I Like to Move It, Move It: PartialVenue Transfer for Less Than a FullLegal Action

Table of ContentsI. Introduction 2660II. The Development of Transfer Mechanisms and Venue Rules 2664A. Common Law Transfer and Dismissal Mechanisms 2665B. Statutory Venue Transfer Rules 26701. Transfer for the Sake of Convenience, 28 U.S.C. § 1404 26702. Transfer to Cure Filing in an Improper Venue, 28 U.S.C. § 1406 26733. Transfer to Cure Lack of Jurisdiction, 28 U.S.C. § 1631 26774. Transfer and Consolidation in Multidistrict Litigation, 28 U.S.C. § 1407 2680C. Transfer After Severance Under Federal Rule of Civil Procedure 21 2682III. Disagreement on Transfer of Less Than a Full Action Under § 1631 2685A. The Circuit Split 2685B. Division Regarding Interpretation of the Term "Action" 2691IV. Recommendation to Resolve the Circuit Split 2693A. Amend Title 28 to Reflect Allowance of Partial Transfers 2694B. Amendment Comports with Congressional Intent and the Historical Development of Venue Transfer Mechanisms 2695C. Current Transfer Mechanisms Cannot Solve the Problem 2700V. Conclusion 2703I. IntroductionOn July 23, 2010, pro se plaintiff Shepard Johnson filed a diversity action in the U.S. District Court for the Eastern District of California.1 Johnson alleged that more than a dozen defendants initiated criminal proceedings against Johnson in Panama and conspired to avoid fulfilling conditions, covenants, and restrictions for a planned development.2 Johnson alleged malicious prosecution and civil conspiracy to commit malicious prosecution by individual defendants in California, Minnesota, Tennessee, Colorado, Florida, New Hampshire, and Texas.3Johnson sought a remedy for the wrongs he alleged, but he was a pro se litigant who lacked legal training.4 Colorado resident and defendant Kim Parsons sought dismissal from the case arguing that the California district court lacked personal jurisdiction over her.5 The Johnson court noted that, when a court lacks personal jurisdiction over a defendant, it must decide whether to dismiss the plaintiffs claim against that defendant or transfer the case to a forum that would have personal jurisdiction over that defendant.6 In this case, the court found that Parsons's home state of Colorado would have personal jurisdiction over Parsons, but transfer or dismissal would be problematic.7Dismissing the claim for lack of personal jurisdiction8 was unacceptable because "the statute of limitations would likely bar refiling the claims against defendant Parsons in Colorado and plaintiff would be unnecessarily required to pay another filing fee."9 Alternatively, the court might have transferred the entire action to Colorado under a federal statute that permits the transfer of a "civil action" to an appropriate court if "there is a twant of jurisdiction" and "it is in the interest of justice."10 The Johnson court noted, however, that it "cannot transfer the entire action to the District of Colorado because it is obvious that the Colorado district court would lack personal jurisdiction over several of the defendants."11In attempting to determine how to handle the claim related to defendant Parsons, the Johnson court encountered a split between the federal circuits about how to handle the dismissal or transfer of an action when the court has jurisdiction over only some of the claims and defendants.12 The heart of the conflict is a disagreement about whether a federal district court may transfer less than a full action to another forum where jurisdiction is appropriate over only a part of the action.13On one side, the D.C. Circuit has found a court may not transfer less than an entire legal action.14 On the opposite side, the Tenth Circuit,15 Third Circuit,16 and the Federal Circuit17 have found that a district court may transfer claims, less than an entire legal action, where the court lacks jurisdiction over those claims and the associated defendants. …