Taylor v. Love
Decision Date | 23 September 1969 |
Docket Number | No. 19049.,19049. |
Citation | 415 F.2d 1118 |
Parties | John TAYLOR, Rosalie Taylor, Willie Mae Suggs, Virgil Suggs, and Emma Griffen, Plaintiffs-Appellees, v. James Ray LOVE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Jeannette A. Paskin, Detroit, Mich., Plunkett, Cooney, Rutt & Peacock, Detroit, Mich., on brief, for appellant.
Dietrich & Shrauger, Detroit, Mich., for appellees.
Before O'SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.
This is an interlocutory appeal from an order entered by District Judge Roth transferring a diversity case which had been filed in the Eastern District of Michigan to the appropriate United States District Court in Tennessee.
Plaintiffs are Michigan residents who claimed that they were injured as a result of defendant's negligence in an automobile accident which occurred in Tazewell, Tennessee. After the filing of this suit in Michigan, a District Judge in the United States District Court for the Eastern District of Michigan granted defendant's motion to quash service of process on him in Tennessee. But he also denied defendant's motion to dismiss and granted plaintiffs' motion to transfer. He relied in this regard upon Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), and Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir. 1967). The District Judge then certified that his order involved a controlling question of law and this court granted defendant's application for leave to appeal.
The controlling federal statute, 28 U.S.C. § 1406(a) (1964) reads 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."
The purpose of this amendment has been interpreted by the United States Supreme Court in Goldlawr, Inc. v. Heiman, supra.1 Mr. Justice Black in the opinion for the Court held that lack of personal jurisdiction over a defendant did not deprive the court of jurisdiction so as to prevent transfer to the appropriate District Court under § 1406. The opinion said in part:
It seems clear to us that Goldlawr completely disposes of appellant's first argument as to jurisdiction. The United States District Court in Michigan had jurisdiction of this complaint, although not of the person of defendant. It also had the power under § 1406(a) to transfer the complaint.
We recognize, of course, that the Goldlawr case did not deal with the same fact situation we face here. On the instant record, where the accident is alleged to have occurred in Tennessee and the Judge's opinion says that defendant had never lived in Michigan, we would have to assume that as appellant contends, this suit may well have been filed in the United States District Court in Michigan just to stop the running of the statute of limitations in Tennessee. But the language we have quoted from Mr. Justice Black's opinion in Goldlawr seems to describe the congressional intent in adopting § 1406(a) as not excluding such a purpose. And this appears to be true, although venue in Michigan is "wrong" only because of lack of personal service on defendant.
Two Courts of Appeals have squarely...
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...that section. Dubin v. United States, 380 F.2d 813 (5th Cir. 1967); Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir. 1967); Taylor v. Love, 415 F.2d 1118 (6th Cir. 1969), cert. denied, 397 U.S. 1023, 90 S.Ct. 1257, 25 L.Ed.2d 533 (1970); see 1 Moore's Federal Practice ¶ 0.1465 at 1668 n.22 (2d......
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