Maurice Cortez Proctor, Sr., Plaintiff-appellant, v. Michael J. Morrissey, Defendant-appellee, 45 F.3d 427 (4th Cir. 1995)

Appellant appeals from an order of the district court dismissing his diversity action for lack of jurisdiction. Under 28 U.S.C.A. Sec. 1406(a) (West 1993), the district court which lacks venue or personal jurisdiction shall dismiss or, if it is in the interest of justice, transfer a case to a district in which venue is proper and jurisdiction is present. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962); Porter v. Groat, 840 F.2d 255, 258 (4th Cir. 1988). Also, 28 U.S.C.A. Sec. 1631 (West 1994), authorizes the transfer, in the interest of justice, of an action over which the district court lacks jurisdiction. Id.; see Afifi v. United States Dep't of Interior, 924 F.2d 61, 63 (4th Cir. 1991) (subject matter jurisdiction); Ross v. Colorado Outward Bound School, Inc., 822 F.2d 1524 (10th Cir. 1987) (personal jurisdiction).

Because the district court failed to consider its authority to transfer this case, we vacate the order dismissing this action and remand to the district court with instructions to determine whether transfer of this case is in the interest of justice. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

VACATED AND REMANDED