822 F.

2d 1524
40 Ed. Law Rep. 700

Luise M. ROSS, as Administratrix of the Goods, Chattels and

Credits of Sonya C. Ross, Deceased, Appellant,
v.
COLORADO OUTWARD BOUND SCHOOL, INC., Appellee.
No. 86-2082.

United States Court of Appeals,

Tenth Circuit.
July 13, 1987.
Rehearing Denied Sept. 14, 1987.

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.
Before LOGAN, BARRETT and TIMBERS,* Circuit Judges.
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.
2

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 Court for the District of Colorado, pursuant to 28 U.S.C. Sec. 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 Sec. 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.
8

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.
Sec. 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.
10

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. Sec. 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:

11

"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 actually filed in or noticed for the
court from which it is transferred."

(Added by Pub.L. 97-164, Title III, Sec. 301(a), Apr. 2, 1982, 96 Stat. 55.)
12
13

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); benShalom 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).
14

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. Sec. 1391(b) (1982). It transferred
the action pursuant to Sec. 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. Sec. 1404(a) (1982). The correct course, however,
since the enactment on October 1, 1982 of Sec. 1631 was to transfer the action
pursuant to that section.

15

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 Sec. 1404(a)
and cases transferred under Sec. 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 the 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 Sec. 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 Sec. 1406(a), even though
venue was proper in New York.

16

The enactment on October 1, 1982 of Sec. 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.
17

We hold that Sec. 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:
18

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. Sec. 1631, the
Colorado district court must accept the date on 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.

19

REVERSED and REMANDED.

Of the Second Circuit, by designation

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