Manley v. Engram

• Decision Date: 22 March 1985
• Docket Number: No. 84-8347,84-8347
• Citation: 755 F.2d 1463
• Parties: Eddie MANLEY, Individually, and as Administratrix of the Estate of Shirley Hall, Plaintiff-Appellee, v. Leve T. ENGRAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1463

755 F.2d 1463

Eddie MANLEY, Individually, and as Administratrix of the Estate of Shirley Hall, Plaintiff-Appellee, v. Leve T. ENGRAM, Defendant-Appellant.

No. 84-8347.

United States Court of Appeals Eleventh Circuit.

March 22, 1985.

David R. Smith, Savannah, Ga., for defendant-appellant.

Randell C. Roberts, Tyler, Tex., Joseph B. Bergen, Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before JOHNSON and HATCHETT, Circuit Judges, and LYNNE ^*, District Judge.

LYNNE, District Judge:

This is an appeal from an interlocutory order transferring the action from the United States District Court for the Southern District of Georgia, where it was originally filed, to the United States District Court for the Middle District of Florida. The transfer was ordered pursuant to 28 U.S.C. Sec. 1406(a). Because we believe that the peculiar facts of this case justified a Sec. 1406(a) transfer, we affirm.

FACTS AND PROCEEDINGS BELOW

This appeal presents novel questions arising under the federal transfer-for-improper-venue statute, 28 U.S.C. Sec. 1406(a). The questions arise out of the following facts. Shirley Hall, the daughter of plaintiff-appellee Eddie Manley, was killed on May 3, 1981, when a car driven by defendant-appellant Engram collided with her vehicle in West Germany. Both Hall and Engram were, at the time of the accident, members of the United States Military serving in West Germany.

Both plaintiff Manley and her daughter Shirley Hall maintained permanent residence in Smith County, Texas. For nearly two years after the accident, Ms. Manley tried in vain to determine the permanent residence of defendant Engram so that she could file this wrongful death action in the proper forum. Just a few days before the two-year anniversary of the wreck, however, Ms. Manley received information that Engram and his family were then residing near Ft. Stewart, Georgia. With Georgia's two-year statute of limitations for wrongful death actions ¹ about to expire, plaintiff Manley, individually and as executrix of the decedent's estate, filed suit in the United States District Court for the Southern District of Georgia, believing that venue was proper there because defendant maintained his home and family in the district, and appeared to reside there.

Following service of process, defendant Engram filed a motion to dismiss or quash alleging insufficiency of service of process, lack of personal jurisdiction, a bar under the two-year statute of limitations, and improper venue. However, defendant failed and thereafter refused through his counsel ² to disclose his true permanent residence for venue purposes. Finally, some eight months into the litigation and four At this point, plaintiff Manley immediately amended her complaint to reflect defendant's true residence and the fact that venue and jurisdiction were both proper only in the Middle District of Florida. ³ Contemporaneously, Manley moved to transfer venue to the Middle District of Florida. This motion was granted by the district court pursuant to 28 U.S.C. Sec. 1406(a), which provides for transfer of venue of any case "laying venue in the wrong division or district." ⁴

months after he had assented to venue in his answer, defendant Engram responded to discovery efforts by stating that, although he was stationed at Ft. Stewart at the time of the filing and maintained his home and family there, he had at all relevant times "considered" his permanent residence and domicile to be Duval County, Florida.

It appears to be conceded that plaintiff objected to venue as soon as she discovered her error of venue, and that she could not in the exercise of due diligence have discovered the defendant's true residence at any earlier time. ⁵ However, defendant Engram contends that merely by filing suit in the Southern District of Georgia, plaintiff automatically waived her right to object to the improper venue there, notwithstanding the fact that no one but the defendant could reasonably have known at the time the suit was filed that he "considered" his true residence to be in Florida.

The reason the defendant has objected to the transfer of venue, of course, is that when a case is transferred under Sec. 1406(a), the transferee court must apply the choice of law rules of the state in which it sits ⁶--in this case, Florida. Florida courts, applying the "most significant relationships" test as embodied in the Restatement (Second) of Conflict of Laws (1971), see Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980), would probably recognize plaintiff's cause of action for wrongful death under either Texas or Florida law. Georgia courts, following the old "lex loci delicti" choice-of-law rule for tort actions, see Wallace v. Harrison, 166 Ga.App. 461, 304 S.E.2d 487 (1983), would probably apply German substantive law, which apparently would not recognize plaintiff's right of action. Compare Tex.Rev.Civ.Stat.Ann. art. 4671, et seq., and Fla.Rev.Stat. Sec. 768.16, et seq., with West German Civil Code Sec. 844. ⁷

DISCUSSION

Where a suit is filed in federal court in a district in which venue or personal jurisdiction is improper, and a timely and sufficient objection to the defect is raised, there is a federal statute of general application under which a change of venue ordinarily may be made. That statute provides as follows:

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.

28 U.S.C. Sec. 1406(a). ⁸ When a transfer for improper venue is granted pursuant to Sec. 1406(a), then "regardless of which party requested the transfer or the purpose behind the transfer, the transferee court must apply the choice of law rules of the state in which it sits." Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1110 (5th Cir.1981). ⁹ The rationale for this rule in the typical case is quite simple:

A transfer under Sec. 1406(a) is based not on the inconvenience of the transferor forum but on the impropriety of that forum. If the state law of the forum in which the action was originally commenced is applied following a Sec. 1406(a) transfer, the plaintiff could benefit from having brought the action in an impermissible forum.

Ellis, 646 F.2d at 1109, quoting Martin v. Stokes, 623 F.2d 469, 472-73 (6th Cir.1980). ¹⁰ In other words, where venue or jurisdiction is improper in the original forum, there is no sound reason for the choice-of-law rules of that forum to govern the controversy and its adjudication by the transferee court.

There are limits upon the availability of a Sec. 1406(a) transfer and its attendant choice of law consequences. One such limit is that a transfer is proper only to a district in which the suit might have been brought by the plaintiff. See Ellis, 646 F.2d at 1104, n. 5. ¹¹ This limitation is Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose a timely and sufficient objection to venue.

contained in the statute itself. Another limit is also contained in the statute:

28 U.S.C. Sec. 1406(b).

It is this second limitation upon the availability of a Sec. 1406(a) transfer that forms the crux of the controversy in the case at hand. If the plaintiff's objection to venue was "timely and sufficient," then venue in the original forum was improper and the Sec. 1406(a) transfer was entirely warranted. However, if plaintiff's objection to venue was not timely and sufficient, or if the plaintiff waived her right to object to venue in the Southern District of Georgia by filing suit there, then the Sec. 1406(a) transfer was improper and unwarranted. This is so because venue, despite its very significant choice of law implications, is merely a privilege of the parties, and defects of venue may be waived by the parties. See Olberding v. Illinois Central Ry. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39 (1953); Hoffman v. Blaski, 363 U.S. 335, 343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960). See also Brown v. Pyle, 310 F.2d 95, 96-97 (5th Cir.1962). Indeed, the right to object to improper venue may be waived in any of several ways: by express waiver, by conduct amounting to waiver as a matter of law, or by failure to interpose a timely and sufficient objection. Goldberg v. Wharf Constructers, 209 F.Supp. 499, 501-502 (N.D.Ala.1962). Accord, Libby, McNeill & Libby v. City Nat. Bank, 592 F.2d 504, 510 (9th Cir.1978). Once objections to venue are waived by the parties, any defect in venue is cured, and the benefits of a Sec. 1406(a) transfer for lack of venue are no longer available. See Dubin v. United States, 380 F.2d 813, 815 (5th Cir.1967); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2d Cir.1966).

In the case sub judice, the defendant expressly assented to venue in his answer. Thus, if the plaintiff waived her right to object to venue as well, there was no defect of venue upon which a Sec. 1406(a) transfer could be predicated.

The general rule, as stated in dicta in Olberding v. Illinois Central Ry. Co., is that the "plaintiff, by bringing the suit in a district other than that authorized by [28 U.S.C. Sec. 1391], [has] relinquished his right to object to venue." 346 U.S. at 340, 74 S.Ct. at 85. However, the Olberding dicta does not clearly extend to the present facts. Indeed, the facts of the case sub judice present compelling grounds for departing from the general rule. Where, as here, the propriety of venue is obscured because the individual defendant lives in one state but subjectively considers another state his permanent residence, and where, as here, the plaintiff who brought suit in the state of defendant's apparent residence could not in the exercise of due diligence have known the defendant's true residence...