Cox Enterprises, Inc. v. Holt
Citation | 691 F.2d 989 |
Decision Date | 15 November 1982 |
Docket Number | No. 81-7130,81-7130 |
Parties | COX ENTERPRISES, INC., d/b/a The Atlanta Journal, and Darrell Simmons, Defendants-Appellants, v. Darwin HOLT, Plaintiff-Appellee. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Alabama.
ON PETITION FOR REHEARING
(Opinion June 14, 1982, 11 Cir., 1982, 678 F.2d 936)
Before GODBOLD, Chief Judge, and HENDERSON and MERRITT *, Circuit Judges.
The petition for rehearing, 678 F.2d 936, is GRANTED to the extent that the case is transferred to the Northern District of Georgia, subject of course to a determination by that court of whether it has jurisdiction.
The transfer statute, 28 U.S.C. § 1406(a) (1976), authorizes transfers by district courts in the interest of justice. But the statute does not represent a conscious legislative decision to deny appellate courts authority to transfer cases. Panhandle Eastern Pipeline Co. v. Federal Power Comm'n, 343 F.2d 905, 908 (8th Cir. 1965); Panhandle Eastern Pipeline Co. v. Federal Power Comm'n, 337 F.2d 249 (10th Cir. 1964) ( ). In Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328, 332 (5th Cir. 1978) (en banc), the former Fifth Circuit, after finding that the district court lacked jurisdiction, ordered that the case be transferred to the Court of Claims under § 1406(c), which, like § 1406(a), makes no reference to appellate courts. In deference to 1406(c)'s literal language the en banc court could have remanded the transfer issue to the district court. But it did not, stating: 571 F.2d at 332. The only difference between § 1406(a) and § 1406(c) is that the latter authorizes transfer to the Court of Claims rather than to another district court. MacDonald Foundation thus makes clear that § 1406 does not deprive an appellate court of the authority to transfer a case directly. As in MacDonald Foundation, a direct transfer here promotes the policies underlying § 1406 and judicial economy.
We are not barred from ordering transfer by our conclusion that the district court lacked jurisdiction. Goldlawr v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962).
The interests of justice strongly preponderate in favor of transfer of this case. The district court held that it had personal jurisdiction over the defendant. The same district court, in an opinion by another judge, recently had held that there was no personal jurisdiction over the same defendant newspaper. In the instant case the judge reached the contrary conclusion and...
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...of justice merited a transfer because plaintiff might have been time barred from initiating a new action); Cox Enterprises, Inc. v. Holt, 691 F.2d 989, 990 & n. 1 (11th Cir.1982) We find plaintiff's arguments more compelling for the following reasons. First, it cannot be argued that Trierwe......
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...of the parties in the Florida district court. Cf. Cox Enterprises, Inc. v. Holt, 678 F.2d 936 (11th Cir.1982), modified, 691 F.2d 989 (11th Cir.1982).1 This court has adopted as binding precedent Fifth Circuit cases decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206......
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