Eggleton v. Plasser & Theurer Export

• Decision Date: 25 July 2007
• Docket Number: No. 06-2641.,06-2641.
• Citation: 495 F.3d 582
• Parties: David C. EGGLETON, Appellee, v. PLASSER & THEURER EXPORT VON BAHNBAUMASCHINEN GESELLSCHAFT, MBH; Franz Plasser Bahnbaumaschinen Industriegesellschaft, MBH, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.3d 582

David C. EGGLETON, Appellee, v. PLASSER & THEURER EXPORT VON BAHNBAUMASCHINEN GESELLSCHAFT, MBH; Franz Plasser Bahnbaumaschinen Industriegesellschaft, MBH, Appellants.

No. 06-2641.

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2007.

Filed: July 25, 2007.

Counsel who presented argument on behalf of the appellant was David L. Kelleher of Washington, D.C. Jason C. Tomasulo of D.C. appeared on the brief.

Counsel who presented argument on behalf of the appellee was Jeffery R. Kirkpatrick of Lincoln NE. John W. Drescher and Michael F. Imprevento of Norfolk, VA appeared on the brief.

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.

MELLOY, Circuit Judge.

Plaintiff David Eggleton sued defendants Plasser & Theurer Export Von Bahnbaumaschinen Gesellschaft, MBH and Franz Plasser Bahnbaumaschinen Industriegesellschaft, MBH ("Plasser," collectively) in Virginia state court for personal injuries arising from his operation of a Plasser-manufactured railroad maintenance machine. Plasser removed the case to the United States District Court for the Eastern District of Virginia ("Virginia district court"). That court found that it lacked personal jurisdiction over Plasser, and it transferred the case to the United States District Court for the District of Nebraska ("Nebraska district court") pursuant to 28 U.S.C. § 1406(a). After the transfer, Plasser moved the Nebraska district court to dismiss the case because Eggleton's claims were untimely under Nebraska law. Eggleton's claims were timely under Virginia law, however, and he urged the Nebraska district court to apply Virginia law to the transferred case. The Nebraska district court agreed that Virginia law should govern, and it issued an order denying Plasser's motion to dismiss. Noting our circuit's conflicting lines of authority on the issue of whether the law of the transferor or transferee forum applies to claims transferred under § 1406(a), the Nebraska district court certified the issue for immediate appeal to this court. 28 U.S.C. § 1292(b). We permitted the appeal. Because we believe that the Nebraska district court must apply local choice-of-law rules to a case transferred pursuant to § 1406(a) under the facts at issue here, we now reverse and remand with directions to apply Nebraska's statute of limitations to Eggleton's claims.

I. BACKGROUND

David Eggleton is and was during all times relevant to this appeal a citizen and resident of Virginia. In 1998, he was employed by the Plasser American Corporation ("PAC"), a Delaware corporation with its principal place of business in Virginia. PAC performs track maintenance for railroads, and the Burlington Northern Railroad engaged PAC's services. These services included performing maintenance and repair work upon a track in Nebraska. PAC sent Eggleton to work on the project there, where he would be required to operate the RM-802 ballast cleaning machine. The RM-802 was designed and manufactured in Europe by Plasser, an Austrian business, and sold f.o.b. Germany to its sole American customer, PAC. On September 6, 1998, Eggleton was performing routine maintenance on the machine when it engaged into gear. The machine pinched his body between a conveyor and another moving part, thus causing serious injuries.

Eggleton filed suit against Plasser in Virginia state court on September 1, 2000, thus satisfying Virginia's two-year statute of limitations for personal-injury claims. Va.Code Ann. § 8.01-243(A). He did not pursue the action, and the state court granted his motion for a voluntary nonsuit on January 23, 2004. In Virginia, a plaintiff may take one voluntary nonsuit as a matter of right. Va.Code Ann. § 8.01-380(B). The plaintiff may then re-file the same action provided he does so within six months or within the original statute of limitations for the claim, whichever period is longer. See Va.Code Ann. § 8.01-229(E)(3) ("If a plaintiff suffers a voluntary nonsuit . . ., the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months . . . or within the original period of limitation . . . whichever period is longer."); Sheets v. Castle, 263 Va. 407, 559 S.E.2d 616, 620 (2002) ("A nonsuit does not involve a decision on the merits, rather, it simply puts an end to the present action, but is no bar to a subsequent action for the same cause.") (quotation and alterations omitted).

Eggleton re-filed his suit in Virginia state court on June 3, 2004, within the six-month limit of § 8.01-229(E)(3). Plasser removed the action to the United States District Court for the Eastern District of Virginia on diversity grounds. Plasser then moved to dismiss Eggleton's claims, arguing that it was not subject to personal jurisdiction in Virginia. After discovery, the Virginia district court ruled on the motion. It agreed that it lacked personal jurisdiction over Plasser, but noted that it was a "close case" that became clear "[o]nly after the jurisdictional discovery period ended." It also found that the Nebraska district court would have personal jurisdiction over Plasser. For that reason, the Virginia district court did not dismiss the case and instead chose to transfer it to the United States District Court for the District of Nebraska. See 28 U.S.C. § 1406(a) (allowing a district court, when confronting a suit filed in an improper venue, to transfer the case "to any district or division in which it could have been brought" rather than dismiss the case when doing so would serve "the interest of justice"); Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) (holding that § 1406(a) grants district courts the power to transfer cases for lack of personal jurisdiction, as well as for improper venue).

Upon transfer to the Nebraska district court, Plasser moved to dismiss the case because Eggleton's re-filed claims were untimely under the applicable Nebraska statute of limitations. Nebraska has a four-year statute of limitations on product liability actions. Neb.Rev.Stat. § 25-224(1). Plasser argued that this statute should apply to Eggleton's claims under Nebraska's choice-of-law rules. See Restatement (Second) of Conflict of Laws § 142(1) ("An action will not be maintained if it is barred by the statute of limitations of the forum . . . ."); FDIC v. Nordbrock, 102 F.3d 335, 338 (8th Cir.1996) (noting that "the Nebraska Supreme Court, as a general matter, utilizes the Restatement (Second) for issues relating to a choice of law").¹ As described above, Eggleton took a voluntary nonsuit and re-filed his case in Virginia state court in 2004—almost six years after his original injury. Nebraska law does not allow for tolling of the statute of limitations "when the original action failed . . . as a result of voluntary dismissal by the plaintiff." Neb.Rev.Stat. § 25-201.01(2). Therefore, the case would have become untimely had Eggleton originally brought it in Nebraska and followed the same course of litigation that he did in Virginia.

Eggleton urged the Nebraska district court to apply Virginia's choice-of-law rules to his claims. Virginia courts apply "the substantive law of . . . the place of the wrong, and the procedural law of Virginia." Jones v. R.S. Jones & Assocs., Inc., 246 Va. 3, 431 S.E.2d 33, 34 (1993). The classification of matters as substantive or procedural is itself a substantive question, and Virginia courts look to the "place of the wrong" to determine "what is substantive and what is procedural." Id. "Nebraska consider[ed] its statute of limitations as procedural" during the time period relevant to this case. Nordbrock, 102 F.3d at 338; but see Neb.Rev.Stat. § 25-3203 (2006) (altering the manner in which Nebraska considers its statute of limitations as to claims arising after July 14, 2006). Therefore, if the Nebraska district court utilized Virginia's choice-of-law rules, the Virginia statute of limitations would apply to Eggleton's claims. Eggleton argued that it was appropriate to apply Virginia choice-of-law rules to his case. He asserted that he had filed his claims in good faith in the Virginia state court without knowledge of any jurisdictional defect, had reasonably relied upon Virginia law regarding the timeliness and permissible manner of pursuing his claims, and had filed, dismissed, and re-filed his claims in conformity with that law. Therefore, he claimed that it would be unjust and contrary to the purpose of the transfer statute to dismiss his claims as untimely under Nebraska law.

The Nebraska district court agreed with Eggleton and denied Plasser's motion to dismiss. It emphasized Eggleton's good faith in filing the case in Virginia, and it relied upon Eighth Circuit precedent for applying the law of the transferor forum in a case that is transferred pursuant to 28 U.S.C. § 1406(a). See Mayo Clinic v. Kaiser, 383 F.2d 653, 656 (8th Cir.1967). It also noted the existence of a conflicting panel opinion within our circuit. See Wisland v. Admiral Beverage Corp., 119 F.3d 733, 736 (8th Cir.1997). For this reason, the district court certified the issue for immediate appeal to this court. See 28 U.S.C. § 1292(b) (allowing district courts to certify interlocutory orders for immediate appeal when the "order involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation"). We permitted the appeal. See id. ("The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order . . . .").

II. DISCUSSION

We review a district court's choice-of-law determination de novo. Schwan's Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d 594, 596 (8th Cir.2007). In general, "[t]he district court must apply the...