Lead Opinion
OPINION OF THE COURT
In this diversity case, we are asked to determine whether or not the District Court abused its discretion in denying appellant’s motion to transfer her case from the Eastern District of Pennsylvania to the District of New Jersey pursuant to 28 U.S.C. § 1404(a) (1982) (“§ 1404(a)”).
John Kenny ("Kenny") died on August 14, 1973. While the death certificate listed the cause of death as simply "lung cancer," the autopsy report specifically noted the presence of "{p]oorly differentiated bron-chogenic carcinoma ... [a]ssociated with asbestosis." Appendix at 80. Although Kenny's widow, Diane Deleski ("Deleski"), authorized the autopsy, she says that she did not see a copy of the report, and hence did not learn of her late husband's asbestos-related condition, until September of 1981. On July 12, 1983, less than two years after she discovered the asbestos link, Deleski brought suit on behalf of Kenny's estate under the Wrongful Death Act of New Jersey, N.J.Stat.Ann. §~ 2A:31-1--2A:31-6, and 2A:15-3 (West 1952), against various asbestos manufacturers in the Eastern District of Pennsylvania. She also claimed loss of consortium and damage to her own health as a result of her handling of her husband's asbestos-tainted clothing and her inhalation of the asbestos dust he brought into the house. On January 17, 1986, roughly three weeks prior to the February 10, 1986 trial date, defendants filed a motion for summary judgment arguing that appellant's action was barred by Pennsylvania's statute of limitations in wrongful death and survival actions.
Deleski's claim, which was brought ten years after her husband's death, is clearly barred by the Pennsylvania statute of limitations. Prior to June 1978, the time limit for wrongful death actions was controlled by Pa.Stat.Ann. tit. 12, § 1603 (Purdon 1953) (repealed 1978), which required such actions to be brought "within one year after the death, and not thereafter." In 1978, the legislature passed a new statute that required actions "to recover damages for ... the death of an individual caused by the wrongful act or neglect ... of another," 42 Pa.Con.Stat. Ann. § 5524(2) (Purdon 1981), to be brought within two years. The longer limitations period is not available to Deleski, as the legislature expressly provided that "[n]o cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act." Judiciary Act of July 9, 1976, P.L. 586, No. 142, § 25(b) (1978) (reprinted following 42 Pa. Cons.Stat.Ann. § 5524 (Pur-don 1981)). Because Deleski's claim was clearly barred by the pre-1978 statute, which unambiguously requires the commencement of a wrongful death action within one year of the date of death, it may not be revived by the 1978 statute.
At first blush, it might appear that, because she did not discover the possible asbestos link to Kenny's death until 1981, Deleski is entitled to the application of the equitable "discovery rule," which tolls the running of the statute of limitations period when the injury or its cause is not immediately evident to the victim. See Ciccarelli v. Carey Canadian Mines, Ltd.,
In addition to her wrongful death claims, Deleski also brought survival claims on behalf of her late husband. The limitation on these actions is controlled by Pa.Stat.Ann. tit. 12, § 34 (Purdon 1953) (repealed 1978), which provided that
Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case [sic] where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law.
In Anthony v. Koppers, the Pennsylvania Supreme Court found that the two-year limitations period for survival actions cannot be tolled by the discovery rule. The court reasoned that the survival statute, unlike the wrongful death act, does not create a new cause of action in the decedent's representatives, but instead preserves a cause of action possessed by the decedent during his lifetime. Therefore, the court concluded that it would be logically impossible to toll the accrual of the cause of action until some time after the decedent's death (i.e., upon the survivor's discovery of the decedent's injury). By arguing that the survival action did not accrue until eight years after Kenny's death, Deleski "concede[s] that no valid cause of action existed at the time of death which could be preserved under the survival statutes." Anthony v. Koppers,
Deleski also claimed injury to her' own health as a result of her husband's exposure to asbestos.
For these reasons, we find that the district court's granting of the defendants' motion for summary judgment was proper. The clear barring of appellant's claim by the applicable Pennsylvania statute of limitations also leads us to conclude that Judge Scirica was well within his discretion in refusing appellant's § 1404(a) transfer motion. Deleski's argument in support of her transfer motion is that transfer to the District of New Jersey would be in the "interest of justice" because her case, while barred by the statute of limitations in Pennsylvania, would not be barred by the statute of limitations in New Jersey. Dde-ski claims that she was not aware that her case would be time-barred in Pennsylvania until 1985, when this court decided Ross v. Johns-Manville Corp.,
We need not reach the two issues to which appellant's brief is chiefly devoted. First, because we find that transfer would not be in the interest of justice, we need not determine which statute of limitations period-that of the transferor or the transferee court-should apply in a § 1404(a) transfer brought by the plaintiff. Because the case before us is easily resolved on the basis of existing law, we believe that the doctrine of judicial restraint cautions against the resolution of this complex and important procedural issue at this time. Cf. Republic Indus. v. Central Pa. Teamsters Pension Fund,
The order of the district court will be affirmed.
Notes
. Section 1404(a) provides that:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
. It is beyond cavil that a federal district court sitting in diversity must follow the forum's choice of law rules to determine the applicable statute of limitations period. See Guaranty Trust Co. v. York,
. The precedential value of this plurality opinion is discussed in McGowan v. University of Scranton,
. Deleski also claimed loss of consortium. Because the limitations period for loss of consortium claims is coextensive with the limitations period for the underlying injury to the spouse, Cathcart v. Keene Industrial Insulation,
. We note that, although these issues were raised in Deleski's complaint, they were not discussed by the judge below and not briefed by either party on appeal. We reach them here because we believe that the viability of this portion of the plaintiff's complaint is germane, although certainly neither conclusive nor dis-positive, to the core question we review today: whether or not the transfer of this case to the District of New Jersey would be in the "interest of justice."
Concurrence Opinion
concurring.
I join the majority opinion so far as it goes. Plaintiff contends in part that, when
In my view, however the majority does not deal adequately with Deleski’s contentions (1) that transfer was proper here because the transferee forum would have applied New Jersey law to the dispute; (2) that under that law the suit would not have been time-barred, and (3) that transfer was therefore in the interest of justice. I think we must answer that argument as plaintiff has made it.
In Van Dusen v. Barrack,
Plaintiff has put her case to us as an opportunity to answer the question reserved by the Supreme Court in Van Du-sen.
Like the majority, I do not reach the issue as reserved by the Supreme Court in Van Dusen and as stated for us here by Deleski. Because I think we must, I would go further than the majority. I would hold that an opportunity for either party to circumvent unfavorable law in the transferor state does not make transfer “in the interest of justice” for purposes of § 1404. I reject plaintiff’s argument, therefore, because I believe that, as the term is used in § 1404(a), the “interest of justice” cannot be understood to include any impact on the law governing the case. The majority recognizes that “the core question” on this appeal is “whether or not transfer of this case to the District of New Jersey would be in the ‘interest of justice.’ ” Majority op. at 381 n. 5. It concludes, however, that that question can be answered simply by observing that this lawsuit is time-barred under Pennsylvania law, and that Deleski should have known as much when she filed the complaint. As noted above, however, appellant is well aware that her complaint is barred under this court’s opinion in Ross: her argument is not based on surprise but on the desireability of avoiding time bars if that can be done. To say that Deleski should have known about the time bar when her complaint was filed therefore does not answer the question whether it is in the interest of justice to avoid the bar if possible.
While Van Dusen decided only what law should be applied on defendant’s § 1404 motion, much of the Court’s reasoning was not restricted to defendants’ requests for transfer. Speaking generally about the choice of law after a change of venue, the Court instructed:
certainly does not justify the rather startling conclusion that one might “get a change of law as a bonus for a change of venue.” [quoting Justice Jackson, dissenting, in Wells v. Simonds Abrasive Co., 345 U.S. 514 , 522 [73 S.Ct. 856 , 860,97 L.Ed. 1211 ] (1953) ]. Indeed, an interpretation accepting such a rule would go far to frustrate the remedial purposes of § 1404(a). If a change of law were in the offing, the parties might well regard the section primarily as a forum-shopping instrument.
We believe, therefore, that both the history and purposes of § 1404(a) indicate that it should be regarded as a federal judicial housekeeping measure, dealing with the placement of litigation in the federal courts and generally intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms.
Id. at 636,
While not dispositive, I note as well that the statute’s language also suggests that it is intended to authorize courts to eliminate only those obstacles to merits dispositions which arise from the inconvenient locale. The statute provides that transfer may be ordered “for the convenience of the parties and witnesses, in the interest of justice.” The fact that a comma follows “witnesses,” rather than a conjunction, suggests that the “interest of justice” with which the statute is concerned is that “interest” related to “the convenience of the parties and witnesses.” If the statute had allowed courts to transfer “for the convenience of the parties and witnesses or in the interest of justice,” plaintiff might have a stronger case.
An additional reason for believing that the “interest of justice” does not embrace the effect of a transfer on governing law is that there is no practical or accurate way to assess the impact on “justice” of such a change. To make such an assessment would require a federal court to decide which of two states’ laws is more “just.” Absent a clear instruction in the statute or its legislative history, I am unwilling to believe that Congress posed that question to us when it passed § 1404.
Here, for example, the plaintiff has argued that it is in the interest of justice to enable her to avoid a statute of limitations. Some consider time bars annoying technicalities, and it is upon this approach that plaintiff has built her argument before this Court. But time bars are as much laws— the results of important policy choices by states — as any other kind of state statute, and a federal court has no reason or right to prefer New Jersey’s decision on time bars to Pennsylvania’s.
Moreover, what about other changes in law aside from the particular change in the
As I am sure is obvious, I think the only way to deal with this question is to hold that changes in the law governing the dispute will not be understood to have an impact on “justice” for purposes of a § 1404(a) motion. For purposes of § 1404(a) each state’s law must be deemed equally “just.”
Finally, plaintiff seeks to avoid the inquiry into which state’s law is more “just” by pointing out that, since she could have filed her complaint in New Jersey in the first place, adoption of the rule she seeks will only give her what she would otherwise have been entitled to. Plaintiff is correct that, given Erie and Klaxon, her freedom to chose a forum is, in part, a freedom to decide which state’s law will govern her case. She is wrong, however, in arguing that because she has that choice at the outset of the case she may still make it — for a second time — after the complaint is filed.
Plaintiff’s error is that she ignores the fact that transfer is authorized here only under the terms of § 1404(a). That section permits a court to order transfer if it is in the “interest of justice.” Here plaintiff has contended that the change is in the interest of justice because it will bring her under a more favorable statute of limitations. We could accept that argument only if we decided that it was “just” for plaintiff to be so governed. Saying that she could have chosen to be so governed if she had filed her complaint in New Jersey does not answer the question whether we should order her case to be transferred so she can be so governed now.
I note in this regard that plaintiff’s argument would entitle her not only to this change of forum, but perhaps to a second, third, or ninth change. The prospect of a defendant being dragged to several different fora while a plaintiff searches for the most hospitable law is singularly unattractive. As with the inquiry into the relative “justice” of different state’s laws, I am unwilling to believe that Congress created such an entitlement when it passed § 1404.
For these reasons I would hold that changes in substantive law cannot be a basis for a motion to transfer under § 1404(a). On that ground I would affirm the district court’s refusal to transfer this case, as well as the dismissal which must follow if the case is governed by the Pennsylvania statute of limitations.
. A number of courts have addressed the question reserved by the Supreme Court. Most have held that the substantive law of the transferor forum should apply. See, e.g., Gonzalez v. Volvo of America,
. A desire to circumvent procedural technicalities must be distinguished from a desire to escape unfavorable, and perhaps seemingly arbitrary, governing law. In Goldlawr, Inc. v. Heiman,