In an affidavit attached to its motion, the defendant averred that, on October 22, 1965, it had discontinued the manufacture and sale of the type of press alleged to have injured the plaintiff.

In her response to the defendant's motion, the plaintiff did not dispute the defendant's averments or the applicability of Indiana's repose statute. Rather, the plaintiff moved the district court to transfer the action to an Ohio federal district court pursuant to 28 U.S.C. Sec. 1404(a), arguing that, because her tort claims were not time-barred there, a transfer was in the "interest of justice." The district court denied the transfer motion on June 15, 1984, and granted the defendant summary judgment on the basis of the repose statute. In denying the plaintiff's motion for transfer of venue, the district court, citing Martin v. Stokes, 623 F.2d 469 (6th Cir.1980), concluded that the Ohio federal district court would have been bound to apply Indiana's choice-of-law rules, which in turn, would require application of the Indiana repose statute, making a transfer futile. The district court also found that, because the plaintiff was a resident of Indiana, and that medical records and the treating physicians were in Indiana as well, the transfer would not have been for the convenience of the parties. This appeal followed.

II

A federal district court, in which a suit is filed with proper venue, may "[f]or the convenience of parties and witnesses, in the interest of justice ... transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. Sec. 1404(a). A plaintiff, as well as a defendant, may move for transfer of venue under Sec. 1404(a). Pruess v. Udall, 359 F.2d 615 (D.C.Cir.1965); United States v. Berkowitz, 328 F.2d 358 (3d Cir.1964); Philip Carey Manufacturing Co. v. Taylor, 286 F.2d 782, 784 (6th Cir.), cert. denied, 366 U.S. 948, 81 S.Ct. 1903, 6 L.Ed.2d 1242 (1961); Riley v. Union Pacific Railroad Co., 177 F.2d 673 (7th Cir.1949), cert. denied, 338 U.S. 911, 70 S.Ct. 350, 94 L.Ed. 561 (1950); 1 J. Moore, Moore's Federal Practice p 0.145[4.-3] (2d ed. 1985); 15 C. Wright & A. Miller, Federal Practice and Procedure Sec. 3844 (1986).

In passing on a motion for transfer, the district judge must consider the statutory factors in light of all the circumstances of the case. 3 Christopher v. American News Co., 176 F.2d 11 (7th Cir.1949); see also Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964) (Sec. 1404(a) requires "individualized, case-by-case consideration of convenience and fairness"). The weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge. See, e.g., Brown v. Grimm, 624 F.2d 58, 59 (7th Cir.1980); Federal Deposit Insurance Corp. v. Citizen Bank & Trust Co., 592 F.2d 364, 368 (7th Cir.), cert. denied, 444 U.S. 829, 100 S.Ct. 56, 62 L.Ed.2d 37 (1979); General Foods Corp. v. Carnation Co., 411 F.2d 528, 532-33 (7th Cir.), cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 242 (1969) (abuse-of-discretion standard); 15 C. Wright & A. Miller, Federal Practice and Procedure Sec. 3847 (1986); 1 Moore's Federal Practice p 0.145. The movant (here, the plaintiff) has the burden of establishing by reference to particular circumstances, that the transferee forum is clearly more convenient. See, e.g., Commodity Futures Trading Commission v. Savage, 611 F.2d 270, 279 (9th Cir.1979); Federal Deposit Insurance Corp., 592 F.2d at 368; Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1187-88 (7th Cir.1971). Less of a showing of inconvenience is needed for a Sec. 1404(a) transfer than that for a forum non conveniens dismissal. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264-65, 70 L.Ed.2d 419 (1981); Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955).

The plaintiff claims that the district court erred in concluding that the convenience of the parties weighed against transfer. In her briefs to the district court, however, the plaintiff did not argue, nor did she point to particular circumstances that would indicate, that the convenience of the parties weighed in favor of transfer. It was for the first time on appeal that the plaintiff contended that, because all records and witnesses relating to the design, testing, and manufacture of the molding press are in Ohio, an Ohio federal court would have been the most convenient forum. As a general matter, we will not consider an argument raised for the first time on appeal. See, e.g., City of Chicago v. United States Department of Labor, 753 F.2d 606, 607 n. 3 (7th Cir.1985); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984). Furthermore, the presentation of this argument in plaintiff's initial brief to this court goes little beyond a recitation of facts. We have noted that Fed.R.App.P. 28 requires that the appellant present argument with citation to the relevant authorities. See, e.g., Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.1986) ("It is not the obligation of this court to research and construct the legal arguments open to parties."); see May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1118 (7th Cir.1986); Libertyville Datsun Sales v. Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir.1985). In addition, it was not until her reply brief that the plaintiff argued that the location of records and witnesses relating to the design, testing, and manufacture of the molding press weighed in favor of transfering venue to the Ohio federal district court. We will not consider an argument made for the first time in the appellant's reply brief. See, e.g., Davis v. A & J Electronics, 792 F.2d 74, 76 (7th Cir.1986); Beerly v. Department of Transportation, 768 F.2d 942, 949 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1184, 89 L.Ed.2d 301 (1986). In any event, there is no merit to the plaintiff's claim. At best she has indicated that a federal district court in Ohio might be as convenient as its sister Indiana court, but that is insufficient to meet her burden under Sec. 1404(a). Savage, 611 F.2d at 279; Illinois Tool Works, Inc., 436 F.2d at 1187-88. In conclusion, we find that the district court did not abuse its discretion in determining that a transfer to Ohio federal district court was not for the convenience of the parties.

The plaintiff also claims that the district court abused its discretion in ruling that a transfer was not in the interest of justice. The plaintiff contends that a federal district court in Ohio would, upon transfer, apply Ohio choice-of-law rules, which in turn would point either to Ohio substantive law, which has no repose statute, or to Indiana substantive law, but would classify the repose statute as procedural and not apply it. The plaintiff concludes that, because she would be able to reach the merits in an Ohio, but not an Indiana, federal court, it is in the interest of justice to effect a transfer of the action to the former.

The "interest of justice" is a separate component of a Sec. 1404(a) transfer analysis, Van Dusen, 376 U.S. at 625, 84 S.Ct. at 813-14 (1964); Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514 (4th Cir.1955), and may be determinative in a particular case, even if the convenience of the parties and witnesses might call for a different result. See, e.g., Lemke v. St. Margaret...

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