Ross v. Colorado Outward Bound School, Inc.
| Decision Date | 13 July 1987 |
| Docket Number | No. 86-2082,86-2082 |
| Citation | 822 F.2d 1524 |
| Parties | 40 Ed. Law Rep. 700 Luise M. ROSS, as Administratrix of the Goods, Chattels and Credits of Sonya C. Ross, Deceased, Appellant, v. COLORADO OUTWARD BOUND SCHOOL, INC., Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stuart Mann (Clifford L. Beem, on the brief), Clifford L. Beem & Associates, Denver, Colo., for appellant.
Douglas I. McQuiston and John E. Taylor, Denver, Colo., for appellee.
Before LOGAN, BARRETT and TIMBERS, * Circuit Judges.
Luise M. Ross ("appellant") appeals from a summary judgment entered June 23, 1986 in the District of Colorado, Richard P. Matsch, District Judge, in favor of Colorado Outward Bound School, Inc. ("appellee"), dismissing a wrongful death action brought by appellant as administratrix of the estate of her deceased daughter, Sonya C. Ross. The court dismissed the action on the ground that it was time barred by the two year statute of limitations provided for in the Colorado Wrongful Death Act, Colo.Rev.Stat. 13-21-201--13-21-204 (1973 & 1985 Cum.Supp.). For the reasons stated below, we reverse and remand the case for further proceedings consistent with this opinion.
We summarize only those facts believed necessary to an understanding of the issue raised on appeal.
On July 22, 1977, Sonya C. Ross, then twenty years of age, died in a mountain climbing accident in the San Juan Mountains in southwestern Colorado. At the time Sonya, a New York resident, was a student at the Colorado Outward Bound School. The school is a Colorado nonprofit corporation which teaches wilderness experience.
Appellant, decedent's mother and a New York resident, was appointed administratrix of Sonya's estate. On April 13, 1978 appellant commenced a wrongful death action against the school in a New York state court. Appellant alleged in her complaint that the death of her daughter was caused by appellee's negligence.
On May 26, 1978 the case was removed by appellee to the United States District Court for the Western District of New York, there being diversity of citizenship between appellant and appellee. On December 14, 1978 appellee moved in the New York district court to dismiss the action for lack of personal jurisdiction, among other grounds asserted. On February 22, 1985--more than six years after the motion was filed--the district court filed an opinion holding that it lacked personal jurisdiction over appellee. Rather than dismissing the action, however, the court ordered that it be transferred to the United States District Court for the District of Colorado, pursuant to 28 U.S.C. Sec. 1406(a) (1982). 1
Appellee moved in the Colorado district court for summary judgment on the ground that Colorado law governed the case and, pursuant to the appropriate Colorado statute, appellant's action was time barred. Specifically, appellee urged that the Colorado Wrongful Death Act controlled, including the requirement of Sec. 13-21-204 that an action be commenced within two years of the alleged negligence resulting in death. Appellee reasoned that, since no formal complaint had ever been filed in Colorado, the right to commence an action in Colorado had been forfeited by appellant. Appellant responded by contending that New York law applied. The district judge correctly held, under Colorado's choice of law rule, that Colorado law applied.
In its opinion the district court, noting that no formal complaint had ever been filed in a Colorado court, treated the date the case was transferred from the New York district court to the Colorado district court as the filing date under the Colorado Wrongful Death Act. Since Sonya's death occurred on July 22, 1977 and the case was not transferred or "filed" until February 22, 1985, the court held that the action was time barred by the two year statute of limitations. The court held, further, that the filing in New York did not cure the failure to timely file in Colorado. It indicated that the appropriate course for the New York district court to have taken would have been to dismiss, rather than transfer, the action. Accordingly, the Colorado district court granted the motion for summary judgment and dismissed the action. This appeal followed.
On appeal, appellant argues that the timely filing in, by removing to, the New York district court tolled the running of the statute of limitations provided for in the Colorado Wrongful Death Act.
We hold that the proper vehicle for the transfer of this action was 28 U.S.C. Sec. 1631 (1982). That statute requires that when, in the interest of justice, an action is transferred from one federal court to another federal court to cure want of jurisdiction, the action shall proceed as if it had been filed in the transferee court on the date upon which it was actually filed in the transferor court. The instant action was removed to the New York district court on May 26, 1978. Treating that date, as we must, as the filing date in the Colorado district court, we hold that the instant action was timely commenced under the Colorado Wrongful Death Act.
In the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 301(a), 96 Stat. 25, 55 (1982), Congress gave broad authority to permit the transfer of an action between any two federal courts. 28 U.S.C. Sec. 1631 controls the action of a federal court when it finds that it lacks jurisdiction but that another federal court has jurisdiction. That section is entitled "Transfer to cure want of jurisdiction" and provides:
"Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such 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 or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred."
(Added by Pub.L. 97-164, Title III, Sec. 301(a), Apr. 2, 1982, 96 Stat. 55.)
In harmony with the intent of Congress, this section has been broadly construed since its enactment. E.g., In re McCauley, 814 F.2d 1350 (9th Cir.1987) (); Sharon v. United States, 802 F.2d 1467 (D.C.Cir.1986) (); ben-Shalom v. Secretary of Army, 807 F.2d 982 (Fed.Cir.1986) (); Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985) (); In re Exclusive Industries Corp., 751 F.2d 806 (5th Cir.1985) (); Middlebrooks v. Smith, 735 F.2d 431 (11th Cir.1984) ().
In the instant case, the New York district court correctly held that it lacked personal jurisdiction over appellee. Likewise, it correctly recognized that the District of Colorado was the proper district in which the action originally could have been commenced pursuant to 28 U.S.C. Sec. 1391(b) (1982). It transferred the action pursuant to Sec. 1406(a), while stating in a footnote that in any event it would have granted appellee's ...
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