Tomberlin v. Clark et al
OPINION AND ORDER: It is ORDERED as follows: (1) Defendants Karol Beck and Janee Dickinsons motion to stay (Doc. No. 74 ) is denied. (2) Defendants Michael Fetter, Child & Adolescent Psychological Services of Inverness, P.C., Marnie Clark, and Julie OConnors motions to transfer venue (Doc. nos. 53 & 68 ) are granted. (3) This lawsuit is transferred in its entirety to the United States District Court for the Northern District of Alabama. (4) All other pending motions are left for resolution a fter transfer. The clerk of the court is DIRECTED to take appropriate steps to effect the transfer. This case is closed in this court. Signed by Honorable Judge Myron H. Thompson on 5/24/2013. (Attachments: # 1 Civil Appeals Checklist)Copies furnished to calendar group, AG. (Deadlines terminated: Final Pretrial Conference set for 12/19/2013 and Jury Trial set for 1/27/2014.)(dmn, ) Modified on 5/24/2013 (dmn, ).
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CHARLES TOMBERLIN II,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Charles Tomberlin II brought this lawsuit
against a number of defendants who he alleges caused him
to lose custody of, and visitation with, his child and
landed him on the Alabama State Central Registry on Child
Abuse and Neglect.
The defendants are Marnie Clark, Leah
Waller, Janee Dickinson, Alisha Ruffin, Julie O’Connor,
Karol M. Beck, Wellspring Christian Clinic, Inc., Michael
Fetter, and Child & Adolescent Psychological Services of
Inverness (C & A). Tomberlin asserts that these defendants
Amendments to the United States Constitution as enforced
through 42 U.S.C. § 1983 and committed a panoply of statelaw torts.
This court’s jurisdiction has been invoked
pursuant to 28 U.S.C. § 1331 (federal question), § 1343
(civil rights), and § 1367 (supplemental).
This cause is now before the court on three types of
motions: a motion to stay (filed by Beck and Dickinson);
motions to dismiss (filed by Fetter, C & A, Dickinson,
Beck, O’Connor, and Ruffin); and motions to transfer venue
(filed by Clark, O’Connor, Fetter, and C & A).
reasons that follow, the motion to stay will be denied, the
motions to transfer granted, and the motions to dismiss
left for disposition after transfer of this case.
The events in this case were born of a bitter divorce
between Tomberlin and Clark.
and divorced in 2010.
The two were married in 2003
In the years leading up to the
allegations about Tomberlin, including that he had sexually
brought this claim to the Shelby County Department of Human
Tomberlin’s custody and his right to visit his child were
severely limited; at times, his right to visit his child
was severed completely.
Despite numerous determinations from individuals both
inside the department and outside of it (including a judge
in the Shelby County Juvenile Court where the Department
filed dependency and neglect allegations against Tomberlin)
that the abuse allegations were baseless, the department
made a final determination in September 2010 that the
allegations were true. Tomberlin was placed on the Alabama
State Central Registry on Child Abuse and Neglect.
A few months later, when a final divorce decree was
issued, that court stated that it could find no factual
basis for Clark’s claims that Tomberlin had sexually abused
The Alabama Attorney General then filed a
expungement of his name from the Alabama State Registry on
Child Abuse and Neglect.
On December 16, 2011, Tomberlin
received a letter informing him that his name had been
removed from the list.
Tomberlin denies Clark’s accusations entirely.
also ascribes to her a cunning motive: these fabrications,
he says, were a means of winning custody over their child
in the divorce proceedings.
Indeed, he notes that Clark
filed for an ex-parte protection order, in which she made
her first accusations against him, three days before she
allegation, he contends, came five days after Tomberlin
expressed the desire during marriage-counseling sessions
he attended with Clark to have joint custody of their
individuals and entities who acted as agents of, or in
association with, the Shelby County Department of Human
Resources during its investigation of Tomberlin, claiming
that they violated his constitutional rights and committed
a number of state-law torts.
Six of the defendants (Fetter, C & A, Beck, Dickinson,
O’Connor, and Ruffin) have moved to dismiss this case,
District of Alabama, where it was filed in Montgomery, to
the Northern District of Alabama to Birmingham. Clark also
Beck and Dickinson have asked this court to stay
resolution of the transfer motions pending a decision on
believes this case should be transferred, this court will
not impede upon the province of the transferee court by
deciding the dismissal motions.
The motion to stay will
Second, the court now turns to the transfer motions.
A district court may transfer a civil action to another
district in which it might have been brought pursuant to
28 U.S.C. § 1404(a) “[f]or the convenience of the parties
and witnesses, in the interest of justice.” Federal courts
normally defer to the plaintiff’s choice of forum; thus,
the burden is on the movants to show that the proposed
transferee forum is more convenient.
In re Ricoh Corp.,
870 F.2d 570, 573 (11th Cir. 1989). In determining whether
considerable discretion in weighing conflicting arguments
about venue, but it must engage in an individualized, caseby-case analysis of both convenience and fairness. Carroll
v. Texas Instruments, Inc., ___ F. Supp. ___, ___, 2012 WL
1533785, at *1 (M.D. Ala. 2012) (M. Thompson, J.).
Before undertaking this analysis, however, the court
must determine whether the transferee venue is one in which
the case could have originally been brought.
§ 1404(a); see Carroll, ___ F. Supp. ___, ___, 2012 WL
1533785, at *1.
Here, there is no disputing that this
action could have been brought in the Northern District of
Alabama; the plaintiff and eight of the nine defendants all
reside or are based there, and the events at issue in this
case mostly took place there.
Accordingly, the court will
proceed to the weighing analysis.
In deciding whether justice and convenience favor
transfer, “courts generally consider a number of nonexhaustive factors,” including “the plaintiff’s initial
choice of forum; the convenience of the parties; the
relative means of the parties; the convenience of the
witnesses; the relative ease of access to sources of proof;
the availability of compulsory process for witnesses; the
location of relevant documents; the financial ability to
Carroll, ___ F. Supp. ___, ___, 2012 WL 1533785, at *2.
The court will now address these factors in turn.
The Plaintiff’s Choice of Forum
The first factor, the plaintiff’s initial choice of
forum, obviously weighs against transfer.
As a general
matter, the plaintiff’s choice of forum is entitled to
great deference and, “unless the balance is strongly in
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
However, in these circumstances, this choice may
merit somewhat less weight because the Middle District of
Further, only one of the nine defendants
in this case resides in the Middle District, and the events
underlying this action took place primarily in the Northern
District. See, e.g., Dendy v. Decker Truck Line, Inc., No.
2:10cv459-MHT, 2010 WL 3398987 (M.D. Ala. Aug. 26, 2010)
(M. Thompson, J.) (“The normal heft of [the plaintiff’s
choice of forum] is lessened in this case. ... Because the
Middle District is not [the plaintiff’s] home forum, the
presumption in the plaintiff’s favor applies with less
appropriate is then less reasonable.”) (quotations and
citations omitted); see also Macedonia Church v. Lancaster
Hotel Ltd. Partnership, 425 F. Supp.2d 258, 259 (D. Conn.
2006) (A. Thompson, J.) (“[T]he deference accorded to the
plaintiff’s choice of forum is diminished substantially
where the forum is neither the plaintiff’s home district
nor the place where the events or transactions underlying
the action occurred.”) (quotations and citations omitted);
S.J.G. Enterprises, Ltd. v. Eikenberry & Associates, Inc.,
No. 04 C 1186, 2004 WL 1794475, at *3 (N.D. Ill. Aug. 5,
2004) (Kocoras, C.J.) (“A plaintiff’s choice of forum is
entitled to substantial weight ..., particularly when the
transferor court sits in the plaintiff’s home district. On
the other hand, where the plaintiff’s chosen forum is not
the plaintiff’s home or the location of material events,
the plaintiff’s choice is entitled to less deference.”)
Convenience and Relative Means of the Parties
The court next turns to the convenience and relative
means of the parties.
This factor weighs heavily in favor
Tomberlin and eight of the defendants are
based in the Northern District of Alabama.
defendant, Beck, resides in the Middle District.
addition, defendant Clark submitted an affidavit explaining
responsibility to care for her child, who attends school
in downtown Birmingham only a few blocks from the United
difficult for her to find other care for her child because
both her mother and sister, who would normally care for her
child in Clark’s absence, are also listed as witnesses and
would have to be in Montgomery, the seat of the Middle
Meanwhile, Tomberlin has given this court no reason to
believe that it would be more inconvenient for him or the
eight defendants located in the Northern District for this
case to be tried there.
As for Beck, the court has not
been alerted to any particular hardship, financial or
otherwise, that transfer would impose on her.
only assertion Tomberlin makes with regard to Beck is that
“her residence is significantly farther from Birmingham,
Alabama than the Birmingham Defendants live from Montgomery
Pl.’s Resp. (Doc. No. 58) at 22.
The bare fact
that Beck lives farther from Birmingham than the other
Tomberlin does not even specify how far from Birmingham
Beck actually lives) does little to tilt this factor in his
Convenience of Witnesses
“convenience for and cost of attendance of witnesses.”
Carroll, ___ F. Supp. ___, ___, 2012 WL 1533785, at *3
normally a highly significant one; indeed, where non-party
witnesses are concerned, “it is sometimes dubbed the single
most important factor in determining whether the transfer
of venue is proper.”
In considering this factor, a court must not “merely
tally the number of witnesses who reside in the current
forum in comparison to the number located in the proposed
transferee forum.” Id. (quotations and citations omitted).
Indeed, witness lists are often pages long and include
numerous witnesses with only peripheral knowledge of events
at issue in the case and who are highly unlikely to be
called at trial. Thus, some courts consider it helpful for
the party seeking transfer to “clearly specif[y]” the
witnesses it will call and “make a general statement of
what their testimony will cover.”
Id. (quotations and
Here, the parties have offered the court only scant
information about the witnesses. Fetter and C & A make the
retained by th[e] parties are ... likely to live in [the
Defs.’ Mot. (Doc. No. 53) at 11.
Tomberlin responds that he “intends to call no less than
11 witnesses, all of whom either live in the Middle
District of Alabama or in the panhandle area of Florida.”
Pl.’s Resp. (Doc. No. 58) at 22.
However, it is unclear
whether this ambiguous assertion means that all of the
witnesses Tomberlin plans to call live in the Middle
District (which seems highly unlikely given that all of the
events at issue in this case took place in the Northern
District) or whether there are simply 11 witnesses who live
in the Middle District out of the many he will call in this
As Clark points out, Tomberlin listed the parties
and 53 other witnesses in his initial disclosures as
In that list, Tomberlin does not
make any distinction between those witnesses he will call
and those he only may call.
For the defendants’ part,
while both Fetter, C & A, and O’Connor allege that the
majority of the witnesses in this case live in the Northern
District (and while, given the locus of facts, common sense
defendants provides any details to support this contention.
Thus, the parties have given the court few resources to
come to an accurate determination of which forum is, in
fact, more or most convenient for the witnesses in this
Therefore, despite the
importance normally afforded
to this factor, it carries less weight here, as the court
can make only a reasoned guess as to the comparative burden
either venue would impose on the witnesses.
given that the locus of events is in the Northern District
and that only 11 out of the over 60 witnesses Tomberlin
listed in his disclosures reside in the Middle District,
Access to Evidence
The court now turns to access to evidence.
parties have provided little information to anchor the
court’s analysis of this factor.
Only Tomberlin even
addresses the issue of evidence; he argues that the Child
Abuse and Neglect Registry is located at the Office of
Protective Services in Montgomery, which, as stated, is the
seat of the Middle District of Alabama, and that the
Alabama Attorney General’s Office and Alabama Department
of Human Resources, both of which are involved in this
case, are based in Montgomery as well.
The defendants do
not counter this argument with any assertions of their own.
The court is skeptical that, were this factor given
full exposition by the parties, it would favor Tomberlin.
Despite the entities Tomberlin lists that are located in
Montgomery, it seems highly improbable that, all told, most
of the evidence in this case will be centered in the Middle
District rather than where most of the events took place.
However, without any concrete information to support this
Still, this court recognizes that heavily weighing
“the physical location of some relevant documents ... is
somewhat antiquated in the era of electronic storage and
Genentech, Inc., 607 F. Supp. 2d 769, 777 (E.D. Tex. 2009)
Thus, while technology does not “ma[ke] this
factor a complete nullity,” it does reduce its weight to
Carroll, ___ F. Supp. ___, ___, 2012 WL
Locus of Operative Facts
This factor clearly favors transfer.
There can be no
dispute--and the parties make none–-that the events at
issue in this case took place in the Northern District of
Indeed, the only allegations in the complaint
that relate to the Middle District involve the intervention
of state governmental entities in Tomberlin’s case.
core allegations in this case, the ones of abuse against
Tomberlin and the subsequent investigation by the Shelby
County Department of Human Resource, all took place in the
In order to consider the local interest in holding
this case in the Northern District rather than the Middle
District of Alabama, “the court considers the factual
connection the case has between both venues.” Carroll, ___
F. Supp. ___, ___, 2012 WL 1533785, at
*8 (quotations and
citations omitted). As this opinion has already explained,
the facts in this case doubtlessly center in the Northern
This factor favors transfer.
Balance of Factors
The parties gave the court few resources to aid it in
deciding whether to transfer this case.
allegations and parties to the case tell a clear story:
this is a case about people and institutions in the
Northern District of Alabama and events that unfolded
there. The fact that all but one of the parties, including
the plaintiff, are located in the Northern District and
that the vast majority of the underlying events took place
in that district suffice to meet the moving defendants’
considers should weigh in his favor.
inconvenience Clark, given her childcare responsibilities,
and the court has no evidence that any particular hardship
(other than the hassle of travel) would burden Beck, the
sole party who does not reside in the Northern District,
were the case transferred there.
Accordingly, for the foregoing reasons, it is ORDERED
(1) Defendants Karol Beck and Janee Dickinson’s motion
to stay (Doc. No. 74) is denied.
(2) Defendants Michael Fetter, Child & Adolescent
Clark, and Julie O’Connor’s motions to transfer venue
(doc. nos. 53 & 68) are granted.
(3) This lawsuit is transferred in its entirety to the
United States District Court for the Northern District
(4) All other pending motions are left for resolution
The clerk of the court is DIRECTED to take appropriate
steps to effect the transfer.
This case is closed in this court.
DONE, this the 24th day of May, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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