                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-2004

Khalil v. Otto Bock
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2949




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Recommended Citation
"Khalil v. Otto Bock" (2004). 2004 Decisions. Paper 385.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/385


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-2949




                               AHLAM KHALIL, M .D.,
                                                           Appellant

                                           v.

            OTTO BOCK ORTHOPADISCHE INDUSTRIE GMBH & CO.
                  OF THE FEDERAL REPUBLIC OF GERMANY;
                  OTTO BOCK ORTHOPEDIC INDUSTRY, INC.,
             its wholly owned U.S. subsidiary in Minneapolis, Minnesota




                    On Appeal from the United States District Court
                            for the District of New Jersey
                         D.C. Civil Action No. 00-cv-00801
                       (Honorable John W. Bissell, Chief Judge)


                                Argued April 20, 2004

        Before: SCIRICA, Chief Judge, GARTH and BRIGHT * , Circuit Judges

                                (Filed: August 26, 2004)




   *
    The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Judicial
Circuit, sitting by designation.
JASON A. DARIA, ESQUIRE (ARGUED)
Litvin Blumberg Matusow & Young
The Widener Building, 18th Floor
1339 Chestnut Street
Philadelphia, Pennsylvania 19107
       Attorney for Appellant

EDWARD J. McBRIDE JR., ESQUIRE (ARGUED)
Schnader Harrison Segal & Lewis LLP
Woodland Falls Corporate Park
220 Lake Drive East, Suite 200
Cherry Hill, New Jersey 08002-1165
      Attorney for Appellees




                               OPINION OF THE COURT


PER CURIAM.

       Ahlam Khalil, M.D., appeals the District Court's denial of her Federal Rule of

Civil Procedure 60(b) motion, motion for reconsideration, and for relief of the court's

prior order dismissing her action against Otto Bock Orthopadische of Germany ("Otto

Bock") for lack of in personam jurisdiction in the United States District Court for the

District of New Jersey. Khalil requested that Court to reinstate her claims, and transfer

her case to the United States District Court for the Eastern District of Pennsylvania.

Khalil asserted product liability and misrepresentation claims and claims based on

consumer protection laws against Otto Bock. The District Court of New Jersey denied

her request, determining that the Eastern District of Pennsylvania did not have in

personam jurisdiction to hear the case. As explained below, we determine that the

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District Court abused its discretion in denying Khalil's Rule 60(b) motion and concluding

that the District Court in the Eastern District of Pennsylvania did not have jurisdiction

over the case. We decide that the issue of personal jurisdiction over Otto Bock in the

Eastern District of Pennsylvania should in the first instance be made by that Court on

transfer. Accordingly, we reverse and remand.

       Because the parties are familiar with the background facts and procedural history

of this case, we need not detail them here. It is sufficient to note that Khalil traveled to

Otto Bock headquarters in Germany on several occasions regarding the purchase and

fitting of a high-tech prosthetic leg to facilitate her ability to continue with her medical

training. Due to problems with the prosthesis, Khalil severely injured her good leg and

seeks compensation. Khalil initially filed her claims in the District Court for the District

of New Jersey.

       We review a district court's denial of a motion brought pursuant to Federal Rule of

Civil Procedure 60(b) for the abuse of discretion. Penn West Assoc., Inc. v. Cohen, 371

F.3d 118, 124 (3d Cir. 2004). We may reverse a district court's denial of transfer, where a

clear abuse of discretion exists, where the district court failed to consider all the relevant

public and private interest factors. Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220,

1225 (3d Cir. 1995).

       In rejecting Khalil's motion for reconsideration and transfer, the District Court of

New Jersey, among other things, faulted Khalil for not filing a protective action in the



                                               3
Eastern District of Pennsylvania. However, this is not a requirement of filing suit to

receive a transfer to another forum. 28 U.S.C. § 1404(a); see also Schwilm v. Holbrook,

661 F.2d 12, 16 n.5 (3d Cir. 1981) (noting § 1404(a) does not contain an election of

remedies).

       Further, the District Court also faulted Khalil for not establishing that Otto Bock

would be subject to in personam jurisdiction in the Eastern District of Pennsylvania. We

have previously explained that "a district court lacking personal jurisdiction can transfer a

case to a district in which the case could have been brought originally." Gehling v. St.

George's Sch. of Med., Ltd., 773 F.2d 539, 544 (3d Cir. 1985). The District Court erred

in determining that another court did not possess in personam jurisdiction. The District

Court did not provide Khalil with the opportunity to present any evidence that jurisdiction

exists in the Eastern District of Pennsylvania. In addition, the Eastern District of

Pennsylvania as a transfer court is in the better position to determine whether Otto Bock

should be forced to defend Khalil's claims in Pennsylvania. Khalil should have the

opportunity to present her case for personal jurisdiction in the transferee court.

       The District Court also criticized Khalil for not making a transfer request earlier.

However, the record reflects that at a hearing on December 4, 2000, in addressing

jurisdiction in New Jersey, Khalil's counsel orally requested a transfer to another

jurisdiction. (Appendix at 32). In addition, a general understanding appears to have

existed between the Court and the parties that Khalil would be able to bring her Rule 60



                                              4
motion after we decided her first appeal, Khalil v. Otto Bock Orthopadische Industrie,

No. 01-1335 (3d Cir. June 24, 2002) (unpublished). (Appendix at 66). In addition, the

transfer statute, 28 U.S.C. § 1404(a), does not include a time limitation for change of

venue. See Schwilm, 661 F.2d at 16.

       Because the District Court imposed improper reasons for denying Khalil's request

to transfer, we hold that the District Court abused its discretion in denying her transfer

motion on the ground of undue delay, interests of justice, and of the failure to anticipate

jurisdictional defects. The prime issue here is whether in personam jurisdiction exists

over Otto Bock in the District Court for the Eastern District of Pennsylvania. This

question should be decided by that Court not by the District Court for the District of New

Jersey. Accordingly, we REVERSE and REMAND to the District Court for the entry of

an order transferring the case to the District Court in the Eastern District of Pennsylvania

pursuant to 28 U.S.C. § 1404(a).




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