Wainwright v. Thomas
MEMORANDUM OPINION AND ORDER as follows: (1) Defendant's 6 Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue is DENIED as further set out in the order; (2) Plaintiff's 14 Motion to Transfer Venue is GRANTED, and thi s action is TRANSFERRED to the United States District Court for the Northern District of Texas; (3) The Clerk of the Court is DIRECTED to take the necessary steps to effectuate the terms of this order. It is further ORDERED that Plaintiff's 9 Motion to Set Case for Hearing is DENIED as further set out in the order. Signed by Chief Judge William Keith Watkins on 9/30/2014. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
LAUREN SHAY WAINWRIGHT,
CASE NO. 2:14-CV-317-WKW
MEMORANDUM OPINION AND ORDER
Before the court are Defendant Matthew Thomas’s Motion to Dismiss for
Lack of Personal Jurisdiction and Improper Venue (Doc. # 6) and Plaintiff’s
Motion to Transfer Venue (Doc. # 14). Based upon careful consideration of the
arguments of counsel, the relevant law, and the record, Defendant’s motion to
dismiss is due to be denied and Plaintiff’s motion to transfer is due to be granted.
This action, which undisputedly is in the wrong venue, will be transferred in the
interest of justice to the United States District Court for the Northern District of
Texas pursuant to 28 U.S.C. § 1406(a).
I. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction pursuant to 28 U.S.C.
§ 1332(a). Defendant objects to personal jurisdiction and venue.
II. STANDARDS OF REVIEW
Motion to Dismiss for Lack of Personal Jurisdiction
A Rule 12(b)(2) motion tests the court’s exercise of personal jurisdiction
over a defendant. See Fed. R. Civ. P. 12(b)(2). Where a Rule 12(b)(2) motion to
dismiss is decided without an evidentiary hearing, a plaintiff bears the burden of
“establish[ing] a prima facie case of personal jurisdiction over a nonresident
defendant.” Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). Allegations in
the complaint are presumed true, if uncontroverted by the defendant’s evidence.
Motion to Dismiss for Improper/Wrong Venue
The federal venue statute, 28 U.S.C. § 1391(a), applicable in this diversity
action, provides that venue is proper in:
(1) a judicial district where any defendant resides, if all defendants
reside in the same state;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) a judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no district
in which the action may otherwise be brought.
Federal Rule of Civil Procedure 12(b)(3) permits a defendant to move to
dismiss a complaint for “improper venue,” and 28 U.S.C. § 1406(a) provides that
“[t]he district court of a district in which is filed a case laying venue in the wrong
. . . district shall dismiss, or if it be in the interest of justice, transfer such case to
any district . . . in which it could have been brought.” Rule 12(b)(3) and § 1406(a)
authorize dismissal, therefore, when venue is “improper” or “wrong” in the district
in which the plaintiff commenced this action. Additionally, § 1406(a) permits a
transfer to an appropriate forum “in the interest of justice,” even if personal
jurisdiction over the defendant is lacking. See Goldlawr, Inc. v. Heiman, 369 U.S.
463, 466 (1962) (“The language of [§] 1406(a) is amply broad enough to authorize
the transfer of cases, however wrong the plaintiff may have been in filing his case
as to venue, whether the court in which it was filed had personal jurisdiction over
the defendants or not.”).
When reviewing a challenge to venue, the court accepts the allegations of
the complaint “as true, to the extent they are uncontroverted by defendants’
affidavits.” Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845
(11th Cir. 1988). Additionally, the plaintiff bears the burden of demonstrating that
venue is proper. Id.
In April 2012, Plaintiff met Defendant, an enlisted Navy sailor, when he was
stationed in Norfolk, Virginia. The two had sexual intercourse, and subsequently,
on April 30, 2012, Plaintiff learned she had contracted herpes. Plaintiff alleges
that Defendant knew he was infected with herpes when they had sexual
intercourse, but failed to inform her and expressly denied that he had a sexually
transmitted disease. Consequently, on April 30, 2014, Plaintiff filed this action in
this district against Defendant pursuant to 28 U.S.C. § 1332(a), alleging state-law
claims for negligence, wantonness, fraudulent suppression, and fraudulent
misrepresentation with a $1 million demand.
As Defendant attests, he never has lived in or stepped foot in Alabama, and
“all physical contact between [him] and the Plaintiff occurred in Virginia.” (Def.’s
Aff., at 1 (Doc. # 6-1, at 1).) Defendant further attests that he currently is a
resident of Lubbock, Texas, but that in April 2012, he was enlisted in the United
States Navy and stationed in Norfolk, Virginia.
Defendant moves to dismiss this action, arguing that venue in the Middle
District of Alabama is “improper” under Rule 12(b)(3), that venue is “wrong”
under § 1406(a), and that personal jurisdiction is lacking under Rule 12(b)(2).1
Defendant also cites 28 U.S.C. § 1631, which permits dismissal when there is “a want
of jurisdiction,” or, alternatively, a transfer when a transfer “is in the interest of justice.” Id.
There is not a consensus among courts, however, “on the question of whether § 1631 authorizes
transfer of a case when there is a lack of personal jurisdiction,” as opposed to a lack of subjectmatter jurisdiction. See Crowe v. Paragon Relocation Res., Inc., 506 F. Supp. 2d 1113, 1125
n.23 (N.D. Fla. 2007) (collecting cases); see also 15 Wright, Miller, & Cooper, Federal Practice
and Procedure: Jurisdiction 2d § 3842 (“[L]imiting Section 1631 to transfers to cure a lack of
subject matter jurisdiction is consistent with the intent and purpose of Congress.”). Here,
subject-matter jurisdiction is proper, thus, raising a question as to the applicability of § 1631.
The court need not weigh in on this debate, however, to decide this case.
Plaintiff concedes that “venue cannot properly be laid in the Middle District of
Alabama under 28 U.S.C. § 1391.” (Doc. # 14, at 1.) Plaintiff’s concession is
consonant with the record.
The Complaint does not contain allegations
establishing proper venue in this district under any of the three methods available
under § 1391.
There are no facts establishing that Defendant resides in this
district, see § 1391(a)(1), that a substantial part of the events occurred in this
district, see § 1391(a)(2), or that Defendant is subject to personal jurisdiction here,
see § 1391(a)(3). On this record, venue is improper under § 1391(a), and personal
jurisdiction over Defendant also is lacking. Against this backdrop, the issue is
whether to dismiss or to transfer this action to an appropriate venue.
Defendant argues for dismissal on grounds that Plaintiff has presented no
“colorable basis for jurisdiction or venue” in the Middle District of Alabama and
that transfer would be futile because her claims are “facially time barred.” (Doc.
# 17, at 7.) Plaintiff urges, on the other hand, a transfer pursuant to § 1406(a)
either to the United States District Court for the Northern District of Texas on
grounds that she only recently discovered where Defendant resides, or to the “4th
Judicial District of Virginia.” (Doc. # 14, at 1.)
The parties agree that Plaintiff could have brought this action in the
Northern District of Texas because Defendant now resides in Lubbock, Texas;
however, § 1406(a) does not authorize a transfer to a state tribunal, including the
“4th Judicial District of Virginia.” Hence, the court must decide whether a transfer
to the Northern District of Texas is within the interest of justice pursuant to
The decision whether to transfer or dismiss a case pursuant to § 1406(a) “lies
within the sound discretion of the district court.” Minnette v. Time Warner, 997
F.2d 1023, 1026 (2d Cir. 1993). The leading case on § 1406(a) transfers is
Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962). In Goldlawr, the Supreme Court
explained that Congress enacted § 1406(a) to “avoid[ ] the injustice which had
often resulted to plaintiffs from dismissal of their actions merely because they had
made an erroneous guess with regard to the existence of some elusive fact of the
kind upon which venue provisions often turn.”
Id. at 466.
The plaintiff in
Goldlawr would have suffered an injustice had the court dismissed its case because
the statute of limitations had run on the majority of its claims. See id. The Court
The language of [§] 1406(a) is amply broad enough to authorize the
transfer of cases, however wrong the plaintiff may have been in filing
his case as to venue. . . . If by reason of the uncertainties of proper
venue a mistake is made, Congress, by the enactment of [§] 1406(a),
recognized that the interest of justice may require that the complaint
not be dismissed but rather that it be transferred in order that the
plaintiff not be penalized by . . . time-consuming and justice-defeating
Id. at 467 (citation and internal quotation marks omitted); see generally Brunette
Mach. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 710 (1972) (observing
generally that “venue provisions are designed, not to keep suits out of the federal
courts, but merely to allocate suits to the most appropriate or convenient federal
Lower courts decided after Goldlawr likewise have recognized that “[a]
‘compelling reason’ for transfer is generally acknowledged when a plaintiff’s case,
if dismissed, would be time-barred on refiling in the proper forum.” Daniel v. Am.
Bd. of Emergency Med., 428 F.3d 408, 435 (2d Cir. 2005) (quoting Phillips v.
Seiter, 173 F.3d 609, 610 (7th Cir. 1999)); see also Minnette, 997 F.2d at 1027
(“[T]he transfer of this action, when the statute of limitations has run, is in the
interest of justice.”). Other considerations relevant to the interest-of-justice inquiry
include a balancing of the prejudices and whether the plaintiff filed in the wrong
venue in good faith. See Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir.
2001) (“When determining whether transfer is in the interest of justice, courts have
considered whether the failure to transfer would prejudice the litigant, whether the
litigant filed the original action in good faith, and other equitable factors.”); see
also Wallace v. Whitt, 935 F.2d 271, at *2 (6th Cir. 1991) (unpublished) (holding
that the district court “erred in dismissing the case in the face of its finding of
severe prejudice to the plaintiffs from a dismissal and no prejudice to defendants
from transfer as well as a finding of improper venue through no fault of the
parties”); Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) (holding that
a transfer under § 1406(a) was in the interest of justice where “[r]efusal to transfer
spell[ed] the end to the action, while transfer would not prejudice the defendants’
position on merits”). As another district court in this circuit has reasoned with
respect to transfers generally, “[w]hen venue would be proper in another district
under § 1391, transfer is preferred over dismissal unless there is evidence that a
case was brought in an improper venue in bad faith or in an effort to harass a
defendant.” Palmer v. Dau, No. 6:10cv248, 2010 WL 2740075, at *2 (M.D. Fla.
Jul. 12, 2010).
Defendant emphasizes, however, that other circuits have applied Goldlawr
to deny transfers in favor of dismissals where the filing error was obvious. See,
e.g., Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1201 (4th Cir. 1993); Cote v.
Wadel, 796 F.2d 981 (7th Cir. 1986). In Nichols, for example, the Fourth Circuit
explained that the “negative implication” of Goldlawr “is that where a plaintiff’s
attorney files in the wrong jurisdiction not ‘because [he/she] . . . made an erroneous
guess with regard to an elusive fact,’ but because he/she made an obvious error,
transfer under section 1406 is inappropriate.” Nichols, 991 F.2d at 1201 (quoting
Goldlawr, 369 U.S. at 466). At the same time, though, the Fourth Circuit noted
that it was “not imply[ing] that a district court would necessarily err by granting a
plaintiff’s motion to transfer an action that the plaintiff’s attorney filed in the
wrong court because of an obvious error.” Id. at 1202 n.6; see also 14D Charles
Alan Wright, Arthur Miller, Edward H. Cooper, and Richard D. Freer, Federal
Practice and Procedure § 3827, at 555–56 (4th ed. 2013) (A court does not have to
dismiss an action, even “where the plaintiff’s attorney reasonably could have
foreseen that the forum in which the suit was filed was improper.”).
Applying these principles in view of the circumstances of this case, the court
concludes that a transfer is “in the interest of justice.”
Defendant’s argument that a transfer would be futile because the statute of
limitations expired prior to this suit’s filing is not convincing. Defendant asserts
that Virginia’s two-year statute of limitations for personal-injury actions,
applicable by Alabama’s choice-of-law rules, bars Plaintiff’s action.2 He contends
that the accrual date for statute-of-limitations purposes is April 27, 2012, the date
Plaintiff saw a doctor for treatment of her yet-diagnosed symptoms and, therefore,
this action comes three days too late.3
There is authority that, where an “action is clearly barred by the applicable
statute of limitations, a transfer would be futile and as such contrary to the interest
Defendant points out that “Alabama choice of law rules apply the doctrine of lex loci
delicti to tort claims, which means that the law of the state in which the injury occurred governs
the substantive rights of the injured party.” G.F. Kelly Trucking, Inc. v. U.S. Xpress Enters., Inc.,
281 F. App’x 855, 861 n.6 (11th Cir. 2008). Defendant contends that, because the injury
occurred in Virginia, the court must apply Virginia’s two-year statute of limitations for personalinjury claims. See Va. Code § 8.01-243(3). This opinion expresses no view on whether
Defendant’s argument is correct.
Three days later, on April 30, 2012, Plaintiff was diagnosed with herpes, and she filed
this action two years after that date, on April 30, 2014. (See Compl. ¶ 5.)
of justice.” Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994); cf. Froelich v.
Petrelli, 472 F. Supp. 756, 760 (D. Haw. 1979) (finding that a transfer to the
proper venue would be futile since California’s statute of limitations had run prior
to the filing of the claim, but noting that, “[i]f this suit had been filed [in Hawaii]
before the California statute of limitations had run, . . . a transfer would be
Defendant’s focus on Alabama’s choice-of-laws rules is misplaced,
however. The focus must be on Texas’s choice-of-law rules and the statute of
limitations those rules dictate: “[F]ollowing a section 1406(a) transfer, regardless
of which party requested the transfer or the purpose behind the transfer, the
transferee court must apply the choice of law rules of the state in which it sits.”
Ellis v. Great Sw. Corp., 646 F.2d 1099, 1110 (5th Cir. June 1981).4 Hence, the
fact that Plaintiff improperly filed the action here affords no grounds, standing
alone, for application of Alabama’s choice-of-law rules, which Defendant contends
yields a two-year statute of limitations.
Importantly, Defendant has not analyzed the statute of limitations under
Texas’s choice-of-law rules, nor has Defendant addressed his statute-of-limitations
defense separately as to each of the four claims in the Complaint, but rather has
treated the claims collectively as subject to the same statute of limitations. There is
In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
some support for the premise, however, that Texas courts would apply its state’s
statute of limitations and not Virginia’s. See Woolley v. Clifford Chance Rogers &
Wells, L.L.P., No. 3:01-CV-2185, 2004 WL 57215, at *5 (N.D. Tex. Jan. 5, 2004)
(collecting cases); see also Hollander v. Capon, 853 S.W.2d 723, 727 (Tex. App.
1993) (“The statute of limitations is a procedural issue. If the action is barred by
the statute of limitations of the forum court in which the lawsuit is pending, no
action can be maintained even if the action is not barred in the state where the
cause of action arose.”). There also is some indication that, under Texas law, the
statute of limitations would be four years on the fraudulent misrepresentation
claim. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App. 1997) (“A
claim for misrepresentation that can be read as a common-law fraud action is
governed by the four-year statute of limitations.”).
While these Texas authorities are noted, the court declines to engage in a full
analysis surrounding the complexities of choice-of-law issues or to decide the
statute-of-limitations issue without the aid of briefing from Defendant. Suffice it
to say that Defendant bears the burden of proving the affirmative defense of statute
of limitations, including when his opponent’s causes of action accrued, and cannot
meet that burden by relying on Alabama’s choice-of-law rules, particularly when
there is at least some indication that the transferee court may apply a more
generous statute of limitations than the one Defendant urges. Defendant has not
demonstrated that this action is barred by the statute of limitations so as to render a
transfer futile and contrary to the interest of justice.
Second, Defendant points to no evidence and makes no argument that
Plaintiff sought to obtain an advantage by filing improperly in this court. As
stated, the transferee court will analyze the choice-of-law rules as if the action had
been commenced in, rather than transferred to, that court, and, as the discussion
above confirms, no authority has been cited that demonstrates that Plaintiff was
attempting to take advantage of a longer limitations period by filing her action in
There similarly is no accusation that Plaintiff filed here to harass
Third, Defendant has not demonstrated that he will suffer undue prejudice if
this action is transferred. He will be able to defend Plaintiff’s claims on statuteof-limitations grounds under Texas choice-of-law rules, and a transfer will not
impede his “position on the merits.” Sinclair, 711 F.2d at 293. Additionally, a
transfer to the Northern District of Texas will move this action to a forum that is
more geographically convenient to Defendant. See Gibbons v. Fronton, 661 F.
Supp. 2d 429, 436 (S.D.N.Y. 2009) (“[B]ecause defendants reside in Florida, they
would not be prejudiced by transferring the case there.”). On the other hand,
Defendant has raised a question as to whether some of Plaintiff’s claims are barred
by a two-year statute of limitations, and, if he is correct, then the parties’
contentions as to whether the onset of symptoms or the date of the herpes diagnosis
is the accrual date become crucial. In that scenario, transferring this action, rather
than dismissing it, will preserve the present filing date for purposes of litigating the
statute-of-limitations defense, while a dismissal would result in a time bar upon
refiling in the proper forum. See Daniel, 428 F.3d at 435. A transfer will avoid
prejudice to Plaintiff and the “time consuming” and potentially “justice-defeating”
process of re-filing in the Northern District of Texas. Goldlawr, 369 U.S. at 467.
Fourth, it is recognized that Plaintiff has not provided much of an
explanation for why she brought this action in the wrong forum. She contends that
she just recently discovered that Defendant resides in the Northern District of
Texas, but she does not explain why prior to that discovery, she believed that the
Middle District of Alabama provided the appropriate forum. While this factor may
favor Defendant, the court is not satisfied, in light of the record as a whole, that it
presents sufficient reason to warrant dismissal over transfer. The broad discretion
afforded courts in the decision of whether to transfer a case under § 1406(a) does
not mandate dismissal, even when the filing error is obvious. See Goldlawr, 369
U.S. 463 (“The language of § 1406(a) is amply broad enough to authorize the
transfer of cases, however wrong the plaintiff may have been in filing his case as to
venue . . . .”).
In sum, the interest of justice is furthered by transferring this action, rather
than dismissing it.
Defendant’s motion to dismiss is due to be denied, and
Plaintiff’s motion to transfer is due to be granted. Transfer to the Northern District
of Texas, a proper forum, is appropriate.
For the foregoing reasons, it is ORDERED as follows:
Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction and
Improper Venue (Doc. # 6) is DENIED;
Plaintiff’s Motion to Transfer Venue (Doc. # 14) is GRANTED, and
this action is TRANSFERRED to the United States District Court for the Northern
District of Texas; and
The Clerk of the Court is DIRECTED to take the necessary steps to
effectuate the terms of this order.
It is further ORDERED that Plaintiff’s Motion to Set Case for Hearing (Doc.
# 9) is DENIED.
DONE this 30th day of September, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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