UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HOLLI LUNDAHL, as Assignee of the claims of Donald Johnson and Merrie Ling,

Plaintiff - Appellant,

v.

PUBLIC STORAGE MANAGEMENT, INC., also known as Public Storage, Inc.; RICHARD KELLEY-VANHELDEN; NORMA JUNE KELLEY-VANHELDEN; WALNUT VALLEY AUTO BODY AND TOWING; CNA INSURANCE; ELI LILLY; GUIDANT CORPORATION, also known as Advanced Cardiovascular Systems; MERRELIN BLAND; JOYCE JOHNSON; PATRICIA WAYMAN; BEVERLY GILSDORF; CONNIE HARRISON; THOMAS BRUNNER; JOHN LEAHY; BRAD REDMAN; RICHARD STRAIN; MARSHA WHITLEY; DEB MCDANIELS; COUNTY OF RIVERSIDE; KAREN KADYK; MICHAEL STOCK; COUNTY OF RIVERSIDE SHERIFF'S OFFICE; HARPER, Deputy Sheriff; RIVERSIDE COUNTY DISTRICT ATTORNEY'S OFFICE; PACIFIC LIFE INSURANCE; EVE CHAPLIN; ROBERT J. TIMLIN,

Defendants - Appellees.

No. 02-4085

(D.C. No. 01-CV-752-S)

(D. Utah)

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff Holli Lundahl appeals the judgment of the district court dismissing her claims on the basis of improper venue. Because the district court applied an incorrect legal standard in dismissing this matter, we reverse and remand for further proceedings.

This case began life as a suit in the Fourth District Court in the state of Utah styled as an "Independent Action Under Utah Rules of Civil Procedure, Rule 60(b)." Plaintiff's complaint requested that the Utah court declare void certain judgments of the United States District Court for the Central District of California which had been rendered against plaintiff. The Utah court dismissed the claims against defendant Public Storage Management, Inc., for want of jurisdiction and later ordered the court clerk to serve the complaint on defendant Eli Lilly & Co. (Lilly) after finding "several suspicious items" in the court files relative to plaintiff's purported service of the complaint on Lilly. Aplee. App. at 15-16. Upon receipt of the complaint, Lilly promptly removed the case to federal court on both diversity and federal question grounds.

In this appeal, plaintiff argues that neither ground supports the district court's subject matter jurisdiction. We disagree. "When an independent action is brought in state court to seek relief from a federal judgment it may be removed to federal court on the basis of federal question jurisdiction." Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 336 (10th Cir. 1982) (Seth, J., dissenting); see also Villarreal v. Brown Express, Inc., 529 F.2d 1219, 1221 (5th Cir. 1976). This case was thus properly removed to federal court.1

Once in federal court, Lilly moved to dismiss for improper venue or, in the alternative, to transfer to the federal district court for the Central District of California, a more convenient forum. In making its case to the district court, Lilly improperly relied on 28 U.S.C. § 1391(b). Not realizing this error, the district court agreed that venue was improper and dismissed plaintiff's claims.

While preparing to oppose plaintiff's brief for purposes of this appeal, Lilly for the first time realized that removal venue is controlled by 28 U.S.C. § 1441(a) which provides that cases may be removed to "the district court of the United States for the district and division embracing the place where such action is pending." Thus, the dismissal based on § 1391(b) was improvidently granted, and venue in the federal district court for the district of Utah is proper. See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953).

Because the district court dismissed this case on procedural grounds, it did not reach the merits of plaintiff's substantive claims, including any claims against Public Storage Management. We, therefore, will not consider these issues for the first time on appeal because they were not ruled on by the district court. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R. Eric Peterson Constr. Co.), 951 F.2d 1175, 1182 (10th Cir. 1991).

The judgment of the United States District Court for the District of Utah is REVERSED, and this case is REMANDED for further proceedings including consideration by the court of Lilly's motion to transfer on grounds of inconvenient forum.

Entered for the Court

Monroe G. McKay

Circuit Judge