3. To what extent should the transferee court under 28 U.S.C. § 1404 attempt to reach the same result on the merits that would have been reached by the transferor court? In VAN DUSEN v. BARRACK, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11 L.Ed.2d 945, 962–63 (1964), the Supreme Court held that, in diversity cases, the law of the transferor forum applies even after the transfer of the action. “[W]here the defendants seek transfer,” the Court explained,

“the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue.” Id. at 639, 84 S.Ct. at 821, 11 L.Ed.2d at 962.

The Court concluded, “[a] change of venue under § 1404

(a) generally should be, with respect to state law, but a change of courtrooms.” Id. at 639, 84 S.Ct. at 821, 11 L.Ed.2d at 962 63.

In FERENS v. JOHN DEERE CO., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed. 2d 443 (1990), the Court applied the Van Dusen rule to a plaintiff-initiated transfer. In Ferens, plaintiff, a citizen of Pennsylvania, lost a hand when he accidentally caught it in a harvester manufactured by defendant, a Delaware corporation. Plaintiff failed to file suit within Pennsylvania’s two-year tort limitations period. But, in the third year, plaintiff filed one suit in379federal court in Pennsylvania, raising contract and warranty claims that were not yet time-barred, and a second suit in federal court in Mississippi, alleging tort claims. Mississippi had a six-year tort statute of limitations, which the federal court was required to apply. The federal court in Mississippi then granted plaintiff’s motion to transfer the tort action to the Pennsylvania court under 28 U.S.C. § 1404(a). The Pennsylvania court refused to apply Mississippi’s statute of limitations and dismissed the tort claims as time-barred under Pennsylvania’s statute of limitations, and the Court of Appeals affirmed. Relying on Van Dusen, the Supreme Court reversed, holding that, in a diversity suit, the transferee forum is required to apply the law of the transferor court, including its choice of law rule, regardless of who initiates the transfer. Is this a sound result? See Bassett, The Forum Game, 84 N.C.

L. Rev. 333, 352–70 (2006).