The Honorable E. Richard Webber, United States District Judge 1

for the Eastern District of Missouri, sitting by designation.

The Honorable David S. Doty, United States District Judge for 2

the District of Minnesota.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

No. 96-2098

_______________

Sharon Richards, *

 *

Plaintiff-Appellant, * Appeal from the United States

 * District Court for the

 v. * District of Minnesota.

 *

Aramark Services, Inc., f/k/a *

ARA Services, Inc., *

 *

Defendant-Appellee. *

_______________

Submitted: December 13, 1996

Filed: March 17, 1997

Before McMILLIAN and MAGILL, Circuit Judges, and WEBBER,1

District Judge.

_______________

WEBBER, District Judge.

Sharon Richards appeals from the district court’s orders

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dismissing her claims for improper venue and denying her motion for

relief sought under Rule 60(b) of the Federal Rules of Civil

Procedure after the district court granted defendants’ motion to

dismiss for improper venue. We affirm.
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I.
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Sharon Richards, a Montana resident, was injured at O’Hare

International Airport in Chicago, Illinois, on October 3, 1988,

while delivering freight as a long-haul truck driver. On September

30, 1994, after the statute of limitations barred her negligence

action in Illinois, she filed suit in the District Court of

Minnesota where the action was not time-barred. Named as

defendants were Ground Services, Inc. (hereinafter referred to as

“GSI”), and ARA, later Aramark Services, Inc. (hereinafter referred

to as “Aramark”). GSI moved to dismiss the action for lack of

personal jurisdiction under Rule 12(b)(2) of the Federal Rules of

Civil Procedure and under Minnesota’s long-arm statute.

Additionally, both defendants moved to dismiss the action for lack

of proper venue pursuant to Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. §

1391(a)(3). 

Richards then filed an “alternative motion” to change venue to

the District Court for the District of Illinois, under 28 U.S.C. §

1404(a). Richards’ motion requested the court to transfer venue to

the Northern District of Illinois if the court first determined the

court lacked personal jurisdiction over GSI or that venue was

improper in Minnesota. At the beginning of a hearing on February

2, 1996, Richards’ counsel withdrew the § 1404(a) motion, but did

not voluntarily dismiss GSI from the suit. After the hearing, the

district court dismissed plaintiff’s action for improper venue.

Plaintiff filed a motion for post-judgment relief under Rules 59,

60(a), 60(b)(1) and 60(b)(6) of the Federal Rules of Civil

Procedure. That motion was denied. On appeal, plaintiff claims

the district court abused its discretion in denying her motion for

post-judgment relief under Fed.R.Civ.P. 60(b)(1). 

II.
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We review the district court order denying relief under

Fed.R.Civ.P. 60(b)(1) for abuse of discretion. Abuse of discretion
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will be found only when the trial court’s decision is based on an

erroneous view of the law or a clearly erroneous assessment of the

evidence. Waible v. McDonald’s Corp., 935 F.2d 924, 926 (8th Cir.

1991). Abuse of discretion can occur in three principal ways:

when a relevant factor that should have been given

significant weight is not considered; when an irrelevant

or improper factor is considered and given significant

weight; and when all proper factors, and no improper

ones, are considered, but the court, in weighing those

factors, commits clear error of judgment.

Williams v. Carter, 10 F.3d 563, 566 (8th Cir. 1993) (quoting Kern

v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

Relief under Rule 60(b) is limited. “A district court should

grant a Rule 60(b) motion `only upon an adequate showing of

exceptional circumstances.’” United States v. Tracts 10 & 11 of

Lakeview Heights, 51 F.3d 117, 120 (8th Cir. 1985) (quoting United

States v. Young, 806 F.2d 805, 806 (8th Cir. 1986), cert. denied,

484 U.S. 836 (1987)); see also General Elec. Co. v. Lehnen, 974

F.2d 66, 67 (8th Cir. 1992) (relief under Rule 60(b) to be granted

only in exceptional cases). We find no application of an erroneous

view of the law or erroneous assessment of evidence by the district

court, nor do exceptional circumstances justify relief under Rule

60(b)(1). 

Richards asserts that she was entitled to Rule 60(b) relief

because of existence of confusion at the hearing on February 2,

1996, and in the district court’s refusal to grant remedial relief.

Her claim is not supported by the record. Plaintiff filed suit in

Minnesota to take advantage of its statute of limitations. Once

defendants challenged venue and personal jurisdiction, plaintiff

sought, through her motion, a transfer to the Northern District of

Illinois under 28 U.S.C. § 1404(a). Transfer of venue under this

section would have allowed the longer Minnesota statute of
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limitations to be applied in Illinois. A transfer under 28 U.S.C.

§ 1404(a) turns on considerations of convenience and the interest
In a reverse-piercing situation, a corporate entity is set

3

aside so the protections and rights available to non-corporate

entities or individuals are made available to the corporation’s

insiders or shareholders. See In Re Schuster, 132 B.R. 604, 607

(Bankr. D. Minn. 1991); Miller & Schroeder, Inc. v. Gearman, 413

N.W.2d 194, 198-201 (Minn. Ct. App. 1987). In every case cited by

Richards applying reverse piercing under Minnesota law, relief was

sought by a shareholder of a corporation. See Cargill, Inc. v.

Hedge, 375 N.W.2d 477, 479-80 (Minn. 1985); Kuennen v. Citizens

Security Mut. Ins. Co., 330 N.W.2d 886, 887 (Minn. 1983); Roepke v.

Western Nat’l Mut. Ins. Co., 302 N.W.2d 350, 352-53 (Minn. 1981);

State Bank v. Euerle Farms, Inc., 441 N.W.2d 121, 124 (Minn. Ct.

App. 1989). Richards is admittedly not a shareholder of either

Aramark or GSI. Richards cites no authority to support her

application of the reverse-piercing theory to gain personal

jurisdiction over GSI through Aramark and the Court does not find

any reason for applying such a theory under the circumstances of

this action.

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of justice and when granted, the transferee forum is required to

apply the law of the transferor state. Ferens v. John Deere Co.,

494 U.S. 516, 523 (1990). However, Richards wanted to avoid

transfer of venue pursuant to 28 U.S.C. § 1406(a). Under that

section, the Illinois statute of limitations would have applied and

her action would have clearly been time-barred.

At the hearing, Richards’ counsel argued exhaustively that she

had acquired personal jurisdiction over GSI by a reverse-piercing,

alter-ego theory, having first acquired confessed in personam

3

jurisdiction over Aramark. However, as the district court properly

determined, Richards never acquired personal jurisdiction over GSI
On October 31, 1988, GSI was a Delaware corporation with

4

principal offices in Miami, Florida. In September, 1990, all GSI

stock was sold to Ogden Ground Services, Inc., a company that is

unrelated to Aramark. Neither GSI nor Ogden Ground Services, Inc.,

transacted business in Minnesota nor had any contact with that

state. Thus, the district court correctly determined that there is

no basis for in personam jurisdiction over either GSI or Ogden

Ground Services, Inc. International Shoe Co. v. Washington, 326

U.S. 310, 316 (1945).

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or its successor, Ogden Ground Services. At the conclusion of the 4

arguments at the February 2 hearing, the district judge announced
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an intent to grant the motion for lack of venue filed by

defendants. When asked by Richards’ counsel if that applied to

GSI, the judge confirmed that it did, then added that “this is not

the place this lawsuit ought to go on.” The court then offered

Richards’ counsel an opportunity to react and asked, “Do you want

to do something now, or are you going to bring a subsequent motion

somewhere else?” (emphasis added). Richards’ counsel offered no

oral or written motion, but suggested that the court should rule

the issue of jurisdiction “before it was appropriate to address the

transfer of the remaining case.” However, because the motion to

transfer was withdrawn at the beginning of the court’s dismissal

hearing, the issue was no longer before the court. On that same

day, the district court issued a written order dismissing the

action for improper venue.

Richards filed her action in the district court of Minnesota

as a harbor with a longer statute of limitations. Once there, when

personal jurisdiction was challenged, the burden did not shift to

defendants. Gould v. P.T. Krakatau Steel, 957 F.2d 573, 575 (8th

Cir.)(burden of proof is on the party seeking to establish the

court’s in personam jurisdiction and does not shift to party

challenging jurisdiction), cert. denied, 506 U.S. 908 (1992). The

motion to dismiss for lack of personal jurisdiction filed by

defendants was considered and ruled adversely to Richards.

Likewise, the district court considered the other pending motions

to dismiss for improper venue. “Venue requirements exist for the

benefit of defendants.” Hoover Group, Inc. v. Custom Metalcraft,

Inc., 84 F.3d 1408, 1410 (Fed. Cir. 1996) (citing VE Holding Corp.

v. Johnson Gas Appliance Co., 917 F.2d 1574, 1576 (Fed. Cir. 1990),

cert. denied, 499 U.S. 922 (1991)). “One of the central purposes

of statutory venue is to ensure that a defendant is not `haled into

a remote district, having no real relationship to the dispute.’”
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Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995)(quoting Cottman

Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.
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1994)). In this diversity action, without personal jurisdiction

over both defendants in the State of Minnesota, venue was improper.

See 28 U.S.C. § 1391(a). The district court, after concluding it

had no personal jurisdiction over GSI, properly dismissed the

action because venue was improper. All named defendants clearly

did not reside in the State of Minnesota.

Richards controlled the course of the litigation against

Aramark in the district court of Minnesota. She could have

voluntarily dismissed her claims against GSI and proceeded with her

action against Aramark, seeking, if she chose, to attempt to

transfer venue to the Northern District of Illinois under 28 U.S.C.

§ 1404(a), while maintaining the benefit of the Minnesota statute

of limitations. She had on file a motion to transfer venue in the

event the court found no personal jurisdiction existed as to GSI,

but she withdrew that motion at the beginning of the hearing. When

the district court later determined at the hearing that it had no

personal jurisdiction over GSI, the only two pending motions in the

case were defendants’ motion to dismiss for lack of personal

jurisdiction over GSI and defendants’ motion to dismiss for

improper venue. Without personal jurisdiction over GSI, venue was

necessarily improper under 28 U.S.C. 1391(a).

 

Richards seems to be arguing that the district court should

have paused after ruling the personal jurisdiction issue as to GSI

to permit her to proffer a motion she had already withdrawn. The

court entreated plaintiff to take action after indicating it was

going to rule defendants’ motion challenging venue. A district

court has no duty to take the action she requests. Woodke, 70 F.3d

at 986, (in absence of motion by plaintiff to dismiss certain

defendants in order to preserve venue, district court is not

required to dismiss such defendants sua sponte).
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Review of the transcript and the district court’s order

dismissing the action reveals a well-reasoned application of the

law by the district judge on the pending motions. We find no abuse

of discretion by the district judge in denying Richards’ motion for

reconsideration.

The orders of the district court are affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.