Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ALBERT J. FERENS, ET UX., Petitioners v. JOHN DEERE COMPANY, aka DEERE & COMPANY

No. 88-1512

November 6, 1989

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 p.m.

APPEARANCES:

RICHARD B. TUCKER, III, ESQ., Pittsburgh, Pennsylvania; on behalf of the Petitioners.

DAVID P. HELWIG, ESQ., Pittsburgh, Pennsylvania; on behalf of the Respondent.

PROCEEDINGS

12:59 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 88-1512, Albert J. Ferens v. John Deere Company.

Mr. Tucker.

ORAL ARGUMENT OF RICHARD B. TUCKER, III ON BEHALF OF THE PETITIONERS

MR. TUCKER: Mr. Chief Justice, and may it please the Court:

The sole issue presented by this case is whether a federal district court sitting in diversity to which a case has been transferred pursuant to 28 U.S.C. Section 1404 is required to apply the law that would have been applied had there been no transfer, where the transfer is from a court having proper jurisdiction, having proper venue, but the motion to transfer was made by a plaintiff.

The present proceedings were initiated by the Petitioners, residents of Pennsylvania, when the exercised their venue privilege by filing a timely complaint in the United States District Court for the Southern District of Mississippi, asserting claims for negligence and product liability against Respondent John Deere, arising out of Petitioner Albert Ferens' loss of his hand while cleaning his combine manufactured by the Respondent.

QUESTION: The purpose of that filing was to get the benefit of the Mississippi statute of limitations?

MR. TUCKER: There is no question about that, Your Honor. The purpose of the filing in an appropriate forum was to gain the advantage of the Mississippi statute of limitations. The Respondents did not oppose either the venue or the assertion of in personam jurisdiction over them in the Southern District of Mississippi.

QUESTION: Well, how could they?

MR. TUCKER: On the contrary --

QUESTION: Was there any basis to do so?

MR. TUCKER: There was no basis to do so, Your Honor. In fact, what they did in the case was file an answer in which they admitted specific facts that established the venue in the jurisdiction. They were registered to do business in Mississippi, they maintained a registered agent there, and they were in fact doing business in Mississippi. It is clear, therefore, that venue and jurisdiction were appropriate in the Southern District of Mississippi.

QUESTION: Mr. Tucker, could the court sitting in Mississippi have declined to grant or allow the transfer?

MR. TUCKER: It certainly could have, Your Honor. And I think that is one of the important things that we want to stress for this Court. It is not our argument in this case that a plaintiff filing a motion under Section 1404 has an absolute right to a transfer. That is clearly not our position. We may have a right to file a motion, but the determination of whether or not that case is going to be transferred is to be made by the district court after weighing all of the various factors that are appropriate for consideration under Section 1404.

In fact, in this very case, had the Respondents filed some objection to the motion to transfer, it is conceivable that the court in Mississippi would have denied the motion. Had that happened, we would have had a forum in which to try this case, because the Mississippi forum was clearly appropriate. Instead, by asserting the statute of limitations of Pennsylvania after the transfer had occurred, the Respondents have essentially engaged in the practice of using the transfer to defeat the state law advantages accruing to the Plaintiff from its initial selection of the forum, and Van Dusen proscribes that kind of conduct.

QUESTION: The holding of Van Dusen I don't believe is inconsistent with the result reached by the Third Circuit here. Are you, you are saying some of the language is --

MR. TUCKER: I am saying the reasoning in Van Dusen, Your Honor. I am not -- it is not our position that Van Dusen held that, in this particular case, the law of Mississippi had to continue to apply. In fact, the court specifically reserved judgment on that issue. We are not claiming otherwise. But it is our belief that the reasoning in Van Dusen is equally applicable in the present case, and that therefore the law of Mississippi should have continued to apply.

Now, the venue privilege that is accorded to a plaintiff is well established in the law. The Judicial Code of 1948 established venue rights for plaintiffs seeking to bring suits in federal court. Section 1391(c) of the Judicial Code -- of that provision, provides broad latitude to plaintiffs seeking to bring suits against defendant corporations. Not only is venue appropriate in a district where all the plaintiffs reside, or in the district where the cause of action arose, but venue is also appropriate with respect to corporations in the district where the corporation was incorporated, in any district in which it is licensed to do business, and in any district in which it is in fact doing business.

Implicit in the provision of broad venue rights to a plaintiff is the recognition that a plaintiff can select law in one of those forms that is more favorable than his selection of another form in the applicable law. In Van Dusen this Court recognized the propriety of the exercise of the venue privilege and of the accrual of state law advantages that arose because of such a selection. Indeed, this Court specifically deemed those rights worthy of protection against defendants who sought to use Section 1404 to defeat those rights. Now, there is nothing about Section 1404 that indicates that it is any way intended to defeat plaintiff's venue privilege and the accrual of advantageous state law.

QUESTION: Your case would have more, perhaps, gut appeal to it if you had kept your so-called venue privilege in Mississippi and not transferred it back to Pittsburgh, where the action -- or accident occurred.

MR. TUCKER: Well, Your Honor, what I am suggesting though is that the applicable law selection is a result of the initial selection of an appropriate venue forum. That's implicit by the way that Section 1391 is phrased. Section 1404, which provides for transfers, is not an automatic right. It does not provide a plaintiff or a defendant with a right to select a different forum and a different set of laws that will be applicable to the case. The law that should be applied in the case is that which is applied as a result of the initial selection of the forum. That is what the venue privilege establishes, that we have a right to do so. And nothing in 1404 defeats that right.

1404, if you view the specific express language, contains nothing indicating that a transfer of venue should result in a transfer of the applicable law.

QUESTION: Is it -- is it perfectly clear under 1404 that it is available to plaintiffs on the same terms it is -- as it is to defendants?

MR. TUCKER: It's -- it does not specifically say this statute is available to plaintiffs, but it talks it for the convenience of parties, it does not limit it to availability of defendants. And in fact, I think the vast majority of cases that have addressed that issue have said that it clearly is something that is available to plaintiffs as well as to defendants. I don't really think that there is any question about its availability.

QUESTION: And on the same terms substantially as is to defendants?

MR. TUCKER: There is nothing in the language indicating that its availability is on different terms. I know that there is an amicus curiae brief that suggested that the factors that might be considered in determining whether or not to grant a motion made by a plaintiff are different than those which might be considered in a defendant-initiated motion, but that issue really isn't before the Court, because in this case the motion was made and the Respondent did not oppose it.

Section 1404's enunciated policy is to provide for the convenience of the parties and witnesses in the interest of justice. There is nothing in that enunciated policy that indicates that it was intended to defeat a plaintiff's venue privilege. Finally, in what meager legislative history there is that deals with Section 1404, there is nothing to suggest that it was intended to defeat a plaintiff's venue privilege. Consequently --

QUESTION: Once the rule is adopted it wouldn't defeat the venue privilege, would it? I mean, the plaintiff would simply know that if -- that going in he was going to have to make a choice between getting the law of the place where he brought the suit or getting the more convenient forum. I mean, it wouldn't be defeating anything -- maybe in this one case it would, but once we announce what the rule is, the plaintiff's expectations will be very clear. He can either pick the law and live with it in that forum, or he can pick the more convenient forum and get the law with it.

MR. TUCKER: But I am not sure that you and I are disagreeing, Justice Scalia. I am suggesting a rule that says that the plaintiff pick the forum initially, and that is his law. He then has a right to ask the district court, considering factors of convenience and considering convenience of the witnesses, factors of fairness, to transfer that case. But that transfer, under Section 1404, is to have no effect on the applicable law. That's the rule that we are suggesting the Court adopt in this case, that it be a uniform rule, applicable regardless of whether it is the plaintiff or the defendant that is seeking to use 1404 to move the case from one court to another court.

QUESTION: Well, that may be a sensible enough rule, but all I am suggesting is that it doesn't seem to me to be an accurate description to say we are taking away, or we would be taking away, the plaintiff's, the plaintiff's venue selection right if we held that if, on his initiative, he wants to trade that for a more convenient forum, he has to trade the law along with it.

MR. TUCKER: Well, what I --

QUESTION: It doesn't seem to me an unreasonable rule.

MR. TUCKER: I think what we are talking about, Your Honor, is not necessarily simply the right to select the venue, because obviously by transferring a case you are changing the venue. But what we are talking about is what the court talked about in Van Dusen, and that's the state law advantages that accrue as the result of the selection of a particular forum. And in Van Dusen the court indicated that there was nothing about Section 1404 which indicated that it should be used, or could be used, to defeat those state law advantages.

QUESTION: But there it was a defeat. There you couldn't have said well, the plaintiff was just put to a trade. He was given the option of you stick with your choice of law with the venue, or you can get a more convenient forum but you will have to give up the choice of law. He didn't have that choice, because it was the defendant in that case who was trying to do him out of his selection of law. He was perfectly happy to litigate there, and the defendant was depriving him of it. All that your opponent is proposing here is that your client be put to his choice: pick your law or pick the convenient forum, but don't try to have both. Isn't that --

MR. TUCKER: I understand that, Your Honor, but I am suggesting that in Van Dusen the Court's consideration of 1404 led it to conclude that essentially 1404 has nothing to do with the applicable law following a transfer. This Court concluded in Van Dusen that 1404 was nothing other than a judicial housekeeping measure, that all it dealt with was the location of litigation, and all it did was authorize a transfer from one court room to another court room, that it should have no effect whatsoever on the applicable law following that transfer.

QUESTION: If it is as clear as that, why would we reserve the question, as we did explicitly?

MR. TUCKER: Because the question was not before the Court, Your Honor, and I think it is wise for the Court not to decide issues that are not before it. Just like, in this case, --

QUESTION: Well, why is it even an issue?

MR. TUCKER: I am sorry, Your Honor?

QUESTION: You, you seem to concede that it is a real issue.

MR. TUCKER: I seem to concede that what is a real issue?

QUESTION: Whether Van Dusen applies to this case.

MR. TUCKER: Oh, I don't think -- Van Dusen does not specifically apply to this case, because the Court reserved judgment on that question. But I don't think any implication can be drawn from the fact that judgment was reserved on the issue that is before the Court now, as to whether the Court would have decided that issue one way or the other. The fact of the matter is the issue simply was not before the Court in Van Dusen.

QUESTION: Well, you at least -- the Court at least said it wasn't deciding the question.

MR. TUCKER: That is correct. It said it was not deciding the question. All I am suggesting is that the reasoning --

QUESTION: We usually don't reserve questions that are foregone conclusions from the reasoning.

MR. TUCKER: But this Court generally, I don't think, decides issues that aren't before it. And in the case of Van Dusen what was before the Court was a defendant-initiated transfer, not a plaintiff-initiated transfer, and there was therefore no reason for the Court to decide one way or the other. Just like in the present case, the issue is not before the Court as to what happens where the plaintiff has selected an improper initial forum. That issue is not before the Court. It is not our position, and we are not arguing here today that if the plaintiff selects an improper initial forum, either because of venue or jurisdictional grounds, that he still is entitled to the applicable law of the transferor state. And I would submit that --

QUESTION: You mean the law -- you mean the law that the transferor state would have applied?

MR. TUCKER: The law that the transferor state would have applied, yes, Your Honor. And I think any opinion coming out of the Court today will reserve judgment on that issue because it is not before the Court. Just as the plaintiff-initiated transfer question was not before the Court in Van Dusen.

I think there is nothing about a plaintiff-initiated transfer which compels any different result than that of a defendant-initiated transfer. If you look at the express language in Section 1404 there is nothing that suggests that its use by a plaintiff somehow turns it into a devise to defeat the plaintiff's state law advantages accruing from the exercise, or the proper exercise, of its venue privilege. There is nothing in the enunciated policy that suggests that, or in the legislative history that suggests that anything about a plaintiff's use of the section makes it different than a defendant's use. In fact --

QUESTION: Does Van Dusen stand for the principle that there is simply no connection between the convenience of the forum and the applicable law?

MR. TUCKER: That would be our contention, Your Honor. If 1404 deals only --

QUESTION: I think it can be read that way. I am wondering -- it would seem as an intuitive matter that it should be the other way around.

MR. TUCKER: Well, 1404 deals only with consideration of convenience and fairness, not with considerations of the applicable law. That's a result of this Court's determination in Van Dusen that it is just a judicial housekeeping measure. In fact, this Court only last year described Section 1404 in the very same way in the Stewart Organization case. Both the majority and the dissenting opinions in those cases described 1404 as a mere judicial housekeeping measure.

QUESTION: Yet there is something odd about this case. You end up trying it in Pennsylvania, in the district court in Pennsylvania, and Pennsylvania would have said there is a two-year statute of limitations. Why should you be able to avoid that result by going down to Mississippi, where apparently nobody intended to try the case, and filing down there?

MR. TUCKER: That is absolutely incorrect, Your Honor. If the motion -- see, one of the problems with this case is that the Respondents did not oppose the motion. Therefore, everybody assumes that we automatically had a right to come back to Pennsylvania, or that, if they had opposed the motion successfully, we would have abandoned the suit in Mississippi. That is not correct. Mississippi was clearly a proper forum. This case would have been tried in Mississippi --

QUESTION: But not the one which you preferred, once you picked up your choice of law.

MR. TUCKER: Not the what that we preferred?

QUESTION: Yeah, I mean, it was you that moved to transfer it back to Pennsylvania.

MR. TUCKER: It was us that moved to transfer it back to Pennsylvania because obviously, given the residence of the plaintiffs, it would be more convenient for them to try the case in Pennsylvania.

QUESTION: So you, your first choice was the preference as to statute of limitations, and then if you could get the convenience you would get that?

MR. TUCKER: That is correct. We were not guaranteed that we would be able to come back to Pennsylvania however. Our first choice, and our duty as counsel for the Petitioners in this case, was to file the case in an appropriate and proper forum. And we did that. Then, because it would be more convenient for them, we filed a motion seeking to make the case more conveniently tried by bringing it back to Pennsylvania. We never contended that we had an absolute right to bring it back to Pennsylvania. It was up to the district court in Mississippi to weigh the various factors and decide whether or not --

QUESTION: Yet -- yet what arguments could have been made against your motion for transfer?

MR. TUCKER: Well, Your Honor, there has been a brief submitted by amicus curiae in this case suggesting that with respect to plaintiff-initiated motions to transfer, there are numerous factors that should be considered, whether there has been some change in the plaintiff's situation. It suggests also that, because it is the plaintiff that has made the original choice, that the plaintiff's initial selection should generally govern, unless the plaintiff can show, by a preponderance of evidence or arguments, that the case should be transferred.

QUESTION: But, sitting as a district judge in the Southern District of Mississippi, you know, the witnesses are in Pennsylvania, the accident occurred in Pennsylvania. Certainly there are a lot of considerations that would motivate that judge to grant the transfer, and it seems to me very few to militate against it.

MR. TUCKER: Well, in a way we don't know what militates against it because the Respondent didn't oppose it. The Respondent didn't come in and say these are the reasons we think this case shouldn't be transferred.

QUESTION: Well, isn't there an argument based on the language of the statute that might militate against it? The statute says that you may transfer it to any other district or division where it might have been brought. Now, technically it could have been brought and then dismissed on statute of limitations grounds, but there is a pretty good argument that it could not have been maintained in the district in Pennsylvania.

MR. TUCKER: I think that issue, Your Honor, has been resolved in the Van Dusen case, because one of the questions there was what it means -- what that particular phraseology means, where it might have been brought. And if I recall correctly, the Court in Van Dusen says that all that means is a jurisdiction or venue and -- a forum where jurisdiction and venue are appropriate, even if it may have resulted in less favorable law. I don't think that there was any basis for denying a transfer to Pennsylvania --

QUESTION: No, but it surely expresses the suggestion from Congress that one of the things that the transferring judge should consider is whether or not the litigation could have gone forward in that case -- in that state. And I would think the question, the questions presented by this particular certiorari petition is quite different from the question whether there might be a basis for refusing a transfer. This judge might say well, you picked this forum, I am going to hold you to your choice. You couldn't have sued up in Pennsylvania.

MR. TUCKER: I agree. If I understand your question correctly, I agree. We are not here to resolve the question of whether or not that motion should have been granted. The fact of the matter was it was granted. The question that we are here to decide today is what law is applicable. It is our position that this Court should adopt a uniform law that says, and this is language, this is basically taking language from the Stewart Organization case, which admittedly was dictum, it was not the holding, but in Stewart Organization this Court indicated that a transfer pursuant to Section 1404 carries with it no change in the applicable law. That should be the rule this Court adopts in this case.

QUESTION: (Inaudible) it certainly changes what the procedural rules are going to be.

MR. TUCKER: No, Your Honor, I submit that it does not. This case should have been --

QUESTION: Why not?

MR. TUCKER: Because the case would have been tried in the United States District Court for the Southern District of Mississippi --

QUESTION: Yes.

MR. TUCKER: -- under the federal rules of civil procedure --

QUESTION: Yes.

MR. TUCKER: Following the transfer it would have still be tried under the United -- under the federal rules of civil procedure --

QUESTION: Well, that may be so, but it would also have been tried under the rules of that particular court. You know, the federal rules don't have all the rules that apply to trying a lawsuit.

MR. TUCKER: Well, there would have been -- you are suggesting there would have been different procedural rules that would have applied?

QUESTION: Yes. Different local rules.

MR. TUCKER: Exactly, Your Honor. The only difference --

QUESTION: Don't tell -- don't say the rules don't change with the transfer. They do.

MR. TUCKER: No -- there would have been, or there could have been some minimal change in the application of the local rules.

QUESTION: Yeah, but the -- yeah, but is the statute of limitations deemed substantive or procedural?

MR. TUCKER: It depends on whether you are looking at that for Erie purposes or for other purposes. For Erie purposes it is considered substantive. It is outcome determinative. Therefore, the southern -- case --

QUESTION: What about for transfer purposes?

MR. TUCKER: For transfer purposes I believe it should be still be treated as substantive. It is part of the Mississippi law that should have been applied and continued to have been applied after the case was transferred pursuant to a procedural statute providing for such transfers at the convenience -- for the convenience of the parties and in the interest of justice.

I would also like to address the Third Circuit's opinion and the basis upon which the Third Circuit decided this case. The Third Circuit's opinion apparently reflects its feeling that this case constituted improper forum shopping. That is clearly inaccurate in this case. The Plaintiffs exercised their venue privilege properly. They brought suit in an appropriate forum --

QUESTION: It was proper forum shopping, right? Not improper forum shopping. I mean --

MR. TUCKER: It's the selection -- it's the selection of a forum, that is right.

QUESTION: Right.

MR. TUCKER: It's proper forum -- there is nothing improper about the initial selection of the forum --

QUESTION: Forum shopping. If indeed you have the option, you say all forum shopping is okay.

MR. TUCKER: And the case -- and the Petitioners cannot therefore be criticized in this case for bringing suit in the Southern District of Mississippi. That was clearly appropriate. That simply leaves the question of whether or not transferring the case back to the Western District of Pennsylvania constituted impermissible forum shopping. Clearly --

QUESTION: (Inaudible) to do it, and you certainly served your client well, but I wouldn't go around bragging about a judicial system that allows that kind of thing to determine how a case comes out.

MR. TUCKER: But it doesn't determine how this case comes out, Your Honor. That is just the point. No matter where this case was -- was tried, it should have been the law of Mississippi was applicable and should have been applied.

QUESTION: But the law of Mississippi had absolutely no connection with the accident that happened to your client, or the facts -- the only thing Mississippi had to do with it was that John Deere did business there.

MR. TUCKER: Let me -- let me clarify that. Mississippi choice of law --

QUESTION: Well, I didn't state it as I thought it needed any clarification.

MR. TUCKER: Well --

QUESTION: Isn't -- isn't that the fact, that the only connection between your client's case and Mississippi was that John Deere did business in Mississippi?

MR. TUCKER: That is correct, Your Honor. But that, in Sun Oil --

QUESTION: Wouldn't Mississippi have applied Pennsylvania law?

MR. TUCKER: That is exactly correct. What we are really talking about here is --

QUESTION: Not all of the laws --

MR. TUCKER: Choice of law.

QUESTION: Or Mississippi conflict law.

MR. TUCKER: Or choice, yes. Mississippi conflicts law, Mississippi choice of law. And under Mississippi's choice of law they would have applied their own statute, but they would have applied the substantive law of the Commonwealth of Pennsylvania, because that is where the cause of action arose.

QUESTION: Could you do the same thing in Hawaii?

MR. TUCKER: I am sorry, Your Honor?

QUESTION: Could you have transferred it to Hawaii?

MR. TUCKER: Could we have transferred it to Hawaii?

QUESTION: Yeah.

MR. TUCKER: Not in this particular case, Your Honor, because I don't believe that venue or jurisdiction would have been appropriate in Hawaii.

QUESTION: Well, doesn't John Deere do business over there?

MR. TUCKER: That is a question to which I don't know the answer, Your Honor.

QUESTION: Well, assuming John Deere did business in Hawaii, could you transfer it? Is there any state that you couldn't transfer it to?

MR. TUCKER: Well, right -- the basis of transferring is the district court's determination of factors of convenience to the parties and witnesses, and the interest of justice. Not whether or not --

QUESTION: Well, what parties were in Mississippi?

MR. TUCKER: There were no parties in Mississippi, Your Honor, that is why factors of convenience to the parties in this case warranted transferring --

QUESTION: Well, how did it get to Mississippi?

MR. TUCKER: I am sorry, Your Honor?

QUESTION: How did it get to Mississippi if there were no parties down there?

MR. TUCKER: Because the Plaintiffs properly exercised the venue privilege.

QUESTION: I thought you said John Deere did business down there.

MR. TUCKER: They do business down there.

QUESTION: Well, doesn't that make a party --

MR. TUCKER: John Deere was in Mississippi, that is correct, Your Honor.

QUESTION: Doesn't that make it a party?

MR. TUCKER: Yes, it does. John Deere was an appropriate -- was appropriately brought into this case in the Southern District of Mississippi.

QUESTION: Of course the whole thing only arises, really, because federal courts for Erie choice of law purposes treat the statute of limitations as substantive, whereas the Mississippi court, for its choice of law purposes, treats the statute of limitations as procedural.

MR. TUCKER: That is correct.

QUESTION: And it is that difference that creates this --

MR. TUCKER: That is correct.

QUESTION: -- unusual situation.

MR. TUCKER: Your Honor, we feel that it is appropriate for this Court to adopt a rule limited to where situations where venue and jurisdiction are proper in the original forum, which provides that a transfer under Section 1404 carries with it no change in the applicable law, regardless of whether it is the plaintiff or the defendant that makes the motion. And we believe that the reasoning of this Court in Van Dusen supports that position. And the considerations of the Section 1404, its purposes and its express language, also support that conclusion.

If there are no further questions --

QUESTION: Mr. Tucker, I take it one result is, on your theory, that the longest state statute of limitations becomes the federal statute of limitations?

MR. TUCKER: No, Your Honor. I don't think that --

QUESTION: Whatever process is available.

MR. TUCKER: But in Sun Oil Company v. Wortman, this Court has already said that that is appropriate if the case is initiated in that particular state. That's constitutional. That question is beyond any dispute.

QUESTION: I don't follow, but go ahead.

MR. TUCKER: If there are no other questions from the Court I would like to reserve the remainder of my time for rebuttal, Your Honor.

QUESTION: Very well, Mr. Tucker.

Mr. Helwig.

ORAL ARGUMENT OF DAVID P. HELWIG ON BEHALF OF THE RESPONDENT

MR. HELWIG: Mr. Chief Justice, and may it please the Court:

The facts upon which Petitioners' claim is based have everything to do with Pennsylvania and nothing to do with Mississippi. The only reason why any court would have ever even considered that Mississippi's statute of limitations should apply was that Petitioners apparently intended to litigate their action there. By moving to transfer the action to Pennsylvania, Petitioners have abandoned Mississippi as a forum for choice of law purposes, and by so doing have eliminated the only reason which ever existed for applying Mississippi statute of limitations.

QUESTION: Well, you say they have abandoned them because that is the issue we have to decide, isn't it?

MR. HELWIG: Well, I think that is the issue that has to be decided, but the reason I make that point is I think the threshold inquiry is to ask why as a choice of law matter does a court select one statute of limitations or one choice of law rule over another choice of law rule. With regard to statutes of limitation, it's simply the general rule, or the basic principle to which both Pennsylvania and Mississippi subscribe, is that they will apply their own statute of limitations, or their own choice of law rules selecting statutes of limitation, in a case which is pending in that forum.

QUESTION: Well, of course, if it is pending in a state court it would have been filed in the state court, too. This is a peculiarly federal problem. It only arises because federal courts sit in both jurisdictions.

MR. HELWIG: Right. And guarantee trust requires that the district court apply whatever statute of limitations that the state court in the state in which it was sitting would have applied.

QUESTION: Well, it's a principle that states may select the law which should apply, is it not?

MR. HELWIG: Absolutely, and that is what the court held in Wortman.

QUESTION: And then you have to show, I suppose, that there, in order to prevail, that there is some policy implicit in 1404 that overrides that state choice, whimsical as it may be in some instances.

MR. HELWIG: I am not suggesting that there -- and in fact the court has held by its earlier grant of certiorari in vacating the Third Circuit's prior judgment, that Mississippi's choice of law rule is not to be overthrown. And that is not what we are arguing about. But in Wortman, the point isn't -- I think the crucial point in Wortman is yes, the states are free to apply whatever choice of law rules they choose to with regard to statute of limitations. But, on the other hand, it doesn't mean -- the court held that you don't federalize the choice of law rules. You limit the application to a particular state, neither due process nor full faith and credit require the federal courts to invalidate a given state's choice of law rule. And here the rule we are really concerned with is Pennsylvania's choice of law rule, because for all practical purposes that is where Petitioners have chosen to litigate their claim, not Mississippi.

QUESTION: You acknowledge the case would be different if the defendant had moved for the transfer, is that right?

MR. HELWIG: Absolutely, Van Dusen would --

QUESTION: What if -- the statute doesn't say anything about plaintiffs or defendants. Supposing the judge had ordered the transfer on the judge's own motion. What rule would you apply then?

MR. HELWIG: I believe that, in light of Van Dusen and in light of the applicable choice of law rules, that you would apply the transferor forum's choice of law rules, because the original forum is still --

QUESTION: What if the plaintiff --

MR. HELWIG: -- the forum which the plaintiff had selected in which to litigate their claim.

QUESTION: So in that case you would treat that like a defendant-initiated transfer. What if the plaintiff went up to the judge after -- say you win this case, the plaintiff went -- the plaintiff's lawyer to the judge and said judge, I can't make a motion because if I do the case will be dismissed when it is transferred, but I think you should know that most of the witnesses live in Pennsylvania and it just makes a lot more sense to have the case tried up there. Maybe you'll want to ask the defendant what their views are on a transfer. Would that -- would that cause it to be a plaintiff-initiated transfer if he didn't actually make a formal motion?

MR. HELWIG: I -- that raises a problem of getting into subjective intent of the plaintiff, and I don't think -- I think you really have to look to what happens on the record.

QUESTION: So, you would limit it to the case where the judge calls the parties in and says hey, this looks kind of silly, we're trying a case in Mississippi when all the witnesses and the parties are in Pennsylvania. Does anybody object if I transfer the case? I have had that happen in trials. And you would say that would be treated like a defendant-initiated transfer? And if you do say that, why should there be a different rule if the plaintiff calls the same considerations to the attention of the court?

MR. HELWIG: Well -

QUESTION: Why should that be a waiver of the right to file in Mississippi, which you acknowledge he had?

MR. HELWIG: He had a right to file in Mississippi, but as a practical matter, he's not pursuing his claim in Mississippi when he, when he is the one who seeks the transfer.

QUESTION: But he would if the motion were denied. He would if the motion were denied, wouldn't he? And if you prevail in all these cases they just won't make the motion.

MR. HELWIG: Well, I think that would be the desirable result of --

QUESTION: The desirable result then we would have all these Pennsylvania lawsuits ought to be tried in Mississippi.

MR. HELWIG: Well, I think the result as a practical matter is that it will serve -- a ruling in favor of Respondent will create a prophylactic rule that basically discourages --

QUESTION: That's right, it will discourage these motions.

MR. HELWIG: -- plaintiffs from even filing in inconvenient forums, except in the situation where that is there only forum as a practical matter because --

QUESTION: Which is this case.

MR. HELWIG: -- the statute of limitations.

QUESTION: (Inaudible) encourage them to comply with the local statute of limitations.

MR. HELWIG: Well, it will also do that, Your Honor.

QUESTION: Was it stipulated -- what if the two parties just stipulate -- what if it is a joint motion?

MR. HELWIG: Well, if it is a joint motion I think, again, that the plaintiff has eliminated the reason for applying the original forum's statute of limitations, namely the selection of that forum as the one in which to go forward with the litigation. So I think wherever the plaintiff abandons that forum, you eliminate the basic choice of law principle that would support application of that forum's statute of limitations.

QUESTION: Of course, we could -- we could get the same good results that you want to achieve by following the same rule that we follow in Van Dusen, but simply saying that if -- if the result will be to have this state's law applied in another forum where the -- where the suit could not have been brought, don't allow the transfer. I mean, that is another way to achieve the same good results that you are after, couldn't we?

MR. HELWIG: That is another way to achieve the same result.

QUESTION: Now, why is your way better?

MR. HELWIG: Well, you won't have -- I think my way is better because you won't have the inconvenient forum, the inconvenient filings in the first place, except in instances where that is the only state where a statute of limitations would allow the litigation to be pursued. But you won't have --

QUESTION: No, I think the other result would discourage them just as much. They know that if they file it there they are going to have to try it there, and so -- and your system would do the same thing. If you file it in Mississippi you are going to have to try it in Mississippi. You can't try it anywhere else. It seems to me you could achieve that result in two ways, either by saying Mississippi law doesn't follow you back to Pennsylvania, or by saying you simply can't get it back to Pennsylvania, period.

MR. HELWIG: Well, the problem with that view of not allowing it to go back to Pennsylvania is that that result is not really conducive to the convenience of the parties, the witnesses or the interests of justice to have these lawsuits marooned down in the some inconvenient forum.

QUESTION: You can't have it both ways.

MR. HELWIG: Well, I -- I think it is the Petitioner who is the one wanting to have it both ways, not the Respondent.

QUESTION: To the extent that this statute of limitations is certainly welcomed by the Mississippi bar, I suppose that the rule that you propose would keep all suits in Mississippi, because no one would move for transfer, and that would tend to perpetuate the rule.

MR. HELWIG: That is true. I was wondering whether they might file an amicus brief in support of our position, but that was not forthcoming. However, I'd like to get to a point beyond statute --

QUESTION: Well, I take it Mississippi has since amended its statute of limitations. It is now three years?

MR. HELWIG: That is correct, Justice O'Connor, effective July 1 of 1989.

QUESTION: And incidentally, on that point, if Ferens had moved to Mississippi, I take it he could not have had the Mississippi statute of limitations?

MR. HELWIG: Correct, as the --

QUESTION: Has anyone ever questioned the constitutionality of that distinction based on moving?

MR. HELWIG: Well, I believe that it hasn't reached this Court. I think in the Schreiber v. Allis-Chalmers case that the, I think it was the Tenth Circuit, validated the constitutionality. The Third Circuit questioned the constitutionality of the Mississippi statute of limitations across the board, but of course this Court reversed that particular judgment by the Third Circuit.

Also, Justice Kennedy, you asked about did the -- did a change in law have any -- anything to do with convenience. And I think Petitioners' counsel said it should not. But in fact in Van Dusen I think the Court expressly addressed that question, because in Van Dusen, in ruling on the transfer motion, the district court said it should make no difference whatsoever whether you have -- a change in the applicable law. And I think that this Court expressly stated that that was an incorrect mode of analysis, so I wanted to address that point.

There was a lot of talk on discussion in Petitioners' argument about the notion that Section 1404(a) has been described as a judicial housekeeping measure, and I have the sense that Petitioner was attempting to substitute labeling for analysis. Now, this Court long ago in the context of the Erie jurisprudence rejected labeling as a matter of determining the way a particular case should be resolved. That is, labeling as substantive or labeling as procedural can't take the place of analysis. Certainly it is a judicial housekeeping measure, and in this Court Van Dusen -- in Van Dusen this Court held that it is a judicial housekeeping measure that wasn't intended to destroy state choice of law advantages. But equally, it is a judicial housekeeping measure that wasn't intended to enlarge those state choice of law advantages and affect federal law --

QUESTION: Well, how does this enlarge them? I don't understand that. If the case is properly filed in Mississippi, and you apply Mississippi rules which pick up all of Pennsylvania law except the statute of limitations, how does the transfer change that? How does that enlarge the Plaintiffs' legal claim?

MR. HELWIG: It is something that Plaintiff could never have had in Pennsylvania.

QUESTION: It couldn't have had it except for this peculiar rule that you can sue in Mississippi and no place else because they have a long statute of limitations and they have this, they treat it as substantive -- or procedural; I've stated it backwards. But that is the peculiarity in the case. But once you say they have gotten into Mississippi properly, how can you say they have enlarged the rights they have in Mississippi by transferring to Pennsylvania, which is a more convenient place to try the lawsuit?

QUESTION: Including more convenient for you.

MR. HELWIG: Yes, it was -- we did not oppose the motion. In fact, I think there were no valid grounds under Section 1404(a) for opposition. I think it enlarges the Petitioners' rights as a simple geographical matter. Yes, it is a right that they could have had in Mississippi (inaudible) anywhere else --

QUESTION: That's not a right, that is a matter of convenience. That is convenience. The rights are precisely the same. The convenience is much different. The convenience for the judge, for you and for the Plaintiff and for the witnesses. But that -- the rights are exactly the same. The same testimony would go into the record, the same documents will be introduced and the same instructions will be given to the jury.

MR. HELWIG: But so far as the statute of limitations is concerned, an exactly opposite result --

QUESTION: But that is not a function of the transfer. That is because he could file in Mississippi.

QUESTION: Well, you are saying it should be a function of the transfer.

QUESTION: That is right.

MR. HELWIG: I am saying that Section 1404(A), in all likelihood when the Congress enacted it, they had no intent so far as which forum's choice of law rules should apply following transfer. And given --

QUESTION: Well, they intended, didn't they, to adopt basically old doctrine of forum nonconvenience. And under the old doctrine, if this -- if Mississippi is a very inconvenient forum, they might transfer it to Pennsylvania. But I don't think a judge would have transferred it to Pennsylvania if the judgment said look, as a result of this transfer they are going to have to dismiss the action. Because it would throw one party out of court.

MR. HELWIG: If the Defendant had made the transfer it may have been granted on condition that the statute of limitations be waived.

QUESTION: Correct.

MR. HELWIG: Defendant, however, did not make the motion. That is the point of the statute.

QUESTION: No, but before the statute was passed under the forum nonconvenience doctrine, it was simply a motion to dismiss.

MR. HELWIG: Yes.

QUESTION: On the understanding it would be refiled in another forum. And I am just suggesting, I don't think the judge would have granted the motion if the price of granting the motion was to terminate the lawsuit under forum nonconvenience principles, which this statute was basically intended to reenact.

QUESTION: You -- go ahead --

MR. HELWIG: Of course, under forum nonconvenience you didn't have plaintiffs making motions to dismiss. They could simply institute the action in another forum --

QUESTION: That is right.

MR. HELWIG: -- which forum would apply its own choice of law rules, not those of whatever the original forum had been.

QUESTION: That is correct.

MR. HELWIG: And that would be the effect -- generally as to choice of law rules in the case of a forum nonconvenience dismissal on defendant's motion, would be that in the second lawsuit the second forum's choice of law rules would apply generally, not the original forum's.

QUESTION: Well, that means Van Dusen is wrong.

MR. HELWIG: Your Honor, I think there are certainly arguments that can be made that Van Dusen was incorrectly decided. But I do not think this Court needs to hold that in order to affirm the Third Circuit's judgment in favor of John Deere. In fact, --

QUESTION: No, but it needs to hold that to buy the argument that you just made. I mean, it seems to me we have crossed that bridge, that this thing tracks forum nonconvenience. We -- we've crossed that bridge when we decided Van Dusen the way we did. Because we decided in Van Dusen that it does not produce the result that forum nonconvenience dismissal would produce.

MR. HELWIG: That -- that has been decided, and I am not taking a position that Van Dusen should be overruled. It does -- I was in the course of just attempting to respond to Justice Stevens' question.

But I want to make abundantly clear that it is not our position that Van Dusen needs to be overruled. The Third Circuit, I believe, relied on Van Dusen in rendering a judgment in favor of John Deere Company in this case. I -- if you read their opinion, they said it was Petitioners' interpretation of Section 1404(a) that was inconsistent with Van Dusen. The Court had good reason in Van Dusen for reserving the question of what the effect would be of a plaintiff-initiated transfer. It wasn't just dealt with by ignoring the issue. The Court went out and said there may be other considerations in the case of a plaintiff-initiated transfer. And I think those other considerations are readily apparent by the fact -- become readily apparent under the facts of this case.

And I think Van Dusen's mode of analysis as far as statutory construction actually, again, supports the Third Circuit's judgment in favor of Respondent in this case. That mode of analysis being in the absence of a discernible legislative intent or congressional intent to change law we are going to maintain the status quo. It is a hands-off approach, but it should be a hands-off approach no matter who seeks the transfer. And the hands-off approach in the case of a defendant-initiated transfer leaves one with the application of Pennsylvania's law.

QUESTION: And yet, you don't argue that if the case had stayed in Mississippi, that it could not have been tried there. You -- you agree that if the case had stayed there, Mississippi's statute of limitations would apply.

MR. HELWIG: I agree, and I am constrained to agree by this Court's previous vacation of the Third Circuit's prior order, and also by the Sun Oil holding.

QUESTION: Yes. Yes. Well, -- and yet you say it shouldn't be tried up in Pennsylvania even though the same substantive law would apply as would have applied in Mississippi, and it would have been more convenient for everybody, including less -- and more, and less expensive for everybody to try it up there.

MR. HELWIG: The case belongs in Pennsylvania. I don't think there is any question about that. That is where it always belonged. The only reason it got into Mississippi was that Petitioner slept on his rights, not just more than two years, but actually more than three years from the date of his injury --

QUESTION: And then had the temerity to take advantage of one of our decisions.

(Laughter)

MR. HELWIG: I don't -- well, to attempt to take advantage, Your Honor. I think that certainly Van Dusen explicitly reserved the question. And I want to make it clear that I am intending no criticism of Petitioners' counsel. In fact, as I understand the matter, they did not have this case --

QUESTION: So, you might have done it yourself.

MR. HELWIG: I think -- that is exactly the point I think needs to be made, is that I think I would be obligated at a minimum to advise a person who walked into my office with a claim that was time barred under Pennsylvania, that even if I didn't want to it for the for whatever reason, that they had a right to pursue that claim in Mississippi. Just as I think you would be obligated to advise someone who, some other procedural -- some other choice of law rule that the forum considers to be procedural, advise that person, hey, maybe you should go to a state where the burden of proof is different or the rule on presumption is different. I think that professional duty extends to counsel with respect to all these legal rules that many forums consider to be procedural for choice of law purposes, but which Erie requires their application because they so affect the outcome of the case.

And I -- that raises, or that gets into the possibility that I have raised. That if Petitioners' interpretation of Section 1404(a) is adopted, the -- it's an inducement to plaintiffs to attempt to capture this wide variety of choice of law rules that are considered to be procedural. It is not just a statute of limitations situation, that presumptions, burden of proof, burden of production, sufficiency of evidence and statute of frauds are all considered by many forums to be procedural.

QUESTION: Yes, but in all except the statute of limitations situation there is no deterrent to just filing in the forum you want to stand up in. It is really only the statute of limitations problem that would cause him to file where he hopes he doesn't have to try the case.

MR. HELWIG: But by filing in an inconvenient forum with favorable choice of law rules, the petitioner hopes to capture those rules. And if he has an unrestricted --

QUESTION: And then transfer to the more convenient forum. But I am saying these other favorable choice of law rules, he would just go ahead and sue in Pennsylvania, if it weren't for the statute of limitations problem.

MR. HELWIG: No, I think, you know --

QUESTION: There is no -- really no reason to go to forum A and then hope the judge will transfer you to forum B if you could have sued in forum B in the first place.

MR. HELWIG: There -- there wouldn't be as compelling a reason, because obviously the statute of limitations is dispositive of the claim. But rules such as those on presumptions, burden of proof, et cetera, can significantly out -- affect the outcome of a case. That is why Erie requires that they be applied in diversity actions. So there would be a reason to seek out those rules, and I think the plaintiff --

QUESTION: Yes, but there is not a reason to seek out an inconvenient forum if you want those rules. You would want the rules that you would stick with.

MR. HELWIG: If that forum is the one that has the rule --

QUESTION: Oh, I see what you are saying. I see what you are saying.

MR. HELWIG: -- then you would seek it out. And I think the plaintiff's bar in this country, consistent with their obligations under the code of professional responsibility, is highly diligent, highly organized. You get a database, it would be a very simple matter to catalogue all of these favorable choice of law rules which the forums consider procedural --

QUESTION: But is it not true that even if you win this case you would still have the obligation to use the same database and pick the most -- the forum where you can get all these favorable rules, and go ahead and sue there. You would have to advise the client at least of the possibility of suing in a forum comparable to Mississippi.

MR. HELWIG: Well, if we're -- if the judgment is affirmed, then there wouldn't be any duty -- well, yes, you could say you can do that, but you'll have to stay there.

QUESTION: You may have to try the case there. That is right.

MR. HELWIG: Unless defendant moves to transfer.

QUESTION: Yeah. Well, but Mr. Helwig, here is what troubles me. I don't see any basis in the text of the statute or anything else for saying that you -- federal court has to apply one law where the plaintiff moves, another law where the defendant moves. I mean, we would be making that up. There is just no basis in there for that. There is a basis in the statute, however, for meeting the problem that you are concerned about in a different fashion.

That is, for simply saying if somebody has filed in a forum that is an inconvenient forum, and if the affect of transferring it is to send it to -- at his instance, is to -- at his instance is to send it to a forum where he would not have been able to win had he sued there, the court should not allow the transfer. You have language that permits that here, it says in the interest of justice a district court may transfer. In other words, the decision whether to transfer or not to transfer is very much at the discretion of the court, by -- the text of the statute. And I feel sort of free to follow my gut feeling which, frankly, is somewhat like yours, that this seems like a, you know, a legally permissible thing, but not the kind of thing we ought to encourage.

So why -- why shouldn't I do it that way rather than by saying yes, you can transfer, but the -- but the law that applies is the law of the transferee forum.

MR. HELWIG: Well, the first answer to that question is the issue which has been granted -- of which review has been granted, is what happens when there is a transfer, not whether or not transfer should be granted.

QUESTION: Well, I know that, but I want to know what my options are. I mean, if I say there is another more texturally permissible way of meeting all of your objections, then I'm -- then I would find against you, I hate to tell you.

MR. HELWIG: I think that the alternative view, as a matter of common sense, would also create a desirable prophylactic rule to discourage these kinds of filings, which I really think do constitute the sort of impermissible forum shopping that both Van Dusen and Erie are concerned with. As a pro -- but as a matter of common sense, I agree with you, that also would be a desirable prophylactic rule. I do have some question, however, whether there really is a basis in the statute for treating plaintiff-initiated transfers differently from defendant-initiated transfers as far as the standards to be applied. I am not sure that I see that there, although as a common sense way of dealing with the question, I think it has much to commend it.

QUESTION: (Inaudible) justice, which --

MR. HELWIG: Well, there is -- I am not saying that the question of choice of law couldn't be taken into consideration under that heading, but I don't think it's going to be entitled to dispositive weight because you do have these other factors which, as in this particular case, everything about the case is back in Pennsylvania. So, it wouldn't -- the interest of justice approach wouldn't necessarily compel the district court to deny the transfer motion.

I really, unless there are no further questions, I respectfully request the Court to affirm the Third Circuit's judgment in favor of John Deere Company.

QUESTION: Thank you, Mr. Helwig.

Mr. Tucker, do you have rebuttal? You have two minutes.

REBUTTAL ARGUMENT OF RICHARD B. TUCKER, III ON BEHALF OF THE PETITIONERS

MR. TUCKER: Thank you, Your Honor.

There are just three points that I would like to touch on very briefly. Justice Scalia's interest of justice analysis, I think, results in this case in the requirement that the Third Circuit's decision be reversed and this case be remanded to the Western District of Pennsylvania for trial. And if the Court adopts the position, or at least the suggestion, that Justice Scalia has indicated from his questioning, I think that that is the appropriate outcome in this particular case.

I wanted to address something that Justice Stevens was talking about, asking in terms of what enlargement of rights is there from the transfer of the case from the Southern District of Mississippi back to the Western District of Pennsylvania. As Your Honor pointed out, there is no enlargement of rights. There is only one benefit to the Plaintiff in this particular case; it is more convenient. And lo and behold, you look at Section 1404 and what does it say, for the convenience of the parties. The transfer of the case was for the express purposes set forth in the statute.

If you listen to the arguments that are being made by the Respondents, they are all in favor of discouraging plaintiffs from utilizing forums which would be properly available for them under the venue statutes set forth in the judicial code. How are they going to discourage that? They are going to discourage it by making it inconvenient and expensive for plaintiffs to try cases in those forums.

Again, I submit that any argument that fosters an application of Section 1404 against the convenience is --

QUESTION: Thank you, Mr. Tucker, your time is expired.

MR. TUCKER: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 1:55 p.m., the case in the above-entitled matter was submitted.)