Mayo Clinic v. Kaiser

• Decision Date: 12 October 1967
• Docket Number: No. 18680.,18680.
• Citation: 383 F.2d 653
• Parties: MAYO CLINIC, Edward S. Judd and D. O. Ferris, Appellants, v. Edward KAISER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

383 F.2d 653 (1967)

MAYO CLINIC, Edward S. Judd and D. O. Ferris, Appellants, v. Edward KAISER, Appellee.

No. 18680.

United States Court of Appeals Eighth Circuit.

October 12, 1967.

Henry Halladay, Minneapolis, Minn., for appellants; Curtis D. Forslund, Minneapolis, Minn., and Gregg Orwoll, Rochester, Minn., on the brief.

Walter J. Sebo, Canton, Ill., for appellee.

Before MATTHES, MEHAFFY and LAY, Circuit Judges.

MEHAFFY, Circuit Judge.

Edward Kaiser, a citizen of Illinois and appellee here, brought a medical malpractice suit in the United States District Court for the Southern District of Illinois against Mayo Clinic, an association of individuals, and three of Mayo's staff doctors, all citizens of Minnesota. Summons was issued on the day the complaint was filed and service attempted about ten days thereafter in Rochester, Minnesota. Mayo Clinic and its doctors moved to quash the service of process and to dismiss the complaint for lack of jurisdiction. Kaiser countered with a motion to transfer to the proper federal District Court in Minnesota. The Illinois District Court granted Mayo's motion to quash but also granted Kaiser's motion to transfer. Thereafter, summons was issued out of the Minnesota court and service had on Mayo Clinic and two of the doctors, but Dr. Fogle, the third doctor named in the complaint, was not served and is not an appellant here. After this Minnesota service of process, Mayo and the doctors moved for dismissal for lack of jurisdiction and on the additional ground that the action was barred by the Minnesota statute of limitations, Minn.Stat. § 541.07(1). The District Court in Minnesota dismissed the latter mentioned Mayo motion, holding in an exhaustive opinion reported at 260 F.Supp. 900 (1966) that the action was transferable either under 28 U.S.C.A. § 1404(a) or 28 U.S.C.A. § 1406(a), and further that the action was not barred by limitations. We affirm the District Court but confine our holding as to transferability to the authorization of § 1406 (a), as it is our view that the Supreme Court opinion in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed. 2d 39 (1962), controls.

The sole issues here are the propriety of the transfer of the case under the circumstances and the effect, if any, of the Minnesota statute of limitations, Minn. Stat. § 541.07(1).

28 U.S.C.A. § 1406(a) 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."

Appellants contend that venue is proper since Illinois is the district of Kaiser's residence and since 28 U.S.C.A. § 1391 (a) provides that a civil action founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all the plaintiffs and all the defendants reside, and as a consequence thereof § 1406(a) is inapplicable. As authority for their view, appellants cite First Nat'l Bank of Chicago v. United Air Lines, 190 F.2d 493 (7th Cir. 1951), cert. denied, 341 U.S. 903, 71 S.Ct. 612, 95 L.Ed. 1342 (1951), rev'd on other grounds, 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441 (1952), which held that § 1406 (a) applied only when the case had been filed in the wrong venue. The later Supreme Court case of Goldlawr, supra, teaches, however, that § 1406(a) should be construed wherever possible to remove procedural obstacles which would prevent an expeditious and orderly adjudication of a case on its merits. Goldlawr was a private antitrust action under the Sherman and Clayton Antitrust Acts. There, venue was improperly laid under the applicable statute, 15 U.S.C.A. § 22, as the corporate defendants could not be found in, nor were they doing business in, the forum in which the suit was filed, and neither could service of process be had upon the defendants. This case was transferred from the Eastern District of Pennsylvania pursuant to § 1406(a) to the New York District where the parties could be served, but the District Court in New York dismissed the action on the ground that the Pennsylvania court did not have power to transfer since it had no personal jurisdiction over the parties. The Supreme Court in Goldlawr reversed, holding:

"Nothing in that language indicates that the operation of the section was intended to be limited to actions in which the transferring court has personal jurisdiction over the defendants. And we cannot agree that such a restrictive interpretation can be supported by its legislative history — either that relied upon by the Court of Appeals or any other that has been brought to our attention. The problem which gave rise to the enactment of the section 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. Indeed, this case is itself a typical example of the problem sought to be avoided, for dismissal here would have resulted in plaintiff\'s losing a substantial part of its cause of action under the statute of limitations merely because it made a mistake in thinking that the respondent corporations could be `found\' or that they `transact * * business\' in the Eastern District of Pennsylvania. The language and history of § 1406(a), both as originally enacted and as amended in 1949, show a congressional purpose to provide as effective a remedy as possible to avoid precisely this sort of injustice.

"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. When a lawsuit is filed, that filing shows a desire on the part of the plaintiff to begin his case and thereby toll whatever statutes of limitation would otherwise apply. The filing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure. If by reason of the uncertainties of proper venue a mistake is made, Congress, by the enactment of § 1406(a), recognized that `the interest of justice\' may require that the complaint not be dismissed but rather that it be transferred in order that the plaintiff not be penalized by what the late Judge Parker aptly characterized as `time-consuming and justice-defeating technicalities.\' It would at least partially frustrate this enlightened congressional objective to import ambiguities into § 1406(a) which do not exist in the language Congress used to achieve the procedural reform it desired." 369 U.S. at 465-467, 82 S.Ct. at 915.

Since the case at bar was submitted to this court, the Fifth Circuit has had occasion in Dubin v. United States, 380 F.2d 813 (5th Cir. 1967), to consider a similar case from a factual standpoint and...