Have you ever been sitting in a courtroom and wondered why you were there? We don’t mean that in a metaphysical sense, though that probably happens sometimes, too. No, we are thinking of the situation where you realize that neither the plaintiff nor the defendant are citizens/residents of the jurisdiction, and that the events in issue did not occur there either. Why are we here? This sort of thing happens to us a lot in courtrooms in New Jersey and Pennsylvania. Of course, there is an answer to the question: that is where the plaintiff filed the lawsuit. That choice of forum, so we are told by many authorities, is entitled to some respect. Okay, but how much? Forum-shopping is not one of the glories of American jurisprudence. It is a form of lawsuit arbitrage that inflicts inappropriate costs on parties and court systems. (Of course, some courts have unashamedly promoted themselves as litigation-tourist destinations.) When a plaintiff goes forum-shopping, what is being purchased? It could be plaintiff-friendly judges, jurors, laws, or procedures. It is ineluctably unseemly. Plaintiffs, being plaintiffs, sometimes push things a bit far, Forum shopping starts to look like forum-shoplifting.
If we had represented the defendant in the recent case of Kuennen v. Stryker Corp., 2013 U.S. Dist. LEXIS 1555571 (W.D. Va. Oct. 30, 2013), we would have wondered why we were in the place where the case was originally filed, the District of Columbia. The plaintiff, a resident of Virginia, underwent arthroscopic shoulder surgery in Virginia. The plaintiff received a pain pump made and sold by the defendants, to infuse a local anesthetic into the shoulder joint space. Now the plaintiff was alleging that the pain pump caused her to lose cartilage in her right shoulder joint. The defendants were both Stryker entities, which we will call “Corp.” and “Sales.” Neither was a citizen of D.C. The pain pump was not designed, manufactured, or sold in D.C. and the alleged injury occurred in Virginia. The defendants did not simply wonder why they were being hauled into a D.C. court; they successfully moved under section 1404 to transfer the case to the place where it should have been filed, Virginia. End of forum-shopping, right?
Maybe. Yeah. But not without a tussle. The defendants moved for summary judgment based on the statute of limitations. The defendants contended that the plaintiffs’ claims were barred by the Virginia two-year statute of limitations. In opposition, the plaintiffs asserted that the D.C. statute of limitations should apply with its favorable discovery role as to the accrual of the cause of action. The parties agreed that if the Virginia statute of limitations applied, the case would be dismissed, and if the D.C. statute applied, the case would continue, at least for a while. Why is it even an issue? The case is in Virginia, right? Not so fast. When an action is transferred under section 1404(a) from one district court to a district court in another state, the transferee court must apply the same law as the transferor court would have applied. The forum-shopping effect lingers.