Wade v. Farmers Ins. Group

• Decision Date: 29 August 1996
• Docket Number: No. 95-2957,95-2957
• Citation: 96 F.3d 1450
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Alex M. WADE, Jr., Plaintiff-Appellant, v. FARMERS INSURANCE GROUP, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1450

96 F.3d 1450

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Alex M. WADE, Jr., Plaintiff-Appellant, v. FARMERS INSURANCE GROUP, Defendant-Appellee.

No. 95-2957.

United States Court of Appeals, Seventh Circuit.

Submitted Aug. 29, 1996. ^*

Decided Aug. 30, 1996.

Before CUMMINGS, PELL and FLAUM, Circuit Judges.

ORDER

Alex M. Wade, Jr. ("Wade") sued his insurer in an Indiana state court for an amount in excess of $50,000, following a dispute concerning the insurer's liability for Wade's alleged injuries and losses resulting from an automobile accident occurring in Indiana. After the defendant insurer successfully removed the case to the federal district court in Indiana (based on diversity jurisdiction) it moved for dismissal for lack of personal jurisdiction, or, in the alternative, for a transfer of venue to the district court in Texas. Agreeing that it lacked personal jurisdiction over the defendant, the district court granted the defendant's motion to dismiss on that ground. It also granted the defendant's alternative motion to transfer the case to a district court in Texas. Plaintiff appeals both rulings. Because we find that these rulings are interlocutory non-appealable orders, and since mandamus relief is not warranted, we dismiss for lack of jurisdiction.

Defendant Farmers Insurance Group ("Farmers")--actually Texas Farmers Insurance Company or Farmers Texas County Mutual Insurance Company--is a Texas insurance company licensed to do business in Texas. While residing in Texas, Wade purchased three insurance policies from Farmers under which he claims benefits to cover his alleged losses stemming from an automobile accident occurring in Indiana in October of 1992 while Wade was there on a business trip. Wade's alleged injuries occured while he was a passenger in a vehicle driven by his travel companion, Lynette Horne ("Horne"), a resident of Texas, that collided with a deer and veered off the road into a ditch. After regaining control of the vehicle, they proceeded to the nearest truck stop to call the police and make a report. In response to their call, an Indiana trooper and resident, officer Shenefield ("Shenefield"), met them at the truck stop and issued an accident report. After the accident in Indiana, Wade returned to Texas where he sought medical treatment. He then submitted a claim for coverage of these expenses as well as for loss of income from his former job in Texas. Following Farmer's initial denial of coverage (based on inconsistencies in various of Wade's statements) and its refusal to accept his proposed settlement, Wade filed suit in an Indiana municipal court. Wade chose this forum since he moved to Indiana after the accident to set up a new business there.

Wade's new residence created diversity of citizenship and thus allowed Farmers to successfully remove the case to the federal district court in Indiana pursuant to 28 U.S.C. §§ 1332 and 1441. Farmers next filed a motion to dismiss claiming that Indiana courts lacked personal jurisdiction over it. In the alternative, Farmers requested that the court transfer the case to the district court in Texas, pursuant to 28 U.S.C. § 1404(a), which provides for venue transfers for the convenience the parties, the witnesses, and in the interests of justice. (R. at 31). In support of its first motion, Farmers argued that it lacked sufficient "minimum contacts" within Indiana necessary to satisfy Indiana's long-arm statute, which allows the assertion of personal jurisdiction over non-resident defendants only to the extent allowed under the due process clause. Id. For similar reasons, it argued, in the alternative, that it was more convenient for it to litigate the case in Texas where it was located, and that it was in the interest of justice to transfer the case to Texas since Wade resided there when he purchased the insurance policies, several of its proposed witnesses resided there, Wade received medical treatment there (for which he sought reimbursement), Wade's employment records (relevant to his lost-wages claim) were there, and since Texas is where it had conducted its investigation into Wade's claims that led to his lawsuit. (R. at 32).

Wade opposed the motions arguing first that the Indiana district court did have personal jurisdiction over the defendant since Farmers purposely availed itself of the benefits of Indiana law by employing another claims adjustment firm in Indianapolis, Indiana to settled Wade's other claims (for an unrelated incident) against Farmers. (R. at 37). Moreover, Wade argued that a venue transfer, pursuant to § 1404(a), was improper since his choice of forum should be given greater consideration than Farmers and since officer Shenefield, the only "eyewitness," resided in Indiana.

The district court held that it lacked personal jurisdiction over Farmers. It reasoned that Farmers lacked the necessary "minimum contacts" within the state to apply either general jurisdiction (applicable when a defendant engages in continuous operations in the state) or specific jurisdiction (applicable when the obligation sued upon arises out of or is connected with the activities of the corporation within the state) principles to justify the application of Indiana's long-arm jurisdiction statute to Farmers. (R. at 77). Particularly, the court opined that Farmers had not "purposely availed" itself of the privilege of conducting activities in the forum state such that it would reasonably anticipate being haled into court there. Id. (applying the standards sets forth in International Shoe Co. v. Washington, 326 U.S. 310 (1945), Hanson v. Denckla, 357 U.S. 235 (1958), and World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286 (1980)). Accordingly, the court granted Farmers' motion to dismiss for lack of personal jurisdiction.

The district court next considered Farmers' alternative motion (if personal jurisdiction was not lacking), to transfer the case to a district court in Texas. It found that a transfer of venue under § 1404(a) was appropriate since (1) venue was proper in the transferor district, (2) venue and jurisdiction were proper in the transferee district, and (3) that the transfer would serve the convenience of the parties, the witnesses, and the interests of justice. See § 1404(a). The court reasoned that the same factors showing that Indiana courts lacked personal jurisdiction over Farmers showed that the district court in Texas would be a more convenient forum. It also noted that Farmers demonstrated that it would be burdensome for it to litigate the case in Indiana while Wade failed to present similar arguments regarding a Texas forum. (R. at 77).

After the court denied Wade's motions to reconsider, he appealed both of these rulings. Because of the ambiguity created by the statutory citations in the district court's order and memorandum opinion, we begin by clarifying the statutory basis for the district court's rulings. Although the court's memorandum stated that it was transferring the case pursuant to § 1404(a), it also entered a separate order citing to 28 U.S.C. 1406(a) as the statute authorizing the transfer. (R. at 76). Equally confusing is the court's reference to 28 U.S.C. § 1631 in its memorandum opinion as the basis for, according to the court, "permit[ting] a court without proper venue to transfer a case rather than dismiss it." (R. at 77) (emphasis). Because the district court correctly noted that venue in Indiana was proper under 28 U.S.C. § 1391, ¹ its reference to § 1406(a) is most likely a typographical error since that provision applies when venue is improper in the transferor court, while § 1404(a) authorizes transfers even from forums where venue is proper. ² See Van Dusen v. Barrack, 376 U.S. 612, 634 (1964). Moreover, the court erred in stating that § 1631 permits transfers out of forums of improper venue. The court should have stated that the transfer was also authorized under § 1631 since it lacked personal jurisdiction over Farmers. ³ In sum, we construe the court's opinion as granting the motion to transfer either under § 1404(a) or under § 1631.

Whatever the basis for transfer or change of venue, Farmers argues that such orders are normally considered to be interlocutory, non-appealable orders. (Def.'s Br. at 6). Farmers thus urges us to dismiss this appeal for lack of appealability. Id. Wade contends that Farmers waived any appellate jurisdictional challenge by devoting the remaining portion of its brief to the merits of Wade's appeal. (Pl.'s Reply Br. at 7). We reject Wade's argument. This court has an independent obligation to assure itself that it has appellate jurisdiction even if the parties do not challenge it. See, e.g., Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435 (7th Cir.1992).

Generally, an order transferring a civil action to another district--whether pursuant to § 1404(a), § 1406(a) or § 1631--is an interlocutory order that is not appealable unless the question has been certified for immediate appeal pursuant to § 1292(b). In re Joint Eastern & Southern Dists. Asbestos Litigation, 22 F.3d 755, 761-64 & n. 14 (7th Cir.1994); Ukiah Adventist Hosp. v. F.T.C., 981 F.2d 543, 546 (D.C.Cir.1992) (discussing the non-appealability of transfer orders pursuant to each of these provisions). Since no such certificate of immediate appealability was issued in this case, we must consider whether we have appellate jurisdiction over an appeal of a district court's transfer or change of venue order that is coupled with a dismissal order for lack of personal jurisdiction. Although, standing alone, the dismissal order for lack of personal jurisdiction could be considered final and appealable, see, e.g., Dehmlow v. Austin Fireworks, 963 F.2d 941, 944 (7th Cir.1992), several circuits have found...