Luise M. Ross, as Adm'x of the Goods, Chattels & Credits of Sonya C. Ross, Deceased v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524 (10th Cir. 1987). · Go Syfert
Luise M. Ross, as Adm'x of the Goods, Chattels & Credits of Sonya C. Ross, Deceased v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524 (10th Cir. 1987). Cases Citing This Book View Copy Cite
98 citation events (63 in the last 25 years) across 31 distinct courts.
Strongest positive: Carol Ann Salmon v. Yorktown Systems Group LLC (alnd, 2026-03-06) · Strongest negative: Mortensen v. Wheel Horse Products, Inc. (nynd, 1991-07-25)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Mortensen v. Wheel Horse Products, Inc.
N.D.N.Y. · 1991 · signal: but see · confidence high
Levy, 687 F.Supp. at 52 ; but see Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987) (recognizing in dicta that diversity case removed to district court which lacked personal jurisdiction could be transferred under § 1631 to district court which has proper jurisdiction).
discussed Cited "but see" McTyre v. Broward General Medical Center (2×) also: Cited "see, e.g."
D.N.J. · 1990 · signal: but see · confidence high
But see, Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1526-27 (10th Cir.1987) (transfer pursuant to section 1631 in diversity case where there was no personal jurisdiction). 4 .
discussed Cited as authority (rule) Carol Ann Salmon v. Yorktown Systems Group LLC
N.D. Ala. · 2026 · confidence medium
Co., 913 F.2d 758, 761-62 (9th Cir. 1990) (vacating and remanding to district court to consider transfer under § 1631 to cure lack of personal jurisdiction); Ross v. Colorado 16 Outward Bound Sch., Inc., 822 F.2d 1524, 1527-28 (10th Cir. 1987) (reviewing case that was transferred under § 1631 to Colorado district court after New York district court found it lacked personal jurisdiction).6 Hence, transferring Salmon’s North Carolina case to this court, or to any other court with personal jurisdiction over Yorktown, would have served the interest of justice by allowing Salmon to pursue her c…
discussed Cited as authority (rule) Richard Long, et al. v. Meta Platforms, Inc.
E.D. Okla. · 2026 · confidence medium
So Ordered. /s/ Gustavo A. Gelpí ______________ GUSTAVO A. GELPÍ Circuit Judge, U.S. Court of Appeals for the First Circuit Sitting by designation 1 " 28 U.S.C. § 1631 controls the action of a federal court when it finds that it lacks jurisdiction but that another federal court has jurisdiction." Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1526 (10th Cir. 1987).
discussed Cited as authority (rule) Columbia Strategic Counsel, Inc. v. Innovative Rail Technologies, LLC, Ira Dorfman, Rick Herndon, and Mike Nicoletti
D. Or. · 2025 · confidence medium
Van Dusen v. Barrack, 376 U.S. 612, 623 (1964) ("There is no valid reason for reading the words 'where it might have been brought' to narrow the range of permissible federal forums beyond those permitted by federal venue statutes[.]"), superseded by statute on other grounds as stated in Ross v. Colo. Outward Bound Sch., 822 F.2d 1524, 1527 (10th Cir. 1987).
cited Cited as authority (rule) Silver Lining Enterprises, LLC v. New Gen Enterprises, LLC
D.N.J. · 2025 · confidence medium
Trujillo v. Williams, 465 F.3d 1210 , 1222–23 (10th Cir. 2006) (quoting Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987)).
cited Cited as authority (rule) Baker v. Chin
D. Kan. · 2025 · confidence medium
Id. at 1223 (quotation cleaned up) (quoting Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987)).
discussed Cited as authority (rule) Brown v. Wallace
D. Colo. · 2025 · confidence medium
“Factors considered in deciding whether a transfer is in the interest of justice include [1] whether the claims would be time barred if filed anew in the proper forum, [2] whether the claims alleged are likely to have merit, and [3] whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). “[W]here the court determines that it lacks jurisdiction and the interests of justice require transfer rather than dismissal, ‘[t]he correct course . . …
discussed Cited as authority (rule) Active Athletics, LLC v. Active Gymnastics Center LLC
D. Colo. · 2024 · confidence medium
“Factors considered in deciding whether a transfer is in the interest of justice include [1] whether the claims would be time barred if filed anew in the proper forum, [2] whether the claims alleged are likely to have merit, and [3] whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). “[W]here the court determines that it lacks jurisdiction and the interests of justice require transfer rather than dismissal, ‘[t]he correct course . . …
discussed Cited as authority (rule) Active Athletics, LLC v. Active Gymnastics Center LLC
N.D. Tex. · 2024 · confidence medium
“Factors considered in deciding whether a transfer is in the interest of justice include [1] whether the claims would be time barred if filed anew in the proper forum, [2] whether the claims alleged are likely to have merit, and [3] whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). “[W]here the court determines that it lacks jurisdiction and the interests of justice require transfer rather than dismissal, ‘[t]he correct course . . …
discussed Cited as authority (rule) Weddington v. National Indemnity Insurance Company
E.D. Va. · 2024 · confidence medium
Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987) (comparing choice of law implications of transfer pursuant to §§ 1404, 1406, and 1631); 28 U.S.C. § 1631 (explicitly dictating treatment of transferred case “as if it had been filed in” the recipient court).
discussed Cited as authority (rule) Ozuna v. Morales
D. Colo. · 2023 · confidence medium
The Tenth Circuit has affirmed that section 1631 was “specifically designed for cases transferred from one federal court to another for lack of jurisdiction.” Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir. 1987).
discussed Cited as authority (rule) Auge v. Esbrook PC
D. Colo. · 2023 · confidence medium
Transferring is usually favored because Section 1631 was “specifically designed for cases transferred from one federal court to another for lack of jurisdiction, served to simplify the process and streamline its application.” Ross v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (0th Cir. 1987).
examined Cited as authority (rule) Franco v. Mabe Trucking (3×)
5th Cir. · 2021 · confidence medium
Co., 913 F.2d 758, 761-62 (9th Cir. 1990) (vacating and remanding to district court to consider transfer under § 1631 to cure lack of personal jurisdiction); Ross v. 9 No. 19-30316 Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527-28 (10th Cir. 1987) (reviewing case that was transferred under § 1631 to Colorado district court after New York district court found it lacked personal jurisdiction).
discussed Cited as authority (rule) CMI Roadbuilding Inc v. Wiregrass Construction Company Inc
M.D. Ala. · 2021 · confidence medium
Balderas v. Real Estate Law Center P.C., 430 F. Supp. 3d 900 , 917 (D.N.M. 2019) (quoting Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987)). justice and judicial fairness.” Jd.
discussed Cited as authority (rule) CMI Roadbuilding Inc v. Wiregrass Construction Company Inc
W.D. Okla. · 2021 · confidence medium
Balderas v. Real Estate Law Center P.C., 430 F. Supp. 3d 900 , 917 (D.N.M. 2019) (quoting Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987)). justice and judicial fairness.” Jd.
examined Cited as authority (rule) Franco v. Mabe Trucking (3×)
5th Cir. · 2021 · confidence medium
Co., 913 F.2d 758, 761-62 (9th Cir. 1990) (vacating and remanding to district court to consider transfer under § 1631 to cure lack of personal jurisdiction); Ross v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527-28 (10th Cir. 1987) (reviewing case that was transferred under § 1631 to Colorado district court after New York district court found it lacked personal jurisdiction); Slatick v. Dir., Office of Workers’ Comp.
discussed Cited as authority (rule) Harutyunyan v. Love (2×) also: Cited "see, e.g."
E.D. La. · 2019 · confidence medium
See 28 U.S.C. § 1631 .”); Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003) (holding § 1631 “applies to federal courts identifying any jurisdictional defect, regardless of whether it involves personal or subject matter jurisdiction”); Johnson v. Woodcock, 444 F.3d 953, 954 (8th Cir. 2006) (holding the district court “was empowered by 28 U.S.C. § 1631 to transfer the action to another court to cure the lack of [personal] jurisdiction”); Gray & Co. v. Firstenberg Machinery Co. 913 F.2d 758, 761-62 (9th Cir. 1990); Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th …
discussed Cited as authority (rule) TransFirst Group, Inc. v. Magliarditi
N.D. Tex. · 2017 · confidence medium
Corp., — U.S. -, 137 S.Ct. 563 , 196 L.Ed.2d 493 (2017) (holding that § 1631 should be interpreted “broadly to permit -transfer when there is a lack of either personal or subject matter jurisdiction”); Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003) (concluding that “§ 1631 ... applies to federal courts identifying any jurisdictional defect, regardless of whether it involves personal or subject matter jurisdiction.”); Island Insteel Sys., Inc. v. Waters, 296 F.3d 200 , 218 n.9 (3d Cir. 2002) (stating that a district court “ha[s] authority” under § 1631 to transfer an acti…
discussed Cited as authority (rule) Resource Associates Grant Writing & Evaluation Services, Inc. v. Southampton Union Free School District (2×)
D.N.M. · 2016 · confidence medium
The Tenth Circuit has held that 28 U.S.C. § 1631 was “specifically designed for cases transferred from one federal court to another for lack of jurisdiction,” and that it “served to simplify the process and streamline its application.” Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987).
cited Cited as authority (rule) Federal Home Loan Bank of Bost v. Moody's Corporation
1st Cir. · 2016 · confidence medium
The court found that, “[i]n harmony with the intent of Congress, this section has been broadly construed since its enactment.” Ross, 822 F.2d at 1527 (collecting cases).
discussed Cited as authority (rule) Bobola v. Fishing Vessel Expectation
D.N.H. · 2016 · confidence medium
See Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003) (“In light of the language of § 1631 and its purpose, we therefore conclude that the statute applies to federal courts identifying any jurisdictional defect, regardless of whether it involves personal or subject matter jurisdiction.”); Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987) (same).
cited Cited as authority (rule) Sunshine Haven Nursing Operations, LLC v. United States Department of Health & Human Services, Centers for Medicare & Medicaid Services
10th Cir. · 2014 · confidence medium
And “[i]n harmony with the intent of Congress, [§ 1631] has been broadly construed since its enactment.” Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987).
discussed Cited as authority (rule) ConocoPhillips Co. v. Jump Oil Co.
N.D. Okla. · 2013 · confidence medium
Although § 1406 mentions only transfer for improper venue, the Tenth Circuit has held that a district court lacking personal jurisdiction has the authority to transfer a case to a "court in which the action ... could have been brought at the time it was filed Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987). .
discussed Cited as authority (rule) Whiting v. Hogan
D.N.M. · 2012 · confidence medium
The Tenth Circuit has held that 28 U.S.C. § 1631 was “specifically designed for cases transferred from one federal court to another for lack of jurisdiction,” and that it “served to simplify the process and streamline its application.” Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987).
discussed Cited as authority (rule) Western Investment Total Return Fund Ltd. v. Bremner
D. Mass. · 2011 · confidence medium
See Subsalve USA Corp. v. Watson Mfg., Inc., 462 F.3d 41, 43 (1st Cir.2006) (in the context of a case where personal jurisdiction was lacking, stating that 28 U.S.C. § 1631 authorizes a transfer so long as it is consistent with the interest of justice); Cimon v. Gaffney, 401 F.3d 1 , 6 (1st Cir.2005) (recognizing the split among circuits on this issue but stating that it is “inclined to read § 1631 as permitting transfers where a federal court lacks any kind of jurisdiction (including personal jurisdiction)”); In re Carefirst of Md., Inc., 305 F.3d 253, 254-55 (4th Cir.2002); Ross v. Col…
discussed Cited as authority (rule) Silver v. Brown
D.N.M. · 2009 · confidence medium
When a court determines that it lacks personal jurisdiction, and the interests of justice require transfer rather than dismissal, “[t]he correct course ... is to transfer the action .... ” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir.2006)(quoting Ross v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987)).
discussed Cited as authority (rule) Faulkenburg v. Weir
10th Cir. · 2009 · confidence medium
We concluded that “after the enactment of § 1631, where the [district] court determines that it lacks [personal] jurisdiction and the interests of justice require transfer rather than dis *210 missal, ‘[t]he correct course ... [is] to transfer the action.’ ” Trujillo, 465 F.3d at 1223 (quoting Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987)).
discussed Cited as authority (rule) Julio E. Roman v. John Ashcroft (2×)
6th Cir. · 2004 · confidence medium
See, e.g., SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 , 179 n. 9 (2d Cir.) (noting that “the legislative history of section 1631 provides some reason to believe that this section authorizes transfers only to cure lack of subject matter jurisdiction”), cert, denied, 531 U.S. 824 , 121 S.Ct. 68 , 148 L.Ed.2d 33 (2000); Renner v. Lanard Toys Ltd., 33 F.3d 277, 284 (3d Cir.1994) (explaining that a court lacking personal jurisdiction may consider transferring the action pursuant to § 1631); Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1526-27 (10th Cir.1987) (same).
discussed Cited as authority (rule) Roman v. Ashcroft
6th Cir. · 2003 · confidence medium
We direct personal jurisdiction may consider transferring the action the district court on remand to determine, consistent with the pursuant to § 1631); Ross v. Colo. Outward Bound Sch., Inc., views expressed in our opinion, whether either of these 822 F.2d 1524, 1526-27 (10th Cir. 1987) (same).
discussed Cited as authority (rule) In Re Carefirst Of Maryland, Incorporated
1st Cir. · 2002 · confidence medium
It has nothing to do with personal jurisdiction or venue."), with Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987) (concluding that section 1631 permits transfers where personal jurisdiction is lacking); Carty v. Beech Aircraft Corp., 679 F.2d 1051 , 1066 (3d Cir.1982) (reversing district court's determination that it had personal jurisdiction over the defendant, but remanding to the district court to consider application of section 1631). 3 Since Gower and Goble were decided, any concern about the reviewability of orders transferring cases to the Court of Claim…
discussed Cited as authority (rule) Carefirst of Maryland, Inc. v. Carefirst Urgent Care Center, LLC
4th Cir. · 2002 · confidence medium
It has nothing to do with personal jurisdiction or venue.”), with Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987) (concluding that section 1631 permits transfers where personal jurisdiction is lacking); Carty v. Beech Aircraft Corp., 679 F.2d 1051 , 1066 (3d Cir.1982) (reversing district court's determination that it had personal jurisdiction over the defendant, but remanding to the district court to consider application of section 1631). .
discussed Cited as authority (rule) Scherer v. Curators of the University of Missouri & Law School Admission Council
D. Kan. · 2001 · confidence medium
Corp., 157 F.3d 785 , 793 (10th Cir.1998) (where trans-feror court notes that it lacks personal jurisdiction, the proper course of action is to transfer pursuant to § 1631) (citing Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1526-27 (10th Cir. 1987)). 2 Before a federal court can exercise personal jurisdiction over a defendant in a federal question case such as this one, “the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due…
discussed Cited as authority (rule) Whittaker v. Medical Mutual of Ohio
D. Kan. · 2000 · confidence medium
Section 1631 provides: “Whenever a civil action is filed in a court ... 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 or appeal to any other such court in which the action or appeal could have been brought at the time it was filed.” See Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987) (applying Section 1631 to a finding of lack of personal jurisdiction).
cited Cited as authority (rule) Viernow v. Euripides Development Corp.
10th Cir. · 1998 · confidence medium
Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1526-27 (10th Cir.1987).
cited Cited as authority (rule) Joseph Viernow v. Euripides Development Corporation
1st Cir. · 1998 · confidence medium
Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1526-27 (10th Cir.1987).
discussed Cited as authority (rule) Chicosky v. Presbyterian Medical Center
D.N.J. · 1997 · confidence medium
See, e.g., 28 U.S.C. § 1631 ("if court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action”); Goldlawr v. Herman, 369 U.S. 463, 466-67 , 82 S.Ct. 913, 916 , 8 L.Ed.2d 39 (1962) (where plaintiff had accidentally filed suit in wrong district and statute of limitations had run, interest of justice required transfer pursuant to section 1406, rather than dismissal and finding that section 1406(a) exists to "remove whatever obstacles may impede an expeditious and orderly adjudication ... on [the] merits.”); Renner v. Lanard Toys…
discussed Cited as authority (rule) Federal Deposit Insurance v. McGlamery
10th Cir. · 1996 · confidence medium
In Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987), we found that this section authorized transfer based on the transferor court’s lack of personal jurisdiction over a party.
discussed Cited as authority (rule) Federal Deposit Insurance Corporation v. Keith Mcglamery
10th Cir. · 1996 · confidence medium
In Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987), we found that this section authorized transfer based on the transferor court's lack of personal jurisdiction over a party.
cited Cited as authority (rule) United States v. American River Transportation, Inc.
C.D. Ill. · 1993 · confidence medium
(Citations omitted). 822 F.2d at 1526, 1527 .
discussed Cited as authority (rule) Murphy v. Klein Tools, Inc. (2×) also: Cited "see"
D. Kan. · 1988 · confidence medium
Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527 (10th Cir.1987).
discussed Cited "see" Arakaki v. United States
Fed. Cl. · 2004 · signal: see · confidence high
See Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987) (“We hold that § 1631 requires that the Colorado district court ... accept the date on which the action was removed [from the New York state court] to the New York [federal] district court as the filing date in the Colorado [federal] district court; and that the action shall proceed in the Colorado district court as not time barred by the two year statute of limitations provision [in Colorado state law applicable to the action].”).
cited Cited "see" Britell v. United States
1st Cir. · 2003 · signal: see · confidence high
See Ross v. Colo. Outward Bound Sch., 822 F.2d 1524, 1526-27 (10th Cir.1987).
discussed Cited "see" SCC Communications Corp. v. Anderson
D. Colo. · 2002 · signal: see · confidence high
See Ross v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir.1987) (noting that 28 U.S.C. § 1631 , as opposed to either 28 U.S.C. § 1404 (a) or 28 U.S.C. § 1406 (a), controls a federal court’s action when it finds that it lacks jurisdiction).
discussed Cited "see" Gallant v. Trustees of Columbia University in New York (2×) also: Cited "see, e.g."
E.D. Pa. · 2000 · signal: see · confidence high
See Ross, 822 F.2d at 1527 (holding that removed diversity action should be transferred under section 1631); Andrews, 2000 WL 623234 , at *3 (transferring removed diversity action under section 1631).
discussed Cited "see" Andersen v. Sportmart, Inc.
N.D. Ind. · 1999 · signal: see · confidence high
See Ross v. Colorado Outward Bound School, 822 F.2d 1524, 1526-27 (10th Cir.1987) (permitting transfer to cure any jurisdictional defect); Levy v. Pyramid Co. of Ithaca, 687 F.Supp. 48, 51 (N.D.N.Y.1988), aff'd, 871 F.2d 9 (2d Cir.1989) (limiting transfers to cases where *665 a court lacks subject matter jurisdiction).
discussed Cited "see" Worthington v. Small
D. Kan. · 1999 · signal: see · confidence high
See Viernow v. Euripides Development Corp., 157 F.3d 785 , 793 (10th Cir.1998) (where transferor court notes that it lacks personal jurisdiction, the proper course of action is to transfer pursuant to § 1631) (citing Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1526-27 (10th Cir.1987)).
discussed Cited "see, e.g." Derek “Colddrank” Marshall v. Music Access, Inc., Robert Gonzalez, Steve Cavazos, and Does 1–10 (2×)
M.D. La. · 2026 · signal: see also · confidence medium
Franco, 3 F.4th at 794; see also Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987).
discussed Cited "see, e.g." Goellner-Grant v. JLG Industries, Inc.
M.D. Penn. · 2019 · signal: see also · confidence medium
Cyanamid Co., 57 F.3d 411 , 413 (4th Cir. 1995); Manley v. Engram, 755 F.2d 1463, 1467 (11th Cir. 1985); Nelson v. Int’l Paint Co., 716 F.2d 640 , 643–44 (9th Cir. 1983); Geehan v. Monahan, 382 F.2d 111, 114 (7th Cir. 1967); see also Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987) (distinguishing venue transfers made pursuant to 1406(a) from jurisdiction transfers made pursuant to 28 U.S.C. § 1631 ). approach protects defendants from the potentially detrimental impacts of an improperly chosen forum and deters plaintiffs from filing in a jurisdictionally defici…
cited Cited "see, e.g." Trujillo v. Williams
10th Cir. · 2006 · signal: see, e.g. · confidence medium
See, e.g., Ross v. Colo. Outw ard Bound Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987).
Retrieving the full opinion text from the archive…
Luise M. ROSS, as Administratrix of the Goods, Chattels and Credits of Sonya C. Ross, Deceased, Appellant,
v.
COLORADO OUTWARD BOUND SCHOOL, INC., Appellee
86-2082.
Court of Appeals for the Tenth Circuit.
Sep 14, 1987.
822 F.2d 1524
Stuart Mann (Clifford L. Beem, on the brief), Clifford L. Beem & Associates, Denver, Colo., for appellant., Douglas I. McQuiston and John E. Taylor, Denver, Colo., for appellee.
Logan, Barrett, Timbers.
Cited by 68 opinions  |  Published
TIMBERS, Circuit Judge.

Luise M. Ross (“appellant”) appeals from a summary judgment entered June 23,1986 in the District of Colorado, Richard P. Matsch, District Judge, in favor of Colorado Outward Bound School, Inc. (“appellee”), dismissing a wrongful death action brought by appellant as administratrix of the estate of her deceased daughter, Sonya C. Ross. The court dismissed the action on the ground that it was time barred by the two year statute of limitations provided for in the Colorado Wrongful Death Act, Colo. Rev.Stat. 13-21-201 — 13-21-204 (1973 & 1985 Cum.Supp.). For the reasons stated below, we reverse and remand the case for further proceedings consistent with this opinion.

I.

We summarize only those facts believed necessary to an understanding of the issue raised on appeal.

On July 22, 1977, Sonya C. Ross, then twenty years of age, died in a mountain climbing accident in the San Juan Mountains in southwestern Colorado. At the time Sonya, a New York resident, was a student at the Colorado Outward Bound School. The school is a Colorado nonprofit corporation which teaches wilderness experience.

Appellant, decedent’s mother and a New York resident, was appointed administratrix of Sonya’s estate. On April 13, 1978 appellant commenced a wrongful death action against the school in a New York state court. Appellant alleged in her complaint that the death of her daughter was caused by appellee’s negligence.

On May 26, 1978 the case was removed by appellee to the United States District Court for the Western District of New York, there being diversity of citizenship between appellant and appellee. On December 14,1978 appellee moved in the New York district court to dismiss the action for lack of personal jurisdiction, among other grounds asserted. On February 22,1985— more than six years after the motion was filed — the district court filed an opinion holding that it lacked personal jurisdiction over appellee. Rather than dismissing the action, however, the court ordered that it be transferred to the United States District[*1526] Court for the District of Colorado, pursuant to 28 U.S.C. § 1406(a) (1982). [1]

Appellee moved in the Colorado district court for summary judgment on the ground that Colorado law governed the case and, pursuant to the appropriate Colorado statute, appellant’s action was time barred. Specifically, appellee urged that the Colorado Wrongful Death Act controlled, including the requirement of § 13-21-204 that an action be commenced within two years of the alleged negligence resulting in death. Appellee reasoned that, since no formal complaint had ever been filed in Colorado, the right to commence an action in Colorado had been forfeited by appellant. Appellant responded by contending that New York law applied. The district judge correctly held, under Colorado’s choice of law rule, that Colorado law applied.

In its opinion the district court, noting that no formal complaint had ever been filed in a Colorado court, treated the date the case was transferred from the New York district court to the Colorado district court as the filing date under the Colorado Wrongful Death Act. Since Sonya’s death occurred on July 22, 1977 and the case was not transferred or “filed” until February 22, 1985, the court held that the action was time barred by the two year statute of limitations. The court held, further, that the filing in New York did not cure the failure to timely file in Colorado. It indicated that the appropriate course for the New York district court to have taken would have been to dismiss, rather than transfer, the action. Accordingly, the Colorado district court granted the motion for summary judgment and dismissed the action. This appeal followed.

On appeal, appellant argues that the timely filing in, by removing to, the New York district court tolled the running of the statute of limitations provided for in the Colorado Wrongful Death Act.

We hold that the proper vehicle for the transfer of this action was 28 U.S.C. § 1631 (1982). That statute requires that when, in the interest of justice, an action is transferred from one federal court to another federal court to cure want of jurisdiction, the action shall proceed as if it had been filed in the transferee court on the date upon which it was actually filed in the transferor court. The instant action was removed to the New York district court on May 26, 1978. Treating that date, as we must, as the filing date in the Colorado district court, we hold that the instant action was timely commenced under the Colorado Wrongful Death Act.

II.

In the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 301(a), 96 Stat. 25, 55 (1982), Congress gave broad authority to permit the transfer of an action between any two federal courts. 28 U.S.C. § 1631 controls the action of a federal court when it finds that it lacks jurisdiction but that another federal court has jurisdiction. That section is entitled “Transfer to cure want of jurisdiction” and provides:

“Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court 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 or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was[*1527] actually filed in or noticed for the court from which it is transferred.”
(Added by Pub.L. 97-164, Title III, § 301(a), Apr. 2, 1982, 96 Stat. 55.)

In harmony with the intent of Congress, this section has been broadly construed since its enactment. E.g., In re McCauley, 814 F.2d 1350 (9th Cir.1987) (bankruptcy appeal; district court dismissed case, noting proper jurisdiction in court of appeals; court of appeals deemed case transferred to it); Sharon v. United States, 802 F.2d 1467 (D.C.Cir.1986) (Board of Indian appeals; court of appeals lacked jurisdiction; sua sponte transferred case to district court); ben-Shalom v. Secretary of Army, 807 F.2d 982 (Fed.Cir.1986) (Court of Appeals for Federal Circuit transferred case to Court of Appeals for Seventh Circuit); Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985) (habeas petition transferred from District Court for Northern District of Alabama to District Court for Southern District of Alabama); In re Exclusive Industries Corp., 751 F.2d 806 (5th Cir.1985) (bankruptcy appeal; court of appeals transferred to district court); Middlebrooks v. Smith, 735 F.2d 431 (11th Cir.1984) (habeas petition transferred from Alabama to Mississippi).

In the instant case, the New York district court correctly held that it lacked personal jurisdiction over appellee. Likewise, it correctly recognized that the District of Colorado was the proper district in which the action originally could have been commenced pursuant to 28 U.S.C. § 1391(b) (1982). It transferred the action pursuant to § 1406(a), while stating in a footnote that in any event it would have granted appellee’s motion to transfer for the convenience of the parties pursuant to 28 U.S.C. § 1404(a) (1982). The correct course, however, since the enactment on October 1, 1982 of § 1631 was to transfer the action pursuant to that section.

Prior to that date, in determining whether the laws of the transferor or the transferree state applied in diversity cases transferred from one state to another, it was necessary to distinguish between cases transferred under § 1404(a) and cases transferred under § 1406(a) — an often difficult task. In the former, the law of the transferor state was applied. E.g., Van Dusen v. Barrack, 376 U.S. 612 (1964). In thé latter, the law of the transferree state was applied. E.g., Martin v. Stokes, 623 F.2d 469 (6th Cir.1980), and cases cited therein. Although read closely, the language of § 1406(a) appears to apply only to those cases transferred for lack of proper venue, the statute has been construed in an extraordinarily broad manner; courts have held that actions commenced in a district court where venue is proper but where personal jurisdiction is lacking may be transferred to a proper forum. E.g., Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir.1967); Dubin v. United States, 380 F.2d 813 (5th Cir.1967). Indeed, the New York district court in the instant case, in reliance on Corke v. Sameit M.S. Song of Norway, 572 F.2d 77 (2d Cir.1978), transferred the instant case to the District of Colorado pursuant to § 1406(a), even though venue was proper in New York.

The enactment on October 1, 1982 of § 1631, specifically designed for cases transferred from one federal court to another for lack of jurisdiction, served to simplify the process and streamline its application. By statute, courts now know. what law to apply and, more importantly in view of the facts of this case, when that law applies.

We hold that § 1631 requires that the Colorado district court apply Colorado law; that it accept the date on which the action was removed to the New York district court as the filing date in the Colorado district court; and that the action shall proceed in the Colorado district court as not time barred by the two year statute of limitations provision of the Colorado Wrongful Death Act.

III.

To summarize:

We reverse the judgment of the district court and remand the action for further proceedings consistent with this opinion. Pursuant to 28 U.S.C. § 1631, the Colorado district court must accept the date on[*1528] which this action was removed to the New York district court as the filing date in the Colorado district court. Since the action was removed to the New York district court on May 26, 1978, well within the two year statute of limitations period provided for in the Colorado Wrongful Death Act, we hold that the action was timely filed in the Colorado district court.

REVERSED and REMANDED.

1

. Section 1406(a) requires a court in which a case has been filed laying venue in the wrong division or district to dismiss, or if it be in the interest of justice, transfer the case to any district or division in which it could have been brought. On the facts of this case, we construe the transfer for lack of personal jurisdiction to be in the interest of justice. In any event we do not read the statute to require the talismanic incantation of the "interest of justice" phrase. Clearly, the entire thrust of the New York district court’s analysis was that the interest of justice would be served by transfer.