624 F2d 58 Brown v. Grimm

624 F.2d 58

Gene E. BROWN, Plaintiff-Appellant,
Max GRIMM, Defendant-Appellee.

No. 79-2537.

United States Court of Appeals,
Seventh Circuit.

Argued May 1, 1980.
Decided June 11, 1980.

Leroy L. Bianchi, Schaumburg, Ill., for plaintiff-appellant.

Michael W. Rathsack, Chicago, Ill., for defendant-appellee.

Before SWYGERT, PELL and CUDAHY, Circuit Judges.


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At issue in this appeal is whether the trial judge in the Northern District of Illinois abused his discretion when he denied the plaintiff's motion to transfer this personal injury action to the Northern District of Indiana. It is not disputed that the district court lacked personal jurisdiction over the defendant, an Indiana resident for whom no contacts with Illinois were alleged. The automobile accident which was the basis for the suit occurred in Indiana. The trial judge dismissed the action for lack of personal jurisdiction over the defendant. We affirm the denial of plaintiff's motion to transfer.


Plaintiff-appellant would have us hold that a transfer is all but required wher, as here, refiling and adjudication on the merits is unavailable because of the running of the statute of limitations in the transferee forum. Under 28 U.S.C. § 1404(a), the district judge has broad discretion to decide if the transfer is in the interest of justice. Federal Deposit Insurance Corp. v. Citizen Bank & Trust Co., 592 F.2d 364, 368 (7th Cir.), cert. denied, 444 U.S. 829, 100 S.Ct. 56, 62 L.Ed.2d 37 (1979). In Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed.2d 39 (1962), the Supreme Court stated only that the interest of justice "may require" that the actiion be transferred so as not to penalize the plaintiff, (Emphasis added.) Just as it is within the court's discretion to save ethe plaintiff's claim from defeat because of "time-consuming and justice-defeating technicalities,' " id. at 467, 82 S.Ct. at 916 (citation omitted), we hold that it is within his discretion to deny that relief in the instant case.


In his complaint, plaintiff asserted absolutely no basis for personal jurisdiction over an Indiana resident, and at oral argument plaintiff's counsel conceded that he had no jurisdictional basis in mind. A blantant disregarded for the elementary principles of in personam jurisdiction is different from a mistake as in Goldlawr, or a " 'time-consuming and justice-defeating technicalit(y).' " Id. 467.


Finally, we noted that the defective complaint was filed only two days before the second anniversary of the accident, after which time the action would have been barred by the Illinois statute of limitations. Ill.Rev.Stat. ch. 83, § 15. We also observed that at the time the complaint was filed, the counsel could easily and quickly have traveled by automobile to Indiana and filed the complaint in a court having personal jurisdiction.