Petition for Writ of Certiorari — Ferens v. Deere & Co.
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Supreme Court, U.S,
gz -477 ~ FILED
No.
ne SEP 21 1987
pono JOSEPH F. SPANIOL, JR.
IN THE Pete
SUPREME COURT OF THE UNITED-STATES
October Term, 1987
ALBERT J. FERENS & MARGARET L. FERENS, His Wite
Petitioners
v.
DEERE & COMPANY
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT_OF —
APPEALS FOR THE THIRD CIRCUIT
Arnold Levin
Counsel of Record
David J. Perlman
LEVIN & FISHBEIN
320 Walnut Street
Suite 600
Philadelphia, PA 19106
(215) 592-1500
and
Stanley V. Ostrow
FINKEL, LEFKOWITZ, OSTROW
& WOOLRIDGE
800 Commonwealth Building
Pittsburgh, PA 15222
(412) 288-2670
Attorneys for Petitioner
PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000
QUESTIONS PRESENTED
Where there are sufficient minimal contacts for a state to
exercise jurisdiction over a defendant foreign corporation, can a
United States District Court that is a transferee forum under 28
U.S.C. 1404(a) refuse to apply the procedural rules of that
transferor state, including its statute of limitations, on the
ground that applying the transferor state's procedural rules
violates the due process and full faith and credit clauses, where
such a holding contravenes the holdings of the highest state and
federal courts of the transferor state?
PARTIES TO THE PROCEEDING
The parties to the proce eding are listed in the caption of the
Case
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED i
PARTIES TO THE PROCEEDING T
TABLE OF AUTHORITIES iN
OPINIONS BELOW - 3
STATEMENT OF JURSIDICTION 3
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED i
STATEMENT OF THE CASE 6
REASONS FOR GRANTING THE WRIT )
CONCLUSION 16
TABLE OF AUTHORITIES
Cases: Page
Allstate Insurance Co. vc. Hague, 449 U.S. 302 (A981). 7, 5,9
Chase Securities Corp., vt. Donaldson, 325 U.S. 304
EN Te cl hahaa cata aaae eta ae ae aa 12, 13
Cowan v. Ford Motor Co., 694 F. 2d 104 (5th Cir. 1982)
CMT LV asiihs va ckedesee¥es6eanakuauereeeees 7,9
Cowan v. Ford Motor Co., 714 F. 2d 100 (5th Cir. 1983)
PN Mids cchvundcssudeseceseeedseuenans 7, 9, 10
Cowan v. Ford Motor Co., 719 F. 2d 785 (Sth Cir. 1983)
OTE 260 oo0 orl aoe Oo Oy eae k oaneas 7,9
Cummings v. Cowan, 300 F. Supp. 1251 (N.D. Miss.
RRA ey Peres ee er errr Pree er
Davis v. Mills, 194 U.S. 451 (1904) ...... yee aS _.
Davis v. National Gypsum, 743 F. 2d 1132 (Sth Cir. 1954)
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1934)...... 11
Ex Parte Schollenberger, 96 U.S. 369 (1877). .. Ae 6
Fieldman cv. Roper Corp., 586 F. Supp. 936 (S.D. Miss.
7 ea ee re pre ag pone $8.15
Goad v. Celotex Corp., et. al. No. 86-3540 (4th Cir.).... 10
Great Western Tel. Co. v. Purdy, 162.U.S. 329 (1869)... 12
Hamilton v. Cooper, 1 Miss. (Walker) 542 (1832)... .... 14
Headrick v. Atchison, T. & S.F.R.Co., 182 F. 2d 305 (10
2 Re ae eee ise ehens ¥ racneds 7
Home Insurance Co.. v. Dick, 281 U.S. 397 (1930). S 9. 12
Hyde Construction Co. v. Koehring Co., 357 F. Supp. 702
S.D. Miss. 1974)........ y Sccembhuwer wea 5
Keeton t. Hustler Magazine. Inc., 465 U.S. 770 (1984). . 8S, 14
Loughan v. Firestone Tire and Rubber Co., 624 F. 2d 726
Sth Cir. 1980) rir . )
1\
TABLE OF AUTHORITIES— Continued
( dss Paue
Louisiana & Mississippi R. Transfer Co. v. Long, 159 Miss
654 1930 i.
VUcVicar v. Standard Insulations. In No. 56-3398 slip
op. (1ith Cir. Aug. 19, 1987 lO
Ms Elmoyle v. Cohen. 38 U.S. (13 Pet.) 312 (1839 ll, 12
Neirbo Co. et al. v. Bethlehem Shipbuilding Corp SOS
LS 153 (1939 fy
Norwood 1 Kirkpatrick 449 LS. 29/1955 ||
Order of l'nited Commercial Travelers of America 1
Wolfe, 331 U.S. 586 (1947 2
Perkins v. Benguet Consolidated Vinine Co 427 U.S. 43,
195] 13
Phillips Petroleum vc. Shutts US IiO5n S| Cy
2965 1GSY | )
Ramsay vt. Boeing ( $32 F. 2d 593 (5th Cir. 1970 5
Schreiber v. Allis-Chalmers Corp., 611 F. 2d 790 (10 Cir
1979 S. 10
Van Dusen v. Barrack. 376 U.S. 612 (1964 & 7
Vick v. Cochran, 316 So. 2d 242 (Miss. 1975 ‘5
Wells v. Simonds Abrasive Co.. 364 U.S. 514 (1953 l2
\ hits t Malone P) perties Lae 194 So. 2d 376 \hiss
1YS6 1S
World Wicks Volkswae nf rp ’ Woods: fi 144 } 5 ISH
1YSO }
CONSTITUTIONAL PROVISIONS
LS. Const. Amend \I\ '
LS. Const. Article IV §] |
TABLE OF AUTHORITIES—« Cor anu d
Cases Page
STATUTES. RULES AND REGULATIONS
28 U.S.C. 12440 }
98 U.S.C. $1382 b
28 U.S.C. §14Oha 16.7.9, 10
42 Pa. Cons. Stat. Ann. $5524(2) (Purdon 195! 4, 6
Miss. Code Ann. $2669 (1550 4
Miss. Code Ann. $2737 (1892 4
Miss. Code Ann. $3097 (1906 4
Miss. Code Ann. $2461 (1917 4
Miss. Code Ann. $2292 (1950 4
Miss. Code Ann. §722 (1942 4
Miss. Code Ann. §15-1-49 (1972 4.6.14
Miss. Code Ann. §15-1-65 (1972 9
Miss. Code Ann. §79-1-27 15, 6
Miss. Code Ann. §79-1-229 a)
Miss. Code Ann. §79-3-229 5
No
IN THE
SUPREME COURT OF THE UNITED STATES
A; ner’ | FeRens & MARGARET L. FRERENS. His Wek
DPrerne & COMPANY
Res
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCLUIT
The Petithoners Albert | bFerens wad Margaret | bere
ee
bees w ite ry specttul ‘ pra’ that ,;wurit way rine ar msine’ ft ’
the pudyment und opinion of the United States Court of Appea
how Thircl € le nt entered rt Nia Ss US,
OPINIONS BELOW
' Stef ‘
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v to at A
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' ‘ 4
STATEMENT OF JURISDICTION
i dwt bernie anc yar 7 »f thes | nited Stiute ‘ nerf ’
Appeals for the Third Circuit. entered on Miav 28. 1987. afhiem
ty missal f THOT based thre rhs rf tie vlive nce ana strive
sabvalaty in {_ourt of App als denied is timely petitions hoy
reftoearing’ an ' rehye ring bpcarne rt Fuls a | 1US) whch ippear
the App ndix hereto at A-33 This petition tor certiorari
is
hled within ninet, W)) clay # that clate Although the ¢ murt of
Api l ? ; red ; 7 then tf stay thre marciate \ 4 iT spp "
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CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The fourteenth amendment to the Constitution provides in
pertinent part:
Nor shall any state deprive any person of life, liberty, or
property, without due process of law.
Article IV §1 of the Constitution provides:
Full Faith and Credit shall be given in each state to the
public Acts, Records, and judicial Proceedings of every
other state.
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 limitation is prescribed
shall be commenced within six years next after the cause of
such action accrued, and not after.
42 Pa. Cons. Stat. Ann. §5524 (Purdon 1981) provides in
pertinent part:
The following actions and proceedings must be commenced
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 of another.
Miss. Code Ann. §79-1-27 provides:
Any corporation claiming existence under the laws of any
other state or of any other country foreign to the United
States, found doing business in this state, shall be subject to
~
3)
suit here to the same extent that corporations of this state
are, whether the cause of action accrued in this state or net.
Miss. Code Ann. §79-3-229 provides in pertinent part:
The registered agent so appointed by a foreign corporation
authorized to transact business in this state shall be an agent
of such corporation upon whom any process, notice or
demand required or permitted by law to be served upon
the corporation may be served.
STATEMENT OF THE CASE
On July 5, 1982, while cleaning a combine manufactured by
respondent, petitioner Albert J. Ferens was injured. The acci-
dent occurred in Pennsylvania. Petitioner was a Pennsylvania
resident, and he purchased his combine in Pennsylvania. Re-
spondent is a Delaware Corporation with its principal place of
business in Illinois. Respondent, however, does business in
Mississippi and has a registered office in Mississippi, where it
accepts service of process. Pursuant to Miss. Code Ann. §79-1-
27 and §79-1-229, respondent has submitted to the jurisdiction
of Mississippi courts. Neirbo Co. et al. v. Bethlehem Shipbuild-
ing Corp., 308 U.S. 153 (1939); Ex Parte Schollenberger, 96
U.S. 369 (1877). On July 3, 1985, the petitioners filed an action
in the United States District Court for the Western District of
Pennsylvania, alleging breach of express and implied warranties
of merchantability and fitness for use. for which the statute of
limitations is four years. On July 25, 1985, the petitioners filed
an action for the same injuries in the United States District
Court for the Southern District of Mississippi under the doc-
trines of negligence and strict liability. The Mississippi statute of
limitations for such actions is six years. Miss. Code Ann.
§15-1-49 (1972). That action, while viable in Mississippi, was
barred in Pennsylvania by Pennsylvania's two vear statute of
limitations. 42 Pa. Cons. Stat. Ann. §5524(2) (Purdon 1981).
After respondents filed an answer to the Mississippi Complaint,
the petitioners moved for transfer to the Western District of
Pennsylvania pursuant to 28 U.S.C. §1404(a).! The District
Court for the Southern District of Mississippi then transferred
the action to the Western District of Pennsylvania on forum non
conveniens grounds under 1404(a).
Respondent moved for summary judgment on the negli-
gence and strict liability claims, asserting that they were barred
by Pennsylvania's two year statute of limitations, 42 Pa. Cons.
Stat. Ann. §5524(2) (Purdon 1981). Respondent made. this
argument despite this Court's holding in Van Dusen v. Barrack,
1. Jurisdiction in the Southern District of Mississippi was based on 28
U.S.C. $1332, diversity of citizenship.
376 U.S. 612 (1964) that a transferee district court must apply
the state law that would have been applied if there had been no
change of venue and despite the clear authority that a Missis-
sippi court would apply the six-year statute of limitations.
Louisiana & Mississippi R. Transfer Co. v. Long, 159 Miss. 654
(1930); Cowan v. Ford Motor Co., 694 F. 2d 104 (5th Cir. 1982)
[Cowan I]; Cowan v. Ford Motor Co., 714 F. 2d 100 (5th Cir.
1983) [Cowan II]; Cowan v. Ford Motor Co., 719 F.2d 785 (5th
Cir. 1983) [Cowan III]. Indeed, this Court, in Van Dusen v.
Barrack, supra, explicitly approved of Headrick v. Atchison, T.
& S.F.R. Co. 182 F.2d 305 (10th Cir. 1950), where the forum
state’s statute of limitations applied after the case was trans-
ferred under 1404(a) to a jurisdiction with a shorter statute. The
District Court granted respondent's summary judgment motion,
citing language in Van Dusen v. Barrack, supra that held open
the possibility of not applying the law of the transferor state if
the plaintiff, as opposed to the defendant, seeks transfer under
1404(a).2 The Court of Appeals sustained the summary judgment
ruling but did so on Constitutional grounds. It held, purportedly
following Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981),
that where an action had insufficient contacts with a forum, the
application of the forum state’s statute of limitations violated the
due process and full faith and credit clauses of the Constitution.
The Court of Appeals found support in a footnote in Van Dusen
v. Barrack, supra, which reads:
We do not suggest that the application of transferor state
law is free from constitutional limitations. See, e.g., Watson
2. The Court stated in Van Dusen v. Barrack, supra:
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 example, the same consider-
ations would govern if a_ plaintiff sought transfer under
$1404(a). [Emphasis supplied].
Id., at 639-640.
Contrary to Van Dusen v. Barrack, the Court of Appeals for the Third
Circuit rejected application of the Mississippi statute even when the defendant
moves for transfer.
reece
v. Employers Liability Insurance Corp., LTD, 348 U.S. 66,
75 S.Ct. 166, 99 L.Ed. 74; Hughes v. Fetter, 341 U.S. 609,
71 $.Ct., 95 L.Ed. 1212; Pacific Employers Ins. Co. v.
Industrial Accident Comm'n, etc., 306 U.S. 493, 59 S.Ct.
629, 83 L. Ed. 940; Alaska Packers Assn. v. Industrial
Accident Comm'm, etc., 294 U.S. 532, 55S. Ct. 518, 79 L.
Ed. 1044; Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct.
338, 74 L.Ed. 926.
Id., at 639, n. 41.
The Honorable Collin J. Seitz strongly dissented. Judge
Seitz argued that the majority ignored the distinction between
the Constitutional limitations on a forum's choice of substantive
law, which governs conduct, and a forum's application of its
procedural law. Allstate Insurance Co. v. Hague, supra and the
Court of Appeal’s other main support, Home Insurance Co. v.
Dick, 281 U.S. 397 (1930), explicitly apply the Constitution only
to a forum's choice of substantive law. Judge Seitz also observed
that this Court has declined to decide whether a forum's choice
of its statute of limitations could rise to a due process violation.®
The Court of Appeals took what might be called an “activist”
position, elevating to a Constitutionally mandated rule what is
properly a legislative matter.4
3. In Keeton v. Hustler Magazine, Inc., 465 U.S. 776, 778 n. 10 (1984),
the Court stated:
Under traditional choice-of-law principles, the law of the forum State
governs on matters of procedure. In New Hampshire, statutes of limita-
tions are considered procedural. There has been considerable academic
criticism of the rule that permits a forum State to apply its own statute of
limitations regardless of the significance of contacts between the forum
State and litigation. But we find it unnecessary to express an opinion at
this time as to whether any arguable unfairness rises to the level of a due
process violation. [Citations omitted. |
As in New Hampshire, Mississippi statutes are considered procedural.
Vick v. Cochran, 316 So. 2d 242 (Miss. 1975). Schreiber v. Allis-Chalmers
Corp., 611 F. 2d 790 (10th Cir. 1979); Davis v. National Gypsum, 743 F. 2d
1132 (5th Cir. 1984); Fieldman v. Roper Corp., 586 F. Supp. 936 (S.D. Miss.
1977); Ramsay v. Boeing Co., 432 F. 2d 593 (5th Cir. 1970); Cummings v.
Cowan, 300 F. Supp. 1251 (N.D. Miss. 1975); Hyde Construction Co. t.
Koehring Co., 387 F. Supp. 702 ($.D. Miss. 1974).
4. The Court of Appeals reached its decision sua sponte.
REASONS FOR GRANTING THE WRIT
A.
The decision of the Third Circuit Court of Appeals is in
conflict with the decisions of other federal appellate courts. The
Court of Appeals for the Fifth Circuit explicitly held in Cowan I,
supra at 107, in conformity with Judge Seitz’s dissent in the
instant case, that application of Mississippi's six-year statute,
being procedural, does not violate the due process and full faith
and credit clauses as interpreted by Home Insurance Co. v.
Dick, supra and Allstate Insurance Co. v. Hague, supra. In
Cowan, the accident occurred in Texas, where the plaintiff and
her deceased, injured husband were residents. The defendant,
like the instant defendant, was not a Mississippi resident but
conducted business in Mississippi and appointed an agent for
service of process in Mississippi. The Court of Appeals for the
Fifth Circuit further held in Cowan II, supra that, upon transfer
pursuant 28 U.S.C. 1404(a), the Mississippi statute of limitations
would apply. The Fifth Circuit affirmed that decision in Cowan
III, supra after certifying to the Mississippi Supreme Court the
question of whether Mississippis “borrowing statute,” Miss.
Code Ann. §15-1-65 (1972), would bar the plaintiff's suit.5 The
Court of Appeals for the Fifth Circuit also held in Loughan v.
Firestone Tire and Rubber Co., 624 F.2d 726 (5th Cir. 1980)
that the initial forum’s longer statute of limitations will apply
following transfer under 28 U.S.C. §1404(a). In that case, the
suit was originally filed in Ohio, where the defendant main-
tained its principal place of business. The tort occurred in
Florida, where plaintiff was also a resident, where he was
employed, and where he received medical treatment. The case
was transferred to Florida, where the Court of Appeals ulti-
mately held that the Ohio statute applied.
5. The Mississippi Supreme Court opinion, appended to the published
opinion of Cowan III, indicates that the borrowing statute is not to be
interpreted to require application of a foreign state’s statute of limitations
under the facts of Cowan or the instant case. See also Louisiana & Mississippi
R. Transfer Co. v. Long, supra.
a
a
10
Similarly, the United States Court of Appeals for the
Eleventh Circuit recently held in McVicar v. Standard Insula-
tions, Inc., 824 F.2d 920 (11th Cir. 1987) that the longer
Mississippi statute weuld apply following a transfer under 27
U.S.C. §1404(a) to federal court in Florida. The United States
Court of Appeals for the Tenth Circuit held likewise in
Schreiber v. Allis-Chalmers Corp., 611 F.2d 790 (10th Cir.
1979) following transfer to federal court in Kansas. Plaintiff in
that case was a resident of Kansas and was injured while working
for the defendant in Kansas. The defendant was licensed to do
business in Mississippi and had a manufacturing plant in Mis-
sissippi. The issue of whether the statute of limitations can
follow an action transferred under 28 U.S.C. 1404(a) without
violating the Constitution is also on appeal in the United States
Court of Appeals for the Fourth Circuit in Goad v. Celotex
Corp., et. al. No. 86-3540.
The conflict created by the decision of the Court of Appeals
for the Third Circuit raises significant problems within the
federal court system. The Third Circuit, while holding that a
Mississippi Court's application of the Mississippi statute is
unconstitutional unless there is something more than the mini-
mal contacts necessary for jurisdiction, is not a binding authority
for either Mississippi state or federal courts. When a case
identical to the instant case is filed in Mississippi, the Missis-
sippi courts will apply the Mississippi statute of limitations
and not follow the Third Circuit. Indeed, the Fifth Circuit
Court of Appeals, which is binding authority for Mississippi
federal courts, is in direct conflict with the Third Circuit Court
of Appeals. Cowan I at 107.6 If a motion to transfer under
28 U.S.C. 1404(a) is filed, Mississippi courts will deny the
motion or transfer only to district courts in the Fifth, Eleventh,
or Tenth Circuits.7 If a Mississippi court does indeed transfer a
6. The intent of Mississippi courts to apply the six-year Mississippi
statute is also evident in the Mississippi transfer orders, which direct the
transferee forum to apply the six-year statute. See, for example, the transfer
order appended hereto at A-35.
7. The Cowan II court observed that transfer under 28 U.S.C. 1404(a)
superceeded the common law forum non conveniens doctrine of dismissal. The
1]
case to a district court within the Third Circuit, the outcome will
be inconsistent with the outcome of identical cases transferred to
the Fifth, the Eleventh, the Tenth, and possibly other Circuits.
The problem, moreover, is not confined only to cases initially
filed in Mississippi, but involves cases filed in any state where
plaintiffs can enjoy the benefit of a relatively long statute of
limitations. This conflict among the circuits undermines the
principles of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1934),
whereby a federal court sitting in diversity must apply the law of
a forum state in order to achieve the same result as the state
court ‘t also undermines the objective of uniformity within the
federal system in that transferee courts will be treating identical
cases differently from transferor federal courts.
The Court of Appeals decision, in addition to creating a
conflict within the circuits, is inconsistent with a line of cases in
this Court holding that the statute of limitations is set by the
forum. As long ago as M’Elmoyle v. Cohen, 38 U.S. (13 Pet.)
312, 327 (1839), this Court stated that it was “well settled” that
statutes of limitations were a matter of remedy “and conse-
quently that the lex fori must prevail.” The Court reasoned that
a statute of limitations:
is a thing of policy, growing out of the experience of its
necessity; and the time after which suits or actions shall be
barred, has been, from a remote antiquity, fixed by every
nation, in virtue of that sovereignty by which it exercises its
legislation for all persons and property within its jurisdic-
tion.
Although the fourteenth amendment due process clause, unlike
article IV's full faith and credit clause, was not part of the
common law doctrine was replaced, being overly harsh. Norwood v. Kirkpa-
trick, 349 U.S. 29, 32 (1955). The ruling of the Court of Appeals for the Third
Circuit would have the effect of reinstating the common law doctrine. Once a
case was transferred to the Third Circuit on forum non conveniens grounds, it
would be dismissed.
ei iia i
12
Constitution at the time of MElmoyle, the rule has been
consistently accepted since adoption of the amendment.
For example, in Great Western Tel. Co. v. Purdy, 162 U.S.
329, 339 (1869), the Court, citing M’Elmoyle, stated:
The limitations of actions is governed by the lex fori, and is
controlled by the legislation of the state in which the action
is brought, as construed by the highest court of that state,
even if the legislative act or the judicial construction differs
from that prevailing in other jurisdictions.
In Home Insurance Co., v. Dick, supra, which the Court of
Appeals for the Third Circuit misconstrued, this Court noted
that “in the absence of contractual provisions, the local statute of
limitations may be applied to a right created in another juris-
diction even where the remedy in the latter is barred.” In Order
of United Commercial Travelers of America v. Wolfe, 331 U.S.
586, 607-09 (1947), this Court again recognized that the rule was
“well established” and Constitutional. In Wells cv. Simonds
Abrasive Co., 364 U.S. 514, 516-17 (1953), the Court several
times reaffirmed its prior approval of “the well-established rule
that the forum state is permitted to apply its own period of
limitations.” The rule that a forum state's limitations statute
applies has been long recognized and should not be deemed
offensive to the concepts of federalism and fairness that the two
Constitutional provisions at issue protect.*
8. Statutes of limitations are traditionally matters of policy established by
the legislature after weighing the state's interest in eliminating stale claims and
the interest in repose against the interest in vindicating legal rights and
responsibilities. Even if there are policy reasons for requiring a Pennsylvania
resident injured in Pennsylvania who files in Mississippi to bring suit within
the Pennsylvania limitations period, it does not follow that bringing suit within
that period is Constitutionally mandated. Limiting the application of the
Mississippi statute is a matter for legislatures. and there is no ground for a
judicially established rule.
There is no fundamental right not to be sued after a certain limitation
period. As the Court observed in Chase Securities Corp. v. Donaldson, 325
U.S 304, 314 (1945):
13
The ruling of the Court of Appeals for the Third Circuit
runs contrary not only to this Court's prior decisions but also to
its numerous decisions on personal jurisdiction. This Court has
explained that one purpose of the minimum contracts require-
ment is protecting a defendant against the burden of litigating in
a distant or inconvenient forum. World-Wide Volkswagon
Corp., v. Woodson, 444 U.S. 286, 292-293 (1980). Phillips
Petrolem v. Shutts, —_—iU-S.. , 105 S. Ct. 2965, 2973
(1989). The minimum contact requirement embodies a concern
for reasonableness and fairness to defendants. Id. A corporation
purposefully availing itself of the privilege of conducting activi-
ties within a state has clear notice that it is subject to suit there
and can thereby alliviate the risk of litigation. World-Wide
Volkswagen Corp. v. Woodson, supra at 198. This Court has
sustained the exercise of jurisdiction over a foreign corporation
no longer conducting any activities in the forum for a cause of
action that did not arise in the forum. Perkins v. Benguet
Consolidated Mining Co., 342 U.S. 437 (1951). Thus, the Third
Circuit has held that while there may be sufficient jurisdictional
contacts — enough contacts to satisfy standards of fairness and
reasonableness and to place a defendant on notice that he may
be sued in a particular forum — the contacts could be insuffi-
cient to permit the forum state to apply its own procedural law.
That due process could be satisfied for jurisdictional purposes
but not for purposes of applying a forum state's procedural law is
incongruous. If it does not offend due process for a corporation
Statutes of limitation find their justification in necessity and conve-
nience rather than in logic. They represent expedients, rather than
principles. They are practical and pragmatic devices to spare the courts
from litigation of stale claims, and the citizen from being put to his defense
after memories have faded, witnesses have died or disappeared, and
evidence has been lost. [citation omitted] They are by definition arbitrary,
and their operation does not discriminate between the just and the unjust
claim, or the voidable and unavoidable delay. They have come into the
law not through the judicial process but through legislation. They
represent a public policy about the privilege to litigate. Their shelter has
never been regarded as what now is called a ‘fundamental’ right or what
used to be called a ‘natural’ right of the individual. (footnote omitted. )
Chase Securities Corp., ve. Donaldson, 325 U.S. at 314.
14
to be hailed into court in a state where it has a registered agent
to accept service of process, it could not offend due process for
that corporation to submit to the procedural rules, including the
statute of limitations, of that state.
Cc.
The Court of Appeals decision is, finally, offensive to the
full faith and credit clause and to state sovereignty. It has the
effect of imposing the rules of a foreign jurisdiction on the courts
and territory over which Mississippi, or another similarly situ-
ated state, is sovereign. Under the Court of Appeals’ ruling, the
sovereignty of each state is threatened to the extent that another
jurisdiction has greater contacts with the cause of action or the
defendant.’ The Constitution has never before been interpreted
to impose a choice of law principle on states whereby they must
mold their judicial procedures to those of the state with the
greatest contacts." So long as a state is not attempting to
¥. The six-year statute of limitations has been accepted in Mississippi for
over 150 years and has been repeatedly reaffirmed by the Mississippi
legislature during that time. The Code section in question was first adopted in
the vear 1880. In ISSO, the Code section number was 2669. The statute was
re-enacted in the Codes of 1892 ($2737), 1906 ($3097), Hemmingway's 1917
($2461), 1930 ($2292), 1942 (§722) and 1972 (§15-1-49)
Thus, the Mississippi legislature has repeatedly reenacted the statute,
most recently in the laws of 1972. Its approval on April 26, 1972 post-dates
the interpretation repeatedly placed upon this statute by Mississippi Courts
The most recent attempt to change Miss. Code. Ann. $15-1-49 (1972) is
reflected in House Bill 454 introduced in 1986. House Bill 454 was voted down
by a substantial majority of the committee and not reported out of committee
A Senate Bill identical to the House Bill was also defeated
That same bill has been introduced every vear for the last several vears
and has been rejected by the legislature in each instance. So the legislature has
not only re-adopted their statute as interpreted by courts for over 150 vears
(see Hamilton «. Cooper, 1 Miss. (Walker) 542 (1832), but it has affirmative!
refused to change it
10. Instead, plaintiffs are expected to take advantage of favorable law in
any proper jurisdiction, and corporate defendants are deemed to be cognizant
of the laws of jurisdictions where they have minimum contacts. As this Court
stated in Keeton «. Hustler Magazine, Inc., supra
Petitioners successful search for a State with a lengthy statute of
5
regulate out-of-state conduct by its choice of substantive law in
violation of the Constitution and so long as it has jurisdiction
over the parties, full faith and credit does not require that it
recognize another jurisdictions procedure. Mississippi has
made the policy decision to keep its courts open to a cause of
action for a longer period than Pennsylvania, and so long as
business entities commiting torts are subject to Mississippi s
jurisdiction, Mississippi's limitations statute deserves the full
faith and credit of states incorporating those business entities
states housing their headquarters, and states where plaintiffs are
injured."
limitations 1s no different from the litigation strategy of countless plaintiffs
who seck a forum with favorable substantive or procedural cules ot
sympathetic local populations. Certainly Hustler Magazine. Inc. which
chose to enter the New Hampshire market. can be charged with
knowledge of its laws and no doubt would have claimed the benefit of
them #f it had a complaint agaist a subscriber, distributor, or other
commercial partner
id. at TSO
ll. To the extent Pennsylvania wanted its two-vecar limitations penod to
apply to causes of action arising under its substantive law. its legislature could
have conditioned the substantive right on bringing suit within two vears as
ypposed to conditioning the remedy on filing within two vears Binding the
limitations period to the underlying right would have caused the period to bx
treated as part of the substantn ec law and thus not subject to the forum s statuts
of limitations. Devis « Mills, 194 U.S. 451. 453-44 (1904) White © Malom
Prope rties, lm 194 So. 2d 376 (Miss. 1986). Fieldman « Roper Wh I Supp
936, 93S (S_D. Miss. 1977). Cummings ¢«. Cowan, 300 F. Supp. 1251. N.D
Miss 1975) The Pennsvthanta legislature chose not to frame its statute in this
wal
CONCLUSION
For the loregomng reasons petitioners respectfully submit
that i writ of certiorari should issu to review the opinion and
pci nt of the ( nited States Court of App als tow the Third
Circuit entered on luly 9 US,
He Spe ‘ thally Submitte dl
Arnold Levin
Counsel of Record
David ] Perlman
LEVIN & FISHBEIN
20 Walnut Street
Suite 600)
Philack F hia, PA 19106
215) 592-1500
AND
Stanlev V. Ostrow
FINKEL, LEFKOWITZ. OSTROW
& WoOoOLRIDG!
SOO Commonwealth Buildi:
Pittsburgh. PA 15222
$12) 285-2670
ATTORNEYS FOR PETITIONERS
APPENDIX
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
V.
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-2
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
lll0 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 to 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. 8 15-1-49
(1972). We affirm.
A-3
I.
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
i |
A-4
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)
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, 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
‘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-5
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.
II.
The Ferenses’ position is straightforward. Under
Klaxon Co. v. Stentor Electric Manufacturing Co., 313
U.S. 487 (i941). federa! 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 Mississippis
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.
ie |
A-6
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 borrowing 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.
§ 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 place 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-7
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 uv.
Sterling Drug, Inc., 415 F.2d 1009, 1011 (5th Cir.
1969). Thus, the Ferenses argue that because the
Mississippi borrowing statute 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-S
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.J. 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. Wedonot suggest that the application of
transferor state law is free from constitutional
limitations. See, e.g.. Watson v. Employers
Liability Assurance Corp., Lid., 348 U.S. 66;
‘While Deere points out that in Barrack and in Schreiber the
transfer motions 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-9
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 Accident &
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-10
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 the 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 appeal 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 Haque, 449 U.S. at 312-13.
Consequently, because Mississippi could not apply
its own law to the Ferenses’ suit against Deere if the
suit were pending in a Mississippi state court, neither
Klaxon nor Barrack require that a federal diversity
forum do so either. Conversely, since the Ferenses are
Pennsylvania residents, the injury occurred in
Pennsylvania, and the combine was acquired there.
Pennsylvania has substantial contacts with the
occurrence, thereby rendering the application of its law
neither arbitrary nor fundamentally unfair.* Hence.
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 this 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 1404(a) motion. See note 4 supra
A-12
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 to
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
\-13
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,’ I 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, I 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-l4
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 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.” 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 uv.
Stokes, 623 F.2d 469, 471-73 (6th Cir. 1980).
By focusing on whether the transferor court was a
permissible forum rather than the identity of the party
seeking the transfer, the courts 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-15
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-16
Federal courts should not “establish and impose
upon state courts a federal choice-of-law rule.” 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
Bi
A-17
Albert J. FERENS and Margaret L.
Ferens, his wife, Plaintiffs,
v.
DEERE & COMPANY, Defendant.
Albert J. FERENS and Margaret L.
Ferens, his wife, Plaintiffs,
Vv.
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-15
business of manufacturing, advertising, selling and distributing
combines, which are used to thresh and clean grain.
On or about July 17, 1981, Plaintiff purchased a John Deere
Sidehill #6620 Combine, Serial No. 454907, which was manu-
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 for
use on his farm. /d., 46.
On or about July 5, 1982, in Washington County, Pennsyl-
vania, while Plaintiff was cleaning the combine, his right hand
was pulled into the rotating auger, thereby amputating it above
the wrist. Id., 47.
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-
chantable and fit for the ordinary purposes for which it was used,
and that Defendant breached its express and/or implied warran-
ties since the combine was, in fact, defective.
Subsequently, on July 25, 1985, Plaintiffs filed C.A. 85-
2725 in 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, recovery
was based on theories of negligence and strict liability under
§402A and B of the Restatement (2d) of Torts. In their complaint
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 28
U.S.C. §1404(a). Plaintiffs’: motion was granted on November 8,
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-19
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, answers 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., ___ U.S.
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 raust be resolved in favor of
the nonmoving party. Gans v. Mundy, 762 F.2d 338, 341 (3d
Cir.1985) (quoting Ness v. Marshall, 660 F.2d 517, 519 (3d
Cir. 1981)).
The United States Supreme Court has recently stated that
“fo}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, Ss U.S. ____,: 106
S.Ct. 2548, _, 91 L.Ed.2d 265 (1986). “Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson, 106 S.Ct. at 2510.
Here, the motion is made by the Defendant solely on the
basis of the pleadings without supporting affidavits; thus, the
motion is functionally equivalent to a motion for judgment on
A-20
the pleadings under Fed.R.Civ.P. 12(c). Schwartz v. Com-
pagnie General Transatlantique, 405 F.2d 270, 273 (2d
Cir. 1968), quoting 6 J}. MOORE, MOORE’S FEDERAL PRAC-
TICE, {56.02[3], at 2035. As such, all well-pleaded factual
allegations of the Plaintiffs must be taken as true and all
allegations of the moving party which have been denied are
taken as false; conclusions of law are not deemed admitted.
Shade v. Commonwealth of Pennsylvania Dept. of Transporta-
tion, 394 F.Supp. 1237, 1243 (M.D.Pa.1975).
1. Disclaimer of Warranties
Defendant claims that the purchase order conspicuously
included the warranties which accompanied the sale of the
combine and that it disclaimed the implied warranties of mer-
chantability and fitness for particular purpose. In addition,
Defendant emphasizes that said purchase order contained a
clause excluding consequential damages. Defendant’s Answer,
Exhibit “A.”
Plaintiffs admitted to the authenticity of the purchase order
in their Reply to Defendant's Answer; however, Plaintiffs con-
tend that the terms of the purchase order are unconscionable,
amount to a contract of adhesion and are against public policy.
Under its adoption of the Uniform Commercial Code, 13
Pa.CIS. §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
conspicuous. . . .
(c) Implied warranties in general.—Notwithstanding sub-
section (b):
A-21
(1) Unless the circumstances indicate otherwise, all
implied warranties are excluded by expressions like “as is,”
“with all faults” or other language which is common under-
standing calls the attention of the buyer to the exclusion of
warranties and makes plain that there is no implied war-
ranty.
(2) When the buyer before entering into the contract
has examined the goods or the sample or model as fully as
he desired or has refused to examine the goods there is no
implied warranty with regard to defects which an examina-
tion ought in the circumstances to have revealed to him.
(3) An implied warranty can also be excluded or
modified by course of dealing or course of performance or
usage of trade.
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
warranty card contained “conspicuous” language to exclude
implied warranties).
In the present case, the purchase order provided as follows:
The Warranty on the reverse side is a part of this contract
and the following applies where permitted by law: Neither
seller, John Deere Company, nor the manufacturer makes
any other representations or warranties, express or implied
(AND EXPRESSLY DISCLAIMS THE IMPLIED WAR-
RANTIES OF MERCHANTABILITY AND FITNESS) or
has any obligation to the Purchaser except as priovided on
the reverse side.
Defendant's Answer, Exhibit “A.”
On the reverse side of this purchase order, in paragraph F,
the disclaimer is again set forth:
F. NO REPRESENTATION OR IMPLIED WARRANTY.
Where permitted by law, neither John Deere nor any
company affiliated with it makes any warranties, represen-
tations or promises, express or implied, as to the quality or
performance of its products other than those set forth above
and DOES NOT MAKE ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS.
Id.
Paragraph G on the reverse side added:
G. 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:
(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.
Id.
Plaintiffs, in support of their argument that the disclaimer
of warranties and exclusion of remedies provisions are uncon-
scionable, rely on 13 Pa.C.S. §2719(c):
\c) Limitation of consequential damages.—Consequential
damages may be limited or excluded unless the limitation
or exclusion is unconscionable. Limitation of consequential
damages for injury to the person in the case of consumer
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 v. 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.—H 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:
(2) enforce the remainder of the contract without
the unconscionable clause; or
(3) so limit the application of any unconscionable
clause as to avoid any unconscionable result.
(b) Evidence by parties—When it is claimed or ap-
pears to the court that the contract or any clause thereof
imav be unconscionable the parties shall be afforded a
reasonable opportunity to present evidence as to its com-
mercial setting, purpose and effect to aid the court in
making the determination.
Plaintiffs argue that the above language renders Deten-
dant’s motion premature since the parties have not presented
evidence on the issue of unconscionability. We agree for the
following reasons.
The Pennsylvania Supreme Court has adopted the follow-
ing definition of unconscionability:
Unconscionability has generally been recognized to include
an absence of meaningful choice on the part of one of the
parties together with contract terms which are unreason-
ably favorable to the other party.
OO ——
A-24
Witmer v. Exxon Corp., 495 Pa. 540, 551, 434 A.2d 1222, 1228
(1951), quoting Williams v. Walker-Thomas Furniture Co., 350
F.2d 445, 449 (D.C.Cir.1965). In the Williams case, Judge
Skelly Wright summarized the factors to be considered in
determining whether a contract or clause is unconscionable or
not:
Whether a meaningful choice is present in a particular
case can only be determined by consideration of all the
circumstances surrounding the transaction. In many cases
the meaningfulness of the choice is negated by a gross
inequality of bargaining power. The manner in which the
contract was entered is also relevant to this consideration.
Did each party to the contract, considering his obvious
education or lack of it, have a reasonable opportunity to
understand the terms of the contract, or were the important
terms hidden in a maze of fine print and minimized by
deceptive sales practices? Ordinarily, one who signs an
agreement without full knowledge of its terms might be
held to assume the risk that he has entered a one-sided
bargain. But when a party of little bargaining power, and
hence little real choice, signs a commercially unreasonable
contract with little or no knowledge of its terms, it is hardly
likely that his consent, or even an objective manifestation of
his consent, was ever given to all the terms. In such a case
the usual rule that the terms of the agreement are not to be
questioned should be abandoned and the court should
consider whether the terms of the contract are so unfair that
enforcement should be withheld.
In determining reasonableness or fairness, the primary
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
applied. The terms are to be considered “in the light of the
general commercial background and the commercial needs
of the particular trade or case.”
Williams, 350 F.2d at 449-450 (footnote omitted).
SS
In the present case, since no affidavits, interrogatories,
depositions, or evidence of any sort has been submitted regard-
ing the circumstances surrounding the transaction, we can only
speculate as to whether or not the purchase order was uncon-
scionable. 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, purpose and
effect” of the disputed language in the purchase order. We note
that while Plaintiff is a farmer, that alone is not indicative of his
commercial standing because he may be a “small-time” farmer
or he may be a large corporate farmer with thousands of acres of
land. See Purvis v. Consolidated Energy Products Co., 674 F.2d
217, 224 (4th Cir.1982) (Hall, J., dissenting) (while in its
broadest sense the meaning of ‘commercial could include any
activity intended to yield a profit, in common parlance the term
is generally associated with manufacturing or retail activities’).
Once we are presented with some evidence as to whether
the transaction was of a commercial or consumer nature. prior
dealings between the parties, customary practice within the
industry etc., we will then be able to make a determination on
the issue of unconscionability. As it currently exists, however,
the record is barren on that matter. Thus, Defendant's reliance
on Beckman v. Vassall-Dillworth Lincoln Mercury, Inc., 321
Pa.Super. 428, 468 A.2d 754 (1983) for the proposition that
summary judgment should be granted is misplaced, as there,
the state court had the benefit of affidavits, deposition testimony
and other evidence which enabled it to render a decision that
the contract clause was not unconscionable. Id. at 439-40, 468
A.2d at 788.
Defendant also relies on Thermo King Corp., supra, where
this Court found a similar warranty exclusion and limitation of
remedy provision not to be unconscionable. However, Thermo
King is not dispositive of this case because it indubitably
involved a commercial transaction between two corporate par-
ties. Id., at 78. Moreover, unlike the situation in the case betore
us which involves injury to the person, Thermo King only
involved consequential damages for the loss of $15,000 worth of
cargo. Id. at 77. While the applicable provisions of the purchase
A-26
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). a
Il. Applicable Statute of Limitation for Plaintiffs: Tort Claims
Our 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-vear statute of limitations for
injuries to the person, 42 Pa.C.S. §5524(2) (Purdon 1981),
whereas Mississippi s limitation period is six vears. Miss.Code
Ann. §15-1-49 (1972).
As we noted earlier, Plaintiffs’ tort actions we-e originally~
filed in the Southern District of Mississippi after Plaintiffs
initiated their UCC breach of warranty claims in the Western
District cf Pennsylvania. Plaintiffs then transferred their tort
actions from the Southern District of Mississippi to this Court
pursuant to 28 U.S.C. §1404(a) which provides:
For the convenience of the 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.
Id.
A-27
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., ©%6-10.
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-28
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
or by the law of this Commonwealth, which ever first bars
the claim.
42 ra.i..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 shail 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
Mississippis borrowing statute, Plaintiffs contend that the 6-
vear 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 forunt.
A-29
In Van Dusen v. Barrack, 376 U.S. 612, 84 S.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, 1]
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 defendants to undermine the
plaintiff's privilege of selecting “a forum which, although it was
inconvenient, was a proper venue. Id. at 634, 84 S.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 519, 1]
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-30
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
is that it will prevent plaintiffs from using transfers to carry
favorable law from one forum to another. This rationale has been
followed by courts in analogous situations. Cf. Carson v. U-Haul
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, with favorable limitation period to plaintiffs
but 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,
e.g., 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 v. Stokes, 623 F.2d 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 suit 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
ee OW we te
ee ee dime
ee
A-31
before us since plaintiffs could not have originally brought their
second action in the forum where it has been transferred due to
the applicable limitations period. We reiterate that §1404(a) only
permits the transfer of an action to a “district or division where
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 them-
selves of that forum’s limitation period, and the filing of a
complaint which is merely a procedural ploy will not suffice. Cf.
Biby v. Kansas City Life Insurance Co., 629 F.2d 1289, 1294
(Sth Cir. 1980) (filing of complaint in transferor state was merely
a procedural ploy and did not commence action for purposes of
tolling the limitation period).
The fact that Plaintiffs’ original lawsuit in this District Court
did not include the claims which were time-barred under
Pennsylvania law unequivocally establishes that Plaintiffs were
seeking to maneuver around this by intentionally filing a second
action in an inconvenient forum to avail themselves of that
forum’s longer statute of limitations and its plaintiff-oriented
borrowing statute. By filing a subsequent lawsuit in the South-
ern District of Mississippi to take advantage of that state's
six-year limitation period and then moving to transfer that action
with their pending action in this District Court for purposes of
convenience, consolidation and efficiency, Plaintiffs are seeking
the “best of both forums.” While we acknowledge the strong
presumption in favor of a plaintiff's choice of forum, Gulf Oil
Corp. v. 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 amount to a
judicial juggling act between forums—one with a clear interest
A-32
in the litigation and one whose interest is nominal at best. The
only nexus between Plaintiffs’ claims and Mississippi is that the
Defendant Company is registered to conduct business there, has
a designated agent for service of process in that state and actually
transacts some business in Mississippi. On the other hand,
Plaintiffs are residents of Pennsylvania, and the claim arose in
Pennsylvania directly as a result of Defendant's having con-
ducted business within that state. Regarding the choice of law
issue, even under the “center of gravity’ test adopted in
Mitchell v. Craft, 211 So.2d 509 (Miss.1968), we find that
Pennsylvania substantive law would govern this dispute.
Implicit in the holding of Van Dusen is the rationale that
§1404(a) is simply a judicial housekeeping device to assure
convenience and fairness to the parties. Further, we are mindful
that a transfer under §1404(a) must be “in the interest of
justice.” Therefore, under the facts of this case, we refuse to
allow Plaintiffs to transform §1404(a) into a device which would
enable them to forum shop for a favorable limitation period.
Kaiser v. Mayo Clinic, 260 F.Supp. 900, 907 (D. Minn. 1966).
Since Plaintiffs were fully aware of all the relevant facts at the
time they commenced both actions, including the fact that the
Southern District of Mississippi was an inconvenient forum, the
“ ‘interest of justice’ would be thwarted rather than served if this
Court permitted this type of ‘legal footwork.” Mata, 44 F.R.D.
at 226-27 (citations omitted).
Accordingly, Defendant's motion for summary judgment is
granted as to Plaintiffs tort claims which are barred by the
limitation period of 42 Pa.C.S. §5524(2).
A-33
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 86-3595
ALBERT J. FERENS and MARGARET L. FERENS, his wife
.
DEERE & COMPANY,
(D.C. Civil No. 85-1534)
ALBERT J. FERENS and MARGARET L. FERENS, his wife
v.
JOHN DEERE COMPANY, a/k/a/ DEERE & COMPANY
(D.C. Civil No. 85-2725)
SUR PETITION FOR REHEARING
Present: GIBBONS, Chief Judge, SEITZ, WEIS, HIGGIN-
BOTHAM, SLOVITER, BECKER, STAPLETON,
MANSMANN, GREENBERG and ALDISERT, Cir-
cuit Judges
The petition for rehearing filed by appellants in the above
entitled case having been submitted to the judges who partici-
pated in the decision of this court and to all the other available
circuit judges of the circuit in reguiar active service, and no
judge who concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc, the
petition for rehearing is denied.
By the Court.
Chief Judge
Dated: July 9, 1987
A-34
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
July 29, 1987
No. 86-3595
ALBERT J. FERENS, ETC., Appellants
vs.
DEERE & COMPANY
Present: GIBBONS Chief Judge, SEITZ and ALDISERT, Cir-
cuit Judges
1. Motion by appellant to recall and stay the mandate.
in the above-entitled case. Any answer which would be due by
August 1, 1987, will be forwarded to you upon receipt of same.
Deputy Clerk Direct Dial 597-3135
ORDER
The foregoing motion by appellant to recall and stay the
mandate is denied. Judge Aldisert would grant the stay for thirty
days but no longer.
By the Court,
Chief Judge
Dated: August 6, 1987
A-35
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
HOLLY BUCKLEY and ROBERT BUCK-
LEY, JOHN ROTH and LINDA ROTH,
LINDA K. SMITH, in her own right and as
Executrix of the ESTATE OF OLLIE BUR-
ROWS, deceased, ROSALIND BLOOM and
NATHAN BLOOM, DOROTHY A. REAM-
ER,-in-her own right and as Executrix of
the ESTATE OF WALTER H. REAMER,
deceased, CHARLES D. O'BRIEN and
HELEN D. O'BRIEN, in their own right
and as parents and natural guardians of
JENNIFER C. O'BRIEN, a minor, Ha-
ROLD M. SHULTZ and ELAINE L.
SHULTZ, ROSA LEE WALKER and WIL-
LIAM M. WALKER,
Plaintiffs
v. NO. S86-0361(B)
BABCOCK & WILCOX COMPANY, INC.;
J. RAY MCDERMOTT AND COMPANY, INC.,
Defendants
ORDER
THIS DAY the above styled and numbered cause came on,
on the Defendants Motion to Transfer pursuant to 28 U.S.C (a),
and Plaintiffs Response thereto, and it appearing to the Court
that the fact witnesses are concentrated in or near the Middle
District of Pennsylvania; the likely expert witnesses are concen-
trated in or near the Middle District of Pennsylvania; Plaintiffs
reside in the Middle District of Pennsylvania; the incident
occurred in that District; and that Court has had six years of
experience handling like cases arising out of the same incident;
it is, therefore,
ORDERED AND ADJUDGED that Defendants Motion
be and hereby is granted, and this action and those listed on
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Exhibit “A” hereto are transterred to the United States District
Court for the Middle District of Pennsylvania, together with
every action now pending or heretofore commenced in this
District which arises out of the Three Mile Island accident of
March 28, 1979, and in which the Plaintiffs reside in states other
than Mississippi and the Defendants are neither incorporated in
nor have their principal place of business in Mississippi.
THIS COURT, without intending to force any result upon
the transferee forum, wishes to bring to the attention of that
forum the ruling of the United States District Court for the
Northern District of Mississippi in the case of “Milton Gluskin v.
Standard Insulations, Inc., et al,” No. WC83-200-LS-P, North-
ern District of Mississippi, Western Division, transferring said
cause to the Southern District of New York, and would respect-
fully indicate that this Court would be inclined to follow Chief
Judge Senter’s ruling, a copy of which is attached hereto as
Exhibit “B’, with regard to the applicability of the Mississippi
statute of limitations.
THIS COURT, further Orders that the Defendants may
have twenty (20) days from the date this Order is filed with the
Court in the Middle District of Pennsylvania in which to file
their Answer or otherwise plea.
SO ORDERED AND ADJUDGED, this the 7th day of
July, A.D., 1986.
UNITED STATES MAGISTRATE
APPROVED:
Wm. Robert Wilson, Jr.
Attorney for Plaintiffs
MICHAEL J. McELHANEY, JR.
Attorney for Defendants
A-37
EXHIBIT “A”
HOLLY BUCKLEY, et al.
A-35
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
MILTON GLUSKIN,
Plaintiff
v. NO. WCS3-200-LS-P
STANDARD INSULATIONS, INC.,
et al.,
Defendants.
MEMORANDUM OPINION
By order dated December 2, 1983, the court informed the
parties that pursuant to 28 U.S.C. §1404(a), it was considering a
transfer of this action to the United States District Court for the
Southern District of New York. The parties have now been
given more than thirty days in which to show cause why this
action should not be so transferred. The court, having consid-
ered the memoranda submitted by the parties,! together with
the pleadings and discovery materials, and being otherwise fully
advised in the premises, is now in a position to determine the
propriety of such a transfer.
28 U.S.C. §1404(a) provides that:
For the convenience of the 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.
Under section 1404(a), a district court in which venue is
proper may nevertheless transfer a civil action to any district in
which it might originally have been brought if such a transfer is
for the convenience of the parties and in the interest of justice.
This section reflects a desire to have federal civil actions tried in
the district necessitated by considerations of convenience and
1. Several parties have not filed memoranda with the court but have
indicated that they neither object to nor agree with the proposed transfer.
A-39
justice. Van Dusen v. Barrack, 376 U.S. 612, 616-622, 54 S.Ct.
805, 11 L.Ed.2d 945, 949-953 (1964).
A court's authority to transfer cases under section 1404(a)
does not depend upon the motion or consent of the parties to an
action. Clopay Corp. v. Newell Companies, Inc., 527 F.Supp.
733, 737 (D. Del. 1981). Section 1404(a) empowers a district
court to transfer venue on its own motion. See Lead Indus., Inc.
v. OSHA, 610 F.2d 70, 79 n.17 (2d Cir. 1979); Skil Corp. v.
Millers Falls Co., 541 F.2d 554, 556-57 (6th Cir.), cert. denied,
429 U.S. 1029 (1976); Plum Tree, Inc. v. Stockment, 488 F.2d
754 (3rd Cir. 1973); 1-T-E Circuit Breaker Co. v. Becker, 343
F.2d 361, 363 (Sth Cir. 1965); Swindell-Dressler Corp. v.
Dumbauld, 308 F.2d 267 (3rd Cir. 1962); Clopay Corp. v.
Newell, supra; Nation v. United States, 512 F.Supp. 121, 127
(S.D. Ohio 1981); Riordan v. W. J. Brerer, Inc., 466 F.Supp.
411, 418 (S.D. Ga. 1979). When a court sua sponte considers the
transfer of an action, the parties must be given notice and an
opportunity to be heard. Swindell-Dressler, 308 F.2d at 273-74,
Clopay Corp., 527 F.Supp. at 738. In the action sub judice, the
parties were given notice of the possible transfer of this action on
or about December 2, 1983. Parties were given fifteen days in
which to show cause why this action should not be so trans-
ferred. Several extensions have been given to the parties, and
they have, therefore, been accorded ample opportunity to
develop and explain their positions in regard to the proposed
transfer. Having thus met the requirements imposed by
$1404(a) and the general principles of fairness, this court pos-
sesses full authority to transfer this action if such a transfer is
warranted. See Hite v. Norwegian Caribbean Lines, 551
F.Supp. 390, 393 (E.D. Mich. 1982), (citing Starnes v. Me-
Guire, 512 F.2d 918, 933-34 (D.C. Cir. 1974)); Donald v.
Seamans, 427 F.Supp. 32, 32-33 (E.D. Tenn. 1976); Stanley
Works v. Globemaster Inc., 400 F.Supp. 1325, 1338 (D. Mass.
1975); Monsanto Co. v. United Gas Pipe Line Co., 360 F.Supp.
1054, 1056 (D. DC 1973).
28 U.S.C. §1404(a) presupposes at least two forums in
which the defendant is amenable to process and in which venue
A-40
is proper.? Thus, prior to transfer, the transferor court must
establish that venue is proper in both the transferor and
transferee districts with respect to every defendant and that all
defendants were amenable to process emanating from both
districts at the time the action was initially commended. See Van
Dusen v. Barrack, 376 U.S. at 621-22, 11 L.Ed.2d at 952-53:
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 57 $.Ct. 839, 91 L. Ed.
1055 (1947), Lamont v. Haig, 590 F.2d 1124, 1131 n.45 (D.C.
1975).
Venue of a diversity action, such as the action sub judice, is
governed by 28 U.S.C. §1391(a). Pursuant to section 139] (a),
venue is proper in any district in which all plaintiffs or all
defendants reside or where the cause of action accrued.? In the
action sub judice, venue is proper in this district, for all
defendants are licensed to do business or are doing business
within the State of Mississippi. Venue is also proper as to the
transferee district because the plaintiff resides and/or the cause
of action accrued in the transferee district.
Additionally a review of the record in this action establishes
that this court possesses in personam jurisdiction over the
defendants to this action. The diversity of citizenship of these
parties will not be affected by the transfer of this action.
Furthermore, all defendants to this action are subject to the in
personam jurisdiction of, and are amendable to process in, the
transferree district. Thus, the prerequisites for a valid transfer
pursuant to 28 U.S.C. §1404(a) are present in the action sub
judice.
2. A district may be considered a district in which the action “might have
been brought” even though the suit would have been barred by the statute of
limitations of the transferee state, so long as the jurisdictional and venue
requirements are met. Cowan v. Ford Motor Co., 713 F.2d 100, 103 n.4, reh'g
719 F.2d 755 (5th Cir. 1983) (citing Van Dusen v. Barrack, 376 U.S. 612.
621-22, 54 S.Ct. 805, 11 L.Ed.2d 945, 952, 953 (1964).
3. 25 U.S.C. §$1391(c) then provides that: “A corporation may be sued in
any judicial district in which it is incorporated, or licensed to do business. or
is doing business, and such judicial district shall be regarded as the residence
of such corporation for venue purposes.”
A-41
The factors* to be weighted in determining the propriety of
a section 1404(a) transfer were articulated by the United States
Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 601, 67
S.Ct. 839, 91 L.Ed. 1055 (1947).5 The key consideration, as set
out in section 1404(a), is the convenience of the parties and
witnesses. Wilmot H. Simonson Co. v. Green Textile Assoc ., 554
F.Supp. 1229, 1234 (N.D. Ill. 1983); Cambridge Filter Corp. v.
International Filter Co., 548 F.Supp. 1308, 1311 (D. Nev.
1982). In addition, the following factors are to be considered: (1)
the relative ease of access to sources of proof; (2) the availability
of process to compel the attendance of witnesses; (3) the cost of
obtaining the presence of willing witnesses; (4) the cost of
transporting counsel and the litigants to the place of trial and
living expenses at trial; (5) the public interest in the expeditious
and inexpensive administration of justice, and (6) the source of
applicable substantive law. See Van Dusen v. Barrack, 376 U.S.
at 645 (1964); Gulf Oil Corp. v. Gilbert, 330 U.S. at 508-509;
Cambridge Filter Corp., 548 F.Supp. at 1311; Holvitz v.
Norfleet-Ashley, Inc., 369 F.Supp. 394, 398 (N.D. Miss. 1973);
Schneider v. Sears, 265 F.Supp. 257, 263 (S.D. N.Y. 1967).
Thus, a transfer to another forum “must be shown to be not only
convenient, but also in the interest of justice.” Reyno v. Piper
Aircraft Co., 630 F.2d 149 (3rd Cir. 1980), 450 U.S. 909, rev'd
on other grounds, sub. nom. Hartzell Propeller, Inc. v. Reyno,
4 U.S. 235 (1981), reh’g denied 455 U.S. 928 (1982).
Although a district judge has the authority to transfer an
action to any district in which it “might have been brought,” the
4. When 2 §$1404(a) transfer is initiated by the court on its own motion,
the factors to be considered are identical to those considered in a case where
a party moves for transfer. Clopay Corp. v. Newell Cos., 527 F.Supp. 733,
737-38 (D. Del. 1981).
5. Gilbert involved the common iaw doctrine of forum non conveniens.
The factors involved in a section 1404(a) transfer are the same as those
considered on a motion to dismiss on the grounds ot forum non conveniens.
Section 1404(a) was, however, designed to give the court broader discretion
than that accorded under forum non conveniens and to permit a transfer upon
a lesser showing of inconvenience. Norwood v. Kirkpatrick, 349 U.S. 29, 32,
75 S.Ct. 544, 99 L.Ed. 789, 793 (1954).
A-42
plaintiff's choice of forum is entitled to consideration. Time Inc.
v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). It is well
established that “(t]he plaintiff's choice of forum should not be
disturbed unless it is clearly outweighed by other consider-
ations. Howell v. Tanner, 650 F.2d 610, 615 (5th Cir. 1981),
cert. denied 456 U.S. 918 (1982). This does not mean, however,
that the plaintiff's choice of forum is controlling, for its is merely
a tactor to be considered along with all the other relevant factors.
Garner v. Wolfinbarger, 433 F.2d 117, 119 (5th Cir. 1970);
Libby v. Russell, 349 F.Supp. 573 (N.D. Miss. 1972); see also
Rockwell International Corp. v. Eltra Corp., 538 F.Supp. 700
(N.D. Ill. 1982). Additionally, where the operative facts of a case
have little or no material connection with the forum state, the
plaintiff's choice of forum is entitled to less weight than is
ordinarily the case. See Derry Finance N.V. v. Christiana
Companies, Inc., 555 F.Supp. 1043, 1045 (D. Del. 1983);
Cambridge Filter Corp. v. International Filter Company, Inc..,
548 F.Supp. 1308, 1311 (D. Nev. 1982); Clopay Corp. v. Newell
Companies, Inc., 527 F.Supp. 733, 737-38 (D. Del. 1981); Coats
Company, Inc. v. Vulcan Equipment Co., 459 F.Supp. 654
(N.D. Ill. 1978), Credit Alliance Corp. v. Nationwide Mutual
Insurance Co., 433 F.Supp. 688, 689 (S.D. N.Y. 1977)
An examination of the pleadings and discovery materials on
file before the court reveals that a transfer of this action is
warranted. The plaintiff does not reside in this state nor does
plaintiff's lead counsel reside in Mississippi. Plaintiff Milton
Gluskin is a resident of Bellrose, New York, and this cause of
action arose in the State of New York. Few, if any, of the expert
or fact witnesses reside in Mississippi, and virtually all of the
plaintiff's employment and medical records are located outside
of this state. Additionally, plaintiff does not appear to have been
employed by a Mississippi company and worked very little, if
any, within this state. Furthermore, none of the defendants are
incorporated in or have their principle place of business in
Mississippi.
In summary, the relationship of the present forum to the
totality of the controversy involved in this lawsuit is so minimal
that it does not justify retention of the case in the Northern
A-43
District of Mississippi. Thus, the convenience of plaintiff,
defendants, and their witnesses and the interests of justice
would be served by a transfer of this action.
Mississippi has been subject to a deluge of asbestosis cases
in the past few years. The Southern District of Mississippi has
now become backlogged with such cases, filings now numbering
1,167. As a result, plaintiffs have now begun filing their actions
in the Northern District of Mississippi although these actions
have little or no connection with this district. Although venue
and jurisdiction are proper as to these actions, this court refuses
to become a dumping ground for such litigation. We are of the
opinion that a transfer of actions having little or no connection
with this district will more equitably disperse the burden of this
type of litigation.
The main concern voiced by the plaintitf relates to the
question of the effect of such a transfer on the statute of
limitations applicable to this action.® It is well established that
upon a transfer of an action pursuant to section 1404(a), the
transferee court must xct as would the transferor court.”? The
transferee court must apply the choice-of-law rules of the
transferor court. Thus, upon a transfer of this action, the
transferee court must follow the choice-of-law rules of Missis-
sippi. This choice will include the decision as to whether this
action is governed by the Mississippi statute of limitations.
_Cowan v. Ford Motor Co., 713 F.2d 100, 103 fn 6 (5th Cir.
1982), reh’g 719 F.2d 785 (5th Cir. 1983) (citing Van Dusen v.
Barrack, supra); New England Merchants National Bank v.
6. The statute of limitations issue is also of great concern to this court. In
fact, the court has informed those parties who have inquired regarding the
applicable statute of limitations that a transfer of this action would not occur if
it were found that plaintiff's action would be barred by the application of the
statute of limitations of the transferee forum. As a result, the court has
determined that a ruling on the question of the applicable statute of limitations
is appropriate prior to a transfer of this action.
7. The application of the law of the transferor forum is not affected by the
fact that the action was transferred on the court's own motion. Roofing & Sheet
Metal Service v. LaQuinta Motor Inns. 689 F.2d 982 (11th Cir. 1982), Martin
tv. Stokes, 623 F.2d 496 (6th Cir. 1980), Bott v. American Hydrocarbon Corp..,
$41 F.2d 896 (5th Cir. 197]
A-44
Rosenfeld, 679 F.2d 467 (5th Cir. 1982); Roofing & Sheet Metal
Service v. LaQuinta Motor Inns. 689 F.2d 982 (11th Cir. 1982);
Walker Corp. v. Burger Chef Systems, 554 F.2d 1165 (D.C.
1977); Farham v. Edwards, 470 F.2d 1000 (5th Cir. 1973);
Railing v. United Mine Workers of America, 429 F.2d 780 (4th
Cir. 1970); Carr v. American Universal Insurance Co., 341 F.2d
220 (6th Cir. 1965); H. L. Creen Company v. MacMahon, 312
F.2d 650 (2nd Cir. 1962); Headrick v. Atchison T & § Railroad,
182 F.2d 305 (10th Cir. 1950).
“As a rule, Mississippi treats statutes of limitation as
procedural, and in keeping with the accepted practice of apply-
ing procedural rules of the forum state irrespective of the choice
of substantive law, the state courts generally enforce Missis-
sippi s limitation periods and not those of foreign jurisdictions.”
Cummings v. Cowan, 390 F.Supp. 1251, 1254 (N.D. Miss.
1975). See also Kenshaw v. Sterling Drug, Inc., 415 F.2d 1009
(5th Cir. 1969); Steele v. G. D. Searle & Co., 422 F.Supp. 560
(S.D. Miss. 1976), reh’g granted 428 F.Supp. 646 (S.D. Miss.
1977). Accordingly, in Mississippi courts will normally apply the
lex fori insofar is it relates to the Mississippi statute of limita-
tions. See Steele, supra; Bethlehem Steel Co. v. Payne, 183
So.2d 912, 916 (Miss. 1966). Thus in the action sub judice, upon
transfer, the Mississippi statute of limitations will govern the
rights of the parties.* See Schreiber v. Allis-Chalmers Corp..,
611 F.2d 790, 794 (10th Cir. 1979) (the Mississippi statute of
limitations governed the rights of the parties in an action trans-
ferrred from Mississippi to Kansas). The rights of the parties to this
action will, therefore, be unaffected by a transfer of this action. The
court thus finds that a transfer of this cause is warranted.
An order in conformity with this opinion shall issue.
This 15th day of March, 1984.
CHIEF JUDGE
8. The statute of limitations applicable to this action is not affected by the
Mississippi Borrowing Statute, MISS CODE ANN. §15-1-65. See Cowan v.
Ford Motor Co., 694 F.2d 104 (5th Cir. 1982), reh’g en banc 713 F.2d 100,
reh’g 719 F.2d 785 (5th Cir. 1983).
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.