Geehan v. Monahan
| Decision Date | 06 July 1967 |
| Docket Number | No. 15950.,15950. |
| Citation | 382 F.2d 111 |
| Parties | Cathleen GEEHAN, Plaintiff-Appellee, v. Richard S. MONAHAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Suel O. Arnold, Milwaukee, Wis., Arnold, Murray & O'Neill, Milwaukee, Wis., of counsel, for appellant.
Charles M. Hanratty, Irving D. Gaines, Milwaukee, Wis., David A. Saichek, Milwaukee, Wis., of counsel, for appellee.
Before SCHNACKENBERG, CASTLE and FAIRCHILD, Circuit Judges.
Richard S. Monahan, defendant, has appealed from a judgment of the United States District Court for the Eastern District of Wisconsin entered April 21, 1966, against him and in favor of Cathleen Geehan, plaintiff, for $46,237.66 and costs, based on a jury verdict.
Plaintiff originally filed her complaint in the District Court of the United States for the Eastern District of Virginia, but, when defendant's answer denied an allegation of the complaint that she was a resident and citizen of Virginia and stated that she was a resident and citizen of Wisconsin, the Virginia federal court entered an order on September 10, 1963, which read:
September 10, 1963 /s/ Oren R. Lewis United States District Judge
A copy of the foregoing order was filed in the Wisconsin court on September 12, 1963, and is a part of the record on appeal herein.
1. In this appeal defendant contends that the trial court in Wisconsin did not have jurisdiction over the subject matter of the action. He cites the facts that plaintiff originally alleged in her complaint, which she filed in the federal court in Virginia, that she was a citizen of that state and that defendant was a citizen of the District of Columbia, and that defendant denied plaintiff's allegation as to his citizenship but alleged that he was a citizen of the state of New York, living in a student's dormitory in the District of Columbia.
it is sustainable only under § 1406(a), which provides:
(a) 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 have been brought.
The mere fact that the court cited an irrelevant section of an act rather than a relevant one is no basis for invalidating its action.
Neither party to an action can be heard to impugn an order to which that party agreed at the time of its entry. Such was the order of September 10, 1963, which expressly recites that "counsel * * * have agreed that the action be transferred," to the federal court in Wisconsin. We hold that it is a general rule that an agreed order is impregnable to attack by either side. No reason has been presented to exempt this order from the general rule.
By her second amended complaint dated June 14, 1965, plaintiff clearly asserted citizenship in Wisconsin and that of defendant in New York.
2. At the beginning of the trial on April 18, 1966, in the federal court in Milwaukee, Wisconsin, the court ruled that "Wisconsin substantive law will apply." However defendant urges that the law of Virginia in that respect applied, citing, inter alia, Van Dusen v. Barrack, 376 U.S. 612, 642, 84 S.Ct. 805, 822, 11 L.Ed.2d 945 (1964):
"Since in this case the transferee district court must under § 1404(a) apply the laws of the State of the transferor district court, it follows in our view that Rule 17(b) must be interpreted similarly so that the capacity to sue will also be governed by the laws of the transferor State. * * *"1
and, at 643, 84 S.Ct. at 823, the Supreme Court said:
"The holding that a § 1404(a) transfer would not alter the state law to be applied does not dispose of the question of whether the proposed transfer can be justified when measured against the relevant criteria of convenience and fairness. * * *"
Having in mind our comment that, in making the transfer, the Virginia federal district court improperly cited § 1404(a), when § 1406(a) was applicable, we consider as inapplicable to the case at bar the statements in Van Dusen, quoted above, and also at 639, 84 S.Ct. at 821, which reads:
"* * * A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms."
and, at 646, 84 S.Ct. at 824, the following:
"* * * We have concluded, however, that the District Court ignored certain considerations which might well have been more clearly appraised and might have been considered controlling had not that court assumed that even after transfer to Massachusetts the transferee District Court would be free to decide that the law of its State might apply. * * *"
In other words, Van Dusen recognized that, under a § 1404(a) transfer, the law of the transferring jurisdiction follows the case.
3. Under the Erie Railroad v. Tompkins doctrine,2 the district court herein, having accepted the law of Wisconsin as applicable to this case, was guided as to Wisconsin policy in a conflict of laws situation (Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)), by the case of Wilcox v. Wilcox, 26 Wis.2d 617, 634, 133 N.W.2d 408, 416 (1965). In Wilcox, plaintiffs, husband and wife, Wisconsin residents, were involved in an automobile accident in Nebraska, while the husband was driving. The wife, who sued her husband, was a passenger. The suit was brought in Wisconsin and the husband's liability insurer was named as a co-defendant. Because the complaint alleged only ordinary negligence, the trial court, following the law of Nebraska, sustained a demurrer to the complaint. The guest statute of Nebraska allows recovery from a host by a guest only if gross negligence or intoxication of the host is pleaded and proved. But the complaint alleged that both plaintiff and defendant were domiciled in Wisconsin and that their insurance carrier was organized, licensed and domiciled in that state and that the policy on the car was issued and delivered in Wisconsin to afford coverage on Wilcox's automobile, which was usually kept in Wisconsin. The accident occurred when the Wilcoxes were returning to Wisconsin from a vacation.
The trial judge sustained the demurrer under the existing rule that the place of the tort is the law of the case irrespective of the forum, residence of the parties, or other factors.
However, on appeal, the Supreme Court of Wisconsin adopted a "grouping of contacts" rule for the choice of applicable law, and...
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