UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY L. LANDERS; KAREN L.
LANDERS, his wife,
Plaintiffs-Appellants,

v.

DAWSON CONSTRUCTION PLANT,
LIMITED,                                                     No. 98-2709
Defendant-Appellee,

and

L. B. FOSTER COMPANY, a Delaware
corporation,
Defendant.

JERRY L. LANDERS; KAREN L.
LANDERS, his wife,
Plaintiffs,

and

L. B. FOSTER COMPANY, a Delaware
corporation,                                                 No. 98-2763
Defendant-Appellant,

v.

DAWSON CONSTRUCTION PLANT,
LIMITED,
Defendant-Appellee.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-97-797-2)
Argued: September 24, 1999

Decided: November 2, 1999

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Leslie Renee Stotler, RANSON LAW OFFICES,
Charleston, West Virginia; Phillip Carrington Monroe, CAMPBELL,
WOODS, BAGLEY, EMERSON, MCNEER & HERNDON,
P.L.L.C., Charleston, West Virginia, for Appellants. Louis Smith,
LEBOEUF, LAMB, GREENE, & MACRAE, L.L.P., Newark, New
Jersey, for Appellee. ON BRIEF: J. Michael Ranson, Cynthia M.
Salmons, RANSON LAW OFFICES, Charleston, West Virginia;
David A. Mohler, CAMPBELL, WOODS, BAGLEY, EMERSON,
MCNEER & HERNDON, P.L.L.C., Charleston, West Virginia, for
Appellants. Theodore D. Aden, LEBOEUF, LAMB, GREENE &
MACRAE, L.L.P., Newark, New Jersey, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jerry L. Landers and his wife Karen L. Landers (collectively the
"Plaintiffs") sued L.B. Foster Company ("Foster") and Dawson Con-
struction Plant, Ltd. ("Dawson") for injuries suffered by Mr. Landers
while working on the Admiral T. J. Lopez Bridge over the Kanawha

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River at Chelyan, West Virginia. After their claim against Dawson
was dismissed for lack of personal jurisdiction, the Plaintiffs sought
reinstatement of Dawson as a defendant and transfer of the litigation
to the Western District of Pennsylvania. Foster filed a separate motion
seeking the same relief. On October 15, 1998, both motions were
denied.

The Plaintiffs and Foster appeal from the district court's October
15, 1998 Memorandum Opinion and Order. Finding no reversible
error, we affirm.

I.

On April 22, 1996, Mr. Landers, a West Virginia resident and an
employee of C.J. Mahan Construction Company, was working on the
construction of the Admiral Lopez Bridge when a piece of sheet pil-
ing released from a shackle and injured him. The Plaintiffs originally
filed suit against Foster on November 20, 1996, in the Circuit Court
of Kanawha County, West Virginia, alleging that the accident had
occurred as the result of a defective shackle distributed by Foster.
Later, on June 12, 1997, they filed an Amended Complaint adding
Dawson, the manufacturer of the shackle, as a defendant. In response
to the Amended Complaint, Dawson removed the action to the district
court for the Southern District of West Virginia, and subsequently
filed a motion to dismiss for lack of personal jurisdiction.

On December 15, 1997, the district court concluded that Dawson
"had no purposeful contact with West Virginia," and granted Daw-
son's motion to dismiss. Accordingly, the district court dismissed
both the Plaintiffs' claims and Foster's cross-claims against Dawson.

Attorneys for the Plaintiffs and Foster thereafter travelled to
England to depose Robin Dawson, the Managing Director of Dawson,
seeking to discover the extent of Dawson's contacts with West Vir-
ginia. During the deposition, it was ascertained that Mr. Dawson had
met with Michael James Songer, the General Manager of Foster's
Equipment Division, in Pittsburgh, Pennsylvania, to discuss distribu-
tion of Dawson's products in the United States. Likewise, in an affi-
davit executed on February 24, 1998, Mr. Songer indicated that he
and Mr. Dawson had specifically discussed locating a distributor for

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the Mid-Atlantic states, including West Virginia. Based on these addi-
tional facts, Foster filed a motion for reconsideration of the district
court's dismissal of Dawson. However, by order of April 27, 1998,
the district court denied the motion for reconsideration. Of note, the
two-year Pennsylvania statute of limitations had expired five days
earlier, on April 22, 1998.

On September 1, 1998, the Plaintiffs filed a motion seeking rein-
statement of Dawson as a defendant and transfer of the litigation to
the Western District of Pennsylvania, pursuant to either 28 U.S.C.
§ 1404(a) or § 1406(a).1 Foster filed a similar application on Septem-
ber 4, 1998. After considering the relevant factors, the district court,
by its October 15, 1998 Memorandum Opinion and Order, denied
both motions. The Plaintiffs and Foster have appealed from this
Order, asserting that the district court abused its discretion, and that
its decision should be reversed.

II.

Under the provisions of either § 1404(a) or§ 1406(a), the district
court has broad discretion to grant or deny a motion to transfer to
another district. Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986);
accord, Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1201 (4th Cir.
1993). Therefore, a district court's ruling on a motion to transfer will
be reversed only for a clear abuse of discretion. Id.

When faced with motions to transfer, district courts must engage
in an analysis of convenience and fairness, weighing a number of
case-specific factors. Stewart Organization, Inc. v. Ricoh Corp., 487
_________________________________________________________________
1 Section § 1404(a) provides as follows: "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." Section § 1406(a) states: "The district court of a district in
which is filed a case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such case to any dis-
trict or division in which it could have been brought." We note that the
analysis of whether a transfer is in the "interest of justice" is the same
under both § 1404(a) and § 1406(a). Nichols v. G.D. Searle & Co., 991
F.2d 1195, 1201 n.5 (4th Cir. 1993).

                     4
U.S. 22, 29 (1988). In particular, the following factors are commonly
considered in ruling on a motion to transfer:

          (1) the ease of access to the sources of proof; (2) the conve-
          nience of the parties and witnesses; (3) the cost of obtaining
          the attendance of the witnesses; (4) the availability of com-
          pulsory process; (5) the possibility of a view by the jury; (6)
          the interest in having local controversies decided at home;
          and (7) the interests of justice.

Alpha Welding & Fabricating, Inc. v. Heller, 837 F. Supp. 172, 175
(S.D. W. Va. 1993) (citing Verosol B.V. v. Hunter Douglas, Inc., 806
F. Supp. 582, 592 (E.D. Va. 1992); Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508-09 (1947)). After identifying and balancing these spe-
cific factors in this case, the district court concluded that transfer to
the Western District of Pennsylvania was not warranted.2

The Plaintiffs and Foster contend that the district court abused its
discretion in denying the motions to transfer the litigation to the
Western District of Pennsylvania, arguing that it was not reasonably
foreseeable that personal jurisdiction could not be asserted over Daw-
son in West Virginia. As a result of the timing of the district court's
ruling on the jurisdictional issue, the Plaintiffs' claims against Daw-
son are now barred by the statute of limitations in Pennsylvania.
_________________________________________________________________
2 In reaching this conclusion, the district court pointed out that (1) Mr.
Landers's injuries occurred in West Virginia; (2) the Plaintiffs and most
witnesses are located in West Virginia; (3) transfer would come at no
cost to the Plaintiffs, but at substantial cost to Dawson and the judicial
system; and (4) since West Virginia law would apply in this diversity
action, a West Virginia federal court would be more familiar with West
Virginia law than a federal court in Pennsylvania. While the Plaintiffs
and Foster concede that West Virginia "is the most convenient and
appropriate jurisdiction for this litigation," they argue that the district
court "eliminated" West Virginia as a forum by dismissing Dawson for
lack of personal jurisdiction. This argument is without merit. Under West
Virginia law, the Plaintiffs could have obtained a full recovery against
Foster in West Virginia for the damages they proved were caused by the
defective shackle. See, e.g., Morningstar v. Black & Decker Mfg. Co.,
253 S.E.2d 666, 683 n.22 (1979).

                     5
We have held that there is no abuse of discretion when a district
court denies a plaintiff's motion to transfer "on the ground that the
plaintiff's attorney could reasonably have foreseen that the forum in
which he/she filed was improper." Nichols, 991 F.2d at 1201 (empha-
sis added) (citations omitted). Furthermore, as the authorities relied
on in Nichols indicate, this principle applies even where the district
court dismisses the action based on the absence of personal jurisdic-
tion, and a subsequent action would be barred based on the statute of
limitations.3

The Plaintiffs and Foster attempt to distinguish Nichols by arguing
that "it was not reasonably foreseeable that the district court would
rule that Dawson did not have minimum contacts with West Virginia
in order to sustain personal jurisdiction." Appellants Br. at 21. Rely-
ing on the Supreme Court's decision in Goldlawr, Inc. v. Heiman, 369
U.S. 463 (1962), the Plaintiffs and Foster assert that the facts pre-
sented in this case are precisely the type that gave rise to the enact-
ment of § 1404(a) and § 1406(a) in the first place. In Goldlawr, the
Court stated that the underlying purpose of these statutes is to avoid
the injustice resulting to Plaintiffs from a dismissal of their case
"merely because they made an erroneous guess with regard to the
existence of some elusive fact of the kind upon which venue provi-
sions often turn." Id. at 466 (emphasis added). Asserting that the lack
of personal jurisdiction as to Dawson in West Virginia was such an
"elusive fact," the Plaintiffs and Foster argue that "unless counsel had
a crystal ball, they could not have foreseen, in advance, that this civil
action should have been filed in the Western District of Pennsylva-
nia." Appellants Reply Br. at 7.

In this civil action, however, the appellants had something more
reliable than a crystal ball: the unequivocal order of the district court
of December 15, 1997, finding a lack of personal jurisdiction as to
Dawson. Here, not only should the Plaintiffs and Foster have "reason-
_________________________________________________________________
3 See, e.g., Spar,Inc. v. Information Resources, Inc., 956 F.2d 392, 394
(2d Cir. 1992); Deleski v. Raymark Indus., Inc. , 819 F.2d 377, 381 (3d
Cir. 1987); Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986); Wood v.
Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 (9th
Cir. 1983); Dubin v. United States, 380 F.2d 813, 816 n.5 (5th Cir.
1967).

                     6
ably foreseen" that jurisdiction over Dawson was lacking, there was
a direct judicial determination on that issue. Thus, the Plaintiffs' and
Foster's reliance on Goldlawr is misplaced, because any error against
the Plaintiffs in this case did not involve some unforeseeable, elusive
fact. Rather, all relevant facts, including the lack of personal jurisdic-
tion over Dawson in West Virginia, were readily apparent to both
appellants at least four months prior to the running of the Pennsylva-
nia statute of limitations. Under these circumstances, the district
court's adverse rulings do not constitute an abuse of its discretion.

III.

Because the district court did not abuse its discretion in denying the
Plaintiffs' and Foster's motions to reinstate Dawson and transfer the
litigation to the Western District of Pennsylvania, we are compelled
to affirm.

AFFIRMED

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