Bowden v. Novartis Pharmaceuticals Corporation

Filing 12

ORDER: This action is transferred to the United States District Court for the Middle District of North Carolina for further proceedings. The Clerk of Court is directed to effect the transfer. (Written Opinion) Signed by Judge Joan N. Ericksen on January 24, 2014. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Patricia S. Bowden,
Plaintiff,
v.

Civil No. 07-4752 (JNE/JSM)
ORDER

Novartis Pharmaceuticals Corporation,
Defendant.
Patricia Bowden brought this action against Novartis Pharmaceuticals Corporation
(Novartis) in December 2007. It was transferred in early 2008 by the Judicial Panel on
Multidistrict Litigation to the Middle District of Tennessee for coordinated or
consolidated pretrial proceedings, see 28 U.S.C. § 1407 (2006), and recently remanded to
the District of Minnesota. On January 14, 2014, the Court ordered the parties to file
briefs that address whether the action should be transferred to another district under 28
U.S.C. § 1404(a) (2006) (amended 2011) and, if a transfer is appropriate, the district to
which it should be transferred.
Bowden responded that the action should be transferred to the Middle District of
North Carolina under § 1404(a). Novartis asserted that the Court should dismiss the
action based on a lack of personal jurisdiction and improper venue: “Because the [C]ourt
lacks personal jurisdiction over Novartis, venue is improper, and accordingly, this case
should be dismissed for lack of proper venue.” See 28 U.S.C. § 1406(a) (2006) (“The
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

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or division in which it could have been brought.”). In the alternative, Novartis argued,
the action should be transferred to the Middle District of North Carolina under § 1406(a).
Finally, if the action is not transferred under § 1406(a), Novartis asserted that the action
should be transferred to the Middle District of North Carolina under § 1404(a).
Novartis did not assert the defense of lack of personal jurisdiction in a motion
under Rule 12(b) of the Federal Rules of Civil Procedure or in its answer. Consequently,
it waived the defense, see Fed. R. Civ. P. 12(h)(1); Yeldell v. Tutt, 913 F.2d 533, 539 (8th
Cir. 1990), and venue is proper in the District of Minnesota, see Eagle’s Flight of Am.,
Inc. v. Play N Trade Franchise, Inc., Civil No. 10-1208 (RHK/JSM), 2011 WL 31726, at
*3 & n.2 (D. Minn. Jan. 5, 2011). The Court declines to dismiss the action or to transfer
it under § 1406(a).
The Court turns to whether a transfer under § 1404(a) is appropriate. As the
parties acknowledged, the Middle District of North Carolina is more convenient for them
and likely witnesses, and a transfer to it serves the interest of justice. The Court
concludes that a transfer to the Middle District of North Carolina is appropriate under
§ 1404(a). Therefore, IT IS ORDERED THAT:
1.

This action is transferred to the United States District Court for the Middle
District of North Carolina for further proceedings.

2.

The Clerk of Court is directed to effect the transfer.

Dated: January 24, 2014
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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