Haire v. Miller

• Decision Date: 30 September 1977
• Docket Number: No. GC 77-30-S.,GC 77-30-S.
• Citation: 447 F. Supp. 57
• Parties: Jack C. HAIRE, Plaintiff, v. Michael A. MILLER and F. W. Richards, Inc., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

447 F. Supp. 57

Jack C. HAIRE, Plaintiff, v. Michael A. MILLER and F. W. Richards, Inc., Defendants.

No. GC 77-30-S.

United States District Court, N. D. Mississippi, Greenville Division.

September 30, 1977.

COPYRIGHT MATERIAL OMITTED

Timothy W. Pace, Pogue, Pace & Haley, Aberdeen, Miss., Michael Tosick, Ging, Free, Brand, Tosick & Van Winkle, Greenfield, Ind., for plaintiff.

Ralph Holland, Lumpkin, Holland, Ray & Upchurch, Tupelo, Miss., for defendants.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

Plaintiff Jack C. Haire brings this action seeking damages for injuries he received when his automobile was involved in an accident with a vehicle owned by defendant F. W. Richards, Inc. (Company) and operated by its employee, defendant Michael A. Miller (Miller). Plaintiff claims defendants' negligence caused the accident. The complaint states that plaintiff is a Mississippi citizen, that Miller is a citizen of Indiana and that the Company is incorporated under the laws of Indiana and has its principal place of business in that state. Although not specifically alleged jurisdiction is apparently invoked under 28 U.S.C. § 1332 on the basis of diversity of citizenship. According to the complaint the accident occurred on or about August 14, 1973. This action was commenced on March 15, 1977, more than 3½ years after the accident occurred.

The defendants have moved to dismiss for lack of personal jurisdiction. Plaintiff has moved to transfer the case to Indiana under authority of 28 U.S.C. § 1404(a) and 28 U.S.C. § 1406(a).

I. Motion to Dismiss.

The defendants have moved to dismiss and to quash service of process because they argue that this court has no personal jurisdiction over them. Defendants have filed affidavits supporting the motion and have submitted a memorandum to the court. Plaintiff has not filed counter-affidavits and has not submitted a reply memorandum.

Whether this court has personal jurisdiction over the defendants in this diversity action will depend upon whether they come within the grasp of Mississippi's long-arm statute, Miss.Code Ann. § 13-3-57 (1972). The affidavits of defendant Miller and Leland Richards, Vice-President of the defendant Company, state that neither of the defendants is qualified to do business, is doing business, or has ever done business in Mississippi; that neither has committed a tort in Mississippi; that neither has entered into a contract with a resident of Mississippi to be performed in whole or in part in Mississippi and that neither has done any other act subjecting them to the jurisdiction of this court through the use of § 13-3-57. Nothing in the record contradicts defendants' affidavits. Since the record does not show that defendants had sufficient contact with Mississippi to subject them to the reach of Mississippi's long-arm statute, the court concludes that the process served upon them is not effective thereby depriving this court of personal jurisdiction over the defendants.

The court's ruling that it lacks personal jurisdiction over the defendants does not automatically moot plaintiff's motion to transfer. A court having subject matter jurisdiction, as this court does, but lacking personal jurisdiction over the defendant, still has authority under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a) to order a transfer to another district. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) (transfer under section 1406(a)); Koehring Co. v. Hyde Construction Co., 324 F.2d 295, 297-98 (5th Cir. 1963) (transfer under section 1404(a)).

II. Motion to Transfer.

The motion seeks a transfer of this case to the United States District Court in the Southern District of Indiana. Plaintiff claims that the Southern District of Indiana is a district where he could have originally brought this action and that it is the most convenient forum for the defendants and the witnesses who all reside in Indiana. Nothing that the site of the accident is within the Southern District of Indiana, plaintiff concludes that the interest of justice would be best served by a transfer to Indiana. Implicit in plaintiff's statement that he could have brought this action in Indiana is the argument that defendants would be subject to service of process in Indiana and that the interest of justice requires this court to transfer this case to Indiana rather than dismiss it for lack of personal jurisdiction over the defendants.

Plaintiff cites 28 U.S.C. § 1404(a)¹ and 28 U.S.C. § 1406(a)² as authorizing the transfer of this case to Indiana. Both sections permit a court to transfer a case from one district to another but each appears to operate under different circumstances. Plaintiff's argument does not distinguish between the sections so before considering the merits of plaintiff's motion the court will determine whether one or both sections apply to the facts of this case.

A. Do both sections apply?

"Although both sections were broadly designed to allow transfer instead of dismissal, § 1406(a) provides for transfer from forums in which venue is wrongly or improperly laid, whereas, in contrast, § 1404(a) operates on the premise that the plaintiff has properly exercised his venue privilege." Van Dusen v. Barrack, 376 U.S. 612, 634, 84 S.Ct. 805, 818, 11 L.Ed.2d 945 (1964) (footnote omitted). Describing the conditions under which § 1404(a) operates, the authors in 1 Moore's Federal Practice ¶ 0.145 3.-1 at 1584 (2d ed. 1977) state:

As a general proposition, § 1404(a) pre-supposes at least two districts where venue is technically correct and authorizes transfer from one forum where venue is proper to another forum where it is proper if the court determines that such transfer is "for the convenience of parties and witnesses, in the interest of justice." (footnote omitted).

See Annot. 7 A.L.R.Fed. 35 (1971). Section 1406(a), on the other hand, applies to cases "laying venue in the wrong division or district" and provides the district court with the discretionary authority to transfer or dismiss the action as the "interest of justice" requires. "The problem which gave rise to the enactment of § 1406(a) was that of avoiding the injustice which had often resulted to plaintiffs from dismissal of their actions merely because they had made an erroneous guess with regard to the existence of some elusive fact of the kind upon which venue provisions often turn." Goldlawr Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962).

Venue in this case is determined by 28 U.S.C. § 1391(a) which provides:

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may . . . be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.

For this case venue is proper in either Mississippi, where the plaintiff resides, or in Indiana, where all the defendants reside³ and where the accident occurred. At first glance only § 1404(a) appears to be applicable because the court is confronted with a situation where venue is technically correct in both forums although personal jurisdiction over the defendants is not available in Mississippi. Koehring Co. v. Hyde Construction Co., 324 F.2d 295 (5th Cir. 1963) (diversity action transferred under § 1404(a) from Mississippi where plaintiff resided, to Oklahoma where cause of action arose even though district court in Mississippi lacked in personam jurisdiction over defendant). However, in Dubin v. United States, 380 F.2d 813 (5th Cir. 1967) the court was confronted with facts similar to those in Koehring and this case and held that transfer under § 1406(a) was authorized. In Dubin, the United States had filed suit in Ohio to collect taxes. Later when the government discovered it could not get personal jurisdiction over the defendant in Ohio, it moved under § 1406(a) to transfer the action to Florida. Since venue, as determined by 28 U.S.C. § 1396 was proper in Ohio and Florida the defendant argued that § 1406(a) did not authorize transfer to Florida. The court disagreed:

Looking to the language of § 1406, the statute is couched in terms of `laying venue in the wrong division or district.' The statute does not refer to `wrong' venue, but rather to venue laid in a `wrong division or district.' We conclude that a district is `wrong' within the meaning of § 1406 whenever there exists an `obstacle to . . . an expeditious and orderly adjudication' on the merits. Inability to perfect service of process on a defendant in an otherwise correct venue is such an obstacle.

380 F.2d at 815.

Since the plaintiff in this case is unable to obtain personal jurisdiction over defendants, under the Dubin holding he has placed venue in the "wrong" district and may rely on § 1406(a) to request a transfer to another district.⁴

In summary, pursuant to the rulings in Koehring and Dubin, the plaintiff may rely on § 1404(a) and § 1406(a) to request a transfer to another district.

B. Defendants' argument.

Defendants present several arguments opposing the transfer to Indiana. The court finds one argument dispositive of the motion and will not address the other contentions.⁵ Defendants claim that transfer to Indiana is not in the interest of justice because upon transfer, the Indiana district court will find the action barred by the applicable statute of limitation and will order the action dismissed. Before examining this argument the court will review the Mississippi and Indiana limitation period for this cause of action.

C. Statute of Limitations.⁶

In Mississippi an action for personal injuries such as those alleged here must "be commenced within six years next after the cause of such action accrued, and not after." Miss.Code Ann. § 15-1-49 (1972).⁷See Graham v. Red Ball Motor Freight, Inc., 262 F.Supp. 49, 51 (N.D.Miss.1966). "As a rule, Mississippi treats statutes of limitation as procedural; and in keeping with the accepted practice of applying procedural rules of the...