§ 1406(a) Transfer May Be Denied Where Plaintiffs’ Venue Choices Show Forum Shopping and Lack of Diligence

Introduction

In Doe 2 v. Congregation of the Sacred Hearts of Jesus and Mary (2d Cir. Jan. 29, 2026) (summary order), Plaintiffs-Appellants Jane Doe 1 and Jane Doe 2 sought damages for sexual abuse allegedly suffered as children at a Massachusetts boarding school in the 1960s. They sued several Catholic entities, including The Congregation of the Sacred Hearts of Jesus and Mary, the Roman Catholic Diocese of Fall River, the Sisters of Charity of Montreal, and the Sisters of Charity of Quebec.

The procedural posture drove the appeal: Plaintiffs first filed in the Southern District of New York, where the case was dismissed for improper venue; they then refiled in the Eastern District of New York, where the case was again dismissed for improper venue. Plaintiffs asked the Eastern District, in the alternative, to transfer the action to the Northern District of New York under 28 U.S.C. § 1406(a). The district court refused, citing lack of diligence and perceived forum shopping. The sole issue on appeal was whether the district court erred in refusing to transfer.

Summary of the Opinion

The Second Circuit affirmed. It held that the district court did not abuse its discretion in denying transfer under 28 U.S.C. § 1406(a) because the record supported the conclusion that Plaintiffs failed to act diligently in selecting a proper venue and that their repeated New York filings—given the age of the allegations and apparent limitations obstacles elsewhere—“smack[] of forum shopping.” The panel also stated it could affirm on any ground supported by the record and did not need to decide whether venue would have been proper in the Northern District.

Analysis

Precedents Cited

  • Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408 (2d Cir. 2005)
    Cited for the broad principle that courts have “considerable discretion” in deciding whether to transfer “in the interest of justice.” The panel used Daniel to frame § 1406(a) transfer as discretionary rather than mandatory, making abuse-of-discretion the operative appellate lens.
  • Minnette v. Time Warner, 997 F.2d 1023 (2d Cir. 1993)
    Reinforced the same point: whether to dismiss or transfer under § 1406(a) lies within the “sound discretion” of the district court. This authority supports affirmance so long as the district court’s reasons fit within recognized “interest of justice” considerations.
  • Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009) and Liriano v. United States, 95 F.3d 119 (2d Cir.1996)
    Although Ruiz arose under 28 U.S.C. § 1631, the panel treated it as “instructive” because § 1631 and § 1406(a) use nearly identical “interest of justice” language. Together, these cases supplied a non-exhaustive list of factors that can support transfer—e.g., likely untimeliness if forced to refile, good-faith initial filing, and party agreement. The panel used these factors largely as a foil: even if untimeliness loomed, other considerations (forum shopping, lack of diligence) could outweigh it.
  • Spar, Inc. v. Info. Res., Inc., 956 F.2d 392 (2d Cir. 1992)
    This was the opinion’s key doctrinal anchor. The panel relied on Spar for two related constraints on transfer: (1) transfer should not “reward plaintiffs for their lack of diligence in choosing a proper forum,” and (2) “interest of justice” is not “a vehicle for resurrecting a claim lost because the plaintiff erred in [its] initial choice of forums.” The panel mapped those principles onto Plaintiffs’ repeat filing in New York districts after an earlier venue dismissal.
  • City of New York by & through FDNY v. Henriquez, 98 F.4th 402 (2d Cir. 2024)
    Cited for the appellate maxim that the court may “affirm on any ground supported by the record.” This allowed the panel to affirm denial of transfer based on forum-shopping/lack-of-diligence considerations without reaching the disputed question whether the Northern District would have been a proper venue.

Legal Reasoning

The court treated 28 U.S.C. § 1406(a) as a remedial tool with limits. Section 1406(a) provides that a court where venue is wrong “shall dismiss, or if it be in the interest of justice, transfer” to a district “in which it could have been brought.” The panel emphasized three reasoning steps.

  1. “Interest of justice” is discretionary and fact-sensitive.
    By invoking Daniel and Minnette, the panel positioned the case as a classic discretionary decision, reviewed deferentially. This framing made it difficult for Plaintiffs to win absent a clear misapplication of § 1406(a).
  2. Forum shopping can be a legitimate basis to deny transfer—even within one state.
    Plaintiffs argued that seeking transfer among New York districts cannot be “forum shopping” because it is all “New York.” The panel rejected that premise, adopting a general definition: “choosing the most favorable jurisdiction or court.” On the panel’s account, the practical driver was not geography but limitations law: Plaintiffs acknowledged Massachusetts would be time-barred because it “has no equivalent to the [New York Child Victims Act].” Against that backdrop, repeated attempts to keep the case in New York (despite venue defects) supported the district court’s view that transfer would facilitate an effort to litigate “in any district court in New York.”
  3. Lack of diligence independently supports denial of transfer.
    Even putting “forum shopping” to one side, the panel held the district court acted within its discretion in treating Plaintiffs as not diligent: after the first improper-venue dismissal in the Southern District, they did not immediately pursue the Northern District; instead they refiled in the Eastern District on a “substantially the same venue theory” that had already failed. Relying on Spar, Inc. v. Info. Res., Inc., the panel endorsed the principle that § 1406(a) should not rescue claims jeopardized by a plaintiff’s repeated venue errors.

The panel also addressed (and minimized) the Northern District venue dispute. It noted there was “no actual finding” on Northern District venue and that the district court did not treat itself as barred from transferring. Still, it was permissible for the district court to consider the “relative weakness” of defendants’ ties to the Northern District when weighing whether transfer was warranted.

Impact

Although issued as a non-precedential summary order, the decision reinforces several practical, litigation-shaping points within Second Circuit venue practice:

  • § 1406(a) is not a safety net for serial venue misjudgments. Plaintiffs who suffer an improper-venue dismissal and then refile on the same (or similarly defective) venue theory face heightened risk that courts will deny transfer and dismiss instead.
  • Limitations-driven forum preference can count against transfer. The panel accepted that limitations dynamics (here, the unavailability of a Massachusetts analogue to the New York Child Victims Act) may contextualize a transfer request as forum shopping.
  • Appellate courts may avoid deciding the “would have been proper” transferee-venue question. By affirming on lack-of-diligence/forum-shopping grounds, the panel signaled that litigants may lose transfer fights without a merits determination that the requested transferee district is improper.

Complex Concepts Simplified

  • Improper venue: The case was filed in a federal judicial district that the venue statutes do not permit for that dispute (often because the defendants do not reside there and the relevant events did not occur there).
  • 28 U.S.C. § 1406(a) transfer: A mechanism allowing a court to transfer (instead of dismiss) when venue is wrong, but only if transfer is “in the interest of justice” and only to a district where the case “could have been brought.”
  • “Interest of justice”: A flexible standard. Factors can include whether dismissal would time-bar refiling, whether the plaintiff acted in good faith, and whether the plaintiff acted diligently—balanced against concerns like forum shopping.
  • Forum shopping: Selecting a court believed to be more favorable (e.g., because of substantive law, procedural rules, or limitations periods). The panel stressed this can occur even within the same state across different federal districts.
  • N.Y. C.P.L.R § 205(a) (the “saving statute”): Plaintiffs invoked the risk that dismissal rather than transfer could make refiling untimely, depending on how the saving statute applies after prior dismissals and refilings.

Conclusion

The Second Circuit affirmed dismissal without transfer, holding that the district court acted within its discretion under 28 U.S.C. § 1406(a) when it denied transfer based on Plaintiffs’ lack of diligence and the appearance of forum shopping. The decision underscores that § 1406(a)’s “interest of justice” does not obligate courts to facilitate repeated attempts to keep a case in a preferred jurisdiction after multiple venue missteps, even where dismissal may create serious statute-of-limitations consequences.