joining other circuits in concluding that law of transferee forum should apply when the transferor court lacks personal jurisdiction, reasoning that to apply the law of the transferor forum would be unfair to defendants because they would "be made to suffer the choice-of-law consequences of a plaintiff’s mistake in choosing such a forum to file his lawsuit"
How later courts described this case
- joining other circuits in concluding that law of transferee forum should apply when the transferor court lacks personal jurisdiction, reasoning that to apply the law of the transferor forum would be unfair to defendants because they would "be made to suffer the choice-of-law consequences of a plaintiff’s mistake in choosing such a forum to file his lawsuit"
- reversing, after forty years, in light of overwhelming authority to the contrary, the circuit’s longstanding rule that the law of the transferor court should be employed by the transferee court following transfers pursuant to § 1406(a)
- explaining that we “apply the choice-of-law rules of the forum state” (citation omitted)
- following a § 1404(a) transfer, the transferee court applies the choice-of-law rules of the state where the transferor court sits
Written by the judges who cited it.
The opinion
GRUENDER, Circuit Judge,
concurring.
I concur fully in the Court’s judgment and join its opinion except for part II-B. Unlike the Court, I would decline Eggle-ton’s invitation even to consider fashioning a federal common law exception to Wisland’s rule that “[a] § 1406(a) transfer calls for application of the law of the transferee court ...” 119 F.3d at 736. Instead, I would apply Wisland’s holding as a bright-line rule so that litigants must look to the law of the transferee forum, beginning with its choice of law rules, for any exceptions to or relief from statutes of limitations consequences like those here. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938) (“Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.... There is no federal general common law.”); see, e.g., Nelson, 716 F.2d at 644-46 (affirming the district court’s determination that the law of the transferee forum applied after a § 1406(a) transfer and examining choice of law rules and equitable exceptions to the statute of limitations under the laws of the transferee state); Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1109-15 (5th Cir.1981) (holding that a transferee court must apply the choice of law rules of the state in which it sits following a § 1406(a) transfer and analyzing choice of law rules and the statute of limitations under the laws of the transferee state). Because Eggleton has made no argument to this Court regarding Nebraska’s choice of law rules and any resulting state-law grounds for relief from the applicable statute of limitations, I would not reach these issues. See Cormack v. Settle-Beshears, 474 F.3d 528 , 531 (8th Cir.2007) (noting that an argument not raised on appeal is waived).