# Eggleton v. Plasser & Theurer Export Von Bahnbaumaschinen Gesellschaft, MBH

> Court of Appeals for the Eighth Circuit · July 25, 2007 · 495 F.3d 582

URL: https://www.frixlaw.com/law-library/cases/9618367

## Case

- **Full name:** David C. EGGLETON, Appellee, v. PLASSER & THEURER EXPORT VON BAHNBAUMASCHINEN GESELLSCHAFT, MBH; Franz Plasser Bahnbaumaschinen Industriegesellschaft, MBH, Appellants
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** July 25, 2007
- **Citations:** 495 F.3d 582; 2007 U.S. App. LEXIS 17613; 2007 WL 2121938
- **Precedential status:** Published
- **Opinion:** Concurrence by Gruender
- **Judges:** Melloy, Smith, Gruender
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9618367

## How later opinions describe it (automated extraction)

- 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)
- finding that if a court lacks personal jurisdiction, then a district court may transfer to another district pursuant to § 1406(a)

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9618367. Public record. Not legal advice.