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Floyd v. Swift Transportation Corp.

August 31, 2006


The opinion of the court was delivered by: Leon Jordan United States District Judge


This civil action is before the court for consideration of defendant's*fn1 "Motion to Dismiss and/or Transfer Venue" [doc. 5]. Plaintiffs have responded in opposition to the motion [doc. 9]. The court has determined that a hearing is not necessary, and the motion is ripe for the court's determination. For the reasons stated herein, the motion will be denied.


This lawsuit was originally filed in the Circuit Court for Jefferson County, Tennessee and was removed to this court by the defendant on the basis of diversity jurisdiction [doc. 1]. The accident which is the subject of this case occurred in Roland, Oklahoma on February 11, 2004. According to defendant, Roland, Oklahoma is located within the Eastern District of Oklahoma. Defendant also represents that it has a terminal in Memphis, Tennessee.

Plaintiff Ronnie Floyd alleges that the accident occurred while he was sleeping in the cab of his truck at a truck stop. He contends that his vehicle was struck by a truck owned by defendant and that he was thrown from the sleeping compartment, causing him injury. Plaintiff Sherrie Floyd has sued for loss of consortium.


Defendant has moved pursuant to 28 U.S.C. § 1406 to dismiss this case or transfer it to the Western District of Tennessee or the Eastern District of Oklahoma and also pursuant to 28 U.S.C. § 1404 to transfer the case to either of those districts for the convenience of the parties.

Defendant first argues that the underlying venue in the state court was improper and that based on derivative jurisdiction venue can be challenged in this court. Defendant argues that under Tennessee law the underlying lawsuit is a transitory action and that pursuant to Tennessee Code Annotated section 20-4-101(a) it should have been filed where the cause of action arose or in the county where the defendant resides or is found. Since it was not, defendant argues that venue in the state court was not proper. Relying primarily on PT United Can Company Ltd. v. Crown Cork & Seal Company, Inc., 138 F.3d 65 (2nd Cir. 1998), which based its venue discussion on derivative jurisdiction, defendant contends that pursuant to § 1406 this case should be dismissed or transferred to the Eastern District of Oklahoma or the Western District of Tennessee. The court does not agree.

The judicial doctrine of derivative jurisdiction was overruled in 1986 with the passage by Congress of 28 U.S.C. § 1441(e). Morda v. Klein, 865 F.2d 782, 783 (6th Cir. 1989).

In 1986 Congress amended § 1441, the general removal provision, by adding subsection (e). That subsection provides that a district court to which a civil action is removed is not precluded from hearing and determining any claim simply because the state court from which the action was removed did not have jurisdiction over that claim. . . . [Section] 1441(e)has abrogated the theory of derivative jurisdiction. While it was once settled law that a federal court's removal jurisdiction was derived from the state court's jurisdiction, this rule has been abolished by [§ 1441(e)].

Hollis v. Fla. State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001) (internal quotation marks and citations omitted). In Hollis, the Eleventh Circuit had before it the same question raised in this case, "whether a defendant can obtain dismissal of a removed action on the ground that, when originally filed in state court, the action lacked proper venue under state law." Id at 1296. The Hollis Court determined that because of § 1441(e), state-law venue deficiencies can no longer be the basis for dismissing a removed action. Id. "Upon removal the question of venue is governed by federal law, not state law, and under § 1441(a) a properly removed action necessarily fixes venue in the district where the state court action was pending." Id.; see also Bland v. Freightliner LLC, 206 F. Supp. 2d 1202 (M.D. Fla. 2002); Shivers v. Sherman Acquisition, II, L.P., No. 4:06 CV 30, 2006 WL 633272, at *1 (N.D. Ohio Mar. 9, 2006) ("[T]he proper statutory authority on venue for removed actions is found in § 1441(a) and not the underlying state rules.").

"Venue in removed cases is governed solely by § 1441(a)."*fn2 Kerobo v. SW. Clean Fuels, Corp., 285 F.3d 531, 534 (6th Cir. 2002) (citing Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953)). The general venue provision of 28 U.S.C. § 1391 does not apply in cases removed from state court. Jeffrey Mining Prods. v. Left Fork Mining Co., 992 F. Supp. 937, 938 (N.D. Ohio 1997) (citing Bacik v. Peek, 888 F. Supp. 1405, 1413 (N.D. Ohio 1993)). Section 1441(a) sets federal venue in the district where the state case is pending as a matter of law. Thus, "[a] defendant who removes an action from state to federal court cannot then turn around and request a venue transfer pursuant to § 1406(a), the applicable statute where venue in the transferring court is improper, because that party implicitly sanctioned venue in the federal district where he sought to move the state lawsuit." Jeffrey Mining, 992 F. Supp. at 938 (citation omitted); see also Hollis, 259 F.3d at 1299; Bacik, 888 F. Supp. at 1413.

Venue is proper in this court whether or not venue was proper in the state court from which this case was removed. Accordingly, defendant cannot seek to dismiss or transfer this case pursuant to § 1406(a), because that provision does not apply. However, defendant may seek a transfer pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties.*fn3

When considering a motion to transfer based on § 1404(a), "a district court should consider the private interests of the parties, including their convenience and the convenience of potential witnesses, as well as other public-interest concerns, such as systemic integrity and fairness, which come under the rubric of 'interests of justice.'" Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (citations omitted). "The private interests courts consider also include the plaintiff's choice of forum and the location of records as well as the convenience of witnesses, but the plaintiff's choice of forum is entitled to 'great weight.'" Jeffrey Mining, 992 F. Supp. at 938 (citing Bacik, 888 F. Supp. at 1414). "Foremost consideration must be given to the plaintiff's choice of forum. A motion ...

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