Appeal from denial of a motion to transfer a diversity case on ground of lack of personal jurisdiction and from dismissal of the complaint by the United States District Court for the Western District of New York, John T. Elfvin, Judge. Reversed and remanded with directions.
Before: OAKES and VAN GRAAFEILAND, Circuit Judges, and BARTELS, District Judge.*fn*
This is an appeal from a judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing appellant's complaint for lack of personal jurisdiction and denying his motion to transfer to the United States District Court for the Southern District of Florida.*fn1
Appellant sued for personal injuries sustained during a cruise on the M/S Song of Norway. In his complaint he alleged negligence in appellees' maintenance and upkeep of the vessel and malpractice by the ship's doctor. Since jurisdiction was premised on diversity of citizenship, the Western District of New York was, for venue purposes, a proper district within which to commence the action because appellant resided in Rochester, New York.*fn2 Appellees sought dismissal, however, on two grounds. First, they asserted that the district court was without personal jurisdiction over them. Second, they claimed that the action was not commenced within one year of the alleged accident, as required by the contract of passage.*fn3
The court below dismissed the action without reaching appellees' limitation claim. It held first that it lacked personal jurisdiction over the defendants.*fn4 The district court then concluded that despite Goldlawr, Inc. v. Heiman, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962), it had no power to transfer the case; accordingly, it denied appellant's motion to transfer. In our view, the district court has misread Goldlawr. We think transfer proper and therefore reverse.
Whether the district court had power to transfer this case requires discussion of two features of the action - (1) personal jurisdiction in the transferor court and (2) proper venue in the transferor court. Goldlawr, Inc. v. Heiman, supra, a private antitrust case in which personal jurisdiction and venue were both lacking in the Pennsylvania federal court, clearly governs the personal jurisdiction question. Pursuant to 28 U.S.C. § 1406(a), see note 1 supra, the Pennsylvania federal court transferred the case to the Southern District of New York where personal jurisdiction could be obtained and venue was proper. In holding that the transferor court's lack of personal jurisdiction did not vitiate its power to transfer, Mr. Justice Black wrote for the majority:
The language of § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not.*fn5
The court below simply misinterpreted Goldlawr. That case does not make the power to transfer "dependent upon the jurisdiction of the transferor court," Corke v. Sameiet M.S. "Song of Norway," 435 F. Supp. 308, 310 (W.D.N.Y. 1977), but rather holds precisely the opposite.*fn6
The second aspect of the court's transfer power raises the question of venue. By referring only to "a district in which is filed a case laying venue in the wrong division or district," § 1406(a) suggests that a court's transfer power is conditioned on improper venue. Indeed, Justice Harlan's Goldlawr dissent highlighted the peculiarity of Congress' permitting transfer "where both venue and jurisdiction are lacking in the district court where the action is commenced, while neglecting to provide any comparable alleviative measures for the plaintiff who selects a district where venue is proper but where personal jurisdiction cannot be obtained." Goldlawr, Inc. v. Heiman, supra, 369 U.S. at 468 (footnote omitted) (emphasis in original).
However, some of our most distinguished federal judges have interpreted the transfer power to avoid the incongruous result hypothesized by Justice Harlan. On one theory, three circuits have held that the language of § 1406(a) does not require incorrect venue in the 28 U.S.C. § 1391 sense to permit transfer. Writing for the Fifth Circuit in Dubin v. United States, 380 F.2d 813, 815 (5th Cir. 1967), District Judge Johnson explained:
Looking to the language of § 1406, the statute is couched in terms of "laying venue in the wrong division or district." The statute does not refer to "wrong" venue, but rather to venue laid in a "wrong division or district." We conclude that a district is "wrong" within the meaning of § 1406 whenever there exists an "obstacle [to]... an expeditious and orderly adjudication" on the merits. Inability to perfect service of process on a defendant in an otherwise correct venue is such an obstacle.
In other words, even though venue was proper in Dubin, as it is here, it was laid in a "wrong division or district" because the plaintiff could not obtain personal jurisdiction over the defendant.*fn7 Judge Mehaffy for a unanimous Eighth Circuit panel in Mayo Clinic v. Kaiser, 383 F.2d 653, 655-56 (8th Cir. 1967), and more recently Judge Edwards for a unanimous Sixth Circuit panel in Taylor v. Love, 415 F.2d 1118, 1120 (6th Cir. 1969), cert. denied, 397 U.S. 1023, 25 L. Ed. 2d 533, 90 S. Ct. 1257 (1970), have followed Dubin's reasoning.*fn8
A second basis for permitting transfer in properly venued cases was utilized by Judge Weinfeld in Volk Corp. v. Art-Pak Clip Art Service, 432 F. Supp. 1179, 1181 & nn. 4-5 (S.D.N.Y. 1977). Judge Weinfeld declined to elect between reliance on 28 U.S.C. § 1404(a) or on § 1406(a). See notes 7-8 & accompanying text supra. Rather, he noted that the court "has power to transfer the case even if there is no personal jurisdiction over the defendants, and whether or not venue is proper in [the] district, if a transfer would be in the interest of justice."*fn9 Volk Corp. v. Art-Pak Clip Art Service, supra, 432 F. Supp. at 1181 (footnotes omitted). This reasoning avoids the paradox envisaged by the dissenters in Goldlawr from a literal reading of § 1406(a). Moreover, the Goldlawr majority's emphasis on the statutory phraseology "in the interest of justice" is reaffirmed. And ...