Seville v. Maersk Line ( 2022 )

Case: 21-30636 Document: 00516551237 Page: 1 Date Filed: 11/18/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 18, 2022
No. 21-30636 Lyle W. Cayce
Clerk
Stacy Seville, as Personal Representative of Peter
Wojcikowski,
Plaintiff—Appellant,
versus
Maersk Line, Limited,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2727
Before Jones, Southwick, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Plaintiff filed suit in a district court that concededly had no personal
jurisdiction over the defendant and no colorable basis for venue. The district
court dismissed the suit and refused to transfer venue. We affirm.
I.
Peter Wojcikowski was a seaman employed by defendant-appellee
Maersk Line, Ltd. (MLL). On October 28, 2017, while working aboard an
MLL vessel berthed in Bahrain, he was involved in an accident and suffered
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No. 21-30636
a back injury. He returned to the United States for treatment and, a few weeks
later, died from a self-inflicted gunshot wound.
On October 6, 2020, acting as Mr. Wojcikowski’s personal
representative, plaintiff-appellant Stacy Seville filed this Jones Act
negligence claim in the Eastern District of Louisiana. She argued Mr.
Wojcikowski’s back injury was the proximate cause of his death.
MLL moved to dismiss for lack of personal jurisdiction, arguing venue
was improper because MLL is not subject to personal jurisdiction in the
Eastern District of Louisiana. Seville opposed the motion without contesting
any of MLL’s jurisdictional arguments. Instead she requested transfer to the
Eastern District of Virginia under 28 U.S.C. § 1406(a). The district court
granted MLL’s Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction, denied Seville’s request to transfer under § 1406(a), and entered
final judgment in favor of MLL. Seville timely appealed.
II.
Everyone here agrees the Eastern District of Louisiana was not a
proper venue for this lawsuit. Appellant says the district court nonetheless
abused its discretion by denying the motion to transfer venue and dismissing
the case. We disagree.
We (A) explain the venue and venue-transfer rules. Then we
(B) explain why Seville failed to carry her burden to show transfer was
warranted. Finally, we (C) hold the district court did not abuse its discretion
in declining to transfer this case.
A.
In suits brought under the Jones Act, venue is “proper in any district
in which the defendant is subject to personal jurisdiction.” 1 Admiralty
and Maritime Law § 6:20 (6th ed., Dec. 2021 update) (citing 28 U.S.C.
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§ 1391(c)); see also 28 U.S.C. § 1391(b)(1) (“A civil action may be brought
in . . . a judicial district in which any defendant resides[.]”); id. § 1391(c)(2)
(“[A]n entity with the capacity to sue and be sued in its common name under
applicable law, whether or not incorporated, shall be deemed to reside, if a
defendant, in any judicial district in which such defendant is subject to the
court’s personal jurisdiction with respect to the civil action in question[.]”).
Where venue is improper, the district court should generally dismiss
the case. But the court retains discretion to transfer it to a proper venue if
such a transfer would serve “the interest of justice.” 28 U.S.C. § 1406(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.” (emphasis added)). Among the relevant considerations for
determining whether transfer is in the interest of justice, courts examine the
plaintiff’s reasons for filing suit in the improper district in the first place and
ask whether the “plaintiff’s belief that venue was proper was in good faith
and reasonable.” 14D Charles Alan Wright et al., Federal
Practice and Procedure § 3827 (4th ed. 2021) [hereinafter Wright
& Miller]. 1 And where a “plaintiff’s attorney reasonably could have
foreseen that the forum in which the suit was filed was improper,” courts
1
The full paragraph reads: “In most cases of improper venue, the courts conclude
that it is in the interest of justice to transfer to a proper forum rather than to dismiss the
litigation. The reasons for doing so are especially compelling if the statute of limitations has
run since the commencement of the action, so that dismissal might prevent the institution
of a new suit by the plaintiff and a resolution on the merits, or if the defendant has misled
the plaintiff on the facts relevant to venue. District courts also are likely to order transfer
rather than dismissal if it would be more efficient or economical to do so or if the plaintiff’s
belief that venue was proper was in good faith and reasonable. These are far from the only
reasons for a court to prefer transfer to dismissal. Indeed, it is enough simply that the
district judge, in the sound exercise of discretion, concludes that transfer is in the interest
of justice, as many courts have concluded.” 14D Wright & Miller § 3827.
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“often dismiss rather than transfer under Section 1406(a)” on the idea “that
similar conduct should be discouraged.” Ibid. That’s because it is “obviously
not ‘in the interest of justice’ to allow [§ 1406(a)] to be used to aid a non-
diligent plaintiff who knowingly files a case in the wrong district.” Dubin v.
United States, 380 F.2d 813, 816 n.5 (5th Cir. 1967).
That’s true even where a statute of limitations might bar re-filing. Our
court has long recognized that a district court retains discretion in such cases
to deny a non-diligent plaintiff’s request for transfer. See, e.g., ibid. (“[The]
statute of limitations” would be “frustrated by” § 1406 if that statute could
be “used to aid a non-diligent plaintiff[.]”). Numerous other courts agree. 2
The rule is clear and well-established: A district court may deny a request for
transfer under § 1406 and dismiss the case where transfer would reward the
2
See, e.g., Stanifer v. Brannan, 564 F.3d 455, 460 (6th Cir. 2009) (explaining
court’s discretion to deny transfer where there was no “assertion of . . . personal
jurisdiction that provided some arguable basis for thinking that the action was properly
brought in the district in which it was originally filed,” even if re-filing is time-barred);
Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1202 (4th Cir. 1993) (“[A] district court does
not abuse its discretion when it denies, as not in the interest of justice, a plaintiff’s [transfer
request under § 1406] because the plaintiff’s attorney could reasonably have foreseen that
the forum in which he/she filed was improper.”); Spar, Inc. v. Info. Res., Inc., 956 F.2d 392,
394 (2d Cir. 1992) (denying transfer where plaintiff sought “to avoid a statute of limitations
defect through a transfer of venue” because it “would reward plaintiffs for their lack of
diligence”); Cirafici v. City of Ithaca, 968 F.2d 1220 (unpublished table decision), 1992 WL
149862, at *2 (9th Cir. 1992) (holding transfer not in the interest of justice where plaintiff
“was not diligent in prosecuting his action,” even though plaintiff’s “action may be time-
barred”); Deleski v. Raymark Indus., Inc., 819 F.2d 377, 381 (3d Cir. 1987) (“It is not in the
‘interest of justice’ to transfer this case . . . upon appellant’s tardy discovery that her
complaint is time-barred.”); Coté v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986) (denying
transfer request where limitations period had run and “[e]lementary prudence would have
indicated to [plaintiff’s] lawyer that he must file a protective suit” in the forum “where the
plaintiff can get personal jurisdiction over the defendant before, not after, the statute of
limitations runs”).
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plaintiff’s lack of diligence—even if the dismissal means the plaintiff will be
time-barred from filing again in a proper venue.
B.
Appellant failed to carry her burden to show transfer was warranted
here. That’s because (1) MLL is not subject to personal jurisdiction in the
Eastern District of Louisiana and (2) that fact was entirely foreseeable to any
attorney exercising any amount of diligence.
1.
The Eastern District of Louisiana cannot assert general personal
jurisdiction over MLL. Nor can it assert specific personal jurisdiction over
MLL. So MLL is not subject to personal jurisdiction in the district where
appellant filed suit.
First, general personal jurisdiction. A court may assert general
personal jurisdiction over foreign corporations “when their affiliations with
the State are so continuous and systematic as to render them essentially at
home in the forum State.” BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558
(2017) (quotation omitted). There are two “paradigm” forums in which a
corporate defendant is “at home.” Ibid. (quotation omitted). They are (1) the
corporation’s place of incorporation and (2) its principal place of business.
See ibid. Beyond those two “paradigm” forums, there may also be
“exceptional case[s]” where the exercise of general jurisdiction is
appropriate because a corporate defendant’s operations are “so substantial
and of such a nature as to render the corporation at home” in the forum State.
Ibid. (quotation omitted). But it is “incredibly difficult to establish general
jurisdiction in a forum other than the place of incorporation or principal place
of business.” Frank v. P N K (Lake Charles) LLC, 947 F.3d 331, 337 (5th Cir.
2020) (quotation omitted).
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MLL is incorporated in Delaware. Its principal place of business is in
Virginia. And appellant offers no reason whatsoever to think this might be
“the exceptional case” where MLL’s activities in Louisiana are so
substantial as to render it at home there. So MLL is not subject to general
personal jurisdiction in the Eastern District of Louisiana.
Second, specific personal jurisdiction. Specific jurisdiction “focuses
on the relationship among the defendant, the forum, and the litigation.”
Walden v. Fiore, 571 U.S. 277, 284 (2014) (quotation omitted). It “arises
when a defendant’s minimum contacts with a forum state are related to the
pending lawsuit.” E. Concrete Materials, Inc. v. ACE Am. Ins. Co., 948 F.3d
289, 296 (5th Cir. 2020). Our court applies a three-prong analysis: We
consider “(1) whether the defendant has minimum contacts with the forum
[S]tate, i.e., whether it purposely directed its activities toward the forum
[S]tate or purposefully availed itself of the privileges of conducting activities
there.” Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 433 (5th Cir. 2014)
(quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir.
2006)). Then we analyze “(2) whether the plaintiff’s cause of action arises
out of or results from the defendant’s forum-related contacts.” Ibid. Finally,
we ask “(3) whether the exercise of personal jurisdiction is fair and
reasonable.” Ibid. It’s the plaintiff’s burden to establish the first two prongs.
See E. Concrete Materials, 948 F.3d at 296.
Appellant can’t meet that burden. Her complaint alleged that MLL
does business in Louisiana and is amenable to process there. But there is
simply no basis to conclude appellant’s cause of action arises out of those
forum-related contacts. All agree the cause of action arises out of events that
took place far from Louisiana in the waters of Bahrain, and appellant has
made no effort to connect the accident in Bahrain to MLL’s business in
Louisiana. Absent any attempt to explain the relationship between the
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defendant, the forum, and this litigation, there is no way for appellant to
establish specific jurisdiction.
2.
A district court might excuse this sort of mistake where plaintiff’s
attorney could not reasonably have anticipated the venue problem. That’s
especially true if it becomes clear the defendant is at fault—where, for
example, “the defendant has misled the plaintiff on the facts relevant to
venue.” 14D Wright & Miller § 3827. But where “the plaintiff’s
attorney reasonably could have foreseen that the forum in which the suit was
filed was improper,” ibid., transfer is normally unwarranted. And here, it was
entirely foreseeable that the Eastern District of Louisiana lacked personal
jurisdiction over MLL.
It is evident from the face of the complaint that MLL is not subject to
general jurisdiction in the Eastern District of Louisiana. The complaint
alleged that MLL is a Delaware corporation with its principal place of
business in Virginia. And the complaint is devoid of any allegations that come
close to suggesting MLL’s activities in Louisiana are so substantial as to
render it at home there. So “elementary prudence” should have revealed to
Seville’s attorney that the Eastern District of Louisiana lacked general
personal jurisdiction over MLL. Coté v. Wadel, 796 F.2d 981, 985 (7th Cir.
1986).
So too with specific jurisdiction. As already explained, nothing in
appellant’s filings suggests a connection between defendant’s forum-related
contacts and this litigation. Moreover, appellant openly admitted there was
no basis for thinking such a connection existed: When asked at oral argument
to identify the connection between this lawsuit and the chosen forum,
appellant’s attorney told us “there isn’t a connection, other than that we
[appellant’s attorneys] actually practice here [in the Eastern District of
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Louisiana].” Oral Arg. at 9:20–9:35. It should go without saying that an
attorney cannot choose a venue based on personal convenience.
Nor can an attorney file in the wrong venue and hope his opponent
doesn’t object. At oral argument, appellant’s counsel purported to justify
filing in the wrong venue on the ground that personal jurisdiction is waivable.
See Oral Arg. at 11:40–12:30 (Q: “So it’s okay for your law firm to file any
suit at all in the district where you practice and place the burden on the
defendant to transfer to the proper venue at any time, is that what you think
§ 1406 says?” A: “. . . I’m saying yes to your question because there’s always
a chance that they waive the jurisdiction themselves.”). It’s true that
personal jurisdiction is waivable. It’s also irrelevant. That’s because the
Federal Rules of Civil Procedure require a good-faith and colorable basis for
every representation made to a federal court—no matter whether the other
side objects. Specifically:
Representations to the Court. By presenting to the
court a pleading, written motion, or other paper—whether by
signing, filing, submitting, or later advocating it—an attorney
or unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
...
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law[.]
Fed. R. Civ. P. 11(b)(2).
Appellant’s attorney filed the complaint in the Eastern District of
Louisiana and represented that “MLL is subject to and within the
jurisdiction and venue of [that] Court.” Yet at oral argument, counsel stated
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that he (1) believed he needed no colorable basis for filing in that district,
(2) in fact had no colorable basis for the representation he made as to
jurisdiction and venue, (3) had known from the start that his only real chance
of establishing personal jurisdiction and venue was if the defendant failed to
object, and (4) figured he could always obtain a transfer under § 1406 if it
turned out defendant objected. Those statements are equal parts disturbing
and surprising. Today we hold that such admissions not only foreclose
transfer under § 1406, on defendant’s objection, but also give rise to Rule 11
violations.
C.
Section 1406 “confer[s] broad discretion in ruling on a motion to
transfer.” Stanifer v. Brannan, 564 F.3d 455, 456–57 (6th Cir. 2009). And a
district court’s decision to deny a motion to transfer venue “will not be
reversed on appeal absent an abuse of discretion.” Peteet v. Dow Chem. Co.,
868 F.2d 1428, 1436 (5th Cir. 1989).
It was clearly not an abuse of discretion for the district court to deny
appellant’s motion to transfer venue in this case. Appellant’s attorney, by his
own admission, knew there was no colorable basis for laying venue in the
Eastern District of Louisiana. We have long made clear that it is “obviously
not in the interest of justice to allow [§ 1406] to be used to aid a non-diligent
plaintiff who knowingly files a case in the wrong district.” Dubin, 380 F.2d at
816 n.5 (quotation omitted).
* * *
For these reasons, we AFFIRM the district court’s order dismissing
the case for lack of personal jurisdiction and denying appellant’s request to
transfer under 28 U.S.C. § 1406.
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