Level 3 Communications, LLC et al v. Illinois Bell Telephone Company et al

Filing 41

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion of plaintiff, Broadwing Communications, LLC, to reconsider, sever claims, and transfer [Doc. # 33 ] is granted. IT IS FURTHER ORDERED that the dismissal of Illinois Bell Telephone Company and Michigan Bell Telephone Company in the order entered on February 4, 2014 [Doc. # 35 , 36 ] is vacated. IT IS FURTHER ORDERED that the Clerk of Court is directed to transfer the claims of Broadwing Communications, LLC against Illinois Bell Telep hone Company, as set forth in the complaint [Doc. # 1 ], to the United States District Court for the Northern District of Illinois. IT IS FURTHER ORDERED that the Clerk of Court is directed to transfer the claims of Broadwing Communications, LLC against Michigan Bell Telephone Company, as set forth in the complaint [Doc. # 1 ], to the United States District Court for the Northern District of Texas. Signed by District Judge Carol E. Jackson on 4/4/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEVEL 3 COMMUNICATIONS, LLC, and
BROADWING COMMUNICATIONS, LLC,
Plaintiffs,
vs.
ILLINOIS BELL TELEPHONE COMPANY,
et al.,
Defendants.

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No. 4:13-CV-1080 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff, Broadwing
Communications, LLC (Broadwing), for reconsideration of the Court’s dismissal of its
claims against Illinois Bell Telephone Company (AT&T Illinois) and Michigan Bell
Telephone Company (AT&T Michigan). Defendants have not filed a response, and the
time for doing so has expired.
On January 7, 2014, this Court dismissed Broadwing’s claims against AT&T Illinois
and AT&T Michigan for lack of personal jurisdiction. [Doc. #31]. In the instant motion,
Broadwing does not challenge the Court’s decision regarding personal jurisdiction.
Instead, Broadwing requests that its claims against AT&T Illinois and AT&T Michigan be
severed from this action, rather than dismissed, and that they be transferred to forums
where personal jurisdiction is proper. Broadwing argues that this will prevent AT&T
Illinois and AT&T Michigan from asserting a statute of limitations defense.
Courts typically dismiss parties who are not subject to its jurisdiction. St. Paul
Fire & Marine Ins. Co. v. Servidone Constr. Corp., 778 F. Supp. 1496, 1507 (D. Minn.
Nov. 22, 1991). However, the United States Supreme Court has held that pursuant to
28 U.S.C. § 1406, courts have the discretionary power to transfer actions, instead of

dismissing them, when personal jurisdiction is lacking. Id. at 1507-1508 (citing
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-467 (1962); 28 U.S.C. § 1406 (“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 or division in which it could have been brought.”)); see also 28 U.S.C. § 1404(a)
(“in the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought.”).
In a multiple defendant case where a court does not have personal jurisdiction
over some of the defendants, a court may sever the claims against those defendants,
transfer the claims to a different federal district where they could originally have been
brought, and then proceed with the remaining claims over which it does have
jurisdiction. Servidone Constr. Corp., 778 F. Supp. at 1508 (citing Thee v. Marvin Glass
& Assocs., 412 F.Supp. 1116, 1119-1121 (E.D.N.Y. May 4. 1976); Fed.R.Civ.P. 21 (“On
motion or on its own, the court may at any time, on just terms, add or drop a party.
The Court may also sever any claim against a party.”)).
The Court finds that the refiling of Broadwing’s claims against AT&T Illinois and
AT&T Michigan in different jurisdictions could prevent those claims from being
adjudicated on their merits if those courts determine Broadwing’s claims to be timebarred under the statute of limitations. Thus, in the interests of justice, Broadwing’s
claims against AT&T Illinois and AT&T Michigan should be severed and transferred so
that they will, without question, relate back to the June 7, 2013 filing of this lawsuit.
See Cardinal v. Walker, 2013 U.S. Dist. LEXIS 18031, *8-9 (D. Minn. Jan. 11, 2013)
(“[A] court must consider whether dismissal of the action will affect the plaintiff’s
vulnerability to a statute of limitations defense.”); Hempstead County & Nevada County
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Project v. EPA, 700 F.2d 459, 462-63 (8th Cir. 1983) (action was transferred because
statute of limitations would have precluded refiling in another court).
Broadwing requests that the Court transfer its claims against AT&T Illinois to the
United States District Court for the Northern District of Illinois and its claims against
AT&T Michigan to the United States District Court for the Northern District of Texas.
Because AT&T Illinois is an Illinois corporation with its principal place of business in
Illinois, the United States District Court for the Northern District of Illinois is a proper
forum. AT&T Michigan has availed itself to the jurisdiction of the United States District
Court for the Northern District of Texas by filing suit against Broadwing in that court.
See Southwestern Bell, et al. v. Level 3 Communications, LLC et al., Case No. 3:13-CV2844 (N.D. Tex.); see also Int’l Transactions, Ltd. v. Embotelladora Agral
Regionmontana S.A. de C.V., 277 F. Supp.2d 654, 659 (Under Texas law, “[v]olutarily
filing a lawsuit in a jurisdiction is a purposeful availment of the jurisdiction’s facilities
and can subject a party to personal jurisdiction in another lawsuit when the lawsuits
arise from the same general transaction.”). Thus, the Court finds transfer to these
forums appropriate.
Accordingly,
IT

IS

HEREBY

ORDERED

that

the

motion

of

plaintiff,

Broadwing

Communications, LLC, to reconsider, sever claims, and transfer [Doc. #33] is granted.
IT IS FURTHER ORDERED that the dismissal of Illinois Bell Telephone Company
and Michigan Bell Telephone Company in the order entered on February 4, 2014 [Doc.
##35, 36] is vacated.
IT IS FURTHER ORDERED that the Clerk of Court is directed to transfer the
claims of Broadwing Communications, LLC against Illinois Bell Telephone Company, as
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set forth in the complaint [Doc. #1], to the United States District Court for the Northern
District of Illinois.
IT IS FURTHER ORDERED that the Clerk of Court is directed to transfer the
claims of Broadwing Communications, LLC against Michigan Bell Telephone Company,
as set forth in the complaint [Doc. #1], to the United States District Court for the
Northern District of Texas.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 4th day of April, 2014.

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