Myelle v. American Cyanamid Co.

Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Justice POWELL joined. Judge MICHAEL wrote a dissenting opinion. OPINION LUTTIG, Circuit Judge: Leonard Myelle, a resident of Pennsylvania, died in a plane crash in South Carolina in September 1990, while he was engaged in cotton crop dusting as part of a campaign to eradicate boll weevils. His wife, the appellant Adeline Myelle, brought an action alleging wrongful death and related claims against the appellees in the United States District Court for the Eastern District of Pennsylvania.1 Finding that it lacked personal jurisdiction over certain of the defendants, and that venue was in any event improper, that court transferred Myelle’s action to the District of South Carolina, “pursuant [413] to 28 U.S.C. § 1406(a),2 and/or alternatively, pursuant to 28 U.S.C. § 1404(a).”3 Following this transfer, the District of South Carolina dismissed Myelle’s action because she had failed to comply with certain registration requirements which the state of South Carolina imposes on out-of-state executors. This appeal followed. I. The principal question we consider in this appeal is whether the District of South Carolina erred in ruling that Myelle’s capacity to maintain a wrongful death action is governed by South Carolina law, rather than by Pennsylvania law. Had the case been transferred pursuant only to 28 U.S.C. § 1406(a), this question would easily be answered in the negative, for it is well settled in this circuit that “a district court receiving a case under the mandatory transfer provisions of § 1406(a) must apply the law of the state in which it is held rather than the law of the transferor district court.” LaVay Corp. v. Dominion Federal Savings & Loan Ass’n, 830 F.2d 622, 626 (4th Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1027, 98 L.Ed.2d 991 (1988); see also Proctor & Schwartz, Inc. v. Rollins, 634 F.2d 738 (4th Cir.1980). The question is somewhat more difficult in this case, however, because the Eastern District of Pennsylvania expressly stated that it was transferring Myelle’s action pursuant to both 28 U.S.C. § 1406(a) and 28 U.S.C. § 1404(a). Myelle argues that the Supreme Court’s decision in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), requires application of the law of the trans-feror state — in this case Pennsylvania — following the transfer of an action under 28 U.S.C. § 1404(a). We reject this argument, because it is based on a misreading of Van Dusen. Although the Court stated in Van Dusen that “the transferee district court must under § 1404(a) apply the laws of the State of the transferor district court,” and, even more specifically, that “the capacity to sue will also be governed by the laws of the transferor State,” id. at 642, 84 S.Ct. at 822, “the laws of the transferor State” to be applied by the transferee court include the transferor’s choice-of-law rules. See Ferens v. John Deere Co., 494 U.S. 516, 519, 110 S.Ct. 1274, 1277, 108 L.Ed.2d 443 (1990) (“In Van Dusen ... we held that, following a transfer under § 1404(a) initiated by a defendant, the transferee court must follow the choice-of-law rules that prevailed in the transferor court.”).4 In this case, the choice-of-law rules of Pennsylvania call for the application of South Carolina law to determine Myelle’s capacity to sue. Pennsylvania courts follow an “interest-balancing” approach in resolving choice-of-law questions. See Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964); Troxel v. A.I. duPont Inst., 431 Pa.Super. 464, 636 A.2d 1179 (1994). As the Eastern District of Pennsylvania noted in declaring South Carolina the more appropriate forum, South Carolina has a far greater interest in the outcome of this case than does Pennsylvania: All relevant events transpired in South Carolina. Don and Linda McNeil reside in South Carolina and Don’s Flying Service is located in South Carolina.... Several if not all of McNeil’s and Boll Weevil’s lay witnesses and expert witnesses are located in South Carolina. Resolution to [sic] any and all issues of liability, ie., questions concerning what caused the airplane to crash, will be determined after conducting inspections and examining evidence in South Carolina. [414] Accord Kleinschmidt v. Universal Seafood Co., 201 F.Supp. 96, 98 (E.D.Pa.1961) (“Since, apparently, injury and death occurred in New Jersey, a Federal Court sitting in Pennsylvania must apply New Jersey law to determine whether a cause of action exists and the capacity of the party authorized to initiate proceedings.”)- Because South Carolina capacity-to-sue law is “the state law that would have been applied if there had been no change of venue,” the § 1404(a) transfer required the application of South Carolina law to determine Myelle’s capacity to sue. Van Dusen, 376 U.S. at 639, 84 S.Ct. at 820. Thus, whether Myelle’s action is understood as having been transferred under § 1406(a) or § 1404(a), her capacity to sue was indeed a question of South Carolina law. II. Myelle contends that even if the district court was correct to apply South Carolina law in determining her capacity to sue, the dismissal of her action must be reversed because the district court misapplied South Carolina capacity-to-sue law. Once again, we find Myelle’s argument to be without merit. Under South Carolina law, a foreign administratrix such as Myelle may acquire the powers of a local personal representative — including the power to maintain a wrongful death action — only by filing in South Carolina probate court authenticated copies of her appointment and bond. See S.C.Code Ann. § 62-4-205; Thomas v. Grayson, — S.C. -, 456 S.E.2d 377 (1995). Myelle has not yet filed these documents, and therefore is not entitled to maintain the wrongful death action.5 The dismissal of her action was therefore entirely proper. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. Footnotes [1] At the outset, Myelle filed three separate actions — one in the Eastern District of Pennsylvania, another in the Bucks County (Pa.) Court of Common Pleas, and a third in the McKean County (Pa.) Court of Common Pleas. The state court actions were removed to the Eastern District of Pennsylvania on defendants' motions, and the three actions were at that point consolidated into one. [2] Section 1406(a) provides that “[t]he 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." [3] Section 1404(a) provides that “[f|or the convenience of parties and witnesses, 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.” [4] See, e.g., H.L. Green Co., Inc. v. MacMahon, 312 F.2d 650, 654 (2d Cir.1962) (following § 1404(a) transfer of case from New York to Alabama, Alabama court directed to “apply New York law (including any relevant New York choice-of-law rules).") (quoted in Van Dusen, 376 U.S. at 633, 84 S.Ct. at 818). [5] At argument, the panel was presented with a recent opinion of the South Carolina Supreme Court, Thomas v. Grayson, - S.C. -, 456 S.E.2d 377 (1995). Thomas held that where a foreign personal representative files the requisite documents, but does so after the statute of limitations for bringing a wrongful death action has expired, the untimely filing relates back, such that the wrongful death action is allowed to proceed. Thomas is of no help to Myelle, however, because, as counsel conceded at argument, Myelle still has not bothered to comply with the South Carolina registration requirements. The dissent would have us excuse Myelle's continued failure to register, and remand to the district court "with instructions to grant Ms. Myelle leave to register locally and to amend her complaint to reflect her capacity to sue [under Thomas}." Post at 416. This, we decline to do. Myelle has made a strategic decision not to register her Pennsylvania appointment in South Carolina — presumably because, as the dissent suggests, to file the requisite papers would significantly undermine Myelle's argument that she was not required to do so. See post at 416. Such strategic decisions have consequences, and we simply are not so willing as is the dissent to relieve Myelle of the consequences of this particular decision. The interest of the judiciaiy and the defendants in not having this case tried piecemeal, and the substantial interest of the state of South Carolina in having its laws obeyed, are more than sufficient to overcome Myelle's litigation strategy interests.