The opinion of the court was delivered by: McLaughlin, J.
This case was brought by the executors of the estates of five passengers and a pilot killed in a plane crash in Pennsylvania. The plane crashed while making a planned stop in State College, PA, en route from Florida to Rhode Island. One of the defendants is Pilatus Aircraft Ltd. (Pilatus), a Swiss corporation that manufactured and distributed the plane. The plaintiffs asserted claims against Pilatus and several other manufacturer defendants (the non-Pilatus defendants) for products liability, negligence and breach of warranty.
On April 30, 2008, the Court granted defendant Pilatus's motion to dismiss it as a defendant for lack of personal jurisdiction. See D'Jamoos v. Pilatus Aircraft Ltd., No. 07-1153, 2998 WL 1902193 (E.D.Pa. Apr. 30, 2008). In the same Memorandum and Order, the Court also denied the plaintiffs' request to transfer the action to the United States District Court of Colorado pursuant to 28 U.S.C. § 1631.*fn1
On appeal, the United States Court of Appeals for the Third Circuit affirmed the Court's determination that there was no personal jurisdiction over Pilatus in this district. On the issue of transfer, however, the Court of Appeals was "satisfied that the record demonstrates that [the plaintiffs] have established a prima facie basis for a conclusion that a Colorado court may exercise general jurisdiction over Pilatus predicated on its direct contacts within Colorado or, alternatively, on the conduct of [Colorado-based subsidiary, Pilatus Business Aircraft, Ltd. (PilBAL)] as its agent." D'Jamoos v. Pilatus Aircraft, Ltd., 566 F.3d 94, 107 (3d Cir. 2009). The Court of Appeals found that the "undisputed jurisdictional facts amount to a prima facie showing that Colorado could exercise general jurisdiction over Pilatus," which "satisfies section 1631's requirement that the case 'could have been brought' in the District of Colorado." Id. at 109.
Such a conclusion, however, "only partially satisfies the requirements for a transfer under section 1631," and the Court of Appeals then directed the Court to consider on remand whether such a transfer would be "in the interest of justice." Id. at 110. Within that question, the Court is to consider whether the claims against the non-Pilatus defendants should be severed in order to permit the transfer of Pilatus's claims. Id. at 110. On this issue, the Court is instructed to "weigh the factors favoring transfer against the potential inefficiency of requiring the similar and overlapping issues to be litigated in two separate forums." Id. at 111.
The plaintiffs are considering filing for a writ of certiorari to the Supreme Court for review of the Court of Appeals' decision. On July 23, 2009, they filed a motion to extend the time to file such a petition to October 22, 2009. See Pilatus's Opp'n, Exhibit E. That motion was granted on July 31, 2009. The plaintiffs also filed a parallel lawsuit against Pilatus on March 21, 2008, in the District of New Hampshire. Atlas Aircraft Center, Ltd. (Atlas), the aircraft's servicer, is also a defendant in the New Hampshire action. Pilatus has filed a motion to dismiss that action on the ground of lack of personal jurisdiction. Pilatus was to file its reply brief on September 9, 2009.
The plaintiffs have stated that they would prefer to litigate their lawsuit against Pilatus in the Eastern District of Pennsylvania. Their second choice of venue is the District of New Hampshire, and their third choice is Colorado. Because of their stated preference, the plaintiffs asked this Court to withhold a decision on the question remanded by the Court of Appeals until the District Court in New Hampshire decides the motion to dismiss. See Pl.'s Br. at 3.
The Court is reluctant to delay this decision until then. Although the Court finds below that the plaintiffs have done nothing wrong in filing a protective lawsuit in New Hampshire while requesting transfer to Colorado, it would be inappropriate to allow the plaintiffs to dictate to the Court when it should decide a question remanded to it by the Court of Appeals. In addition, the non-Pilatus defendants are entitled to know whether the Court will sever the claims against them from those against Pilatus. The Court, therefore, will decide whether transfer to Colorado is appropriate.
In their briefs, both parties apply the legal standard used by the First Circuit in their decision in Britell v. United States, 318 F.3d 70 (1st Cir. 2003), when analyzing this question. Britell concerned the transfer of a party's mistaken appeal to the First Circuit when the Federal Circuit had exclusive jurisdiction over the case. The petitioners moved to transfer the appeal from the First Circuit to the Federal Circuit under § 1631. The respondent opposed that transfer and asked the court to dismiss the appeal outright. The Britell court granted the petitioner's motion to transfer under the transfer statute.
In its analysis of that statute, the First Circuit concluded that § 1631's language creates a rebuttable presumption in favor of transfer and that "transfer, rather than dismissal, is the option of choice." Id. at 74. The court reasoned that this presumption serves the purposes for which Congress created the statute. First, the statute serves to protect litigants against "statutory imprecision and lawyers' errors." Id. Second, the statute eliminates the incentive for wasteful double filing. Finally, the statute furthers "the salutary policy favoring the resolution of cases on the merits." Id. Transfer is therefore "presumptively preferable because the dismissal of an action or appeal that might thrive elsewhere is not only resource-wasting but also justice-defeating." Id.
Applying that standard to this case, the presumption for transfer is not overcome. Despite Pilatus's protestations to the contrary, transfer in this case serves at least one of the purposes for which § 1631 was created. Although it is true that this is not a case of rectifying a mere "inadvertent filing error," Pilatus Opp'n at 2, it does serve "the salutary policy favoring the resolution of cases on the merits" to send the case to Colorado, where the Court of Appeals has found there is prima facie evidence that a court has general jurisdiction over Pilatus.
The Britell court, however, provided three scenarios in which the presumptive preference for transfer could be rebutted. First, transfer is not warranted if the transfer would unfairly benefit the proponent. Second, justice would not be served if transfer would impose an unwarranted hardship on an objector. And finally, transfer would not be appropriate if transfer in a particular case would unduly burden the judicial system. Id.
Under the first of these factors, unfair benefit to the plaintiff, the plaintiffs' benefit in transfer is no more than the ability to try their case against the party that they claim is the ...