Marsh v. Genetech Inc. et al

Filing 20

ORDER Granting Plaintiff's 6 Motion to Transfer, Denying in Part Defendant's 13 Motion to Dismiss, Terminating Defendants' 16 Motion to Reassign Case as Moot, and Transferring the Case to the United States District Court for the Western District of Michigan. Signed by District Judge Robert H. Cleland. (CGre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VICKI MARSH,
Plaintiff,
v.

Case No. 11-11462

GENETECH INC. and XOMA LLC,
Defendants.
/
ORDER GRANTING PLAINTIFF’S MOTION TO TRANSFER,
DENYING IN PART DEFENDANTS’ MOTION TO DISMISS,
TERMINATING DEFENDANTS’ MOTION TO REASSIGN CASE AS MOOT, AND
TRANSFERRING THE CASE TO THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Plaintiff Vicki Marsh initiated this action on April 6, 2011, asserting subject matter
jurisdiction based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. On April
15, 2011, the court ordered Plaintiff to show cause why the case should not be
transferred to a district in which venue is proper. Plaintiff responded on April 21, 2011,
and moved to transfer the case to the U.S. District Court for the Western District of
Michigan pursuant to 28 U.S.C. § 1406(a). Immediately thereafter, Defendants notified
the court of their intent to oppose transfer, and a conference was held by telephone on
April 26, 2011. Defendants moved to dismiss the case on May 4, 2011. Plaintiff
responded on May 25, 2011, and Defendants replied on June 13, 2011. Having
reviewed the briefs, the court concludes a hearing on this motion is unnecessary. See
E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the court will grant Plaintiff’s
motion to transfer.

During the pendency of these motions, Defendants filed a motion to reassign two
other cases filed within the Eastern District of Michigan that were factually similar and in
which substantively identical motions to transfer and motions to dismiss had been filed.
Defendants moved to reassign these cases to the undersigned judge pursuant to Local
Rule 83.11. E.D. Mich. LR 83.11(b). Regarding the above-captioned case, this motion
is moot, as it requests the case be reassigned to the undersigned judge. Therefore, the
court will terminate as moot Defendants’ motion to reassign the case.
With respect to the motions regarding dismissal or transfer, the court finds that
transfer is appropriate in these circumstances, pursuant to 28 U.S.C. § 1406. The
parties agree that the Eastern District of Michigan is an improper venue. Although
Plaintiff’s response asserts that venue may have been proper in this district based upon
“national” activities of Defendants, there is no indication of any significant events
occurring within this district. Furthermore, Plaintiff’s motion to transfer the case admits
that it should not have been filed in this district. (Pl. Mot. at 1.) The disagreement
between the parties concerns only the appropriate remedy. Defendant moves for
dismissal based upon the obviousness of Plaintiff’s error. Plaintiff instead points to the
prejudice she might suffer because of the running of the statute of limitations should the
case be dismissed.
Cases misfiled in an improper venue may be dismissed or transferred under
§ 1406, which states that a “district court of a district in which is filed a case laying
venue in the wrong division or district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.” 28
U.S.C. § 1406(a). This section “confer[s] broad discretion in ruling on a motion to

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transfer.” Stanifer v. Brannan, 564 F.3d 455, 457 (6th Cir. 2009). Whether to exercise
such discretionary power to transfer must be decided by consideration of “the interest of
justice.” 28 U.S.C. § 1406(a). In finding that it is in the interest of justice to transfer the
instant case, the court is guided by policy “of allowing cases to be decided on their
substantive merits, as opposed to being decided on procedural grounds. Flynn v. Greg
Anthony Constr. Co., Inc., 95 F. App’x 726, 741 (6th Cir. 2003) (citing Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 466-67 (1962)). Additionally, “the reasons for transferring a
case to a proper forum rather than dismissing ‘are especially compelling if the statute of
limitations has run since the commencement of the action, so that dismissal might
prevent the institution of a new suit by the plaintiff and a resolution on the merits.’”
Jackson v. L & F Martin Landscape, Case No. 08-3904, 2009 WL 1935931, *3 (6th Cir.
2009) (citing 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3827, 587 (3d. ed. 2007)). As Plaintiff has indicated that her
claims may be barred by the running of the statute of limitations if the case is dismissed,
this consideration further informs the court’s decision. It is in the interest of justice that
Plaintiff’s case be decided on its merits, and Defendants do not contend that they will
suffer any prejudice from the transfer. Finally, this court does not address Defendants’
motion to dismiss to the extent that it seeks dismissal with prejudice under Michigan
product liability law. Accordingly,
IT IS ORDERED that Plaintiff’s motion to transfer venue [Dkt. # 6] is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss [Dkt. # 13] is
DENIED IN PART in that the court will transfer the case in the interest of justice, rather

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than dismiss it for improper venue. This court does not address Defendants’ remaining
grounds for dismissal.
IT IS FURTHER ORDERED that Defendant’s motion to reassign case [Dkt. # 16]
is TERMINATED AS MOOT.
Finally, IT IS ORDERED that the Clerk of the Court is DIRECTED to transfer the
above-captioned matter to the United States District Court for the Western District of
Michigan, Southern Division.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 30, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 30, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\11-11462.MARSH.Transfer.Venue.nkt.wpd

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