UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY L. LANDERS; KAREN L.

LANDERS, his wife,

Plaintiffs-Appellants,

v.

DAWSON CONSTRUCTION PLANT,

LIMITED, No. 98-2709

Defendant-Appellee,

and

L. B. FOSTER COMPANY, a Delaware

corporation,

Defendant.

JERRY L. LANDERS; KAREN L.

LANDERS, his wife,

Plaintiffs,

and

L. B. FOSTER COMPANY, a Delaware

corporation, No. 98-2763

Defendant-Appellant,

v.

DAWSON CONSTRUCTION PLANT,

LIMITED,

Defendant-Appellee.

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CA-97-797-2)
Argued: September 24, 1999

Decided: November 2, 1999

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Leslie Renee Stotler, RANSON LAW OFFICES,

Charleston, West Virginia; Phillip Carrington Monroe, CAMPBELL,

WOODS, BAGLEY, EMERSON, MCNEER & HERNDON,

P.L.L.C., Charleston, West Virginia, for Appellants. Louis Smith,

LEBOEUF, LAMB, GREENE, & MACRAE, L.L.P., Newark, New

Jersey, for Appellee. ON BRIEF: J. Michael Ranson, Cynthia M.

Salmons, RANSON LAW OFFICES, Charleston, West Virginia;

David A. Mohler, CAMPBELL, WOODS, BAGLEY, EMERSON,

MCNEER & HERNDON, P.L.L.C., Charleston, West Virginia, for

Appellants. Theodore D. Aden, LEBOEUF, LAMB, GREENE &

MACRAE, L.L.P., Newark, New Jersey, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jerry L. Landers and his wife Karen L. Landers (collectively the

"Plaintiffs") sued L.B. Foster Company ("Foster") and Dawson Construction Plant, Ltd. ("Dawson") for injuries suffered by Mr. Landers

while working on the Admiral T. J. Lopez Bridge over the Kanawha

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River at Chelyan, West Virginia. After their claim against Dawson

was dismissed for lack of personal jurisdiction, the Plaintiffs sought

reinstatement of Dawson as a defendant and transfer of the litigation

to the Western District of Pennsylvania. Foster filed a separate motion

seeking the same relief. On October 15, 1998, both motions were

denied.

The Plaintiffs and Foster appeal from the district court's October

15, 1998 Memorandum Opinion and Order. Finding no reversible

error, we affirm.

I.

On April 22, 1996, Mr. Landers, a West Virginia resident and an

employee of C.J. Mahan Construction Company, was working on the

construction of the Admiral Lopez Bridge when a piece of sheet piling released from a shackle and injured him. The Plaintiffs originally

filed suit against Foster on November 20, 1996, in the Circuit Court

of Kanawha County, West Virginia, alleging that the accident had

occurred as the result of a defective shackle distributed by Foster.

Later, on June 12, 1997, they filed an Amended Complaint adding

Dawson, the manufacturer of the shackle, as a defendant. In response

to the Amended Complaint, Dawson removed the action to the district

court for the Southern District of West Virginia, and subsequently

filed a motion to dismiss for lack of personal jurisdiction.

On December 15, 1997, the district court concluded that Dawson

"had no purposeful contact with West Virginia," and granted Dawson's motion to dismiss. Accordingly, the district court dismissed

both the Plaintiffs' claims and Foster's cross-claims against Dawson.

Attorneys for the Plaintiffs and Foster thereafter travelled to

England to depose Robin Dawson, the Managing Director of Dawson,

seeking to discover the extent of Dawson's contacts with West Virginia. During the deposition, it was ascertained that Mr. Dawson had

met with Michael James Songer, the General Manager of Foster's

Equipment Division, in Pittsburgh, Pennsylvania, to discuss distribution of Dawson's products in the United States. Likewise, in an affidavit executed on February 24, 1998, Mr. Songer indicated that he

and Mr. Dawson had specifically discussed locating a distributor for

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the Mid-Atlantic states, including West Virginia. Based on these additional facts, Foster filed a motion for reconsideration of the district

court's dismissal of Dawson. However, by order of April 27, 1998,

the district court denied the motion for reconsideration. Of note, the

two-year Pennsylvania statute of limitations had expired five days

earlier, on April 22, 1998.

On September 1, 1998, the Plaintiffs filed a motion seeking reinstatement of Dawson as a defendant and transfer of the litigation to

the Western District of Pennsylvania, pursuant to either 28 U.S.C.

§ 1404(a) or § 1406(a).1 Foster filed a similar application on September 4, 1998. After considering the relevant factors, the district court,

by its October 15, 1998 Memorandum Opinion and Order, denied

both motions. The Plaintiffs and Foster have appealed from this

Order, asserting that the district court abused its discretion, and that

its decision should be reversed.

II.

Under the provisions of either § 1404(a) or§ 1406(a), the district

court has broad discretion to grant or deny a motion to transfer to

another district. Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986);

accord, Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1201 (4th Cir.

1993). Therefore, a district court's ruling on a motion to transfer will

be reversed only for a clear abuse of discretion. Id.

When faced with motions to transfer, district courts must engage

in an analysis of convenience and fairness, weighing a number of

case-specific factors. Stewart Organization, Inc. v. Ricoh Corp., 487

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1 Section § 1404(a) provides as follows: "For 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." Section § 1406(a) states: "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." We note that the

analysis of whether a transfer is in the "interest of justice" is the same

under both § 1404(a) and § 1406(a). Nichols v. G.D. Searle & Co., 991

F.2d 1195, 1201 n.5 (4th Cir. 1993).

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U.S. 22, 29 (1988). In particular, the following factors are commonly

considered in ruling on a motion to transfer:

(1) the ease of access to the sources of proof; (2) the convenience of the parties and witnesses; (3) the cost of obtaining

the attendance of the witnesses; (4) the availability of compulsory process; (5) the possibility of a view by the jury; (6)

the interest in having local controversies decided at home;

and (7) the interests of justice.

Alpha Welding & Fabricating, Inc. v. Heller, 837 F. Supp. 172, 175

(S.D. W. Va. 1993) (citing Verosol B.V. v. Hunter Douglas, Inc., 806

F. Supp. 582, 592 (E.D. Va. 1992); Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 508-09 (1947)). After identifying and balancing these specific factors in this case, the district court concluded that transfer to

the Western District of Pennsylvania was not warranted.2

The Plaintiffs and Foster contend that the district court abused its

discretion in denying the motions to transfer the litigation to the

Western District of Pennsylvania, arguing that it was not reasonably

foreseeable that personal jurisdiction could not be asserted over Dawson in West Virginia. As a result of the timing of the district court's

ruling on the jurisdictional issue, the Plaintiffs' claims against Dawson are now barred by the statute of limitations in Pennsylvania.

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2 In reaching this conclusion, the district court pointed out that (1) Mr.

Landers's injuries occurred in West Virginia; (2) the Plaintiffs and most

witnesses are located in West Virginia; (3) transfer would come at no

cost to the Plaintiffs, but at substantial cost to Dawson and the judicial

system; and (4) since West Virginia law would apply in this diversity

action, a West Virginia federal court would be more familiar with West

Virginia law than a federal court in Pennsylvania. While the Plaintiffs

and Foster concede that West Virginia "is the most convenient and

appropriate jurisdiction for this litigation," they argue that the district

court "eliminated" West Virginia as a forum by dismissing Dawson for

lack of personal jurisdiction. This argument is without merit. Under West

Virginia law, the Plaintiffs could have obtained a full recovery against

Foster in West Virginia for the damages they proved were caused by the

defective shackle. See, e.g., Morningstar v. Black & Decker Mfg. Co.,

253 S.E.2d 666, 683 n.22 (1979).

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We have held that there is no abuse of discretion when a district

court denies a plaintiff's motion to transfer "on the ground that the

plaintiff's attorney could reasonably have foreseen that the forum in

which he/she filed was improper." Nichols, 991 F.2d at 1201 (emphasis added) (citations omitted). Furthermore, as the authorities relied

on in Nichols indicate, this principle applies even where the district

court dismisses the action based on the absence of personal jurisdiction, and a subsequent action would be barred based on the statute of

limitations.3

The Plaintiffs and Foster attempt to distinguish Nichols by arguing

that "it was not reasonably foreseeable that the district court would

rule that Dawson did not have minimum contacts with West Virginia

in order to sustain personal jurisdiction." Appellants Br. at 21. Relying on the Supreme Court's decision in Goldlawr, Inc. v. Heiman, 369

U.S. 463 (1962), the Plaintiffs and Foster assert that the facts presented in this case are precisely the type that gave rise to the enactment of § 1404(a) and § 1406(a) in the first place. In Goldlawr, the

Court stated that the underlying purpose of these statutes is to avoid

the injustice resulting to Plaintiffs from a dismissal of their case

"merely because they made an erroneous guess with regard to the

existence of some elusive fact of the kind upon which venue provisions often turn." Id. at 466 (emphasis added). Asserting that the lack

of personal jurisdiction as to Dawson in West Virginia was such an

"elusive fact," the Plaintiffs and Foster argue that "unless counsel had

a crystal ball, they could not have foreseen, in advance, that this civil

action should have been filed in the Western District of Pennsylvania." Appellants Reply Br. at 7.

In this civil action, however, the appellants had something more

reliable than a crystal ball: the unequivocal order of the district court

of December 15, 1997, finding a lack of personal jurisdiction as to

Dawson. Here, not only should the Plaintiffs and Foster have "reason-

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3 See, e.g., Spar,Inc. v. Information Resources, Inc., 956 F.2d 392, 394

(2d Cir. 1992); Deleski v. Raymark Indus., Inc. , 819 F.2d 377, 381 (3d

Cir. 1987); Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986); Wood v.

Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 (9th

Cir. 1983); Dubin v. United States, 380 F.2d 813, 816 n.5 (5th Cir.

1967).

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ably foreseen" that jurisdiction over Dawson was lacking, there was

a direct judicial determination on that issue. Thus, the Plaintiffs' and

Foster's reliance on Goldlawr is misplaced, because any error against

the Plaintiffs in this case did not involve some unforeseeable, elusive

fact. Rather, all relevant facts, including the lack of personal jurisdiction over Dawson in West Virginia, were readily apparent to both

appellants at least four months prior to the running of the Pennsylvania statute of limitations. Under these circumstances, the district

court's adverse rulings do not constitute an abuse of its discretion.

III.

Because the district court did not abuse its discretion in denying the

Plaintiffs' and Foster's motions to reinstate Dawson and transfer the

litigation to the Western District of Pennsylvania, we are compelled

to affirm.

AFFIRMED

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