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Portee v. Cleveland Clinic Foundation

United States District Court, S.D. Indiana, Indianapolis Division

February 6, 2015

CLEVELAND CLINIC FOUNDATION Care of CT Corporation System, PETER J EVANS M.D., PHD, NATHAN EVERDING M.D., JOHN DOE(S) Unknown Employees of The Cleveland Clinic Foundation, JOHN DOE Unknown Resident of Cleveland Clinic Foundation, Defendants.



This matter comes before us on Plaintiffs' Motion to Vacate Dismissal and Reopen Case for Purposes of Transfer [Dkt. No. 35] filed on August 18, 2014. Defendants filed an objection in response on September 2, 2014 [Dkt. No. 36]. Plaintiffs filed a reply on September 22, 2014 [Dkt. No. 38]. For the following reasons, we DENY the Motion.

Facts and Procedure History

The parties agree to the basic facts and procedural history of this case. On October 3, 2012, Plaintiff Pamela Portee underwent a total elbow arthroplasty replacement performed by Drs. Evans and Everding at the Cleveland Clinic Foundation. Plaintiffs allege that Ms. Portee's ulnar nerve was severed during the surgery. Plaintiffs filed their Complaint for medical malpractice on October 2, 2013, which Defendants moved to dismiss on October 28, 2013 for lack of personal jurisdiction or in the alternative to transfer on forum non conveniens grounds. In Plaintiffs' November 8, 2013 response, they requested that we deny this motion. Plaintiffs argued that the doctrine of forum non conveniens did not apply and the "case is properly venued in Indiana." [Dkt. No. 11; see also Dkt. No. 16 at 6 (Plaintiffs' Surreply reiterating that "the case is properly venued in Indiana").][1] In their reply, Defendants renewed their request that we dismiss the action, or in the alternative transfer the case to a federal district court in Ohio. [Dkt. No. 13.]

On July 28, 2014, we granted Defendants' Motion to Dismiss, finding that Plaintiffs failed to establish the Court's jurisdiction over Defendants, and we entered final judgment. It appears, based on Plaintiffs' allegations, that venue, personal jurisdiction, and subject matter jurisdiction (diversity of citizenship) exist in the Northern District of Ohio, Eastern Division. [Dkt. No. 35 at 3.] Each Defendant was employed at the Cleveland Clinic Foundation (headquartered and incorporated in Ohio). [ Id. ] The Northern District of Ohio is the district in which the alleged medical malpractice occurred. [ Id. at 3-4.] Consequently, Plaintiffs seek a transfer to the Northern District Ohio in lieu of dismissal. The parties also agree that a one-year statute of limitations applies to Plaintiffs' medical malpractice claims and that the statute of limitations period has expired.

28 U.S.C. §§ 1404 and 1406

The parties cite both 28 U.S.C. § 1404(a) and § 1406(a) in connection with Plaintiffs' transfer motion. Their confusion of these statutes is likely the result of the "nearly hopeless muddle of conflicting reasoning and precedent" relating to them. Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1106 (5th Cir. 1981); In re Vitamins Antitrust Litig., 270 F.Supp.2d 15, 36 (D.D.C. 2003) ("Courts apparently disagree with respect to whether one of the two sections of the U.S. Code is most appropriate in circumstances like those presented in the instant motions, or whether transfer is actually authorized by the reading of the provisions together."). Although § 1404(a) and § 1406(a) are similar, they are not identical. Theoretically, § 1404 is applicable where venue was proper in the original district, but for the convenience of parties and witnesses and in the interest of justice, a more convenient district exists to which the case should be transferred. 28 U.S.C. § 1404(a). Section 1406(a) is applicable to cure a defect where a case is filed in the wrong district. That section provides:

(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

28 U.S.C. § 1406(a). However, many courts have used both § 1404 and § 1406 as a basis to transfer cases where venue was improper and/or personal jurisdiction was lacking. 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3827 (4th ed. 2014) (citing Flynn v. Greg Anthony Constr. Co., 95 Fed.Appx. 726, 738 (6th Cir. 2003) (noting that both § 1404(a) and § 1406(a) allow for transfers "only when it is in the interest of justice")).

Although Defendants originally moved to dismiss Plaintiffs' Complaint for lack of personal jurisdiction or in the alternative to transfer this case pursuant to § 1404(a), we determined that the court lacked personal jurisdiction, making venue also improper.[2] As demonstrated by Defendants' Motion to Dismiss, the Defendants do not reside in Indiana, the events at issue did not occur in Indiana, and the Defendants are not subject to personal jurisdiction here. Consequently, this Court lacks personal jurisdiction over the Defendants and the Southern District of Indiana is an improper venue for Plaintiffs' claims. As a result, we will consider Plaintiffs' request to transfer venue pursuant to § 1406(a) as a proposed means to cure defective venue. Regardless, the standard for transfer under § 1404(a) and § 1406(a) is the same - "in the interest of justice."

Determining Whether Transfer Is "In The Interest of Justice."

The decision whether to dismiss or transfer is within the district court's sound discretion. Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986). Two oft-cited cases bookend the spectrum of circumstances that result in either transfer or dismissal: Cote, 796 F.2d at 984-85 (denying transfer when plaintiff makes an "elementary" mistake as to venue) and Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962) (avoiding unjust result for the plaintiff with "time-consuming and justice-defeating technicalities"). Plaintiffs focus on Goldlawr and decisions in which plaintiffs' claims are transferred to avoid the statute of limitations barring those claims. Defendants focus on Cote and similar decisions, arguing that Plaintiffs' personal jurisdiction miscalculation was an elementary error for which the appropriate result is dismissal, not transfer.

In Goldlawr, the Supreme Court considered whether a court lacking personal jurisdiction over a defendant may transfer the case to another district. 369 U.S. at 464-65. The Court held that "[n]othing in [the] language [of 28 U.S.C. 1406(a)] indicates that the operation of the section was intended to be limited to actions in which the transferring court has personal jurisdiction over the defendants." Id. at 465. Considering the legislative purpose of § 1406(a), the Court found:

The problem which gave rise to the enactment of the section was that of avoiding the injustice which had often resulted to plaintiffs from dismissal of their actions merely because they had made an erroneous guess with regard to the existence of some elusive fact of the kind upon which venue provisions often turn. Indeed, this case is itself a typical example of the problem sought to be avoided, for dismissal here would have resulted in plaintiff's losing a substantial part of its cause of action under the statute of limitations merely because it made a mistake in thinking that the respondent corporations could be found' or that they transact * * * business' in the Eastern District of Pennsylvania. The language and ...

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