Kaiser v. Mayo Clinic

• Decision Date: 15 November 1966
• Docket Number: No. 1-66-Civ. 188.,1-66-Civ. 188.
• Citation: 260 F. Supp. 900
• Parties: Edward KAISER, Plaintiff, v. MAYO CLINIC, Edward S. Judd, D. O. Ferris, and Harold W. Fogle, Defendants.
• Court: U.S. District Court — District of Minnesota

260 F. Supp. 900

Edward KAISER, Plaintiff, v. MAYO CLINIC, Edward S. Judd, D. O. Ferris, and Harold W. Fogle, Defendants.

No. 1-66-Civ. 188.

United States District Court D. Minnesota, First Division.

November 15, 1966.

Walter J. Sebo and Scott & Sebo, Canton, Ill., for plaintiff.

Henry Halladay, Curtis D. Forslund and Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, Minn., for defendants.

MEMORANDUM

LARSON, District Judge.

Plaintiff, a citizen of Illinois, initially brought this medical malpractice action in the United States District Court for the Southern District of Illinois by a complaint filed on January 24, 1966. Defendants are the Mayo Clinic and three doctors associated with the Clinic, Edward S. Judd, D. O. Ferris and Harold W. Fogle, all alleged to be citizens of Minnesota. Pursuant to process issued by the Illinois Court, defendants (except Fogle) were first served in Minnesota on February 4, 1966. A "not found" return was made with respect to defendant Fogle. Thereafter the other defendants moved the Illinois Court to quash service and dismiss the action for lack of personal jurisdiction. Plaintiff then sought an Order transferring the case to the District of Minnesota. Defendants' motion to quash was granted, but instead of dismissing the action the Illinois Court also granted plaintiff's motion to transfer. After the transfer, process was issued from the District of Minnesota and defendants (except Fogle) were served on July 19, 1966. Defendants so served have now moved this Court to dismiss the action for lack of personal jurisdiction and on the additional ground that the action is barred by the Minnesota two year statute of limitations.

The first ground of defendants' motion is based on the contention that the Illinois Court lacked power to transfer the cause in the absence of personal jurisdiction over them. Neither plaintiff's moving papers nor the Order granting the transfer indicate whether the motion and Order were based upon 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406 (a). The latter section provides:

"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 been brought."

Defendants concede that under the decision in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), jurisdiction is not always a prerequisite to transfer, at least under § 1406(a). That was a private antitrust treble damage action brought in a Pennsylvania Federal District Court. Two of the corporate defendants moved to dismiss the action for improper venue and lack of personal jurisdiction. While the Pennsylvania Court agreed with defendants' contentions, rather than dismiss the action it was transferred under § 1406(a) to a Federal District Court in New York where the venue was proper and where personal service could be obtained. After the transfer, defendants again moved to dismiss on the ground that the Pennsylvania Court lacked authority to transfer the action in the absence of personal jurisdiction over them. The motion was granted and affirmed by the Second Circuit, but, upon review, the Supreme Court reversed and held that a transfer under § 1406(a) is not precluded by lack of jurisdiction in the transferor court. Reviewing the legislative history, the court stated:

"The language of § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not. The section is thus in accord with the general purpose which has prompted many of the procedural changes of the past few years—that of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits." 369 U.S. at 466, 82 S.Ct. at 916.

Defendants in the instant case argue that § 1406(a) is not here applicable since venue in Illinois was not improper. The Goldlawr case is further distinguished on the ground that it involved a Federal cause of action and corporate defendants, factors which are not present here.

Section 1406(a) provides for the transfer of cases where venue is laid in the wrong district, if it be in the interest of justice. Since this is a diversity action, plaintiff had a choice under 28 U.S.C. § 1391(a) of laying venue in the judicial district where he resides (Illinois) or in the district where all defendants reside (Minnesota). Thus venue in Illinois was permissible. In a similar situation Selsby v. Vecchione, 216 F. Supp. 207 (S.D.N.Y.1963), held that § 1406(a) was not applicable. That was a diversity action by a New York citizen against a citizen of New Jersey where venue was initially laid in a New York Federal District Court. Defendant was served in New Jersey, but moved to vacate the service, which motion was granted. Thereafter plaintiff sought a transfer to the New Jersey Federal District Court under § 1406(a). Denying the motion, the Court noted that venue in New York was not improper, which precluded transfer under that section. Plaintiff in the Selsby case was anxious to effectuate a transfer since the applicable statute of limitations of the transferee forum would not permit the filing of a new action. This was also the basis for plaintiff's motion to transfer in Skilling v. Funk Aircraft Co., 173 F.Supp. 939 (W.D.Mo.1959). In that diversity action the Court refused to grant a transfer under § 1406(a) on the ground that plaintiff was well aware that no service could be made on defendants, but merely wanted to institute the action to toll the statute of the proposed transferee forum. A contrary ruling, under similar facts, was made in Peoples Bank & Trust Co. v. Rue, 210 F.Supp. 952 (D.Iowa 1962). There a citizen of Iowa brought suit in an Iowa Federal District Court against a citizen of Minnesota for personal injuries sustained in Minnesota. Process issued by the Iowa Court was served upon defendant in Minnesota, but was quashed upon defendant's motion. Taking cognizance of the Minnesota statute of limitations, and relying upon Goldlawr, the action was transferred to Minnesota pursuant to § 1406(a). Since jursdiction was based upon diversity, venue was undoubtedly proper in Iowa. Yet the Court granted a transfer on plaintiff's motion to a district where defendant could be served. This Court is of the opinion that the result in the Rue case gives effect to the liberal interpretation which Goldlawr placed upon § 1406(a). Moreover, the Supreme Court's disposition of Hohensee v. News Syndicate, Inc., 286 F.2d 527 (3rd Cir. 1961), suggests that the Court would apply § 1406(a) in a situation comparable to that presented here. That was a diversity action instituted in a Pennsylvania Federal District Court by a citizen of Pennsylvania against a Delaware corporation whose principal place of business was in New York. Defendant was served in New York, but the Pennsylvania Court quashed the service and dismissed the action, denying plaintiff's motion to transfer to New York under § 1406(a). On appeal, the Third Circuit affirmed, and expressed the view that § 1406(a) "was never intended to serve as a means of avoiding the consequences of a failure to perfect service of process." 286 F.2d at 530. The Supreme Court vacated this decision and, citing Goldlawr, remanded for reconsideration, 369 U.S. 659, 82 S.Ct. 1035, 8 L.Ed.2d 273, subsequently denying a rehearing, 370 U.S. 920, 82 S.Ct. 1552, 8 L.Ed.2d 500. The Supreme Court's action, interpreted in light of Goldlawr, suggests to this Court that § 1406(a) is available to a plaintiff in a diversity action, even though the transferring court is a permissible forum. Section 1406(a) refers to venue laid in the "wrong" district, and under a liberal interpretation plaintiff's choice of venue might be considered "wrong" if defendant cannot be served in that district, as was the case here. Cf., United States v. Berkowitz, 328 F.2d 358, 360 (3rd Cir. 1964). In any event, Goldlawr warrants a holding that even though the Illinois Court was a permissible forum, it had power to transfer the instant case under § 1406(a) in the absence of personal jurisdiction over defendants. The suggestion that Goldlawr must be limited to cases based on a Federal cause of action is answered by Rue, which was a diversity case. Brenner v. Rubin, 240 F.Supp. 467 (D.Mass. 1965), granted a transfer under § 1406 (a) in the absence of personal jurisdiction over a non-corporate defendant which is authority in opposition to defendants' contention that Goldlawr should be limited to corporate defendants.

If the transfer in this case was made pursuant to § 1404(a) the result would be the same. That section provides:

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

United States v. Berkowitz, 328 F.2d 358 (3rd Cir.), cert. denied, 379 U.S. 821, 85 S.Ct. 42, 13 L.Ed.2d 32 (1964), was a civil action by the United States to recover taxes, brought in the Federal District Court in Pennsylvania. Process was served in Pennsylvania, but defendant moved to quash the summons and dismiss the complaint on the ground that he no longer resided in Pennsylvania, but was a resident of New York. Since the statute of limitations had expired, plaintiff moved to transfer the cause to a Federal District Court in New York. The District Court denied plaintiff's motion on the ground that the Goldlawr decision could not be construed to authorize a transfer under § 1404(a) in the absence of personal jurisdiction. The Third Circuit rejected this view, indicating that the rationale of Goldlawr extends as well to § 1404(a), "for these are companion sections, remedial in nature, enacted at the same time,...