The opinion of the court was delivered by: LASKER
This is a wrongful death action against a New Jersey hospital which is alleged to have rendered negligent medical care to plaintiff's decedent. The action was originally commenced in New York state court and was removed to this court. Personal jurisdiction over the hospital was predicated on the attachment of the hospital's liability insurance policy under the now defunct doctrine of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966).
After the case was removed to this court, it was transferred to the United States District Court for the District of New Jersey on defendant's motion, which was expressly made to enable the hospital, with the aid of New Jersey's long arm statute, to implead the physician who treated the decedent. Both the hospital and the physician then moved to dismiss the case for lack of federal subject matter jurisdiction, arguing that because New Jersey's charitable immunity statute limited the hospital's liability to $ 10,000., the requisite amount in controversy was lacking. 28 U.S.C. § 1332. The New Jersey district court agreed, and dismissed the case against the physician. However, since the case against the hospital had originally been commenced in New York state court, the district court in New Jersey retransferred it to the Southern District of New York with the suggestion that it be remanded to the New York state court.
Before a remand was effected, plaintiff's new attorneys suggested that the New Jersey district court's ruling that no more than $ 10,000. was in controversy was erroneous because under New York law the limitation on the hospital's liability created by the New Jersey statute would not be recognized. In an opinion reported at 482 F. Supp. 629 (S.D.N.Y.1979), which recites the history of the case in detail, we ruled that New York law governs in this case, that a New York court would refuse to enforce New Jersey's charitable immunity statute, and therefore that federal subject matter jurisdiction did exist. Id. at 631-36. In addition, we rejected the hospital's contention that in light of the Supreme Court's decision in Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977), the assertion of Seider jurisdiction over it was unconstitutional. Id. at 636-38.
Several weeks after our decision, the United States Supreme Court overruled Seider, holding, in Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 571, 62 L. Ed. 2d 516 (1980), that Seider jurisdiction is not consonant with the requirements of due process. In light of the Supreme Court's decision in Rush, the hospital renews its motion to dismiss this case for lack of personal jurisdiction. The plaintiff cross-moves for an order striking the Hospital's second affirmative defense, which asserts the court's lack of personal jurisdiction over the hospital as a bar to this action.
The present motions present two questions: first, has the hospital waived the defense of lack of personal jurisdiction and thereby submitted fully to the jurisdiction of the court; and second, if not, should Rush v. Savchuk be given retroactive effect in the circumstances of this case?
The plaintiff contends that the hospital never adequately raised the defense of lack of personal jurisdiction, and that, even if it did, it has through its subsequent actions affirmatively invoked the jurisdiction of the court, and thereby waived the defense. In short, the plaintiff argues that the hospital's answer is insufficient to raise the issue, and that by moving to transfer the case to New Jersey for the express purpose of impleading a third party defendant, the hospital invoked the jurisdiction of the court and thereby submitted to it. We find these arguments unpersuasive.
Paragraph 16 of the hospital's answer states:
"This Court, and the Court from which this action was removed, lack jurisdiction over the person of the defendant."
We may safely assume that in asserting this affirmative defense the hospital sought only to avoid making a general appearance in this action and thereby submitting to the full in personam jurisdiction of the court. In so doing, the hospital ensured that Holzsager's action would continue as a quasi-in-rem action, and thus that any recovery would be limited to the face value of the insurance policy attached. See Simpson v. Loehmann, 21 N.Y.2d 305, 310, 287 N.Y.S.2d 633, 636, 234 N.E.2d 669, 671 (1967), reargument denied, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968). To set up lack of personal jurisdiction as an absolute defense in this case would at that time have been profitless, since prior to the Supreme Court's decision in Shaffer the constitutional propriety of Seider jurisdiction was generally accepted.
However, when Holzsager's suit was revived subsequent to the Supreme Court's decision in Shaffer, the hospital vigorously asserted the defense, arguing that in view of the Shaffer decision Seider was no longer good law.
In the circumstances, it is clear that the hospital did adequately interpose the defense of lack of personal jurisdiction, first by invoking it for the limited purpose of circumscribing the court's personal jurisdiction over the hospital, and then by asserting it as an absolute defense after Shaffer suggested that such a defense might be viable.
Holzsager argues, however, that even if the hospital did adequately assert the defense of lack of personal jurisdiction, it waived that defense by moving to transfer this case to New Jersey for the express purpose of impleading a third party defendant, thereby invoking the jurisdiction of the court and submitting to it. See Freeman v. Bee Machine Co., 319 U.S. 448, 63 S. Ct. 1146, 87 L. Ed. 1509 (1943); Merchants Heat & Light Co. v. James B. Clow & Sons, 204 U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488 (1907).
Had the hospital moved to implead the treating physician in New York, affirmatively enlisting the authority of the New York court in its behalf, it would thereby have waived objections to jurisdiction. Trounstine v. Bauer, Pogue & Co., 144 F.2d 379 (2d Cir.1944); R. Clinton Construction Co. v. Bryant & Reaves, Inc., 442 F. Supp. 838 (N.D.Miss.1977); Majerus v. Walk, 275 F. Supp. 952 (D.Minn.1967). But the hospital's motion to implead was made in the New Jersey district court, which enjoyed full jurisdiction over the hospital in any event. The motion addressed to this court sought only an order transferring the case to New Jersey for the convenience of witnesses and the parties, on the theory that it would be more convenient to try the case where all of the interested parties could be brought before a single tribunal. Although this court, by granting the motion to transfer, made it possible for the hospital to invoke the jurisdiction of the New Jersey court on its behalf, this court did not in so doing exercise its own power in aid of the hospital. On a motion to transfer a case pursuant to 28 U.S.C. § 1404, the court is required to consider the convenience of all parties, and in granting such a motion the court acts for the benefit of all, not on behalf of the defendant. By making such a motion, a defendant does not become "so far an actor as to submit to the jurisdiction" of the New York court. Merchants Heat & Light Co. v. James B. Clow & Sons, supra, 204 U.S. at 289, 27 S. Ct. at 285.
We hold that the hospital has not waived its objection to the assertion of Seider jurisdiction over it. We turn, then, to the question whether Rush, which overruled Seider, should be given retroactive effect, defeating personal jurisdiction in this ...