Hollis v. Florida State University

• Decision Date: 30 July 2001
• Docket Number: No. 00-11627,00-11627
• Citation: 259 F.3d 1295
• Parties: (11th Cir. 2001) Tom J. HOLLIS, Plaintiff-Appellant, v. FLORIDA STATE UNIVERSITY, by and through The Board of Regents of the State of Florida, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1295

259 F.3d 1295 (11th Cir. 2001)

Tom J. HOLLIS, Plaintiff-Appellant, v. FLORIDA STATE UNIVERSITY, by and through The Board of Regents of the State of Florida, Defendant-Appellee.

No. 00-11627.

United States Court of Appeals, Eleventh Circuit.

July 30, 2001.

Appeal from the United States District Court for the Middle District of Florida. (No. 99-00625-CV-J-21B), Ralph W. Nimmons, Jr., Judge.

Before EDMONDSON and RONEY, Circuit Judges, and JORDAN^*, District Judge.

JORDAN, District Judge:

When an action is removed from state court to federal court, it is removed to the district court "embracing the place where such action is pending." 28 U.S.C. § 1441(a). The question presented by this appeal is whether a defendant can obtain dismissal of a removed action on the ground that, when originally filed in state court, the action lacked proper venue under state law. We conclude that state-law venue deficiencies cannot be the basis for dismissal of a removed action because 28 U.S.C. § 1441(e), which was enacted in 1986, abrogated the theory of derivative jurisdiction. Upon removal the question of venue is governed by federal law, not state law, and under § 1441(a) a properly removed action necessarily fixes venue in the district where the state court action was pending. A defendant dissatisfied with venue after removal may, however, seek a transfer to another division or district under federal law. See, e.g., 28 U.S.C. § 1404(a).

I

In May of 1999, Tom Hollis sued Florida State University in the Circuit Court in and for Duval County, Florida, which comprises the state's Fourth Judicial Circuit. Mr. Hollis alleged in his complaint that he suffered from chronic fatigue syndrome, that he had been unable to complete his qualifying examination in the Ph.D. program in communications due to this disability, and that FSU had improperly dismissed him from the program in March of 1998. Mr. Hollis asserted claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq.

FSU removed the case to the U.S. District Court for the Middle District of Florida, and simultaneously moved under 28 U.S.C. § 1404(a)¹ to transfer venue to the U.S. District Court for the Northern District of Florida. FSU argued that Mr. Hollis' claims were based on his graduate studies at FSU's campus in Tallahassee, Florida, which is located in the Northern District. FSU also asserted that the relevant documents, as well as Mr. Hollis' professors, were in Tallahassee. Mr. Hollis opposed the § 1404(a) motion. FSU, he argued, had not demonstrated that a trial in Tallahassee would be substantially more convenient than a trial in Jacksonville. In reply, FSU cited the Second Circuit's decision in PT United Can Co., Ltd. v. Crown Cork & Seal Co., 138 F.3d 65, 72 (2d Cir.1998), for the proposition that removal did not constitute a waiver of its right to seek a change of venue. FSU also maintained that the district court's removal jurisdiction was merely derivative. The district court, said FSU, merely inherited what the state court had--an improperly filed case that had to be dismissed under Fla. Stat. § 47.011,² the state venue statute, or transferred pursuant to 28 U.S.C. § 1406(a).³

The district court denied FSU's § 1404(a) motion, explaining that Mr. Hollis and his witnesses lived in or near Jacksonville and that there was no specific need to try the case in Tallahassee. The district court then followed PT United and held that, following removal, a federal court can consider the propriety of venue under state law and dismiss the action if such venue was improper when the action was initially filed. Turning to Fla. Stat. § 47.011, the district court ruled that venue for Mr. Hollis' action was improper in the Circuit Court in and for Duval County, and that FSU could be sued only in the Circuit Court in and for Leon County (where Tallahassee is located).

Finally, the district court addressed the possibility of a transfer to the U.S. District Court for the Northern District of Florida under § 1406(a). The district court found this provision inapplicable, reasoning that a removed action is not an action "laying venue in the wrong division or district." Finding no basis to transfer the case, the district court dismissed it without prejudice due to "improper venue in the [state] circuit court."

Mr. Hollis moved for reconsideration. He informed the district court that his FCRA claims would be time-barred if a new action had to be filed. He also argued that, under what he termed the majority rule, a district court had the authority under § 1406(a) to transfer a removed case whose venue had been improper under state law. FSU opposed Mr. Hollis' motion. It pointed out that the federal courts were evenly divided on the § 1406(a) issue, and maintained that the district court had no jurisdiction to do anything but dismiss Mr. Hollis' action upon concluding that venue had been improper under state law. The district court denied the motion for reconsideration, and this appeal followed.

II

Mr. Hollis argues that the district court erred in dismissing the action due to improper venue under state law. Our review of the district court's decision is plenary. See, e.g., Peterson v. BMI Refractories, 124 F.3d 1386, 1390 (11th Cir.1997). Because FSU decided not to cross-appeal the district court's denial of its requests for transfer under §§ 1404(a) and 1406(a), those rulings are not before us.

A

The district court, relying on PT United, dismissed Mr. Hollis' complaint because the action, when originally filed, lacked proper venue under Florida law. In PT United, the Second Circuit, although not addressing venue challenges made by certain defendants in an action removed to federal court, explained in dicta that a defendant who removes a case to federal court does not, by so doing, waive any state-law venue challenges. Citing to cases likeFreeman v. Bee Machine Co., 319 U.S. 448, 449, 63 S.Ct. 1146, 87 L.Ed. 1509 (1943), and Greenberg v. Giannini, 140 F.2d 550, 553 (2d Cir.1944) (L.Hand, J.), the Second Circuit reasoned that there is no waiver because "[w]here a state court lacks jurisdiction of the subject matter or of the parties," the federal district court "acquires none on a removal of the case." PT United,138 F.3d at 72-73. "Because the 'jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction,' any defect in jurisdiction or process present in the state suit may be asserted in the district court." Id. at 73. As explained below, we do not find the dicta in PT United persuasive.

The judicially-created theory of derivative jurisdiction, which provided the basis for the Second Circuit's venue discussion in PT United, has been around for a long time, and was cited with approval by the Supreme Court as late as 1981. See Arizona v. Manypenny, 451 U.S. 232, 242 n. 17, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). A good summary of the theory can be found inLambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671 (1922): "The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction."

It would be hard to criticize PT United if the theory of derivative jurisdiction retained its vitality today, but the theory has been superseded by statute and no longer has any force. In 1986 Congress amended § 1441, the general removal provision, by adding subsection (e). That subsection provides that a district court to which a civil action is removed is "not precluded from hearing and determining any claim" simply because the state court from which the action was removed "did not have jurisdiction over that claim." As many of our sister circuits have recognized, § 1441(e) has abrogated the theory of derivative jurisdiction. "While it was once settled law that a federal court's removal jurisdiction was derived from the state court's jurisdiction, this rule has been abolished by [§ 1441(e) ]." Lloyd v. FDIC,22 F.3d 335 336 n. 2 (1st Cir.1994). Accord Rosciszewski v. Arete Assoc., Inc., 1 F.3d 225, 232 n. 6 (4th Cir.1993); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1548 & n. 12 (5th Cir.1991); North Dakota v. Fredericks, 940 F.2d 333, 335-36 (8th Cir.1991); Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 714 n. 11 (9th Cir.1990); Morda v. Klein, 865 F.2d 782, 783 (6th Cir.1989).

Although PT United was decided in 1998, the Second Circuit did not discuss § 1441(e) and relied on derivative jurisdiction cases decided prior to 1986. The dicta in PT United therefore seems to us to be inaccurate, and cannot support the district court's dismissal of Mr. Hollis' action.⁴ We recognize, of course, that PT United does not stand alone, and that other authorities contain language in accord with the Second Circuit's discussion. But these cases and treatises suffer from the same problems as PT United--the failure to acknowledge § 1441(e) and/or the reliance on derivative jurisdiction cases. See, e.g., Lambert v. Kysar, 983 F.2d 1110, 1113 n. 2 (1st Cir.1993); Transure, Inc. v. Marsh and McLennan, Inc., 766 F.2d 1297, 1300 (9th Cir.1985); Crumrine v. NEG Micon USA, Inc., 104 F.Supp.2d 1123, 1127-28 (N.D.Iowa 2000); Brown v. Texarkana Nat'l Bank, 889 F.Supp. 351, 352 (E.D.Ark.1995). See also J. Moore, 17 Moore's Federal Practice § 110.08 (3d ed.2001) (citing PT United favorably without accounting for § 1441(e)'s abrogation of the theory of derivative jurisdiction).

B

In removed actions the general venue provision, 28 U.S.C. § 1391, does not apply. Instead, § 1441(a), by requiring removal to the district court for the district in which the state action is pending, properly fixes...