McTyre v. Broward General Medical Center

• Decision Date: 24 October 1990
• Docket Number: Civ. A. No. 90-2343 (MHC),90-1549 (MHC).
• Citation: 749 F. Supp. 102
• Parties: Sarah McTYRE, Plaintiff, v. The BROWARD GENERAL MEDICAL CENTER, Drs. Kirkley, Gilbert & McDaniel, P.A., William H. Kirkley, M.D., G.C. McDaniel, M.D. and John Does, Nos. 1 through 20, Defendants.
• Court: U.S. District Court — District of New Jersey

749 F. Supp. 102

Sarah McTYRE, Plaintiff, v. The BROWARD GENERAL MEDICAL CENTER, Drs. Kirkley, Gilbert & McDaniel, P.A., William H. Kirkley, M.D., G.C. McDaniel, M.D. and John Does, Nos. 1 through 20, Defendants.

Civ. A. Nos. 90-2343 (MHC), 90-1549 (MHC).

United States District Court, D. New Jersey.

October 24, 1990.

April & Maudsley by Mary J. Maudsley, Linwood, N.J., for plaintiff.

Krusen Evans and Byrne by James L. Barlow and Robert S. Foster, Collings-wood, N.J., for defendant Broward General Medical Center.

Lomell, Muccifori, Adler, Ravaschiere, Amabile & Pehlivanian by Dominic Ravaschiere, Toms River, N.J., for defendants Drs. Kirkley, Gilbert & McDaniel, P.A. and William H. Kirkley, M.D. and G.C. McDaniel, M.D.

OPINION

COHEN, Senior District Judge:

The issue presented in this case is whether a district court should dismiss an action, rather than transfer it, where (1) the cause of action would be timely filed under the choice of law and internal law of the state in which this court sits, (2) there is no personal jurisdiction in this court, and (3) the action would be time-barred under the law of the state in which the prospective transferee court sits. The case comes before us on defendants' Motion to Dismiss for lack of personal jurisdiction and forum non conveniens, and plaintiff's Cross Motion for Change of Venue to transfer this case to federal court in Florida. For the foregoing reasons, we hold that the action must be dismissed.

I. BACKGROUND

Plaintiff, Sarah McTyre, a New Jersey citizen, brings the present claim sounding in negligence and/or medical malpractice¹ allegedly committed during her birth on April 18, 1970 at the location of defendant, The Broward General Medical Center ("Broward"), a hospital located in the State of Florida. Defendant, Drs. Kirkley, Gilbert & McDaniel, P.A. ("the Association"), is a Professional Association licensed to do business in the State of Florida. Defendants William H. Kirkley, M.D. and G.C. McDaniel, M.D. (collectively "the physician defendants") are doctors residing in and authorized to practice medicine in the State of Florida. Defendants John Does, Nos. 1 through 20 are unidentified employees of Broward, all residents of Florida. Plaintiff alleges that on April 18, 1970, the plaintiff's mother, Ann M. McTyre, was admitted to Broward for delivery of her daughter. The physician defendants were the treating obstetricians for plaintiff's mother. Generally, plaintiff maintains that each of the defendants are jointly and severally liable for negligently delaying the delivery by five minutes and for administering an unnecessary anesthetic which resulted in a permanent and incurable learning disability.

An action was originally filed in the New Jersey Superior Court, Law Division, Cape May County, and was removed by defendants to this Court under Civil Action No. 90-2343. Shortly thereafter, plaintiff erroneously filed an identical complaint in this Court which is pending under Civil Action No. 90-1549. All defendants have moved to dismiss both actions for lack of personal jurisdiction and forum non conveniens. In response, plaintiff filed a Cross-Motion to transfer this case to an appropriate federal court in the State of Florida, pursuant to 28 U.S.C. section 1404(a). In response to plaintiff's Cross-Motion, defendants reiterate their contention that personal jurisdiction is lacking, and request the Court to exercise its discretion and dismiss the complaint.

II. DISCUSSION

A. In Personam Jurisdiction

By virtue of Federal Rule of Civil Procedure 4(e), jurisdiction in this diversity case is governed by New Jersey's longarm statute, N.J.Sup.Ct.R. 4:4-4(c)(1), which provides for service to the outer limits of due process. Under International Shoe and its progeny, due process requires that a non-resident defendant have "certain minimum contacts such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Moreover, in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Supreme Court held that the role of foreseeability is "not the mere likelihood that a product will find its way into the forum state. Rather, it is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." Id. at 295, 100 S.Ct. at 566.

None of the defendants has any contacts with the State of New Jersey. Plaintiff's residence is the sole connection the parties in this case have with New Jersey. It is uncontested that Broward is a medical facility operated by the North Broward Hospital District located in Broward County, Florida; the Hospital District is a taxing entity that was created by state legislation; Broward operates exclusively within the geographic boundaries established by the state legislature, and is prohibited from conducting business outside of these limits; it does not provide services within New Jersey; it does not solicit business in New Jersey; and it has neither agents nor offices in New Jersey. Moreover, all witnesses of whom defendants are aware are located in Florida, as are all of the medical records and other documentary evidence.

It is clear that this Court may not exercise in personam jurisdiction, over any defendant, within the constraints of due process. This conclusion does not mandate dismissal, however, since a district court may transfer venue even where the transferring court lacks jurisdiction. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). We will thus evaluate whether transfer is proper in this case.

B. Transfer

1. The Applicable Statute

Plaintiff, without contesting defendants' assertion of lack of personal jurisdiction, requests us to transfer this case to a federal court in Florida. Initially, we must determine which of the federal transfer statutes is applicable in a case such as this, where personal jurisdiction is found to be lacking, but venue is otherwise proper. Plaintiff has requested transfer, pursuant to 28 U.S.C. section 1404(a), which provides:

§ 1404. Change of venue

(a) 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.

28 U.S.C. § 1404(a) (West 1976). Defendants maintain that 28 U.S.C. sections 1406(a) or 1631 are the appropriate sections where jurisdiction is lacking. Section 1406(a) provides:

§ 1406. Cure or waiver of defects

(a) 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.

Id. § 1406(a). In 1982, Congress enacted section 1631, which provides:

§ 1631. Transfer to cure want of jurisdiction

Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed ... and the action ... shall proceed as if it had been filed ... in the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.

Id. § 1631 (West Supp.1990).

As indicated above, venue is clearly proper in this case inasmuch as New Jersey is the state where the sole plaintiff resides. See 28 U.S.C. § 1391. Therefore, although the result will usually be the same under either statute, section 1404(a), read with Goldlawr, governs as between sections 1404(a) and 1406(a), where personal jurisdiction is lacking although venue is proper. See generally, 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3827, at 263-66 (2d ed. 1986).²

Although section 1631, on its face, makes no distinction between subject matter jurisdiction and personal jurisdiction, the legislative history indicates that the section was only intended to apply in cases where no subject matter jurisdiction exists in the transferor court. See 1A J. Moore, W. Taggart, A. Vestal, J. Wicker & B. Ringle, Moore's Federal Practice, ¶ 0.3469, at 4440 n. 8 citing S.Rep. No. 97-275, 97th Cong., 2d Sess. 11, reprinted in, 1982 U.S. Code Cong. & Admin.News 11, 21); Levy v. Pyramid Co. of Ithaca, 687 F.Supp. 48, 51 (N.D.N.Y.1988); Nose v. Rementer, 610 F.Supp. 191, 192 n. 1 (D.Del.1985).³ Accordingly, since this case involves lack of personal jurisdiction, section 1631 is inapplicable and we thus apply section 1404(a).

2. Prejudice to Plaintiff in Dismissing This Action in Light of Florida's Statute of Limitations

It is clear that plaintiff's claim, had it been brought in a Florida forum, would have been time-barred under the applicable Florida statute of limitations. Florida has amended this statute several times. Under the most current amendment, actions sounding in medical malpractice have a two year limitations period accruing from the date the incident occurred, or within two years from discovery of the malpractice, but in no event shall the action be commenced after four years from the date of the incident. Fla.Stat. § 95.11(4)(b) (West 1990). In case of fraud, concealment, or intentional misrepresentation, the limitations period is extended two years forward, but in no event to exceed seven years from the date of the incident. Id. The law existing at the time of the alleged malpractice in this case (1970),⁴ provided for a four year limitations period for malpractice claims. Id. § 95.11(6) (1969).⁵

In Goldlawr, Inc. v. Heiman, supra, the plaintiff erroneously filed an antitrust action against several defendants in the United States District Court for the Eastern District of Pennsylvania. Upon ...