granted "very sparingly." Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986).
The fact asserted by Mrs. Chicosky as having been overlooked is that her claim "against Dr. Marchlinski arises out of the April 29, 1995, phone call made by Dr. Marchlinski to plaintiffs at plaintiffs' home in New Jersey." Rather than focusing on something that the Court did not consider, Mrs. Chicosky's argument directs the Court's attention to a fact which was specifically considered by the Court. The motion will therefore be denied.
Mrs. Chicosky's argument is essentially that personal jurisdiction over Marchlinski may be exercised on the basis of a single telephone call from Marchlinski to Mrs. Chicosky in New Jersey. The motion for reargument now underscores that the "thrust of [her] complaint against [Defendants, Marchlinski and PMC] is the negligent medical advice given . . . during a phone call initiated by [Marchlinski]." Therefore, Mrs. Chicosky argues, the claims "arise out of or relate to" Marchlinski's minimum contacts. Plaintiff's Memorandum of Law in Support of Motion for Reconsideration 2-3 & n.1 (dated Aug. 6, 1997)
However, this argument for "specific" jurisdiction, as opposed to "general" jurisdiction, see generally Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984), was made at great length in the original opposition to Marchlinski and PMC's motion to dismiss. In response to the argument, the Court noted that medical services are "personal in character and directed at the person who needs treatment, not at any particular forum." Chicosky v. Presbyterian Med. Ctr., No. 97-2814, slip op. at 8 (D.N.J. Aug. 1, 1997) (emphasis added). Thus, the Court concluded that a mere telephone call between Marchlinski and Mrs. Chicosky during which medical services were allegedly rendered was not a forum-directed activity, and therefore could not support specific jurisdiction.
Additionally, the Court noted that a telephone call could not be a constitutional basis for jurisdiction, either "specific" or "general," because "such contacts [are] too remote and sporadic to support jurisdiction which would comport with due process." Id. at 8 n.1. Indeed, the notion that, in this day and age, a single telephone call from Pennsylvania to New Jersey could be considered a purposeful availment of the privilege of conducting activities within New Jersey, rather than an attenuated, random, and fortuitous contact, is, under these facts, without support. See, e.g., Lebel v. Everglades Marina, Inc., 115 N.J. 317, 558 A.2d 1252 (1989); Wolpert v. North Shore Univ. Hosp., 231 N.J. Super. 378, 381, 555 A.2d 729 (App. Div. 1989); Bovino v. Brumbaugh, 221 N.J. Super. 432, 437-38, 534 A.2d 1032 (App. Div. 1987). There was nothing about the "thrust" of the complaint or the telephone call that was overlooked or misapprehended by this Court. Accordingly, the motion for reargument will be denied.
B. Change of Venue
At the time of Marchlinski and PMC's original motion, Mrs. Chicosky opposed the motion to transfer the action pursuant to 28 U.S.C. § 1404(a) to the Eastern District of Pennsylvania on the basis of judicial efficiency. Now, facing the dismissal of two of the five defendants in the action, she has made a motion to transfer the action to that district on the basis of 28 U.S.C. § 1406(a). In the interest of justice, the motion will be granted and the action transferred to the Eastern District of Pennsylvania pursuant to 28 U.S.C. §§ 1404(a) and 1631.
While Mrs. Chicosky has moved to change venue under section 1406(a), it is clear that section 1404(a) is the applicable statute. Venue in New Jersey is not technically improper, because Marchlinski and PMC could have removed the action to only one district under 28 U.S.C. § 1441, the district embracing the place where the action was originally pending. Thus, section 1406 which deals with cases "laying venue in the wrong district," 28 U.S.C. § 1406(a) (emphasis added), is not applicable. See, e.g., Beagle v. State Farm Ins. Co., 1992 U.S. Dist. LEXIS 10022, 1992 WL 172591, *1 (E.D. Pa. July 13, 1992); Mortensen v. Wheel Horse Prod., Inc., 772 F. Supp. 85, 89 n.3 (N.D.N.Y. 1991); Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3726 (2d ed. 1985 & Supp. 1997). Section 1404(a), however, allows a district court to transfer an action "to any other district court where it might have been brought" if the court finds that such a transfer is in the interest of justice.
Additionally, although not noted by either party, 28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action. . . to any other such court in which the action. . . could have been brought at the time it was filed . . ., and the action . . . shall proceed as if it had been filed in . . . the court to which it is transferred on the date upon which it was actually filed in . . . the court from which it is transferred.
28 U.S.C. § 1631 (emphasis added). Thus, the Court clearly has the power under both statutes to transfer the action to the Eastern District of Pennsylvania, if the action could originally have been brought there and if it finds such a transfer to be in the interest of justice:not only is there "want of jurisdiction" in this District under section 1631, but an action may also be transferred under section 1404 to cure a defect in personal jurisdiction.
The Court finds that the conditions for transferring this action have been satisfied and the movant's burden has been met. First, the action could have been brought in the Eastern District of Pennsylvania. Defendants, Marchlinski and PMC, asserted, and Mrs. Chicosky does not contradict, that the 2-year statute of limitations, see 42 Pa. Stat. Ann. § 5524, expired in the Eastern District of Pennsylvania on April 30, 1997. Since the action was filed in the New Jersey Superior Court on April 29, 1997,
the action would seem not to be been time-barred if it had been originally filed in Pennsylvania. Also, since commencing an action in Pennsylvania is as simply done as it is in New Jersey, see N.J. R. Civ. Prac. 1:5-6, 4:5-1; Pa. R. Civ. P. 1007, and since Mrs. Chicosky's attorney is admitted to the bars of both states, the choice of a New Jersey forum does not seem to be related to averting any procedural bar in Pennsylvania.
The parties have vaguely suggested that the action would have been time-barred if brought in Pennsylvania, see Defendant PMC's Memorandum in Opposition to Motion for Reconsideration 5 & n.5 (dated Sept. 22, 1997). Because this Court cannot conclude that the Plaintiff's action would be time-barred had it been brought in Pennsylvania, the action will be transferred to the Eastern District of Pennsylvania. If the Plaintiff effectively serves process on Defendants, Marchlinski and PMC, in Pennsylvania, a prerequisite to the continuation of this litigation in the Eastern District of Pennsylvania, see, e.g., Buggs v. Ehrnschwender, 968 F.2d 1544 (2d Cir. 1992) (noting that, where transferor court did not have personal jurisdiction, better practice upon transfer is to re-serve defendants) (citing Bentz v. Recile, 778 F.2d 1026 (5th Cir. 1985)); Wilson v. St. Mary's Hosp., 822 F. Supp. 1450 (D. Minn. 1993) (same), that court may, on a larger record conclude otherwise.
If it were clear that the Pennsylvania statute of limitations expired before the action was filed in New Jersey, Defendants, Marchlinski and PMC, would then be correct that transfer would be inappropriate. In such a situation, the action could not have been brought in Pennsylvania and therefore, it would not in the interest of justice to transfer the action to the Eastern District of Pennsylvania. See Kitces v. Wood, 917 F. Supp. 338, 343 (D.N.J. 1996); McTyre v. Broward Gen'l Med. Ctr., 749 F. Supp. 102, 104 (D.N.J. 1990); Defendant PMC's Memorandum of Law in Opposition to Motion for Reconsideration 5.
Defendants, Marchlinski and PMC, have not presented any other reason why the action could not have been brought in Pennsylvania. As they noted in their original motion to dismiss, inter alia, both Marchlinski and PMC maintain their principal place of business in the Eastern District of Pennsylvania, Marchlinski is a resident and domiciliary of that district, and many of the witnesses and much of the documentary evidence are located in that district. See Defendants' Memorandum of Law in Support of Motion to Dismiss 10.
Second, the Court finds that transfer, rather than dismissal, is in the interest of justice. Defendants, Marchlinski and PMC, are located in Pennsylvania and, as they point out, much of the documentary and other evidence is located there. Additionally, the costs of prosecuting and defending the action upon transfer will not rise significantly for the parties involved if the action is transferred to the Eastern District of Pennsylvania. Thus, the Eastern District will be more convenient for a greater number of parties and witnesses than the District of New Jersey. Most important, it is fair that the action proceed to be decided on the merits where Plaintiff seems to have made a good faith mistake that the action could be maintained in New Jersey, rather than failed to "determine where [she could] get personal jurisdiction [until after] the statute of limitations [had run]." Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986); see also Goldlawr, 369 U.S. at 467 (dismissal, where action could have been brought elsewhere, would have been "time-consuming and justice-defeating") (citation omitted).
Transferring this action to the Eastern District of Pennsylvania pursuant to sections 1631 and 1404 will not result in a jurisdictional "coup" for the Plaintiff, i.e., being able to have her original choice of law and her choice of forum, thus dismissing any possibility that the filing in New Jersey was a procedural tactic. See, e.g., Ferens v. John Deere Co., 494 U.S. 516, 108 L. Ed. 2d 443, 110 S. Ct. 1274 (1990) (plaintiff attempted to circumvent home state statute of limitations by instituting action in a state which had liberal statute of limitations and favorable choice of law rules, and then transferring the suit back to plaintiff's home state). Plaintiff began the action having chosen New Jersey as a forum and knowing that if the action were removed to federal court, the district court would apply New Jersey's choice of law principles in accordance with Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). After a transfer to the Eastern District of Pennsylvania pursuant to sections 1404 or 1631, Plaintiff will be litigating in that forum under Pennsylvania's choice of law principles. See 28 U.S.C. § 1631 (treat transferred action as having been filed in transferee court); Reyno v. Piper Aircraft Co., 630 F.2d 149 (3d Cir. 1980) (so as not to offend due process by applying law of state where defendant could not have been sued, when there has been an interstate transfer without personal jurisdiction, transferee's choice of law rules apply), rev' d on other grounds, 454 U.S. 235 (1981); McTyre v. Broward Gen. Med. Ctr., 749 F. Supp. 102, 108 (D.N.J. 1990) (same); 17 Moore's Federal Practice § 111.02[c] (noting exception to rule announced in Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964) and Ferens); Colorado Outward Bound, 822 F.2d at 1526-27 (section 1631 transfer requires transferee court to treat action as having been filed in transferee court as of date of original filing and to apply transferee court's choice of law rules); Nelson v. International Paint Co., 716 F.2d 640, 643 (9th Cir. 1983) (same); Western Smelting & Metals, Inc. v. Slater Steel, Inc., 621 F. Supp. 578 (N.D. Ind. 1985) (same).
It may seem odd that it is now in the interest of justice to grant a motion to do what Plaintiff had asked this Court not to do several months ago, when the Defendants originally brought their motion. A closer examination reveals the reason behind this seeming oddity. Defendants, Marchlinski and PMC, originally moved to dismiss for lack of personal jurisdiction or, in the alternative, to transfer the case to the Eastern District of Pennsylvania under section 1404 if the Court found some basis for personal jurisdiction over one or both of the Defendants. The Defendants erroneously asserted, as is pointed out, see n.3, supra, that if the Court found no personal jurisdiction, it was required to dismiss the complaint. Plaintiff's original grounds for opposing the transfer -- that it would be more efficient for a New Jersey court to apply New Jersey law -- was based on an assumption that the transferee court would then be applying New Jersey law. Relying on Ferens, Plaintiff assumed that the action would be transferred for the convenience of the parties and witnesses, but not to cure a jurisdictional defect, which would be governed by the exception to Ferens enunciated in Reyno. Thus, it is clear that Plaintiff never opposed a transfer if the Court found that there was no jurisdiction. While it perhaps would have been more prudent for the Plaintiff to have made a cross-motion to transfer the case if the Court found that there was no jurisdiction, to deny Plaintiff her day in court on an apparently well-pled complaint for this oversight would be unjust.
Therefore, having found, on the record before me, nothing that would have prevented the action from having been commenced in Pennsylvania, and that it is in the interest of justice, the Court will grant Mrs. Chicosky's motion to transfer the action to the Eastern District of Pennsylvania, but effect the transfer pursuant to sections 1404(a) and 1631.
Since Mrs. Chicosky has not pointed to any dispositive fact or controlling principle of law which was overlooked, the motion for reconsideration will be denied. Because the action could have originally been brought in the Eastern District of Pennsylvania and because a transfer is in the interest of justice, the action will be transferred to that district pursuant to section 1404 and 1631. The Court will enter an appropriate order.
Dated: October 1, 1997
STEPHEN M. ORLOFSKY
United States District Judge
This matter having come before the Court on the motion of Plaintiff, Frances G. Chicosky, for reconsideration of this Court's August 1, 1997, Order under Local Civil 7.1(g), or, in the alternative, to transfer the action to the Eastern District of Pennsylvania, Robert F. Gaskill, Esq., of Begley, McCloskey & Gaskill, appearing on behalf of Plaintiff, Dominic A. DeLaurentis, Jr., Esq., and Susan L. Fleming, Esq., of the Law Offices of Stanley P. Stahl, appearing on behalf of Defendant, Dr. Francis Marchlinski, M.D., James A. Young, Esq., and Michael J. Burns, Esq., of Christie, Parabue, Mortensen & Young, appearing on behalf of Defendant, Presbyterian Medical Center, David J. Cooner, Esq., of McCarter & English, appearing on behalf of Defendant, Pacesetter, Inc., John P. Lavelle, Jr., Esq., of Hangley, Aronchick, Segal & Pudlin, appearing on behalf of Defendant, Medtronic, Inc.; and
The Court having considered the submissions of Plaintiff in support of the motion and Defendants, Francis Marchlinski, M.D., and Presbyterian Medical Center, in opposition thereto; and
For the reasons set forth in the Court's OPINION filed concurrently with this ORDER;
IT IS HEREBY ORDERED on this 1st day of October, 1997, that the motion of Plaintiff, Frances G. Chicosky, for reconsideration is DENIED;
IT IS FURTHER ORDERED that this action is TRANSFERRED to the Eastern District of Pennsylvania.
STEPHEN M. ORLOFSKY
United States District Judge