                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                              FILED
                          ________________________   U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                No. 08-13125            FEBRUARY 27, 2009
                            Non-Argument Calendar       THOMAS K. KAHN
                          ________________________           CLERK


                      D. C. Docket No. 06-60420-CV-STB

JAMES VENTURES, L.P.,
a Texas Limited Partnership,
by Robert Alpert its General Partner,

                                                             Plaintiff-Counter
                                                          Defendant-Appellant
                                                              Cross-Appellee,

                                        versus

TIMCO AVIATION SERVICES, INC.,
a Delaware corporation,

                                                            Defendant-Counter
                                                            Claimant-Appellee
                                                             Cross-Appellant,

THIRD PARTY DEFENDANT DALE
BAKER,
LACY HARBER,

                                                         Defendants-Appellees.
                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                 (February 27, 2009)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant James Ventures, L.P. (“JV”) appeals the district court’s

grant of summary judgment in favor of Defendant-Appellee Timco Aviation

Services, Inc. (“Timco”) on JV’s claim for breach of an oral indemnification

agreement. The district court held that JV was not a real party in interest and

dismissed the action pursuant to Fed.R.Civ.P. 17. Alternatively, the court

determined that JV’s claims were barred by the three year statute of limitations

under Arizona law for breach of an oral contract of indebtedness. Az. Stat. § 12-

543. On appeal, JV asserts that it is a real party in interest. JV also argues that the

four year statute of limitations under Florida law governs its claim and, in the

alternative, that its claims are timely under the three year Arizona statute of

limitations. For the reasons set forth below, we affirm.

                                 I. BACKGROUND

      In late 2000, Timco was in a financial crisis. It was in default on its loan

                                           2
obligations and its lenders were threatening liquidation unless Timco reduced its

debt. In order to satisfy its lenders, Timco arranged for the sale of one of its

component businesses to Kellstrom Industries, Inc. (“Kellstrom”). Kellstrom

agreed to purchase Timco’s parts redistribution business (“Kellstrom Transaction”

or “the Transaction”). However, Kellstrom had a liquidity problem. Kellstrom’s

lenders would not approve the Transaction unless Kellstrom generated an

additional eight million dollars in working capital. In order to obtain the

necessary cash, Kellstrom entered into a contract with a third party to sell and

lease back its Florida headquarters building (the “Kellstrom Building”).

      In order to avert Timco’s imminent demise, it was imperative that the

Kellstrom Transaction close by December 1, 2000. However, the sale of the

Kellstrom Building was delayed. Therefore, in an effort to complete the

Transaction by the December 1st deadline, Timco obtained four investors to post

four letters of credit (“LOCs”) for Kellstrom in the amount of two million dollars

each. The investors were JV, Don Sanders, Robert Belfer and LJH Corporation

(collectively “LOC Lenders”). In consideration for the LOCs, Kellstrom entered

into an Agreement with Respect to Standby Letter of Credit Facility (“LC Facility

Agreement”), which provided that any draw on the LOCs would be considered a

term loan ("Loan") and would be repaid by Kellstrom. The Loan maturity date

                                           3
was December 1, 2001. Under a separate Purchase and Sale Agreement, the LOC

Lenders also secured the right to buy the Kellstrom Building for an agreed upon

price less a full credit for amounts drawn on the LOCs. During the negotiation of

the LOCs, JV alleges that Dale Baker, Timco's chief executive officer and

chairman of the board during the relevant period, orally agreed that Timco would

indemnify the LOC Lenders against any loss suffered as a result of posting the

LOCs (“Indemnification Agreement”).

       The sale of the Kellstrom Building fell through and Kellstrom's lenders

called the LOCs on or about October 18, 2001. JV alleges that Belfer and Sanders

subsequently assigned their claims to JV. Thus, JV possessed the rights related to

six million dollars drawn on the LOCs. Then, JV assigned its rights under the LC

Facility Agreement (and any and all rights ancillary thereto) to Danro Corporation

(“Danro”), General Partner of JV. The assignment included the right to purchase

the Kellstrom Building.1 In November of 2003, Danro acquired the Kellstrom

Building (receiving a full credit for the six million dollars drawn on its LOCs) and

sold it to a third party in December of 2004.

       On October 25, 2005, JV filed this lawsuit in an Arizona district court


       1
                It is disputed whether JV also assigned its rights under the Indemnification
Agreement. For purposes of the following analysis we assume, but do not decide, that JV did not
assign its rights under the Indemnification Agreement.

                                               4
seeking indemnification from Timco for losses it sustained from the posting of the

LOCs. Timco moved to dismiss the case for lack of personal jurisdiction and

improper venue. Rather than oppose the motion, JV agreed to transfer the case to

Florida under 28 U.S.C. § 1404(a). The Florida district court entered summary

judgment in favor of Timco on the grounds that JV was not a real party in interest,

and, alternatively, that the claims asserted were barred by the three year statute of

limitations under Arizona law. JV appeals.

                           II. STANDARD OF REVIEW

      This Court reviews a district court’s grant of summary judgment de novo.

Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary

judgment is appropriate when the evidence, viewed in the light most favorable to

the nonmoving party, presents no genuine issue of fact and compels judgment as a

matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,

106 S. Ct. 2548, 2552 (1986).

                                 III. DISCUSSION

      We first address whether JV’s claims are barred by the Arizona statute of

limitations. We find that they are, and, accordingly, we find no need to reach the

alternative grounds upon which we might resolve this case.

      A. Whether Arizona law applies

                                          5
      It is well established that a transfer under § 1404(a) is generally “but a

change of courtrooms.” Van Dusen v. Barrack, 376 U.S. 641, 639, 84 S. Ct. 805,

821 (1964). The transferee court is “obligated to apply the state law that would

have been applied if there had been no change of venue.” Id. This rule is based

on two rationales. First, the Supreme Court was concerned “that the principles

underlying Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed.

1188 (1938), would be violated if a change of venue could result in a disposition

that could not have been achieved if the action were initially brought in state

court.” Roofing & Sheet Metal Serv., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d

982, 991 (11th Cir. 1982) (citing Van Dusen, 376 U.S. at 637-38, 58 S. Ct. at 819-

20). Second, the Court determined that Congress did not intend for § 1404(a) “to

defeat the state-law advantages that might accrue from the exercise of [the

plaintiff’s] venue privilege.” Van Dusen, 376 U.S. at 635, 58 S. Ct. at 819.

      However, there is a relevant exception. “Van Dusen does not govern cases

in which the transferor court lacked personal jurisdiction of the defendant.”

Roofing & Sheet Metal Serv. Inc., 689 F.2d at 991. When the transferor court

lacked personal jurisdiction over the defendant, the transferee court must apply the

law of the state in which it sits. Id. at 992. To hold otherwise “would defeat the

goal of uniformity articulated in Erie and elaborated in Van Dusen, by producing

                                          6
different outcomes, depending on whether the action is initially brought in state or

federal court.” Id. It would also encourage forum shopping by allowing a plaintiff

“to ‘capture’ the law of an impermissible forum.” Id.

       This dispute can be resolved by straightforward application of these

principles. JV argues that the Arizona district court lacked personal jurisdiction

over Timco. Therefore, the Florida district court should have applied Florida’s

choice of law. The Florida district court noted that there had been no judicial

determination that the Arizona district court lacked personal jurisdiction over

Timco. After the transfer, Timco formally waived its defense of lack of personal

jurisdiction.2 As the district court properly noted, lack of personal jurisdiction is a


       2
                JV argues that Timco is judicially estopped from arguing that the Arizona court
has personal jurisdiction. We disagree. Judicial estoppel is an equitable doctrine invoked at the
court’s discretion. Stephens v. Tolbert, 471 F.3d 1173, 1177 (11th Cir. 2006). Courts have
traditionally looked to three factors: “(1) whether a later position asserted by a party was clearly
inconsistent with an earlier position; (2) whether a party succeeded in persuading a court to
accept an earlier position, so that judicial acceptance of an inconsistent position in a later
proceeding would create the perception that either the first or the second court was misled; and
(3) whether the party with an inconsistent position would derive an unfair advantage or impose
an unfair detriment on the opposing party if not estopped.” Id. (internal quotations omitted).
         Timco filed a motion to dismiss for lack of personal jurisdiction in the Arizona district
court. However, the court never ruled on the motion to dismiss. Instead, the parties stipulated to
a transfer to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). Neither the
stipulation itself nor section 1404(a) makes any reference to lack of personal jurisdiction.
Section 1404(a) states: “For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it might have
been brought.” Therefore, Timco never persuaded the Arizona court to accept its position that
the court lacked personal jurisdiction. Furthermore, Timco is not asserting an inconsistent
position. Timco is merely waiving its defense. Finally, we cannot perceive any injustice to JV in
applying the law of the state in which it brought suit.

                                                 7
waivable defect. See Lipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257,

1258 (1988). Accordingly, the district court applied the law of Arizona (the

transferor court) as required by Van Dusen. We discern no error.3

       B. Whether JV’s Claims are Barred by the Arizona Statute of Limitations

       Under Arizona law, there is a three year statute of limitations for breach of

an oral contract of indebtedness. Az. Stat. § 12-543. JV filed suit on October 25,

2005. The LOCs were drawn on or before October 18, 2001. Furthermore, all

parties agree that Kellstrom was in default on its obligation to repay the LOC

Lenders when the Loan matured on December 1, 2001. Therefore, the district

court determined that regardless of whether Timco’s obligation to indemnify the

LOC Lenders arose when the LOCs were drawn or when the Loan matured, the



       3
                The district court’s resolution of this issue conforms not only with the letter of the
law articulated in Van Dusen and Roofing & Sheet Metal, but also the rationale behind the law.
First, both opinions expressed concern that a change of venue might produce an outcome that
could not have been obtained if the action had originally been brought in state court – creating a
result inconsistent with Erie principles. See Van Dusen, 376 U.S. at 637-38, 58 S. Ct. at 819-20;
Roofing & Sheet Metal Serv. Inc., 689 F.2d at 992. Here, if the action had originally been
brought in Arizona state court, Timco would have been permitted to waive its defense of lack of
personal jurisdiction and submit to Arizona law. See Matter of Duryea, 563 P.2d 885, 885 n.1
(Ariz. 1977). Second, Van Dusen sought to prevent defendants from defeating the state-law
advantages accompanying the plaintiff’s privilege to select, from among permissible venues,
where to bring suit. See Van Dusen, 376 U.S. at 635, 58 S. Ct. at 819. Here, Timco does not
seek to defeat JV’s venue privilege. JV chose to bring suit in Arizona, and Arizona law is being
applied to resolve the case. Finally, Roofing & Sheet Metal sought to prevent impermissible
forum shopping by the plaintiff. See 689 F.2d at 992. Here, JV is not attempting to “capture”
the law of an impermissible forum. Rather, JV is attempting to avoid the law of a permissible
forum – that JV itself invoked.

                                                  8
filing of this suit in October of 2005 was barred by Arizona’s three year statute of

limitations.

           JV asserts that a cause of action does not arise on a promise to indemnify

until the plaintiff suffers damage. See HSL Linda Gardens Prop. v. Freeman, 859

P.2d 1339, 1340-41 (Ariz. Ct. App. 1993). Assuming this is true, JV’s argument

still fails. JV argues that the statute of limitations did not begin to run until Danro

(its assignee) acquired and then resold the Kellstrom Building. At this point, JV

claims that its loss was “liquidated.”4 However, the district court cited ample

evidence to support the conclusion that JV suffered damage, at the latest, when

Kellstrom defaulted on its obligation to repay the Loan. The court noted that

Robert Alpert, a General Partner who brought suit on JV’s behalf, testified that

Timco was obligated to indemnify the LOC Lenders when the LOCs were drawn.

JV’s expert witness also calculated JV’s damages from the time the LOCs were

drawn. Accordingly, we discern no error in the district court’s conclusion that

JV’s claims are barred by the Arizona statute of limitations.

                                   IV. CONCLUSION5

       4
               For purposes of argument alone, we accept the implicit assertion that JV might
have sustained damage when Danro suffered a loss on the sale of the Kellstrom Building. Even
assuming this is true, JV’s argument fails.
       5
              We find no error in the district court’s grant of summary judgment. Accordingly,
we need not address Timco’s cross-appeal.

                                              9
For the foregoing reasons, the opinion of the district court is

AFFIRMED.6




6
      Appellant’s request for oral argument is denied.

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