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In re Ski Train Fire in Kaprun

United States District Court, S.D. New York
Mar 19, 2003
MDL No. 1428 (SAS), 02 Civ. 2491, 01 Civ. 7245 (S.D.N.Y. Mar. 19, 2003)


MDL No. 1428 (SAS), 02 Civ. 2491, 01 Civ. 7245

March 19, 2003

Edward D. Fagan, Esq., Fagan Associates, Livingston, N.J., Robert A. Swift, Esq., Hilary Cohen, Esq., Kohn, Swift Graf, PC, Philadelphia, PA, Jay J. Rice, Esq., Randee Matloff, Esq., Nagel, Rice, Dreifuss Mazie, LLP, Livingston, N.J., for Plaintiffs.

Daniel V. Gsovski, Esq., Herbert Rubin, Esq., Sabine Beck, Esq., Herzfeld Rubin, PC, New York, NY, for defendants.


Plaintiffs, the parents and grandparents of six Americans who died in a ski train fire on November 11, 2000 in Kaprun, Austria, brought several individual actions against numerous defendants. The Judicial Panel on Multidistrict Litigation ("MDL Panel") consolidated these suits for pretrial purposes before this Court. Defendants Thyssen-Schachtbau, G.m.b.H. ("Thyssen") and Beton-und Monierbau, G.m.b.H. ("Beton") now move to dismiss this action for lack of personal jurisdiction and, in the alternative, pursuant to the doctrine of forum non conveniens. For the reasons set forth below, their motions to dismiss for lack of personal jurisdiction are granted.

Thyssen and Beton are mining and construction companies that plaintiffs allege constructed the tunnel at issue in this case. See Plaintiffs' Brief in Opposition to the Joint Motion to Dismiss of Defendants Beton and Thyssen ("Pl. Br.") at 1.

Thyssen's motion addresses the "First Amended Complaint" filed in the Southern District of New York. Beton's motion addresses the "Second Amended Complaint" against it in the action transferred to this Court by the MDL Panel from the District of Connecticut.

Because the motions to dismiss based on lack of personal jurisdiction are granted, I do not address the doctrine of forum non conveniens.


Plaintiffs concede that there is an insufficient basis for personal jurisdiction over Thyssen in New York and Beton in Connecticut. See Pl. Br. at 4, 20. Plaintiffs argue, nonetheless, that the Court should not dismiss the actions against Thyssen and Beton, but rather transfer the action against Thyssen to Montana or Virginia, see id. at 4, and the action against Beton to Massachusetts, see id. at 20. Plaintiffs rely on three statutory provisions that authorize district courts to transfer actions under certain limited circumstances, when it is in the "interest of justice" to do so: 28 U.S.C. § 1404(a), 1406(a), and 1631. However, only one inquiry is necessary to decide defendants' motions. See Pares, 1992 Wl 296437, at *1.

Over forty years ago, the Supreme Court held that a district court lacking both personal jurisdiction and proper venue could nonetheless transfer the action under section 1406(a) to a district where the defects would be cured. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962). Sixteen years later, the Second Circuit expanded that rule, holding that whether or not venue was proper, lack of personal jurisdiction could be remedied by transfer, under either section 1404(a) or section 1406(a), to a district in which personal jurisdiction could be exercised. See Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d Cir. 1978) (adopting Judge Weinfield's view in Volk Corp. v. Art-Pak Clip Art Serv., 432 F. Supp. 1179, 1181 (S.D.N.Y. 1977)); Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 111 (2d Cir. 2001).

Goldlawr overturned the Second Circuit's ruling that a district court lacking personal jurisdiction had no power to transfer. See 288 F.2d 579, 586 (2d Cir. 1961).

"The relevant inquiry under both § 1404(a) and 1406(a) is whether the `interests of justice' militate in favor of transfer or dismissal." Pares, 1992 WL 296437, at *2. This decision lies within the court's discretion. See Spar, Inc. v. Information Res., Inc., 956 F.2d 392, 394 (2d Cir. 1992).

Plaintiffs argue that the interests of justice require transfer here because plaintiffs "may face [a statute of limitations] bar to suit in a place where the action could have been originally filed," see Pl. Br. at 6 (emphasis added), and the discovery process may become "disjointed" if defendants are held to a different schedule as a result of refiling delays, see id. Neither of these circumstances favor a transfer.

Plaintiffs' preferred jurisdiction in which to refile the Thysson action is Montana, which has a three year statute of limitations for wrongful death actions. See Mont. Code Ann. § 27-2-204(2) (2002). Thus, as plaintiffs themselves acknowledge, the "Montana statute does not pose a present threat." Pl. Br. at 6. There will likewise be no time-bar problem in the Beton action because Massachusetts also has a three year statute of limitations. See Mass. Gen. Laws ch. 260, § 2A (2002). Because plaintiffs will be able to easily rectify the jurisdictional defects by refiling in their preferred jurisdictions before the expiration of the limitations period, there is no compelling reason here to transfer rather than dismiss the actions.

The fact that the statute of limitations in Virginia, where plaintiffs believe they could (but would prefer not to) bring the Thyssen action, is two years, see Va. Code Ann. § 8.01-244 (2002), is irrelevant. The interests of justice require only that plaintiffs have a forum in which to refile their lawsuit, not that they have several options of jurisdictions in which to refile. See, e.g., Corke, 572 F.2d at 80 (finding transfer is in the interest of justice because Florida's four-year negligence statute and two-year malpractice statute would bar institution of a new action).

The fact that the discovery schedule with respect to defendants Thyssen and Beton may not coincide with that of some of the other defendants is an important consideration, but not controlling here. The entire purpose of a multidistrict litigation is to coordinate pretrial proceedings. Nonetheless, the suits against each of the defendants have proceeded at different rates given the large number of jurisdictional issues inevitably arising when many of the defendants are foreign corporations. As a result, the document phase of discovery here must be staggered because of the many motions to dismiss. However, the remainder of discovery will be coordinated to the greatest extent possible.

Here, the interests of justice favor dismissal rather than transfer. The facts raised in these motions demonstrate that plaintiffs have, at best, a questionable basis for personal jurisdiction in each of their proposed jurisdictions for refiling. To transfer these actions to jurisdictions which may ultimately be found to lack personal jurisdiction would be grossly inefficient and would undermine the goals of the transfer statutes, which are to permit transfer only to a district in which the action "could have been brought." 28 U.S.C. § 1406(a) and 1631; see also 28 U.S.C. § 1404(a). Now that plaintiffs have had an opportunity to preview defendants' jurisdictional arguments with respect to each of the proposed venues, they are strongly advised to seriously consider their bases for personal jurisdiction before refiling actions against Thyssen and Beton. Nonetheless, if plaintiffs choose to proceed they must do so promptly so that the motions to dismiss for lack of personal jurisdiction can be decided expeditiously. Should the actions survive, it is important that all the cases proceed on the same track.


Because this Court has no personal jurisdiction over defendants, and the interests of justice do not warrant transfer, the actions against Thyssen and Beton are dismissed with leave to refile in an appropriate jurisdiction. These actions will presumably be transferred back to this Court by the MDL Panel as the Panel has already determined that all cases related to the ski train accident in Kaprun, Austria are to be transferred to this Court.


Summaries of

In re Ski Train Fire in Kaprun

United States District Court, S.D. New York
Mar 19, 2003
MDL No. 1428 (SAS), 02 Civ. 2491, 01 Civ. 7245 (S.D.N.Y. Mar. 19, 2003)
Case details for

In re Ski Train Fire in Kaprun

Case Details

Full title:In re Ski Train Fire in Kaprun, Austria on November 11, 2000. This…

Court:United States District Court, S.D. New York

Date published: Mar 19, 2003


MDL No. 1428 (SAS), 02 Civ. 2491, 01 Civ. 7245 (S.D.N.Y. Mar. 19, 2003)

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