907 F. 2d 155 - Scott v. Gill

MEMORANDUM**

Plaintiffs, Kenneth Scott and Debbie A. Harris, appeal the dismissal of their action. They contend that the district court improperly applied the law of Nevada, when it should have applied the law of Montana. We affirm.

Plaintiffs were involved in an automobile accident in Las Vegas, Nevada. Defendant, Daniel William Wilson, collided with their automobile. Wilson was driving an automobile owned by defendant, David Gill, and insured by defendant, Allstate Insurance Co., Inc. ("Allstate").

Plaintiffs filed this action in the United States District Court for the District of Montana against Wilson, Gill, and Allstate. Plaintiffs asserted claims for negligence against the individuals and breach of common law and statutory obligations of good faith against Allstate.

Defendants made motions to dismiss for lack of personal jurisdiction, or, in the alternative, for transfer pursuant to 28 U.S.C. Sec. 1404(a) ("Section 1404(a)"). Plaintiffs conceded that the court lacked personal jurisdiction. They sought transfer of the case to the District of Nevada. The district court found that it lacked personal jurisdiction and transferred the action to the United States District Court for the District of Nevada pursuant to 28 U.S.C. Sec. 1406(a) ("Section 1406(a)").

After transfer, defendants moved for dismissal because, among other things, the action was barred pursuant to the Nevada statute of limitations. Nev.Rev.Stat. Sec. 11.190(4)(e) (1987). The district court granted the motion to dismiss for that reason. Plaintiffs filed a motion for reconsideration, based on an "Order Nunc Pro Tunc" filed by the United States District Court for the District of Montana. That order amended the original order to state that transfer was pursuant to Section 1404(a). The motion for reconsideration was denied by minute order filed and entered October 26, 1988. Plaintiffs filed a timely notice of appeal on November 28, 1988.

This court reviews de novo the district court's grant of a motion to dismiss. Hartford Accident & Indem. Co. v. Continental Nat'l American Ins. Cos., 861 F.2d 1184, 1185 (9th Cir.1988). A district court's decision concerning choice of law is a question of law reviewed de novo. Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 641 (9th Cir.1988).

Plaintiffs contend that the transfer was pursuant to Section 1404(a). Therefore, they argue, the law of the transferor forum, Montana, should apply. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).

Defendants argue that the transfer was actually pursuant to 28 U.S.C. Sec. 1631. This argument was not raised below. We decline to address it. Ferris v. Santa Clara County, 891 F.2d 715, 719 (9th Cir.1989).

The parties are agreed that the United States District Court for the District of Montana transferred the action for lack of personal jurisdiction over the individual defendants. Regardless of the statutory authority for the transfer, the law of the transferee court applies when transfer is ordered for lack of personal jurisdiction. Nelson v. International Paint Co., 716 F.2d 640, 643-44 (9th Cir.1983). Nelson controls this case; the district court therefore did not err when it applied Nevada law.

Plaintiffs do not dispute that Nevada choice of law rules require that the Nevada statute of limitations applies. See Sierra Diesel Injection Serv. v. Burroughs Corp., Inc., 648 F.Supp. 1148, 1152 (D.Nev.1986). Under Nev.Rev.Stat. Sec. 11.190(4)(e) (1987), the action was untimely filed; hence, it is barred.

The judgment of the district court is AFFIRMED.