the removal was proper, does the stay created by 11 U.S.C. § 362 prevent the transfer of this case in its entirety? Third, if the case cannot be transferred with respect to Tele-Save, can it be transferred with respect to defendants Eckelberry and Dutton?
I conclude that the case was properly removed. Generally, all defendants must join in a petition for removal to the Federal Court. However, 11 U.S.C. § 362(a) provides that a petition filed under the Bankruptcy Act "operates as a stay, applicable to all entities, of . . . the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor . . ." Even though plaintiff was unaware of the filing of the bankruptcy petition when it filed its complaint in the state court, the filing of the complaint against Tele-Save was unlawful and must be deemed a nullity. This is analogous to removal by one defendant without the joinder of another defendant who was not served. Di Cesare-Engler Productions, Inc. v. Mainman Ltd., 421 F. Supp. 116 (W.D. Pa. 1976); compare Wallis v. Southern Silo Company, Inc., 369 F. Supp. 92 (N.D. Miss. 1973), decided under the former Bankruptcy Act and holding that when one of two defendants was bankrupt when the complaint was filed the action may be removed by the other defendant alone.
Whether one views Tele-Save as having been joined improperly as a party, or whether one views it as a proper but bankrupt party as against which continuation of the action is stayed, it is permissible to transfer the action to another District. In re Food Fair Securities Litigation, 465 F. Supp. 1301 (Judicial Panel on Multidistrict Litigation 1979); In re Capital Underwriters, Inc. Securities, etc., 464 F. Supp. 955 (Judicial Panel on Multidistrict Litigation 1979); In re Franklin National Bank Securities Litigation, 393 F. Supp. 1093 (Judicial Panel on Multidistrict Litigation 1975).
Since the entire action can be transferred, there is no need to determine whether it would be permissible to sever the claims against Tele-Save and transfer only the claims against the individual defendants.
As noted above, I have found that the Court does not have personal jurisdiction over Eckelberry and Dutton. Rather than dismissing the complaint as to them I shall, pursuant to 28 U.S.C. § 1406(a), transfer it to the District Court for the Southern District of Ohio, a district in which the action could have been brought. Notwithstanding the fact that the action was removed to this Court and not commenced here originally, a § 1406(a) transfer is proper. Holzsager v. Valley Hospital, 646 F.2d 792 (2d Cir. 1981); Cariffe v. Greninger, 532 F. Supp. 131 (D.N.J. 1982). To the extent that Tele-Save is deemed a proper party to this proceeding, the transfer will be pursuant to 28 U.S.C. § 1404(a).
I have prepared an order implementing this opinion.
For the reasons set forth in the Court's opinion of even date, IT IS, this Twenty-ninth day of December, 1982, ORDERED that this action is transferred to the United States District Court for the Southern District of Ohio.
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