Petition for Writ of Certiorari — Ferens v. John Deere Co.
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Court, U.S.
FILED
MAR 45 1989
be-1512) 2
No.
| In the
Supreme Court of the Anited States
October Term, 1988
ALBERT J. FERENS and
MARGARET L. FERENS, his wife,
Petitioners,
vs.
JOHN DEERE COMPANY, a/k/a
DEERE & COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
STANLEY V. Ostrow, Esa.
RICHARD B. Tucker, III, Eso.*
WILLIAM A. PEeNnRoD, Esa.
TUCKER ARENSBERG, P.C.
1200 Pittsburgh National Bidg.
Pittsburgh, Pennsylvania 15222
(412) 566-1212
Counsel for Petitioners,
Albert J. Ferens and
Margaret L. Ferens, his wife
*Counsel of Record for Petitioners
i
QUESTION PRESENTED FOR REVIEW
Whether a district court to which a case has been
transferred pursuant to 28 U.S.C. §1404(a) is obligated to
apply the state law that would have been applied if there
had been no transfer where the transfer is from a court
having proper venue and jurisdiction and the transfer has
occurred as the result of an unopposed motion by the
plaintiff.
as
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW .......... i
TABLE OF CONTENTS. .........----- 220-02 eee: il
TABLE OF AUTHORITIES..................+5.. iv
OPINBONS BELOW... cc ccccccccccccccccccsess 2
STATEMENT OF JURISDICTION ............... 3
STATUTORY PROVISIONS INVOLVED.......... 4
STATEMENT OF THE CASE ................---- 5
REASONS FOR GRANTING THE WRIT.......... 8
I. The Decision Of The Third Circuit Holding
That The Transferee District Court Is Not
Obligated To Apply The Law Of The
Transferor State When The Plaintiff Is The
Moving Party Is In Conflict With This
Court’s Reasoning In Van Dusen v. Barrack.. 8
Il. The Decision Of The Third Circuit Holding
That The Transferee District Court Is Not
Obligated To Apply The Law Of The
Transferor State When The Plaintiff Is The
Moving Party Is In Conflict With The Rea-
soning In Decisions From Other Circuit
Causts OF Agagadh....cccsessecesscuuaeenes 15
III. This Case Involves An Important Question
Of Federal Law Which Should Be Settled
ill
z
APPENDICES:
Appendix A—Opinion of the United States
Court of Appeals for the Third Circuit dated
EEE A-l
Appendix B—Order of the Supreme Court of
the United States dated June 27, 1988 ........ A-17
Appendix C—Opinion of the United States
Court of Appeals for the Third Circuit dated
EE EES A-18
Appendix D—Opinioa of the United States Dis-
trict Court for the Western District of Pennsyl-
vania dated July 25, 1986................... A-34
Appendix E—Judgment of the United States
Court of Appeals for the Third Circuit dated
Deus cccwccecccecs A-50
Appendix F—Order of the United States Court
of Appeals for the Third Circuit Sur Petition for
Rehearing dated January 5, 1989............. A-52
iv
TABLE OF AUTHORITIES
CASES
Page
Alexander v. Richardson-Merrell, Inc.,
541 F. Supp. 93 (S.D.N.Y. 1982) .............. 17
Bott v. American Hydrocarbon Corp., 441 F.2d 896
IT eS ee rere ee ee 18
Carson v. U-Haul Co., 434 F.2d 916 (6th Cir. 1970). . .18
Coffey v. Van Dorn Iron Works, 796 F.2d 217
SN 60 4cs dodndiaueutucme 11, 13, 16
Continental Grain Co. v. Barge FBL-585,
I a OG ie ee a cane sane 11
Cowan vy. Ford Motor Co., 719 F.2d 785
IY aoe 20 red ae ae s
Cowan v. Ford Motor Co., 713 F.2d 100
RE RAS A oe )
Cowan v. Ford Motor Co., 694 F.2d 104
EE Ee ee 12
Davis v. Costa—Gavras, 580 F. Supp. 1082
SE EL sed Weta deter wenehe oo < 18
Ellis v. Great Southwestern Corp., 646 F.2d 1099
ce cise hao eats an bees tens 19
Ferens v. Deere & Co., 862 F.2d 31
Eo cee in du desede 7, 8, 10, 14, 15, 19
Ferens v. Deere & Co., _ U.S. —__, 108 S.Ct. 2862
Se dud bs éGs cds cncenb veel sen eeeeubennss 7
Ferens v. Deere & Co., 819 F.2d 423 (3rd Cir. 1987),
vacated and remanded, _— U.S. _—, 108 S.Ct.
DT. cusduanttesedvseenennmenbuded 6, 7
Gonzalez v. Volvo of America Corp., 734 F.2d 1221
(7th Cir. 1984), superseded, 752 F.2d 295
te ie ee ce cee becene 16
In re Air Crash Disaster at Washington D.C.
on January 13, 1982, 559 F. Supp. 333
ha i i ete ow nn AES 17
In re Richardson-Merrell, Inc., 545 F. Supp. 1130
(S.D. Ohio 1982), aff'd, 727 F.2d 608
ER SE a a 17
King v. Otasco, Inc., 861 F.2d 438 (Sth Cir. 1988) .... 8
Klaxon Co. v. Stentor Electric Manufacturing Co.,
EE ee 8
Louisiana & Mississippi R. Transfer Co. v. Long,
159 Miss. 654, 131 So. 84 (1930)............... §
Manley v. Engram, 755 F.2d 1463 (11th Cir. 1985) ...17
Martin v. Stokes, 623 F.2d 469
ere de i ance ecce ues 15, 16, 18
Nelson v. International Paint Co., 716 F.2d 640
a 17
Parham vy. Edwards, 346 F. Supp. 968 (S.D. Ga.
1972), aff'd per curiam, 470 F.2d 1000
NS ne i ek dain ees 18
Philip Carey Manufacturing Co. v. Taylor, 286 F.2d
782 (6th Cir.), cert. denied, 366 U.S. 948 (1961) ..11
Poole v. Mississippi Publishers Corp., 208 Miss. 364,
Se I oa 6b 6 6000 00 ciwbeede cece. 12
RPJ Sportswear, Inc. v. Xylo Tex, Ltd., 681 F. Supp.
ee EE ci a dank ace wie dee 17
vi
Reyno vy. Piper Aircraft Co., 630 F.2d 149 (3rd Cir.
1980), rev'd, 454 U.S. 235 (1981)............... 19
Roofing & Sheet Metal Services, Inc. v. LaQuinta
Motor Inns, Inc., 689 F.2d 982
OE, ME as 6 caw s tees oan ae 15, 16, 18, 19
Ross v. Colorado Outward Bound School, Inc.,
822 F.2d 1524 (10th Cir. 1987) ................ 17
S.& W. Construction Co. v. Douglas, 244 Miss. 498,
Ec cpa cctGbabnnedesuccsebe 12
Schreiber v. Allis-Chalmers Corp., 611 F.2d 790
i ted web eth edieawens4 10, 12
Shewbrooks v. A.C. and S., Inc., 529 So.2d 557
NE he AK iv ecenerhdetene sé 8, 12
Stewart Organization, Inc. v. Ricoh Corp., __U.S.
eek «odie cues be ecenes 10
Subacz v. Town Tower Motel Corp., 567 F. Supp.
rr i es 5s ce eeeeens essen s 18
Sun Oil Co. v. Wortman, —— U.S. —~, 108 S.Ct.
EE i cl nc ne¢ es ec goes senda esate sent 7, 8
Truck Insurance Exchange v. Tetzlaff, 683 F. Supp.
can cn cue ne eg nnhes euvenss 17
Van Dusen v. Barrack,
376 U.S. 612 (1964). ..8, 9, 10, 11, 13, 14, 15, 16, 19
Vick v. Cochran, 316 So.2d 242 (Miss. 1975).......... 8
Western Smelting & Metals, Inc. v. Slater Steel, Inc.,
621 F. Supp. 578 (N.D. Ind. 1985) .......... 17, 18
Williams v. Taylor Machinery, Inc., 529 So.2d 606
Ms 2 6 6-06.5:4666600000 Rees Neebeb nen 8, 12
Vii
Page
STATUTES
a ad og ec cueeus 3
ein. eh eis ade cagunseade 6
es a es 12
28 U.S.C. §1404(a) . .4, 6, 9, 10, 11, 13, 15, 16, 17, 18, 19
EE 16
Miss. Code Ann. §15-1-49 (1972) ............... 4,5, 8
Miss. Code Ann. §79-1-27 (1972)
(repealed effective January 1, 1988)............. 12
Miss. Code Ann. §79-3-229 (1972)
(repealed effective January 1, 1988)............. 12
13 Pa. C.S.A. §2725 (Purdon 1984)................. 5
42 Pa. C.S.A. §5524(2) (Purdon 1981) ............. 4,6
42 Pa. C.S.A. §5525 (Purdon 1981)................. 5
RULES
Rule 54(b) of the Federal Rules of Civil Procedure ... 6
MISCELLANEOUS AUTHORITIES
1 J. Moore, Moore’s Federal Practice, 90.145[4.-2}(2d ed.
ED kg eb USE alld Seb aReKidasdsscuced cess 11
| J. Moore, Moore’s Federal Practice, 90.145[4.-5}(2d ed.
SE db san sdedamaduddedeewneneenescésesis 17
Note, Choice of Law in Federal Courts after Transfer
of Venue, 63 Cornell L. Rev. 149 (1977). ........ 17
In the
Supreme Court of the United States
.
October Term, 1988
No, ___
ALBERT J. FERENS, and
MARGARET L. FERENS, his wife,
Petitioners,
vs.
JOHN DEERE COMPANY, a/k/a
DEERE & COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
——
Petitioners, Albert J. Ferens and Margaret L. Ferens,
his wife, respectfully pray that a writ of certiorari issue to
review the Judgment and Opinion of the United States
Court of Appeals for the Third Circuit entered in the
above-entitled case on November 25, 1988.
2
OPINIONS BELOW
The Opinion of the United States Court of Appeals for
the Third Circuit issued November 25, 1988, upon the
rendering of the Judgment sought to be reviewed, is
reported at 862 F.2d 31 and appears herein as Appendix A
at page A-1. The Order of this Court entered on June 27,
1988, vacating the prior Judgment of the Third Circuit and
remanding the case to the Third Circuit for further consid-
eration is reported at __. U.S. __, 108 S.Ct. 2862 and
appears herein as Appendix B at page A-17. The prior
Opinion of the Third Circuit dated May 28, 1987, is
reported at 819 F.2d 423 and appears herein as Appendix
C at page A-18. The Opinion of the United States District
Court for the Western District of Pennsylvania is reported
at 639 F. Supp. 1484 and appears herein as Appendix D at
page A-34.
3
STATEMENT OF JURISDICTION
The Judgment of the United States Court of Appeals
for the Third Circuit sought to be reviewed was entered on
November 25, 1988. The Order of the United States Court
of Appeals for the Third Circuit denying the Petitioners’
timely Petition For Rehearing And For Rehearing En Banc
was entered on January 5, 1989. This petition for a writ of
certiorari is being filed within ninety (90) days of the denial
of Petitioners’ Petition For Rehearing And For Rehearing
En Banc. The jurisdiction of this Court is invoked under
28 U.S.C. §1254(1).
4
STATUTORY PROVISIONS INVOLVED
28 U.S.C. §1404(a) provides:
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
civil action to any other district or division where it
might have been brought.
Miss. Code Ann. §15-1-49 (1972) provides:
All actions for which no period of limitations is pre-
scribed shall be commenced within six years next after
the cause of such action accrued, and not after.
42 Pa. C.S.A. §5524(2) (Purdon 1981) provides:
The following actions and proceedings must be com-
menced within two years:
(2) An action to recover damages for injuries to the
person or for the death of an individual caused by the
wrongful act or neglect or unlawful violence or negli-
gence of another.
5
STATEMENT OF THE CASE
Petitioners, Albert J. Ferens and Margaret L. Ferens,
are residents of Pennsylvania. In July of 1981, Mr. Ferens
purchased a John Deere #6620 Combine in Uniontown,
Pennsylvania, for use on his farm. The combine had been
manufactured by Respondent, John Deere Company, a/k/
a Deere & Company', a Delaware corporation with its
principal place of business in Illinois. In addition to doing
business in Pennsylvania, Respondent was also engaged in
business in Mississippi, where it was registered with the
Secretary of State and maintained a local registered agent.
On July 5, 1982, Mr. Ferens was injured in Pennsylva-
nia while cleaning his combine. His right hand became
caught in the rotating auger and was severed above the
wrist.
In July of 1985 the Petitioners initiated two lawsuits
against the Respondent. One lawsuit was filed in the
United States District Court for the Western District of
Pennsylvania alleging breaches of express and implied
warranties of merchantability and fitness for use (hereinaf-
ter “the Warranty Action”), for which the applicable Penn-
sylvania statute of limitations was four years. See 13 Pa.
C.S.A. §2725 (Purdon 1984) and 42 Pa. C.S.A. §5525 (Pur-
don 1981). The other lawsuit was filed in the United States
District Court for the Southern District of Mississippi
alleging negligence and strict liability in tort (hereinafter
“the Tort Action”), for which the applicable Mississippi
statute of limitations was six years. See Miss. Code Ann.
§15-1-49 (1972). Federal court subject matter jurisdiction
'The names of all the parties to the proceedings in the Court of
Appeals are contained in the caption of the case in this Court.
6
for both lawsuits was based upon diversity of citizenship
pursuant to 28 U.S.C. §1332.
With respect to the Tort Action, the Respondent did
not object to either venue or the exercise of in personam
jurisdiction over it by a Mississippi court. Instead, the
Respondent filed an answer denying liability and raising
various affirmative defenses.
Thereafter, on or about October 2, 1985, the Petition-
ers moved to transfer the Tort Action to the Western Dis-
trict of Pennsylvania pursuant to 28 U.S.C. §1404(a). The
Respondent did not oppose the transfer; and on November
8, 1985, the motion was granted.
In the Western District of Pennsylvania the Tort
Action and the Warranty Action were consolidated for ail
purposes. On or about February 20, 1986, the Respondent
filed a motion for summary judgment as to all claims in
both lawsuits, asserting that the claims raised in the Tort
Action were barred by Pennsylvania’s two-year statute of
limitations applicable to negligence and strict liability
causes of action. See 42 Pa. C.S.A. §5524(2) (Purdon 1981).
The District Court agreed and granted summary judgment
as to the Tort Action claims only. Final judgment was
entered as to these claims pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure.’
The Petitioners appealed to the United States Court of
Appeals for the Third Circuit. The Third Circuit initially
affirmed the District Court in a 2-1 panel decision which
concluded that the United States Constitution required the
application of Pennsylvania’s statute of limitations no
matter where the case was brought. Ferens v. Deere & Co.,
?The breach of warranty claims in the Warranty Action were stayed
pending the outcome of the Petitioners’ appeal.
;
819 F.2d 423 (3rd Cir. 1987), vacated and remanded, ___
U.S. ——, 108 S.Ct. 2862 (1988). However, this Court
granted certiorari and vacated and remanded in light of its
Opinion in Sun Oil Co. v. Wortman, __U.S. __, 108
S.Ct. 2117 (1988). Ferens v. Deere & Co., _ U.S. ___, 108
S.Ct. 2862 (1988). On remand, the Third Circuit again
affirmed the District Court in a 2-1 panel decision. Ferens
v. Deere & Co., 862 F.2d 31 (3rd Cir. 1988). In its Opinion
on remand the Court concluded that Pennsylvania’s two-
year statute of limitations was properly applied to bar the
Petitioners’ Tort Action because the Petitioners had trans-
ferred the case to Pennsylvania. The Petitioners thereafter
filed a timely motion for rehearing and for rehearing en
banc which was denied on January 5, 1989. Petitioners
now seek the issuance of a writ of certiorari from this
Court.
8
REASONS FOR GRANTING THE WRIT
1. The Decision Of The Third Circuit Holding That
The Transferee District Court Is Not Obligated To
Apply The Law Of The Transferor State When The
Plaintiff Is The Moving Party Is In Conflict With
This Court's Reasoning In Van Dusen v. Barrack
The critical issue in this case is whether the District
Court in Pennsylvania was obligated to apply the state law
that would have been applied if there had been no transfer
and the case had been tried in the Southern District of
Mississippi. It is undisputed that had the Tort Action been
tried in the Southern District of Mississippi, the federal
court there would have applied Mississippi's statute of lim-
itations, Miss. Code Ann. §15-1-49 (1972); and any motion
for summary judgment by the Respondent based upon a
statute of limitations argument would have been denied.
See Ferens v. Deere Co., 862 F.2d 31, 34 (3rd Cir.
1988).*Accordingly, the Pennsylvania District Court's
decision to apply the law of the transferee state, rather than
the law of the transferor state, was fatal to the Petitioners’
‘Mississippi treats its statute of limitations as procedural for choice
of law purposes and applies it to actions brought in Mississippi even
though they are otherwise governed by the substantive law of another
state. See Williams v. Taylor Machinery, Inc., $29 So.2d 606, 609 (Miss.
1988); Shewbrooks v. A.C. and S., Inc., $29 So.2d $57. 566 (Miss. 1988),
Vick v. Cochran, 316 So.2d 242, 246 (Miss. 1975), Louisiana & Missis-
sippi R. Transfer Co. v. Long, 159 Miss. 654, 665-666, 131 So. 84, 88
(1930). See also King v. Otasco, Inc., 861 F.2d 438, 441 (Sth Cir. 1988),
Cowan v. Ford Motor Co., 719 F.2d 785, 786 (Sth Cir 1983). In Sun Oil
Co. v. Wortman, —_ U.S. ___., 108 S.Ct. 2117, 2121 (1988), this Court
recently upheld the constitutionality of such a practice. Under Klaxon
Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941), the
federal court in Mississippi would have been required to apply the
choice-of-law rule of Mississipp: in this diversity action, and hence to
apply Mississippi's six-year statute of limitations. See King v. Otasco,
861 F.2d at 441.
9
Tort Action. The District Court’s decision, subsequently
affirmed by the Third Circuit, is inconsistent with this
Court’s reasoning in Van Dusen v. Barrack, 376 U.S. 612
(1964).
In Van Dusen the defendants sought to transfer to the
District of Massachusetts forty wrongful death actions
brought in the Eastern District of Pennsylvania by the
personal representatives of certain victims of an airline
accident which had occurred in Massachusetts. In inter-
preting the “interest of justice” portion of 28 U.S.C.
§1404(a), this Court was required to determine which state
law would apply if a transfer were to occur. After a careful
analysis, this Court stated:
We believe, therefore, that both the history and pur-
poses of §1404(a) indicate that it should be regarded as
a federal judicial housekeeping measure, dealing with
the placement of litigation in the federal courts and
generally intended, on the basis of convenience and
fairness, simply to authorize a change of courtrooms.
[footnote omitted]
Van Dusen vy. Barrack, 376 U.S. at 636-637. Because Sec-
tion 1404(a) deals only with the placement of litigation,
and not with the law to be applied, the Court concluded
that in cases such as the one before it,
... the transferee district court must be obligated to
apply the state law that would have been applied if
there had been no change of venue. A change of venue
under §1404(a) generally should be, with respect to
state law, but a change of courtrooms. [footnote
omitted]
Id., 376 U.S. at 639. See also Cowan v. Ford Motor Co.,
713 F.2d 100, 104 n.6 (Sth Cir. 1983) Gf case is transferred
10
on defendant’s motion, Mississippi statute of limitations
would still apply); Schreiber v. Allis-Chalmers Corp., 611
F.2d 790, 792-793 (10th Cir. 1979) (Mississippi statute of
limitations would be applied in case transferred to Kan-
sas). Cf. Stewart Organization, Inc. v. Ricoh Corp., —~—
U.S. __, 108 S.Ct. 2239, 2245 (1988) (a transfer pursuant
to §1404(a) does not carry with it a change in the applica-
ble law).
In refusing to apply the state law of the transferor
state, as was required in Van Dusen, the Third Circuit
emphasized that Van Dusen involved a transfer sought by
the defendants and noted that this Court limited its hold-
ing in Van Dusen to defendant-initiated transfers. See Fer-
ens v. Deere & Co., 862 F.2d at 34-35. While it is true that
this Court reserved judgment on whether the same consid-
erations would govern a plaintiff-initiated transfer, see Van
Dusen v. Barrack, 376 U.S. at 640, the Court’s reasoning
and analysis are equally compelling in requiring the appli-
cation of the transferor state’s law regardless of which
party is seeking the transfer.
The purpose of Section 1404(a) is to allow federal civil
suits to be transferred, in the interest of justice, to the most
convenient forum.
Section 1404(a) reflects an increased desire to have
federal civil suits tried in the federal system at the
place called for in the particular case by considerations
of convenience and justice. [footnote omitted]
Van Dusen vy. Barrack, 376 U.S. at 616.
The idea behind §1404(a) is that where a “civil action”
to vindicate a wrong—however brought in a court—
presents issues and requires witnesses that make one
District Court more convenient than another, the trial
11
judge can, after findings, transfer the whole action to
the more convenient court.
Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26
(1960), quoted with approval in Van Dusen vy. Barrack, 376
U.S. at 622.
This remedial purpose is available to a plaintiff as well
as a defendant. See Coffey v. Van Dorn Iron Works, 796
F.2d 217, 219 (7th Cir. 1986); Philip Carey Manufacturing
Co. v. Taylor, 286 F.2d 782, 784 (6th Cir.), cert. denied,
366 U.S. 948 (1961); 1 J. Moore, Moore’s Federal Practice,
q0.145[4.-2] (2d ed. 1988). Nothing in Section 1404(a) pro-
vides for a change of the applicable law when the case is
transferred by a plaintiff rather than a defendant. The sec-
tion simply provides for a change of venue “[flor the con-
venience of parties and witnesses, in the interest of jus-
tice.” 28 U.S.C. §1404(a).
There is nothing...in the language or policy of
§1404(a) to justify its use by defendants to defeat the
advantages accruing to plaintiffs who have chosen a
forum which, although it was inconvenient, was a
proper venue.
Van Dusen v. Barrack, 376 U.S. at 633-634.
[The] legislative background [of §1404(a)] supports
the view that §1404(a) was not designed to narrow the
plaintiffs venue privilege or to defeat the state-law
advantages that might accrue from the exercise of this
venue privilege but rather the provision was simply to
counteract the inconveniences that flowed from the
venue statutes by permitting transfer to a convenient
federal court. The legislative history of §1404(a) cer-
tainly does not justify the rather startling conclusion
12
that one might “get a change of law as a bonus for a
change of venue.” [footnote omitted]
Id., 376 U.S. at 635-636.
In the present case the Petitioners selected the South-
ern District of Mississippi as their forum for the Tort
Action, thereby obtaining the state-law advantage of Mis-
Sissippi’s six-year statute of limitations. There is no ques-
tion but that the Southern District of Mississippi was an
appropriate forum for the Tort Action.* The subsequent
transfer of the Tort Action to the Western District of Penn-
sylvania pursuant to the Petitioners’ unopposed motion to
‘The Respondent never challenged either venue or the exercise of
in personam jurisdiction over it by the District Court in Mississippi;
and, indeed, any such challenge would clearly have been unsuccessful.
Venue over a corporation is appropriate in any judicial district in which
the corporation is licensed to do business or is doing business. See 28
U.S.C. §1391. In its answer in the Tort Action, the Respondent admit-
ted that it was doing business in Mississippi, was registered with the
Secretary of State of Mississippi, and maintained a local registered agent
in Jackson, Mississippi. Mississippi law at the time provided that a
foreign corporation doing business in Mississippi was subject to suit in
Mississippi to the same extent that Mississippi corporations were,
regardless of whether the cause of action accrued in Mississippi or not.
See Miss. Code Ann. §79-1-27 (1972) (repealed effective January |,
1988). See also Miss. Code Ann. §79-3-229 (1972) (repealed effective
January |, 1988). In S.& W. Construction Co. v. Douglas, 244 Miss. 498,
506, 142 So.2d 33, 34 (1962) the Mississippi Supreme Court held that
under Mississippi law, a Mississippi state court had jurisdiction to hear
a case involving a nonresident plaintiff injured in another state suing a
foreign corporation which, however, had cualified to do business in
Mississippi and had appointed a resident agent for service of process.
See also Williams v. Taylor Machinery, Inc., 529 So.2d at 608-609;
Shewbrooks v. A.C. and S., Inc., 529 So.2d at 559; Poole v. Mississippi
Publishers Corp., 208 Miss. 364, 380, 44 So.2d 467, 473 (1950): Cowan
v. Ford Motor Co., 694 F.2d 104, 105-106 (Sth Cir. 1982); Schreiber v.
Allis-Chalmers Corp., 611 F.2d at 793.
13
transfers cannot be used by the Respondent to defeat the
advantages accruing to the Petitioners from their proper
exercise of the privilege of selecting a forum. No change of
law can result frorn the change of venue. To hold other-
wise, as the Third Circuit did, is to ignore this Court’s
admonition that the federal courts should “ensure that the
‘accident’ of federal diversity jurisdiction does not enable a
party to utilize a transfer to achieve a result in federal court
which could not have been achieved in the courts of the
State where the action was filed.”” Van Dusen v. Barrack,
376 U.S. at 638. :
The Petitioners’ Tort Action would not have been
barred by the statute of limitations in the courts of Missis-
sippi where it was filed. The Respondent cannot be permit-
ted to utilize the transfer to Pennsylvania, which was
‘There is no question but that the Tort Action met the statutory
requirements for a transfer pursuant to 28 U.S.C. §1404(a) because the
transfer was clearly for the convenience of the parties ard witnesses and
in the interest of justice. As the affidavit accompanying the Petitioners’
motion for a change of venue demonstrated, all witnesses with any
knowledge of the accident or injuries resided in the Western District of
Pennsylvania and all documents relating to the injuries were also
located there. The Respondent filed no counter affidavit claiming any
inconvenience or prejudice from a transfer to Pennsylvania. In fact, the
transfer also convenienced the Respondent because both parties would
be able to reduce their legal expenses by consolidating the Tort Action
and the Warranty Action which were based on essentially one set of
facts. The “interest of justice” component of a Section 1404(a) transfer
analysis relates to the efficient administration of the court system. Cof-
fey v. Van Dorn Iron Works, 796 F.2d at 221. In the present case the
ability to consolidate the two lawsuits and to have the case tried by a
federal judge familiar with the applicable substantive law of Pennsylva-
nia also favored transferring the case to Pennsylvania. Cf. Van Dusen v.
Barrack, 376 U.S. at 643-646; Coffey v. Van Dorn Iron Works, 796 F.2d
at 221. Thus, a transfer was unquestionably appropriate under 28
U.S.C. §1404(a). Of course, since the Respondent did not oppose the
Petitioners’ motion for a change of venue or seek review of the transfer
order, the propriety of the transfer order is not in issue.
14
accomplished for the convenience of the parties and wit-
nesses and in the interest of justice, to achieve a different
result.
In holding to the contrary, the majority in the Third
Circuit apparently based its decision on its perception that
the Petitioners’ actions constituted impermissible forum
shopping. As this Court recognized in Van Dusen, how-
ever, federal law gives a plaintiff the right to select the
forum with the most favorable law so long as it is a proper
forum in which the case may be brought. See Van Dusen v.
Barrack, 376 U.S. at 633-635; Ferens v. Deere & Co., 862
F.2d at 35. Both jurisdiction and venue were undeniably
proper in the Southern District of Mississippi; and the
Petitioners were, therefore, clearly entitled to select Missis-
sippi as their forum and gain the advantages of that state’s
favorable laws. The Petitioners’ proper exercise of their
right to select a favorable: forum cannot constitute
improper forum shopping.
Nor was their motion to transfer improper forum
shopping. Forum shopping necessarily implicates some
attempt to select a forum with a more favorable procedural
or substantive law. See Ferens v. Deere & Co., 862 F.2d at
37 (Seitz, J., Dissenting). The Petitioners, however, had
already obtained the advantage of the most favorable law
by properly selecting Mississippi as their forum. The Peti-
tioners could have proceeded to trial on the merits in Mis-
sissippi without being barred by the statute of limitations.
Their transfer of the case to Pennsylvania provided them
with no better law, either procedurally or substantively.
*Indeed, as Judge Seitz recognized in his dissent, the Petitioners
had no choice but to file suit in Mississippi because of the pertinent
statutes of limitations. See Ferens v. Deere & Co., 862 F.2d at 37 (Seitz,
J., Dissenting).
15
Rather, it simply made the trial of the case more conve-
nient for all the parties and witnesses and a more efficient
utilization of judicial resources. Providing for the trial of
the case in a more convenient forum is the very purpose
for which 28 U.S.C. §1404(a) was enacted. Its use by the
Petitioners for that very purpose, when the resulting trans-
fer did not provide them with a more advantageous law,
cannot under ‘any circumstances be construed as inappro-
priate forum shopping.’
Il. The Decision Of The Third Circuit Holding That
The Transferee District Court Is Not Obligated To
Apply The Law Of The Transferor State When The
Plaintiff Is The Moving Party Is In Conflict With
The Reasoning In Decisions From Other Circuit
Courts Of Appeal
Not only is the decision of the majority in Ferens in
conflict with the reasoning of this Court in Van Dusen, it is
also in conflict with the reasoning in decisions from other
circuit courts of appeal. Other circuit courts which have
addressed the issue of the applicable law following a plain-
tiff-initiated transfer under Section 1 404(a) have concluded
that, where the transferor district court was a proper
forum, the law of the transferor state should continue to
apply after the transfer. See Martin v. Stokes, 623 F.2d 469,
471 (6th Cir. 1980); Roofing & Sheet Metal Services, Inc. v.
LaQuinta Motor Inns, Inc., 689 F.2d 982, 991 n.14 (11th
7It is instead the rule announced by the majority in Ferens which
will result in a plaintiff's being able to use 28 U.S.C. §1404(a) as a forum
shopping device to obtain the application of more fay rable law. As the
majority acknowledges, its construction of Section 1404(a) will allow a
less diligent plaintiff who has filed his lawsuit in a forum with less
favorable law to utilize Section 1404(a) to obtain the advantages of the
more favorable law of another forum by initiating a transfer. See Ferens
v. Deere & Co., 862 F.2d at 36.
16
Cir. 1982). Cf Gonzales v. Volvo of America Corp., 734
F.2d 1221, 1224 (7th Cir. 1984), superseded, 752 F.2d 295
(7th Cir. 1985).*
Martin v. Stokes, supra, contains a comprehensive
review of the applicable law following transfers under both
28 U.S.C. §1404(a) and its companion section, 28 U.S.C.
§1406(a), governing transfers where venue is improper.
The Court concluded that the applicable law following a
transfer does not depend on whether the transfer is made
on the motion of the plaintiff or defendant but does
depend upon whether the transfer is pursuant to Section
1404(a) or Section 1406(a). Jd., 623 F.2d at 471. In reach-
ing this conclusion, the Court reasoned as follows:
By determining the choice of law solely on the basis of
the nature of the transfer, a result is reached that is
consistent both with Van Dusen and the Erie doctrine.
Once a plaintiff has exercised his choice of forum by
selecting a permissible forum, the state law of that
forum should govern the action, regardless of the wis-
dom of the plaintiff's selection. Thus, no matter who
seeks to transfer the action to a more convenient
forum under §1404(a), the state law of the forum in
which the action was originally commenced remains
*The Gonzalez case involved a plaintiff-initiated transfer pursuant
to 28 U.S.C. §1404(a). In its original opinion the Court, citing Martin v.
Stokes, supra, and Roofing & Sheet Metal Services, Inc. v. LaQuinta
Motor Inns, Inc., supra, held that when a plaintiff has exercised his
choice of forum in the first instance by selecting a permissible forum,
the state law of that forum should govern the action regardless of which
party initiates a transfer. 734 F.2d at 1224. However, the Court subse-
quently issued a second opinion superseding its original opinion and
deciding the case on other grounds. 752 F.2d 295. Consequently, the
question of the effect on the applicable law of a plaintiff-initiated trans-
fer under Section 1404(a) is unresolved in the Seventh Circuit. Coffey v.
Van Dorn Iron Works, 796 F.2d at 221 n.6.
17
controlling. In this manner, the outcome in the trans-
feree district court will be the same as the outcome
would have been in the state courts of the state where
the action was originally brought.
Accordingly, we conclude that the choice of law is
dependent on the nature of the transfer. If an action is
transferred under §1404(a), the state law of the trans-
feror court should be applied.
Id., 623 F.2d at 473.° See also In re Air Crash Disaster at
Washington, D.C. on January 13, 1982, 559 F. Supp. 333,
340 n.5 (D.D.C. 1983); In re Richardson-Merrell, Inc., 545
F. Supp. 1130, 1135 (S.D. Ohio 1982), aff'd, 727 F.2d 608
(6th Cir. 1984); Alexander v. Richardson-Merrell, Inc., 541
F. Supp. 93, 99 (S.D.N.Y. 1982); 1 J. Moore, Moore's
Federal Practice, 90.145 [4.-5] (2d ed. 1988); Note, Choice
of Law in Federal Courts after Transfer of Venue, 63 Cor-
nell L. Rev. 149, 154-158 (1977).
The Ninth Circuit, without reference to whether the
transfer was initiated by the plaintiff or the defendant, has
simply concluded that where a case is transferred for the
convenience of the parties pursuant to Section 1404(a), the
transferee court must apply the law of the transferor court.
See Nelson v. International Paint Co., 716 F.2d 640, 643
(9th Cir. 1983). See also Ross v. Colorado Outward Bound
School, Inc., 822 F.2d 1524, 1527 (10th Cir. 1987); Manley
v. Engram, 755 F.2d 1463, 1467 n.14 (11th Cir. 1985);
Truck Insurance Exchange v. Tetzlaff, 683 F. Supp. 223,
225 (D. Nev. 1988); RPJ Sportswear, Inc. v. Xylo Tex, Ltd.,
681 F. Supp. 225, 227 (S.D.N.Y. 1988); Western Smelting
*The Sixth Circuit also pointed out that a choice of law rule based
upon which party requested the transfer could lead to improper forum
shopping by a plaintiff who had brought his action in a proper forum,
but one that had less favorable state law. Jd, 623 F.2d at 472. See
footnote 7, supra.
18
& Metals, Inc. v. Slater Steel, Inc, 621 F. Supp. 578, 581
(N.D. Ind. 1985); Davis v. Costa-Gavras, 580 F. Supp.
1082, 1086 (S.D.N.Y. 1984); Subacz v. Town Tower Motel
Corp., 567 F. Supp. 1308, 1316 (N.D. Ind. 1983). Cf Bott
v. American Hydrocarbon Corp., 441 F.2d 896, 899 (Sth
Cir. 1971) (where the transfer originates in a suggestion by
the court and with the concurrence of the defendant and
no objection by the plaintiff, the law of the transferor court
is applied). ;
Those cases cited by the majority in Ferens as sup-
porting the application of the law of the transferee court
after a plaintiff-initiated transfer under Section 1404(a)
involved situations where jurisdiction or venue in the
transferor state appeared to be improper. See Carson v.
U-Haul Co., 434 F.2d 916, 918 (6th Cir. 1970)'®; Parham vy.
Edwards, 346 F. Supp. 968, 971-972 (S.D. Ga. 1972), aff'd
per curiam, 470 F.2d 1000 (Sth Cir. 1973). Section 1404(a)
applies to actions which have been brought in a permissi-
ble forum. See Martin v. Stokes, 623 F.2d at 471. It is
therefore appropriate that the law of an improper trans-
feror court not be applied after a transfer. Otherwise, a
plaintiff could gain the advantage of the law of a state
where he could not have maintained his lawsuit by filing
the lawsuit there and then transferring it to a state where
venue and jurisdiction were proper, but the law was less
favorable. See Roofing & Sheet Metal Services, Inc. v.
The Carson case was distinguished by the Sixth Circuit in its
subsequent opinion in Martin v. Stokes, 623 F.2d at 472 n.4, on the
basis that the transferor court lacked jurisdiction. The Court, however,
also overruled any inference in Carson that the applicable law depended
upon whether the plaintiff or the defendant was seeking the transfer:
“While some authorities ... have emphasized the importance of the
party seeking the transfer, [citations omitted], we believe that the more
appropriate emphasis is on the nature of the transfer.” /d., 623 F.2d at
472.
19
LaQuinta Motor Inns, Inc., 689 F.2d at 991-992; Ellis v.
Great Southwestern Corp., 646 F.2d 1099, 1110 (Sth Cir.
1981); Reyno v. Piper Aircraft Co., 630 F.2d 149, 165 (3rd
Cir. 1980), rev'd on other grounds, 454 U.S. 235 (1981).
In the present case, however, venue and jurisdiction
were proper in the Southern District of Mississippi. The
overwhelming weight of authority recognizes that where
the original forum is a proper one, a convenience transfer
under Section 1404(a) should carry with it no change in the
applicable law. This Court should issue a writ of certiorari
in SEED PCD CURE Cian ty Ce angany &
Ferens may be reversed.
Ill. This Case Involves An Important Question Of Fed-
eral Law Which Should Be Settled By This Court
This Court granted certiorari in Van Dusen because it
recognized that the case involved important questions con-
cerning the construction and operation of a federal statute,
28 U.S.C. 1404(a). See Van Dusen v. Barrack, 376 U.S. at
615. One important question left open by this Court's
Opinion in Van Dusen was whether the Court’s holding
should be extended to cases where the plaintiff initiates the
transfer from a proper forum to a more convenient one.
While most of the circuit courts which have addressed this
issue have correctly concluded that the reasoning and anal-
ysis in Van Dusen compels the same result with respect to
such plaintiff-initiated transfers, the majority in Ferens has
now come to a contrary conclusion.
The construction and operation of 28 U.S.C. §1404(a)
with respect to plaintiff-initiated transfers will have a sig-
nificant impact on the functioning and administration of
the federal court system. The rule announced in Ferens
will result in the congestion of cases in districts which,
20
although proper as to venue and jurisdiction, have little
relatioa to the underlying causes of action, which causes of
action could more conveniently and efficiently be tried in
other appropriate districts. Moreover, the chill placed
upon plaintiff-initiated transfers will result in the greater
likelihood of multiple lawsuits being filed and tried in dif-
ferent districts even though they arise out of a single set of
’ facts.
At present, a plaintiff's ability to transfer a case from a
proper forum to a more convenient proper forum, without
a change in the applicable law, depends entirely upon the
fortuitous location of the more convenient forum in a cir-
cuit other than the Third Circuit. This Court should issue a
writ of certiorari in this case so that an important question
of federal law may be finally settled and so that uniformity
may be established as to the functioning of the federal
court system.
21
CONCLUSION
For the foregoing reasons the Petitioners respectfully
pray that their petition for a writ of certiorari be granted.
Respectfully submitted,
Stan.ey V. Ostrow, Eso.
RicnarD B. Tucker, Ill, Es».*
Wi.uiaM A. Penrop, Eso.
TUCKER ARENSBERG, P.C.
1200 Pittsburgh National Bidg.
Pittsburgh, Pennsylvania 15222
(412) 566-1212
Counsel for Petitioners,
Albert J. Ferens and
Margaret L. Ferens, his wife
*Counsel of Record for Petitioners
A-l
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 86-3595
ALBERT J. FERENS and
MARGARET L. FERENS, his wife
v.
DEERE & COMPANY,
(D.C. Civil No. 85-1534)
ALBERT J. FERENS and
MARGARET L. FERENS, his wife
Vv.
JOHN DEERE COMPANY, a/k/a
DEERE & COMPANY
(D.C. Civil No. 85-2725)
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA
Argued: March 5, 1987
Decided May 28, 1987
On Remand from the Supreme Court
of the United States
Before: GIBBONS, Chief Judge and SEITZ
and ALDISERT. Circuit Judges
(Opinion filed November 25. 1988)
A-2
STANLEY V. OSTROW, ESQ.
WILLIAM A. PENROD, ESQ.
FINKEL, LEFKOWITZ, OSTROW
& WOOLRIDGE
800 Commonwealth Building
Pittsburgh, PA 15222
Attorneys for Appellants
GARY F. SHARLOCK, ESQ.
DAVID P. HELWIG, ESQ.
SHARLOCK, REPCHECK & MAHLER
1110 Two Chatham Center
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
GIBBONS, Chief Judge:
The present action is here on remand from the
Supreme Court for reconsideration in light of Sun Oil
Co. v. Wortman, 56 U.S.L.W. 4601 (1988). In Ferens v.
Deere & Co., 819 F.2d 42 (3d Cir. 1987) vacated and
remanded 486 U.S. (1988), this court held that a
Mississippi court could not apply Mississippi's statute
of limitations to a tort which occurred in Pennsylvania
where both plaintiffs were residents of Pennsylvania
and the combine was purchased in Pennsylvania. This
panel held that application of the laws of Mississippi
would have been “arbitrary, fundamentally unfair, and
therefore unconstitutional.” Id. at 427. The district
court determination that Pennsylvania's statute of
limitations was applicable and therefore barred the
action was affirmed. Because Mississippi was found to
A-3
be constitutionally obligated to apply the Pennsylvania
statute of limitation, this court never addressed which
forum's statute of limitations applies to the diversity
action as a result of its having been filed in the Federal
District Court for the Southern District of Mississippi
and transferred pursuant to 28 U.S.C. § 1404(a) (1982)
to the Federal Court for the Western District of
Pennsylvania. Under the court's reasoning, both states
and hence both district courts' would apply the
Pennsylvania statute of limitations making it
unnecessary to determine if the transferor or
transferee forum's law applied following plaintiff's
successful request for transfer pursuant to § 1404(a).
This reasoning is inconsistent with the Supreme
Court's determination in Sun Oil Co. v. Wortman. The
Constitution does not preclude Mississippi's practice
of applying its own statute of limitations to actions in
its courts which are governed by the substantive law of
another state. Thus, this court must address the
previously undetermined question of which forum's
law governs following a change of venue under 28
U.S.C. 8 1404(a) which was granted pursuant to
plaintiffs request. Under the circumstances of this
case, we hold that the transferee forum's law applies
(Pennsylvania).
Albert J. Ferens and Margaret L. Ferens brought
this appeal from a summary judgment which was
entered in favor of defendant, Deere & Company
(Deere), in their product liability action grounded in
diversity. The district court held that the action was
time barred by Pennsylvania's two-year statute of
limitations. See 42 Pa. Cons. Stat. Ann. § 5524(2)
(Purdon 1981).
1. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313
U.S. 487 (1941) (federal courts sitting in diversity actions generally
apply the choice of law of the state in which they sit).
A-4
Because the action was transferred pursuant to 28
U.S.C. 8 1404(a) (1982), from the Southern District of
Mississippi to the Western District of Pennsylvania, the
appellants contend that Mississippi's six-year statute
of limitations for personal injuries governs. See Miss.
Code Ann. § 15-1-49 (1972). We disagree. Thus we
affirm the district court's judgment.
The Ferenses reside in Dunbar, Fayette County,
Pennsylvania. In July, 1981, Mr. Ferens purchased, for
use on his farm, a John Deere Sidehill No. 6620
combine from the Uniontown Farm Equipment
Company in Uniontown, Washington County,
Pennsylvania. The combine was manufactured and
distributed by Deere, a Delaware corporation with its
principal place of business in Moline, Illinois. It had
been sold by Deere to Uniontown for resale. On July 5,
1982, in Washington County, Pennsylvania, while Mr.
Ferens was cleaning the combine, his right hand
became enmeshed in its rotating augur and was
severed above the wrist.
On July 3, 1985, the Ferenses filed Civil Action No.
85-1534 in the Western District of Pennsylvania,
alleging that Deere breached certain express and
implied warranties of merchantability and fitness for
use, in violation of the Pennsylvania Commercial Code.
See 13 Pa. Cons. Stat. Ann. § § 1101-9507 (Purdon
1984). This breach of warranty action, which is still
pending, seeks compensation for Mr. Ferens’ personal
injuries. Under Pennsylvania law, a four-year statute of
limitations governs actions for breach of warranty. See
13 Pa. Cons. Stat. Ann. § 2725 (Purdon 1984); 42 Pa.
Cons. Stat. Ann. § 5525 (Purdon 1981).
On July 25, 1985 the Ferenses also filed Civil
Action No. 85-2725 in the Southern District of
Mississippi, Jackson Division, seeking identical
A-5
damages as those sought in Pennsylvania for the same
personal injuries suffered in the July 5, 1982 accident.
In the Mississippi action, recovery was based on
theories of negligence and strict liability in tort.
Specifically, the Ferenses claimed that the combine
was defective and that Deere failed to warn of the
defects. The Ferenses chose Mississippi because Deere
was qualified to do business there, having had
appointed a local registered agent, as it had in many
other states, and because the Mississippi statute of
limitations for personal injuries is six years.” See Miss.
Code Ann. 8 15-1-49 (1972). The Ferenses did not
allege that Deere designed or manufactured the
combine in Mississippi, or that they ever set foot in
that state.
After Deere filed an answer in the Mississippi
action, the Ferenses made a motion, pursuant to 28
U.S.C. 8 1404(a), to transfer their case to the Western
District of Pennsylvania, claiming, inter alia. a) that
they resided in Pennsylvania; b) that the accident
occurred in Pennsylvania; c) that their claim had no
connection with Mississippi; d) that a substantial
number of material witnesses resided in the Western
District of Pennsylvania, while none were in
Mississippi; e) that a substantial number of necessary
documentary exhibits were in the Western District of
Pennsylvania, while none were in Mississippi; and f)
that the breach of warranty action pending in the
Western District of Pennsylvania, involving the same
accident, presented common questions of fact and law.
On November 8, 1985, the transfer motion was granted
and on November 21, 1985 the breach of warranty
2. Pennsylvania has a two-year state of limitations for personal
injuries, 42 Pa. Cons. Stat. Ann. § 5524(2) (Purdon !981) which
had run when this action was filed three years after the accident
occurred.
A-6
action and the negligence and strict liability action
were consolidated for all purposes.
On February 20, 1986, Deere made a motion for
summary judgment on all claims, asserting that the
Pennsylvania statute of limitations barred the
negligence and strict liability claims, and that the
terms of its written warranty precluded the breach of
warranty claims. The district court held that, despite
the fact that the negligence and strict liability action
had been transferred from Mississippi, it was governed
by the Pennsylvania statute of limitations.
Additionally, the court held that material fact issues
prevented summary judgment in the breach of
warranty action. Thus, summary judgment was
entered on the negligence and strict liability claims.
and the court directed the entry of final judgment
pursuant to Fed. R. Civ. P. 54(b). The Ferenses
appealed. The breach of warranty case has been stayed
pending its resolution.
On appeal, this panel determined that Mississippi —
courts were constitutionally required to apply
Pennsylvania's statute of limitations to the present
action. Ferens v. Deere & Co., 819 F.2d 42 (3d Cir.
1987) vacated and remanded 486 U.S. (1988). We thus
affirmed the disi...t court determination that
Pennsylvania's two-year statute of limitation barred
the negligence and strict liability actions. We did not
address whether the law of the transferor or transferee
forum applied reasoning that the law applied would be
the same in either forum. The Supreme Court granted
certiorari, vacated and remanded the opinion for
reconsideration in light of Sun Oil Co. v. Wortman, 56
U.S.L.W. 4601 (1988). This panel's determination in
Ferens v. Deere & Co. is inconsistent with Sun Oil.
In Sun Oil Co. v. Wortman, 56 U.S.L.W. 4601
(1988), the Supreme Court held that a state court may
choose to apply its own statute of limitations to claims
A-7
governed by the substantive laws of another state
without violating either the full faith and credit clause
or the due process clause. The Court's Opinion stated
that statutes of limitations are procedural and the
forum is entitled to apply its own procedural laws for
choice of law purposes.’ The Court explicitly rejected
the suggestion that statutes of limitation should be
treated substantively for conflict of law purposes to be
consistent with their treatment for Erte doctrine
purposes. Id. at 4604; see also Guaranty Trust v.
York, 326 U.S. 99 (1945) (federal district courts sitting
in diversity actions must apply the substantive law of
the state in which they sit including statutes of
limitation). The Supreme Court explained:
Except at the extremes, the terms “substance” and
“procedure” precisely describe very little except a
dichotomy. and what they mean in a particular
context is largely determined by the purposes for
which the dichotomy is drawn. In the context of
3. Justice O'Connor, joined by the Chief Justice, concurred in
.the determination that the forum may treat its statute of limitation
as procedural and apply it to a case governed by the substantive law
of another state only so long as this other state treats its statute of
limitations as procedural. These concurring Justices reserved the
question of whether a forum may apply its statute of limitations to
a case where the governing substantive state law treats its statute
of limitations as substantive. Sun Oil v. Wortman., 56 U.S.L.W. at
4608. This issue is not raised in the present context. Pennsylvania
treats its statute of limitations as procedural. See Butler v. Dravo
Corp.. 310 F. Supp. 1265 (W.D. Pa. 1970).
In another separate concurrence. Justices Brennan.
Marshall and Blackmun concurred in the result permitting
application of the forum's statute of limitations but did so through
different reasoning. 56 U.S.L.W. at 4606. These Justices reasoned
that conducting the litigation gave the forum sufficient procedural
interests in the litigation to constitutionally permit application of
the forum's statute of limitations. Id at 4607. Justice Kennedy did
not take part in the consideration or decision of this case.
A-8
our Erie jurisprudence, |citations omitted], that
purpose is to establish (within the limits of
applicable federal law. including the prescribed
Rules of Federal Procedure) substantial uniformity
of predictable outcome between cases tried in
federal court and cases tried in the State in which
the federal court sits. [citations omitted) The
purpose of the substance procedure dichotomy in
the context of the Full Faith and Credit Clause, by
contrast, is not to establish uniformity but to
delineate spheres of state legislative competence.
Hence, a state may apply its own statute of limitations
to an action governed by the substantive law of another
state.
Mississippi treats its statute of limitations as
procedural for choice of law purposes and applies it to
actions even though they are otherwise governed by the
substantive law of another state. See Vick v. Cochran,
316 So. 2d 242, 246 (Miss. 1975). This court's prior
decision that the Full Faith and Credit Clause and the
Due Process Clause require Mississippi courts to apply
Pennsylvania's statute of limitation is inconsistent
with the Supreme Court's determination in Sun Oil
Co. v. Wortmann, supra. Thus, Mississippi state
courts and federal courts sitting in diversity actions
would apply the Mississippi statute of limitations to
this action. This raises the question left unresolved by
this panel's last decision: following plaintiff's
successful request for change of venue pursuant to 28
U.S.C. § 1404(a), does the law of the transferor or
transferee forum control?
The Ferenses position is straightforward. Under
Klaxon Co. v. Stantor Electric Manufacturing Co., 313
U.S. 487 (1941). federal district courts sitting in
A-9
diversity must apply the choice-of-law rule of the state
in which they sit. Thus, a Mississippi federal district
court sitting in diversity would apply Mississippi's
six-year statute of limitations to the present action
because that is what a Mississippi state court would
do. See Vick v. Cochran, 316 So. 2d 242 (Miss. 1975).
Moreover, under Van Dusen v. Barrack, 376 U.S. 612
(1964), when a defendant obtains a transfer pursuant
to 28 U.S.C. 8 1404(a), the law of the transferor forum
applies. Ferenses contend that the same rule should
apply when a plaintiff obtains a transfer under
8 1404(a).* Following from this contention, the
transferee Pennsylvania federal district court in the
present action should have applied the same law as the
transferor Mississippi federal district court would have
applied which is the same law that a Mississippi state
court would have applied which is Mississippi's six
year statute of limitations. We disagree.
In Van Dusen v. Barrack, plaintiffs, as the
personal rep: esentatives of the decedents, brought 40
wrongful deatin actions in the Eastern District of
Pennsylvania for deaths resulting from an airplane
crash in Massachusetts. 376 U.S. 612 (1964).
Pursuant to the defendants’ request, the district court
ordered these actions transferred to Massachusetts
where over 100 similar actions were pending. Plaintiffs
objected to the transfer because they were not legal
representatives of the decedents pursuant to
4. In Schreiber v. Allis-Chalmers Corp.. 611 F.2d 790 (1979),
the Court of Appeals for the Tenth Circuit held that the law of the
ttansferor forum applied in a case involving a piaintiff-initiated
transfer under § 1404(a). The court simply stated that Van Dusen
v. Barrack provided support for this position. Id. at 792. It did not
discuss the fact that the Supreme Court explicitly limited its
holding in Van Dusen v. Barrack to defendant initiated transfers.
376 U.S. at 640. leaving the question of plaintiff initiated transfers
unresolved.
A-10
Massachusetts law. The Court of Appeals vacated the
transfer order holding that it could be granted only if
the plaintiffs were legal representatives under
Massachusetts law. The Supreme Court granted
certiorari and reinstated the transfer order. The Court
held that in a case where defendant obtains a change of
venue under § 1404(a), the state law of the transferor
forum will govern.
In Van Dusen, the Supreme Court explained that
8 1404(a) is designed to promote convenience. Id. at
634-35. Yet, federal law gives plaintiffs the right to
choose the forum with the most favorable law and
defendants should not be able to use § 1404(a) to
defeat plaintiff's choice of law:
There is nothing, however, in the language or
policy of 8 1404(a) to justify its use by defendants
to defeat the advantages accruing to plaintiffs who
have chosen a forum which, although it was
inconvenient, was a proper venue. .. . § 1404(a)
was not designed to narrow the plaintiffs venue
privilege or to defeat the state-law advantages that
might accrue from the exercise of this venue -
privilege but rather the provision was simply to
counteract the inconveniences that flowed from
the venue statutes by permitting transfer to a
convenient federal court.
Id. at 633-35. The Supreme Court stated that § 1404(a)
should not be construed to allow forum shopping. Id.
at 636-38. Accordingly. § 1404(a) should be
interpreted in a manner that promotes federal-state
uniformity. Id.; see also Erie R. Co. v. Tompkins, 304
U.S. 64 (1938) (federal courts sitting in diversity apply
the substantive law of the state in which they sit).
While the Erie doctrine generally calls for uniformity
between a federal court and the state courts where it
sits, the Van Dusen situation was different. Because
A-11
the plaintiffs in Van Dusen had exercised their federal _
venue privilege to choose Pennsylvania federal court
and the defendants had sought transfer to
Massachusetts, the Court held that 8 1404(a) should
be construed to achieve uniformity between the
Massachusetts federal court (transferee court) and the
state courts of Pennsylvania where the action was filed.
This protected plaintiffs venue choice as to law and
prevented the use of § 1404(a) as a forum shopping
device by defendants. Defendants were not able to use
8 1404(a) in Pennsylvania's federal courts to obtain a
result that they could not obtain in the state courts of
Pennsylvania.
In Ferens v. Deere & Co., we are faced with the
same problem in a different guise; plaintiffs are
attempting to use § 1404(a) to forum shop. They are
time-barred from bringing their action in the state
courts of Pennsylvania or directly in a diversity action
in the federal courts sitting in Pennsylvania. They hope
to do indirectly what they cannot do directly. They hope
to use § 1404(a) and a brief stop in Mississippi to
achieve a result in the federal courts of Pennsylvania
that they could not achieve in the state courts of
Pennsylvar a. If allowed, this result would be contrary
to the principles set forth in Van Dusen.
In Ferens, unlike Van Dusen, there is no danger of
the defendant using § 1404(a) to defeat the plaintiff's
federal venue privilege. In Ferens, the plaintiffs
obtained the change of venue. In effect, the Ferenses
choice of venue is the transferee forum, Pennsylvania.‘
5. The courts are not unanimous. See Carson v. U-Haul Co..
434 F.2d 916, 918 (6th Cir. 1970) (“We hold only that since transfer
was at the request of the plaintiffs. Georgia was no longer the forum
state. Kentucky became the new forum state and its statute of
limitations controlled."); Parham v. Edwards, 346 F. Supp. 968
(S.D. Ga. 1972) aff'd per curiam 470 F.2d 1000 (Sth Cir. 1973). But
see Martin v. Stokes, 623 F.2d 469 (6th Cir. 1980) (overturning
Carson v. U-Haul Co.) (Applicable law is determined by the type of
A-12
Under these circumstances, there is no reason to
depart from the goal of federal-state uniformity as set
forth in Erie; § 1404(a) should be construed to obtain
uniformity between the Pennsylvania federal courts
(transferee forum) and the state courts of
Pennsylvania. The Pennsylvania state courts would
apply Pennsylvania's two-year statute of limitations.
See Butler v. Dravo Corp., 310 F. Supp. 1265 (W.D. Pa.
1970).
Applying the transferee forum's state law to
plaintiff-initiated § 1404(a) transfers will prevent
forum shopping by plaintiffs who hope to bootstrap the
favorable law of another state into a convenient but
otherwise unfavorable forum. We recognize that this
construction of § 1404(a) may allow plaintiffs to correct
a mistake as to which forum has the most favorable law
in cases where plaintiffs initially file in a less favorable
forum. But see Mata v. Budd Company, 44 F.R.D. 225
(E.D. Pa. 1968) (District court denied plaintiffs |
request for transfer to a forum where the action was
not time barred because such “legal footwork” was
against the “interests of justice.”). Yet, allowing
plaintiffs to correct a choice of venue error is less
problematic than allowing plaintiffs to bootstrap
favorable law into a forum. If the Ferenses’
transfer. not the party making the motion: state law of transferor
forum applies to § 1404(a) transfers: whereas. state law of
transferee forum applies to § 1406(a) transfers.); Nelson v.
International Paint Co.. 716 F.2d 640. 643 (9th Cir. 1983) (follows
Martin v. Stokes. applicable law depends on the type of the
transfer); see also Gonzalez v. Volvo of America, 734 F.2d 122!
(7th Cir. 1984) (choice of law of the transferor forum applies to
plaintiff-initiated § 1404(a) transfers): Schretber v. Allis-Chalmers
Corp., 611 F.2d 790 (10th Cir. 1979): Schenk v. Piper Aircraft
Corp.. 377 F. Supp. 477. 480 (W.D. Pa. 1974) (Pennsylvania statute
of limitations barred wrongful death action: plaintiffs request for
transfer denied by district court which reasoned that transferee
forum was required to apply the law of transferor forum).
A-13
construction of § 1404(a) was accepted by this court.
§ 1404{a) would turn the longest state statute of
limitation into the federal statute of limitation to be
applied in diversity cases where the plaintiffs can
initially bring the action in the favorable state and
subsequently transfer it to the convenient forum. The
better construction of § 1404(a) is that the state law of
the transferee forum applies to plaintiff-initiated
transfers.
The district court held that Pennsylvania's
two-year statute of limitations barred the present
action. We will affirm the judgment of the district
court.
SEITZ, Circuit Judge, dissenting.
| agree with the majority that. in light of Sun Oil
Co. v. Wortman, 56 U.S.L.W. 4601 (1988), its earlier
opinion imposing substantive due process limitations
on a state court's application of its own statute of
limitations lacks continuing vitality. The majority goes
on, however. to construe the transfer statute (1404(a))
in the present context to require transferee forum's
statute of limitations to be applied by the transferee
court. Once again. | regretfully find myself unable to
agree
In its earlier opinion in this case. the majority. for
whatever reason, did not first address the defendant's
contention that the transfer statute did not require the
transferee forum to apply the transferor forum's
statute of limitations when the transfer motion was
made by the plaintiff in the present context. Because |
disagreed with the majority's resolution of the
A-14
constitutional issue. | reached and rejected the
defendant's statutory position. Ferens v. Deere &
Company, et al., 819 F.24,423. 427-28 (3d Cir. 1987).
vacated, 108 S. Ct. 2862 (1988). | continue to believe
that analysis is correct and am content to summarize
those views here.
It is undisputed that when plaintiffs filed suit in
the Southern District of Mississippi. it was a
permissible forum insofar as personal jurisdiction and
venue were concerned. When plaintiffs filed a motion
in that court under section 1404(a) to transfer the
action to the Middle District of Pennsylvania. they were
asking, in terms o/ section 1404(a), that the transfer be
granted “for the convenience of parties and witnesses.
[and] in the interest of justice.” It contains no language
limiting its availability to defendants. But there is a
muc!, more important reason not to import into the
transfer statute a change of law provision where a
plaintiff is concerned. The objective of the transfer
statute is solely trial con?€nience. Its use has nothing -
to do with change of law. VanDusen v. Barrack, 376
U.S. 612 (1964). The Supreme Court has made this
perfectly clear by emphasizing that the sole purpose of
the transfer statute is to change the courtroom. As
recently as June of this year. the Supreme Court
stated. albeit in a different context. that “Section
1404(a) is doubtless capable of classification as a
procedural rule; and. indeed. we have so classified it in
holding that a transfer pursuant to § 1404(a) does not
carry with it a change in the applicable law.” Stewart
Organization v. Ricoh Corp.. 108 S. Ct. 2239. 2245
(1988).
| conclude, as I did in my earlier dissent. that
section 1404(a) contains no language expressing an
intent to exclude a plaintiff from invoking it. More to
the potnt. it does not provide for a change of law when a
case is transferred at the instance of a plaintiff.
A-15
Apparently, the sole justification for the majority's
position seems to be that to allow a plaintiff to invoke
section 1404(a) is to permit “forum shopping.” The use
of this epithet here does not withstand analysis. Forum
shopping refers to choosing the most favorable place to
bring suit, whether as a matter of substance or
procedure. K. Redden & E. Veron, Modern Legal
Glossary 213 (1980). Thus, it implicates some choice.
Here plaintiffs had no choice at the time they decided
to sue. Mississippi provided the only available forum
given the pertinent statutes of limitations. There's was
a classic Hobson's Choice. Consequently, the act of
filing suit in Mississippi, the only available forum, did
not constitute forum shopping as that term is usually
understood.
Did the action of plaintiffs in moving for a transfer
under section 1404(a) involve any form of forum
shopping? Since “a transfer under 1404(a) does not
carry with it a change in the applicable law,” one may
ask how forum shopping is even relevant. The granting
of the motion did not give plaintiffs a substantive or
procedural benefit they did not already have in
Mississippi. Stewart Organization, Inc. v. Ricoh
Corp.. 108 S. Ct. at 2245. Indeed, the only benefit
which the plaintiffs can be said to enjoy is one that they
share in common with the defendants; namely, that
the litigation be conducted in the most convenient
forum for those concerned.
I conclude where I began. Forum shopping is
irrelevant to the objectives of the transfer statute
because a transfer gives a plaintiff no procedural or
substantive right he did not already possess.
I would reverse the judgment of the district court.
A-16
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
(A.O. U.S. Courts. G.M.C. Printing, Phila.. Pa. 215-568-4264)
A-17
Appendix B
In the
Supreme Court of the United States
Albert J. FERENS, et ux, petitioners, vy. DEERE & COM-
PANY. No. 87-477.
Case below, 639 F. Supp. 1484; 819 F.2d 423.
June 27, 1988. On petition for writ of certiorari to the
United States Court of Appeals for the Third Circuit. The
petition for writ of certiorari is granted. The judgment is
vacated and the case is remanded to the United States
Court of Appeals for the Third Circuit for further consider-
ation in light of Sun Oil Company v. Wortman, 486 U.S.
—_., 108 S.Ct. 2117, 99 L.Ed.2d __ (1988).
A-18
Appendix C
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 86-3595
ALBERT J. FERENS and
MARGARET L. FERENS, his wife
Vv.
DEERE & COMPANY,
(D.C. Civil No. 85-1534)
ALBERT J.-.FERENS and
MARGARET L. FERENS, his wife
Vv.
JOHN DEERE COMPANY, a/k/a
DEERE & COMPANY
(D.C. Civil No. 85-2725)
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA
Argued: March 5, 1987
Before: GIBBONS, Chief Judge and SEITZ
and ALDISERT, Circuit Judges
(Opinion Filed: May 28, 1987)
A-19
STANELY V. OSTROW, ESQ. (Argued)
WILLIAM A. PENROD, ESQ.
FINKEL LEFKOWITZ OSTROW
& WOOLRIDGE
800 Commonwealth Building
Pittsburgh, PA 15222
Attorneys for Appellants
GARY F. SHARLOCK, ESQ.
DAVID P. HELWIG, ESQ. (Argued)
SHARLOCK, REPCHECK & MAHLER
0 Two Chatham Center
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
GIBBONS, Chief Judge:
Albert J. Ferens and Margaret L. Ferens appeal
from a summary judgment which was entered in favor
of defendant, Deere & Company (Deere), in their
product liability action grounded in diversity. The
district court held that the action was time barred by
Pennsylvania's two-year statute of limitations. See 42
Pa. Cons. Stat. Ann. § 5524 (2) (Purdon 1981).
Because their action was transferred pursuant tc 28
U.S.C. § 1404(a)( 1982). from the Southern District of
Mississippi to the Western District of Pennsylvania, the
Ferenses contend that the governing time limitation is
Mississippi's six-year statute of limitations for
personal injuries. See Miss. Code Ann. § 15-1-49
(1972). We affirm.
A-20
The Ferenses reside in Dunbar, Fayette County.
Pennsylvania. In July, 1981 Mr. Ferens purchased for
use on his farm a John Deere Sidehill No. 6620
combine from the Uniontown Farm Equipment
Company in Uniontown, Washington County.
Pennsylvania. The combine was manufactured and
distributed by Deere, a Delaware corporation with its
principal place of business in Moline, Illinois and had
been sold by Deere to Uniontown for resale. On July 5.
1982, in Washington County. Pennsylvania. while Mr.
Ferens was cleaning the combine, his right hand
became enmeshed in its rotating augur and was
severed above the wrist.
On July 3, 1985 the Ferenses filed Civil Action No.
85-1534 in the Western District of Pennsylvania.
alleging that Deere breached certain express and
implied warranties of merchantability and fitness for
use, in violation of the Pennsylvania Commercial Code.
See 13 Pa. Cons. Stat. Ann. 88 1101-9507 (Purdon
1984). This breach of warranty action. which is still
pending, seeks compensation for Mr. Ferens’ personal
injuries. Under Pennsylvania law. a four-year statute of
limitations governs actions for breach of warranty. See
13 Pa. Cons. Stat. Ann. § 2725 (Purdon 1984): 42 Pa.
Cons. Stat. Ann. § 5525 (Purdon 1981).
On July 25, 1985 the Ferenses also [filed Civil
Action No. 85-2725 in the Southern District of
Mississippi, Jackson Division, seeking identical
damages as those sought in Pennsylvania for the same
personal injuries suffered in the July 5. 1982 accident.
In the Mississippi action, recovery was based on
theories of negligence and strict liability in tort.
Specifically. the Ferenses claimed that the combine
was defective and that Deere failed to warn of the
defects. The Ferenses chose Mississippi because Deere
A-21
was qualified to do business there. having had
appointed a local registered agent. as it had in many
other states, and because the Mississippi statute of
limitations for personal injuries is six years.' See Miss.
Code Ann. § 15-1-49 (1972). The Ferenses did not
allege that Deere designed or manufactured the
combine in Mississippi. or that they ever set foot in
that state.
After Deere filed an answer in the Mississippi
action, the Ferenses made a motion, pursuant to 28
U.S.C. § 1404(a), to transfer their case to the Western
District of Pennsylvania. claiming. inter alia. a) that
they resided in Pennsylvania: b) that the accident
occurred in Pennsylvania; c) that their claim had no
connection with Mississippi: d) that a substantial
number of material witnesses resided in the Western
District of Pennsylvania, while none were in
Mississippi; e) that a substantial number of necessary
documentary exhibits were in the Western District of
Pennsylvania, while none were in Mississippi: and f/f)
that the breach of warranty action pending in the
Western District of Pennsylvania. involving the same
accident, presented common questions of fact and law.
On November 8, 1985. the transfer motion was granted
and on November 21. 1985 the breach of warranty
action and the negligence and strict liability action
were consolidated for all purposes.
On February 20, 1986. Dec e« made a motion for
summary judgment on all claims, asserting that the
Pennsylvania statute of limitations barred the
negligence and strict liability claims. and that the
terms of its written warranty precluded the breach of
‘Pennsylvania has a two-year statute of limitations for personal
injuries, 42 Pa. Cons. Stat. Ann. § 5524(2) (Purdon 1981) which
had run when this action was filed three years after the accident
occurred.
A-22
warranty claims. The district court held that, despite
the fact that the negligence and strict liability action
had been transferred from Mississippi. it was governed
by the Pennsylvania statute of limitations.
Additionally. the court held that material fact issues
prevented summary judgment in the breach of
warranty action. Thus, summary judgment was
entered on the negligence and strict liability claims.
and the court directed the entry of final judgment
pursuant to Fed. R. Civ. P. 54(b). This appeal followed.
The breach of warranty case has been stayed pending
its resolution.
The Ferenses position is straightforward. Under
Klaxon Co. v. Stentor Electric Manufacturing Co.. 313
U.S. 487 (1941). federal district courts sitting in
diversity must apply the choice-of-law rule of the state
in which they sit. Moreover. under Van Dusen v.
Barrack, 376 U.S. 612 (1964). when a diversity action
is transferred from one federal district court to
another, the transfer does not result in the application
of a new choice-of-law rule. Thus. the Ferenses urge.
the District Court for the Western District of
Pennsylvania was obliged to apply Mississippi's
choice-of-law rule with respect to the statute of
limitations governing personal injury cases. The
Ferenses insist that Mississippi in this case would
apply its own statute of limitations, and that therefore
the Western District of Pennsylvania must do likewise.
The issue presented in the instant appeal.
however. is not as facile as the Ferenses would have us
believe. Their arguments ignore the constitutional
limits imposed upon the application of transferor state
law. Thus. we begin with an examination of
Mississippi law. which is aberrational in two respects.
A-23
First, Mississippi has adopted a highly unusual
six-year statute of limitations for personal injury
actions,’ whereas most states have two-or three-year
statutes of limitations for such claims. Second. the
Mississippi Supreme Court has made an exceptionally
uncommon interpretation of its borrowing statute.
Like most jurisdictions in the United States.
Mississippi has adopted a borrowing statute with
respect to time limitations on actions.’ The Mississippi
version provides:
When a cause of action has accrued in
some other state or in a foreign country. and
by the law of such state or country. or of some
other state and country where the defendant
has resided before he resided in this state. an
action thereon cannot be maintained by
reason of lapse of time. then no action thereon
shall be maintained in this state.
Miss. Code Ann. § 15-1-65 (1972). .
On its face, Mississippi's borrowii.g statute would
seem to suggest that Mississippi would look to
Pennsylvania for the limitations period governing the
Ferenses negligence and strict liability claims since
2Only five states have six-year statutes of limitations for
personal injury claims. See Me. Rev. Stat. Ann. tit. 14. § 752
(1964): Minn. Stat. § 541.05 (Supp. 1987): Miss. Code Ann
8 15-1-49 (1972): N.D. Cent. Code § 28-01-16 (1974): S.C. Code
Ann. § 15-3-530 (Law Co-op 1977).
>Pennsylvania borrowing statute. for example. provides:
The period of limitation applicable to a claim accruing
outside this Commonwealth shall be either that provided or
prescribed by the law of the piace where the claim accrued or
by the law of this Commonwealth. whichever first bars the
claim.
42 Pa. Cons. Stat. Ann. § 5521 (Purdon 1981).
A-24
those claims would be time barred in Pennsylvania.
Relying on the clause “where the defendant has resided
before he resided in this state,” however, the
Mississippi Supreme Court has held that its borrowing
statute “only applies where a non-resident in whose
favor the statute has accrued afterward moves into this
state.” Louisiana & Mississippi R. Transfer Co. v.
Long, 159 Miss. 654, 667, 131 So. 84, 88 (1930); see
also Cowan v. Ford Motor Co., 719 F.2d 785 (5th Cir.
1983) (applying the Mississippi Supreme Court's
interpretation of § 15-1-65). Because Deere was
qualified to do business in Mississippi at the time this
action accrued, it would be treated as a resident of
Mississippi under Mississippi law. See Kershaw v.
Sterling Drug. Inc., 415 F.2d 1009, 1011 (5th Cir.
1969). Thus, the Ferenses argue that because the
Mississippi borrowing siatute is inapplicable.
Mississippi would apply its own statute of limitations.
and under Klaxon and Barrack the federal courts must
do likewise.
Oddly. the one federal appellate court which has
confronted the anomaly of applying a Mississippi
statute of limitations to an action having no nexus
with that state, Schreiber v. Allis-Chalmers Corp., 611
F.2d 790 (10th Cir. 1979). has applied Klaxon and
Barrack in the manner which the Ferenses urge. In
Schreiber, a Kansas plaintiff was injured in Kansas by
a product manufactured by a Delaware corporation
with its principal place of business in Wisconsin. After
the expiration of the Kansas statute of limitations but
before the expiration of the Mississippi statute. the
Kansas plaintiff sued in the federal district court in
Mississippi, which thereafter transferred the action.
pursuant to 28 U.S.C. § 1404(a). to a federal district
court in Kansas. The federal district court in Kansas
refused to apply the Mississippi statute of limitations.
A-25
See 448 F. Supp. 1079 (D. Kan. 1978). The Court of
Appeals for the Tenth Circuit, however, reversed.
holding that Van Dusen v. Barrack controlled and that
the Mississippi statute of limitations applied.
Although Schreiber v. Allis-Chalmers Corp. is
precisely on point.‘ , it has been severely criticized. See
E. Scoles & P. Hay, Conflict of Laws 132 (1984);
Martin, Statutes of Limitations and Rationality in the
Conflict of Laws, 19 Washburn L.J. 405, 421 (1980);
Grossman, Statutes of Limitations and the Conflict of
Laws: Modern Analysis, 1980 Ariz. St. L.d. 1, 56-65.
We agree with the critics that at most. Klaxon and
Barrack require a federal diversity forum to apply a
state choice-of-law rule which the state court could, as
a matter of federal law. lawfully apply. Indeed, the Van
Dusen v. Barrack Court expressly acknowledged as
much. The Court, in rejecting the contention that a
section 1404(a) transfer would result in a prejudicial
change of law, observed:
In so ruling, however, we do not and need not
consider whether in all cases § 1404(a) would
require the application of the law of the
transferor, as opposed to the transferee
State.“
41. We do not suggest that the application of
transferor state law is free from constitutional
limitations. See, e.g.. Watson v. Employers
Liability Assurance Corp., Ltd., 348 U.S. 66:
“While Deere points out that in Barrack and in Schreiber the
transfer motior . were made by defendants. see Barrack. 376 U S.
at 614: Schreiber. 611 F.2d at 791, and that in the instant appeal
the section 1404(a) motion was made by the plaintiff. see 15 C.
Wright, A. Miller. E. Cooper, Federal Practice and Procedure.
& 3846 (2d ed. 1986). our decision today does not depend on this
distinction.
A-26
Hughes v. Fetter, 341 U.S. 609; Pacific
Employers Ins. Co. v. Industrial Accident
Comm'n, 306 U.S. 493; Alaska Packers Ass'n
v. Industrial Accident Comm'n. 294 U.S. 532:
Home Ins. Co. v. Dick, 281 U.S. 397.
Van Dusen v. Barrack, 376 U.S. at 639. Thus, the
Barrack Court reasserted the continuing authority of
those cases which. under the due process and full faith
and credit clauses, have established federal limits upon
aberrational state choice-of-law rules.
Moreover, the Barrack Court's reference to Home
Insurance Co. v. Dick, 281 U.S. 397 (1930). is for
present purposes particularly significant. Dick
involved a Texas state court applying Texas law to avoid
the application of a contract term that barred any
action on the insurance policy commenced after one
year. The policy had been issued in Mexico to a
Mexican citizen, covering a Mexican risk, and a
Mexican loss had in fact occurred. The contract term in
question was valid under Mexican law. The Dick court
held that by applying its own longer limitation of
actions policy instead of that of the jurisdiction having
more significant contacts with the occurrence
(Mexico), Texas violated the due process clause. See
Dick, 281 U.S. at 408; see also Hartford Accideni &
Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143.
149 (1934) (Mississippi courts cannot void limitation
of action provision in Tennessee insurance policy).
Although both Dick and Delta & Pine Land Co.
involved contracts incorporating shorter limitations
than those authorized by the governing state law.
those holdings are not limited to contractual
situations. As Justice Brennan explained in Allstate
Insurance Co. v. Hague. 449 U.S. 302, 310-11 (1981):
A-27
Dick and |John Hancock Mutual Life
Insurance Co. v. Yates, 299 U.S. 178 (1936)
stand for the proposition that if a State has
only an insignificant contact with the parties
and the occurrence or transaction. application
of its law is unconstitutional. Dick concluded
that nominal residence -- standing alone - is
inadequate; Yates held that postoccurrence
change of residence to the forum State --
standing alone -- was insufficient to justify
application of forum law.
All \he cases decided by the Supreme Court after Dick
which permitted the application of forum law over due
process of full faith and credit objections involved
situations in which the forum state had some contact
with the case and some interest by virtue of that
contact. justifying the application of the forum state's
law. See Hague. 449 U.S. at 312-13: Martin. Statutes
of Limitations and Rationality in the Conflict of Laws.
19 Washburn L.J. 405. 421 (1980).
The instant appea’ presents the precise situation
to which Justice Brennan refers in Hague -- nominal
residence, standing alone. Deere is nominally a
resident of Mississippi because. in order to do business
there, it has appointed a local resident agent. The
lawsuit does not grow out of any business which Deere
conducted in Mississippi. Mississippi has no interest
in the injuries sustained by Mr. Ferens. or in the
transaction by which he acquired the combine that
injured him. Mississippi's contacts with the parties
and the occurrence or transaction are plainly so
insignificant that the application of its law would be
arbitrary. fundamentally unfair. and therefore
unconstitutional. See Hague. 449 U.S. at 312-13.
A-28
the district court did not err in rejecting the
applicability of the Mississippi statute of limitations.
The judgment appealed from will therefore be
affirmed.
“Because we hold that Mississippi could not constitutionally
apply its law in (his case we have no reason to consider whether as
Deere contends. the Van Dusen v Barrack rule applies only when a
defendant makes a section | 404(a) motion See note 4 supra
A-29
Seitz, Circuit Judge, dissenting.
It is hardly original to say that hard cases make
bad law. Depending on one’s perspective, this case
involves either skillful lawyering within established
rules to obtain favorable law or unfair forum-shopping.
The majority, in my view, has unwarrantedly imposed
constitutional limitations on a forum's choice of law to
prevent the Ferenses from gaining an advantage under
the provisions of 28 U.S.C. § 1404(a).
The majority holds that it would be
unconstitutional for a Mississippi state court to apply
its statute of limitations in this case. In so holding. it
ignores the distinction between the constitutional
limitations on a forum's choice of substantive law and
a forum's application of its procedural law.
The forum has traditionally applied its state's
statute of limitations. regardless of what state's
substantive law controlled. See Keeton v. Hustler
Magazine, Inc.. 465 U.S. 770. 778 n.10 (1984):
Scudder v. Union National Bank, 91 U.S. (1 Otto) 406
(1875): Ross v. Johns-Manville Corp.. 766 F.2d 823
(3d Cir. 1985): Loughan v. Firestone Tire & Rubber
Co., 624 F.2d 726 (5th Cir. 1980); Restatement
(Second) of Conflict of Laws § 142(2)(1971). Although
most states have enacted borrowing statutes ‘o
address the problem presented in this case, | am not
persuaded that this choice-of-law approach is
mandated by the Constitution.
The majority opinion fails to cite any cases
supporting its position that a forum's application of its
statute of limitations may violate the due process
clause of the Constitution. The two Supreme Court
cases relied on by the majority. Allstate Insurance Co.
v. Hague, 449 U.S. 302 (1981). and Home insurance
Co. v. Dick, 281 U.S. 397 (1930). address only the
constitutional limits on a forum's choice of substantive
"y
law. In Hague, Justice Brennan stated that “for a
State’s substantive law to be selected in a
constitutionally permissible manner, that State must
have a significant contact or significant aggregation of
contacts, creating state interests, such that choice of
its law is neither arbitrary nor fundamentally unfair.”
449 U.S. at 312-13. Moreover, the Court in Dick
distinguished the case before it, which involved an
attempt to apply Texas substantive law to a contractual
limitation on the period in which the parties could sue.
from a case in which the forum simply applied its
procedural statute of limitations. 281 U.S. at 409-10.
In the absence of any Supreme Court decision
disavowing the traditional rule permitting a state to
apply its own statute of limitations,' | conclude that a
Mississippi court's application of its six-year statute of
limitations in cases such as the one before us would
not violate due process. See Cowan v. Ford Motor Co..
694 F.2d 104, 107 (Sth Cir. 1982)(rejecting the
contention that Hague and Dick limit Mississippi's
selection of its statute of limitations).
Because | believe a Mississippi court could apply
its statute of limitations in this case, | turn now to the
issue whether the district court erred in applying
Pennsylvania's statute of limitations to the Ferenses’
tort claim. The parties agree that the Mississippi state
courts would apply its six year statute of limitations in
this case. See Cowan v. Ford Motor Co., 719 F.2d 787
(Sth Cir. 1983); Louisiana & Mississippi R. Transfer
Co. v. Long, 159 Miss. 654, 131 So. 84 (1930). They
also agree that under Klaxon Co. v. Stentor Electric
Manufacturing Co., 313 U.S. 487 (1941), the federal
‘In Keeton v. Hustler Magazine. Inc., 465 U.S. 770, 778 n.10
(1984), the Court refused to reach the question whether the
traditional choice of law rule. permitting a forum to select its
statute of limitations, was limited by the due process clause.
A-31
district court in which this case was originally filed was
bound to apply Mississippi's choice-of-law rules, and
hence, its statute of limitations.
In Van Dusen v. Barrack, 376 U.S. 612 (1964), the
Supreme Court held that the law of the transferor state
should be applied when a defendant moves for a
transfer under section 1404(a). It based this holding
on two grounds. First, it stated that its holding would
prevent the defendant from using section 1404(a) as a
forum-shopping device. 376 U.S. at 633-636. Second.
the Court concluded that under Erie R. Co. v.
Tompkins, 304 U.S. 64 (1934), section 1404(a) should
be interpreted to “ensure that the ‘accident’ of federal
diversity jurisdiction does not enable a party 0 utilize a
transfer to achieve a result in federal court w 1\ch could
not have been achieved in the courts of the State where
the action was filed.” 376 U.S. at 638. The Barrack
Court explicitly reserved the question whether the
same rule should apply in cases in which the plaintiff
initiated the transfer. A number of courts of appeals.
however, have held that the law of the transfer state
should govern regardless of which party moved for
transfer if the transferor court is a proper forum in
terms of venue and personal jurisdiction. See
Gonzalez v. Volvo of America Corp., 734 F.2d 1221.
1223-24 (7th Cir. 1984); Nelson v. International Paint
Co., 716 F.2d 640, 643 (9th Cir. 1983); Martin v.
Stokes, 623 F.2d 469. 471-73 (6th Cir. 1989).
By focusing on whether the transferor court was a
permissible forum rather than the identity of the party
seeking the transfer, the couris have prevented
improper forum-shopping by denying plaintiffs the
ability to obtain advantageous state law in fora in
which they could not properly maintain an action. At
the same time, deciding the choice of law issue on the
basis of the propriety of the plaintiffs initial forum
selection complies with the requirement in Barrack
A-32
that a transfer from a proper forum does not “achieve a
result in federal court which could not have been
achieved in the courts of the State where the action
was filed.” 376 U.S. at 638.
In this case, there is no dispute that this case
could be brought in the federal district court for the
southern district of Mississippi in terms of venue and
personal jurisdiction over the defendant. Because
Barrack and the Erie doctrine require courts to treat a
transfer under such circumstances as “just a change of
courtrooms.” Martin v. Stokes, supra, 623 F.2d at 472,
the Mississippi statute of limitations should have been
applied to the Ferenses’ tort action.
The district court based its decision to apply the
transferee's law on the ground that plaintiffs must
demonstrate some good faith intent to proceed in the
court where the action was originally filed before they
can obtain the advantages of the transferor's law.
Because it believed that the Ferenses had no intention
of proceeding in the Mississippi federal district court,
the court applied Pennsylvania's statute of limitations
to the tort action.
This factual inquiry into the plaintiffs motives,
however, is not justified under section 1404(a). Section
1404(a) permits both plaintiffs and defendants to
initiate transfers “for the convenience of the parties.”
Moreover, as noted above, compliance with the
Barrack language dictates that the law of the
transferor state govern when the transferor court is a
permissible forum.
There may be, as the appellees urge, good reasons
to prevent clever plaintiffs from taking advantage of the
transfer provisions in the way the Ferenses did in this
case. Whether there should be restrictions on
plaintiff-initiated transfers under section 1404(a),
however, is an issue that is best left to Congress.
A-33
Federal courts should not “establish and impose
upon state courts a federal choice-of-law ruie.” Allstate
Insurance Co. v. Hague, supra, 449 U.S. at 334
(Stevens, J., concurring). As a federal court sitting in
diversity, the district court of the southern district of
Mississippi was bound to apply Mississippi's six-year
statute of limitations. To be consistent with both Erie
and Barrack, the transferee court should have applied
the Mississippi statute of limitations to the Ferenses’
tort action. | would therefore reverse the judgment of
the district court.
A True Copy:
Teste:
—
Clerk of the United States Court of Appeals
for the Third Circuit
A-34
Appendix D
Albert J. FERENS and Margaret L.
Ferens, his wife, Plaintiffs,
v.
DEERE & COMPANY, Defendant.
Albert J. FERENS and Margaret L.
Ferens, his wife, Plaintiffs,
v.
JOHN DEERE COMPANY, a/k/a Deere
& Company, Defendant.
Civ. A. Nos. 85-1534, 85-2725.
United States District Court,
W.D. Pennsylvania.
July 25, 1986.
Stanley V. Ostrow, William A. Penrod, Pittsburgh, Pa.,
Faye Murphree James, William R. Barnett, Jackson, Miss., for
plaintiffs.
Gary J. Sharlock, Sharlock, Repcheck & Mahler, Pitts-
burgh, Pa., for defendant.
OPINION
COHILL, Chief Judge. “
Presently before the Court is defendant's Motion for Sum-
mary Judgment in the above-captioned cases. Diversity juris-
diction is proper pursuant to 28 U.S.C. §1332 (1982).
Summary of Facts and Procedural History
Plaintiffs, Albert J. Ferens and Margaret L. Ferens, reside
in Dunbar, Fayette County, Pennsylvania. Defendant, Deere &
Co., is a Delaware corporation with its principal place of
business in Moline, Illinois. Defendant Company is in the
A-35
combines, which are used to thresh and clean grain.
On or about July 17, 1981, Plaintiff purchased a John Deere
factured by Defendant. Complaint, $4. Defendant sold the
combine in question to the Uniontown Farm Equipment Com-
pany, which company thereafter sold the combine to Plaintiff fo-
use on his farm. Id., %6.
On or about July 5, 1982, in Washington County, Pennsy!-
was pulled into the rotating auger, thereby amputating it above
the wrist. Id., $7.
On July 3, 1985, Plaintiffs filed C.A. 85-1534 in the
Western District of Pennsylvania, basing their claim on the
Pennsylvania Commercial Code, 13 Pa.C.S. §§1101-9507 (Pur-
don 1984). Specifically, Plaintiffs alleged that the combine was
expressly and/or impliedly warranted by Defendant to be mer-
chantabbie end Si Ger Che eodinasy punpeses fer ehieh & was esed.
and that Defendant breached its express and/or imphed w arran
ties since the combine was, in fact, defective.
Subsequently, on July 25, 1985, Plaintiffs filed C.A. 85-
2725 im the Southern District of Mississippi, Jackson Division.
That action, which was founded on the same accident whereby
Plaintiff lost his right hand, sought damages which were identi-
cal to those sought in Plaintiffs initial action, however, recover
was based on theories of negligence and strict liability under
§4024 and B of the Restatement (2d) of Torts. In their
in the subsequent action, Plaintiffs alleged that the combine was
defective in and of itself, and as a result of Defendant's failure to
warn of the alleged defects.
In a rather unusual procedural move. Plaintiffs then filed a
motion for change of venue of the Mississippi action under 2S
U.S.C. §1404(a). Plaintiffs’ motion was granted on November §.
1985 by United States Magistrate John R. Countiss, III of the
Southern District of Mississippi, Jackson Division. who trans-
ferred Plaintiffs second action to the Western District of
A-36
Pennsylvania. Thereafter, by Order of this Court dated Novem-
ber 21, 1985, the two lawsuits were consolidated for all pur-
poses.
Summary Judgment
Defendant has filed this Motion for Summary Judgment on
the grounds that 1) the purchase order disclaimed any implied
warranties of merchantability and fitness for a particular pur-
_pose. and contained an exclusion of consequential damages, and
2) Pennsylvania's two-year limitations period bars Plaintiffs
negligence and strict liability claims.
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment “shall be rendered forthwith if the
pleadings, depositions, oswers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
Fed. R.Civ.P.26, Anderson v. Liberty Lobby Inc.., US.
____., 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The moving
party has the burden of proving that no genuine issue exists,
Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26
L. Ed.2d 142 (1970), and any doubts must be resolved in favor of
the nonmoving party. Gans v. Mundy, 762 F.2d 338, 341 (3d
Cir. 1985) (quoting Ness vo. Marshall, 660 F.2d 517, 519 (3d
Cir. 1981)). ~ «
The United States Supreme Court has recently stated that
“lo}ne of the principal purposes of the summary judgment rule
is to isolate and dispose of factually unsupported claims or
defenses .. .” Celotex Corp. v Catrett, US. 106
5.Ct. 2548, 91 L.Ed.2d 265 (1986) “Only disputes over
of the suit under the
H
|
i supporting affidavits. thus. the
motion is functionally equivalent to 4 motion for judgment on
the pleadings under Fed.R.Civ.P. 12ic). Schwartz v. Com-
pagnie General Transatlantique, 405 F.2d 270, 273 (2d
amount to a contract of adhesion and are against public policy.
Under its adoption of the Uniform Commercial Cede, 13
Pa.ClS. $2316 provides that warranties may be excluded or
modified at the time of sale:
$2316. Exclusion or modification of warranties
(b) Implied warranties of merchantability and fitness —
Subject to subsection (c), to exclude or modify the implied
warranty of merchantability or any part of it the language
must mention merchantability and in case of a writing must
be conspicuous, and to exclude or modify an implied
warranty of fitness the exclusion must be by a writing and
ic) Implied warranties in general —Notwithstanding sub-
section (b).
A-38
(1) Unless the circumstances indicate otherwise, all
Id. See Thermo King Corp. v. Strick Corp., 467 F.Supp. 75
(W.D.Pa.), aff'd, 609 F.2d 503 (3rd Cir. 1979) (manufacturer's
any other representations or warranties, express or implied
(AND EXPRESSLY DISCLAIMS THE IMPLIED WAR-
RANTIES OF MERCHANTABILITY AND FITNESS) or
Defendant's Answer, Exhibit “A.”
On the reverse side of this purchase order, in paragraph F.
the disclaimer is again set forth.
Id.
A-39
F. NO REPRESENTATION OR IMPLIED WARRANTY.
Where permitted by law, neither John Deere nor any
express
performance of its products other than those set forth above
and DOES NOT MAKE ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS.
es S
Paragraph G on the reverse side added
CG REMEDIES EXCLUSIVE.
The only remedies the purchaser has in connection with the
breach or performance of any warranty on John Deere
equipment are those set forth above. In no event will the
dealer, John Deere or any company affiliated with John
Deere be liable for incidental or consequential damages or
injuries, including, but not limited to loss of crops. loss of
profits. rental or substitute equipment or other commercial
loss
In its definition of consequential damages, 13 Pa C.S.
§2715(b\(2) provides.
Id.
(b) Consequential damages. —Consequential damages re-
sulting from the breach of the seller include
(2) injury to person or property proximately resulting
from any breach of warranty.
Plaintiffs, in support of their argument that the disclaimer
of warranties and exclusion of remedies provisions are uncon:
scionable, rely ow 13 Pa.C.S. §271%e):
(c) Limitation of consequential damages —Consequential
damages may be limited or excluded unless the limitation
or exclusion ts unconscionable. Limitation of consequential
damages for injury to the person in the case of consumer
A-40
goods is prima facie unconscionable but limitation of dam-
ages where the loss is commercial is not.
Id.
Whether a contract or clause is unconscionable is a question
of law for the court. Bishop ». Washington, 331 Pa. Super. 387,
399, 480 A.2d 1088, 1094 (1984). The relevant section on
unconscionability, 13 Pa. C.S. §2302, provides:
$2302. Unconscionable contract or clause
(a) Finding and authority of court. —If the court as a
matter of law finds the contract or any clause of the contract
to have been unconscionable at the time it was made the
court may:
(1) refuse to enforce the contract.
A-4l
ae
ai
RIBS 2
a
background and the commercial needs
of the particular trade or case ~
Williams, 350 F 2d at 449-450 (footnote omitted)
enforcement should be withheld
In determining reasonableness or fairness. the prmary
concern must be with the terms of the contract considered
in light of the circumstances existing when the contract was
made. The test is not simple, nor can it be mechanically
The terms are to be considered “in the light of the
general commercial
apphed
. Following the mandate of 13 Pa.C.S. §2302/b). we
find it necessary to afford the parties a reasonable opportunity to
present evidence on the “commercial setting. and
effect of the disputed language in the purchase . We note
that while Plaintiff 1s a farmer. that alone is not indicative of his
A-43
order here would most likely bar a claim for the loss of crops or
profits resulting from a defective blade in the combine, we are
not convinced that Plaintiff understood those provisions as
limiting his right to bring a breach of warranty action for the loss
of his hand. Cf. Keystone Aeronautics Corp. v. RJ. Enstrom
Corp., 499 F.2d 146 (3d Cir. 1974) (contract clause must clearly
and unequivocally express intent necessary to exculpate defen-
dant from negligence or strict liability claims).
Accordingly, we will deny Defendant's Motion for Sum-
mary Judgment on Plaintiff's breach of warranty claim without
prejudice. Defendant may reassert said motion, if deemed
necessary, once the record becomes fully developed as set forth
above. See Wobb v. Ford Motor Co., 76 F.R.D. 452, 458
(W.D.Pa.1977) (motion for summary judgment denied with
respect to counts alleging unconscionability of dealer develop-
ment arrangement since further discovery was necessary rela-
tive to motive and intent).
Il. Applicable Statute of Limitation for Plaintiffs’ Tort Claims
_ Qur inquiry now turns to what statute of limitations governs
Plaintiffs’ negligence and strict liability claims. At the outset, we
note that Pennsylvania has a two-year statute of limitations for
injuries to the person, 42 Pa.C.S. §5524(2) (Purdon 1981),
whereas Mississippi's limitation period is six years. Miss.Code
Ann. §15-1-49 (1972).
As we noted earlier, Plaintiffs’ tort actions were originally
filed in the Southern District of Mississippi after Plaintiffs
initiated their UCC breach of warranty claims in the Western
District of Pennsylvania. Plaintiffs then transferred their tort
actions from the Southern District of Mississippi to this Court
pursuant to 26 U.S.C. §1404(a) which provides:
For the convenience of the parties and witnesses, in the
interest of justice, a Distriet Court may transfer any civil
action to any other district or division where it might have
been brought.
Id.
A-44
In support of the transfer, Plaintiffs stressed the feasibility
of consolidating their tort claims with their pending UCC claims
in this District Court and raised concerns about the inconve-
nience and expense that would result if their second action
remained in the Southern District of Mississippi. In his Affidavit
In Support of Motion for Change of Venue, Albert J. Ferens
admitted that:
6. The action against defendant, Deere & Company, in the
Western District of Pennsylvania arises out of said accident
which occurred on July 5, 1982, and is based on provisions
of the Uniform Commercial Code.
7. The basis of the action filed against Defendant in the
Southern District of Mississippi was the aforesaid July 5,
1982 accident and is based on strict liability, negligence and
breach of warranty by said defendant.
8. That all witnesses with any knowledge of the accident or
injuries husband-plaintiff sustained, including doctors, hos-
pital personnel and who plaintiffs will call and use, reside in
the Western District of Pennsylvania.
9. That all documents relating to the personal injuries
plaintiff sustained are located in the Western District of
Pennsylvania.
10. That to simultaneously pursue the Pennsylvania and
Mississippi actions as separate lawsuits would be a great
cost and expense to him.
Id., 996-10.
In the instant case, both parties concede that statutes of
limitations are procedural and that the applicable limitation
period is to be provided by the law of the forum. See Butler v.
Dravo Corp., 310 F.Supp. 1265 (W.D.Pa.1970); Vick v. Co-
chran, 316 So.2d 242 (Miss. 1975). To prevent forum shopping
and to keep lawsuits in forums which have a significant nexus
and a legitimate interest in the litigation, most jurisdictions,
including Pennsylvania and Mississippi, have adopted “borrow-
ing statutes.” In essence, borrowing statutes adopt as the
A-45
applicable period of limitation the statute which would have
applied in the jurisdiction where the claim arose. For instance,
Pennsylvania's borrowing statute provides that:
The period of limitation applicable to a claim accruing
outside this Commonwealth shall be either that provided or
prescribed by the law of the place where the claim accrued
= by the law of this Commonwealth, which ever first bars
claim.
42 Pa.C.S. $5521.
However, the crux of the problem in the instant case stems
from Mississippi's anomalous borrowing statute which provides:
When a cause of action has accrued in some other state or
in a foreign country, and by the law of such state or country,
or of some other state and country where the defendant has
resided before he resided in this state, an action thereon
cannot be maintained by reason of lapse of time, then no
action thereon shall be maintained in this state.
Miss.Code Ann. §15-1-65 (1972) (emphasis added). The Missis-
sippi Supreme Court, relying on the highlighted language
above, has held that this borrowing statute “only applies where
a nonresident in whose favor the statute has accrued afterward
moves into this state.” Louisiana & Mississippi R. Transfer Co.
v. Long, 159 Miss. 654, 131 So. 84, 88 (1930). See also Cowan v.
Ford Motor Co., 719 F.2d 785 (5th Cir. 1983) (applied Missis-
sippi Supreme Court's interpretation of that state's borrowing
statute). Since Defendant was registered to do business in
Mississippi at the time of the accident here, Defendant would be
treated as a resident under Mississippi law. Kershaw v. Sterling
Drug, Inc., 415 F.2d 1009, 1011 (5th Cir.1969). Relying on
Mississippi's borrowing statute, Plaintiffs contend that the 6-
year limitation of that forum should be applied.
We now reach the threshold question of whether the law of
the transferor forum or the transferee forum should be applied.
In resolving this question, we must consider whether Plaintiffs
can utilize the change of venue provisions of 28 U.S.C. §1404(a)
to resurrect a time-barred claim in the more convenient forum
A-46
In Van Dusen v. Barrack, 376 U.S. 612, 84 §.Ct. 805, 11
L.Ed.2d 945 (1964), the Supreme Court held that “where
defendants seek transfer, the transferee district court must be
obligated to apply the state law that would have applied if there
had been no change of venue.” Id. at 639, 84 S.Ct. at 821, 11
L.Ed. at 962. The Van Dusen Court pointed out that “both the
history and purpose of §1404(a) indicate that it should be
regarded as a federal judicial housekeeping measure, dealing
with the placement of litigation in the federal courts and
generally intended, on the basis of convenience and fairness,
simply to authorize a change of court rooms.” Id. at 636, 84 at
819, 11 L. Ed.2d at 916. The Court stressed that §1404(a) should
not be used as a device by defendarits to undermine the
plaintiff's privilege of selecting “a foram which, although it was
inconvenient, was a proper venue.” Id. at 634, 84 §.Ct. t 818, 11
L.. Ed.2d at 960. Moreover, the Court noted that if a change of
law were concomitant with transfer, §1404(a) would become a
forum shopping mechanism. Id. at 636, 84 S.Ct. at 819, 11
L. Ed.2d at 961. While Van Dusen concluded that a change of
venue should normally be considered no more than a change of
court rooms, the Court qualified its holding by continuing:
In so ruling, however, we do not and need not consider
whether in all cases §1404(a) would require the application
of the law of the transferor, as opposed to the transferee,
state. We do not attempt to determine whether, for exam-
ple, the same considerations would govern if a plaintiff
sought transfer under §1404(a)
Id. at 639-640, 84 S.Ct. at 821, 11 L.Ed. at 963.
As of this moment, the Supreme court has not ruled on the
issue left unanswered by Van Dusen, and our research has not
found any controlling authority in the Court of Appeals for the
Third Circuit. However, it has been suggested that a logical
interpretation of the question left unanswered by Van Dusen is
that when a plaintiff moves to transfer, the law of the transferee
A-47
state should apply, otherwise plaintiffs. as opposed to defen-
dants, would be free to shop for inconvenient forums with longer
limitation periods. See C. WRIGHT, LAW OF FEDERAL
COURTS, §44 at 261-62 n. 35 (West 4th Ed. 1983); ALI STUDY
OF THE DIVISION OF JURISDICTION BETWEEN STATE
AND FEDERAL COURTS (1969). But see, Note, Choice of
Law In Federal Court After Transfer of Venue, 63 CORNELL
L.REV. 149, 157-58 (1977). The reasoning behind the ALI view
Co., 434 F.2d 916 (6th Cir. 1970) (plaintiff moved to transfer to
forum with longer statute of limitations; defendant not amend-
able to process in original forum); Parham v. Edwards, 346
F.Supp. 968 (S.D. Ga. 1972) (justice did not require transfer
from original forum, wth favorable limitation period to plaintiffs
bwt no personal jurisdiction over defendants, to forum in which
service had been obtained in a similar action, but where the
action was barred by the limitation period); Mata v. Budd Co..,
44 F.R.D. 225 (E.D. Pa. 1968) (plaintiff filed lawsuit in forum
where statute of limitations barred action and sought to transfer
to forum with favorable limitation period); Annot., 7 A L.R. Fed.
at 27-28 (1971).
Plaintiffs argue that the law of the transferee state applies
only when personal jurisdiction with the defendant is lacking or
venue is improper, neither of which was contested here. See,
¢«., Gonzales v. Volvo of America Corp., 734 F.2d 1221,
1223-24 (7th Cir. 1984) (law of forum selected by plaintiff should
govern regardless of which party initiates transfer to another
district); Martin wv. Stokes, 623 F.2¢ 469, 471 (6th Cir. 1980)
(same). See also Schreiber v. Allis-Chalmers Corp., 611 F.2d
790 (10th Cir. 1980) (similar facts, law of transferor state applied
where defendant initiated transfer). However, in Gonzales, the
court held that plaintiffs are “not permitted to capture favorable
law of forums which lack personal jurisdiction over the defen-
dant by filing swit there and then transferring the action to a
state that is able to assert personal jurisdiction.” Id. at 1224. By
analogy, we believe that this-reasoning should apply to the facts
A-48
before us since plaintiffs could not have orginally brought their
second action in the forum where it has been transferred due to
it might have been brought.” 28 U.S.C. §1404(a) (emphasis
added. )
We believe that, at the very least, some measure of good
faith expectation of proceeding in the court in which the
complaint is filed is essential to allow Plaintiffs to avail
selves of that forum's limitation period, and the filing of
complaint which is merely a procedural ploy will not suffice. C
Biby v. Kansas City Life Insurance Co., 629 F.2d 1289, 1294
anf
ssanuunntel tatioes aiiieanaiae aie Gulf Oil
Corp. vo. Gilbert, 330 U.S. 501, 508. 67 S.Ct. 839, 843, 91 L.Ed.
1055. 1062 (1947), where a plaintiff chooses a forum which is not
his home forum, his choice should be given considerably less
weight jordan v. Delaware © Hudson Ry. Co., 590 F.Supp.
997, 998 (E. D. Pa. 1984). This consideration becomes especially
relevant here since the matters relied on by Plaintiffs in support
of their transfer were known to them well before they instituted
their second lawsuit.
We believe that Plaintiff's tactics in this case armount to a
judicial juggling act between forums—one with a clear interest
ag mye gree |
.49
A
only nexus between Plaintiffs claims and Mississippi is that the
Defendant Company is registered to conduct business there. has
in the litigation and one whose interest is nominal at best. The
ee eee ey
‘33
Hi Ht HEE
ea
claim arose
a
ali
On the other hand,
and the
gravity
Miss. 1
govern
Dusen is
Seat cm :
time they commenced both actions,
Souther Dass ef Mistaggh west inconvenient frum, the
” “interest of justice’ would be thwarted rather than served if this
ee Mata, 44 F.R_D.
iNiih i peat Mt
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.