Nuckols v. Stevens et al

Filing 7

MEMORANDUM OPINION AND ORDER that this action is DISMISSED without prejudice for improper venue. Signed by Chief Judge William Keith Watkins on 10/14/2014. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NICHOLE NUCKOLS,
Plaintiff,
v.
ELIZABETH VIRGINIA
STEVENS and BRIAN CRAIG
SCAPECCHI,
Defendants.

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CASE NO. 2:14-CV-705-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This cause is before the court as a result of Plaintiff’s filing of this action in
an improper venue. For the reasons that follow, it is due to be dismissed without
prejudice.
I. SUBJECT MATTER JURISDICTION
Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1332(a).
II. STANDARD OF REVIEW
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.
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.” Section 1406(a) authorizes dismissal, therefore, when venue is wrong in
the district in which the plaintiff commenced the 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.”).
demonstrating that venue is proper.

The plaintiff bears the burden of

Delong Equip. Co. v. Wash. Mills Abrasive

Co., 840 F.2d 843, 845 (11th Cir. 1988).
III. BACKGROUND
Plaintiff Nichole Nuckols, a citizen of Alabama, filed this action against
Defendants Elizabeth Virginia Stevens and Brian Craig Scapecchi for injuries she
sustained in an automobile crash on July 26, 2012. Plaintiff was a passenger in a
vehicle that was attempting to make a right turn into a Surf Style parking lot,
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located alongside the heavy trafficked Highway 98 in Okaloosa County, Florida.
Ms. Stevens “was traveling in the same lane and direction,” and before Plaintiff’s
vehicle had clearance to turn, Ms. Stevens “failed to stop or control her vehicle,”
and rear-ended Plaintiff’s vehicle, causing Plaintiff to suffer neck and back
injuries. (Compl. ¶ 10.) Mr. Scapecchi, who was not in the vehicle, is its owner.
The Complaint alleges that Ms. Stevens negligently and wantonly “caused
the motor vehicle collision” and that Mr. Scapecchi was negligent in inspecting,
maintaining, and repairing the vehicle. (Compl. ¶¶ 10, 20, 21, 23.) Seeking
compensatory and punitive damages in excess of $75,000, the Complaint brings
state-law claims against Defendants for negligence and wantonness.
The Complaint alleges that Plaintiff is a citizen of Alabama, who resides in
Elmore County, Alabama. It further alleges that Defendants are citizens of Florida,
that Ms. Stevens resides in Santa Rosa Beach, Florida, and that Mr. Scapecchi
resides in Coral Springs, Florida.
The Complaint contains no allegations establishing that venue is proper in
the Middle District of Alabama, and Defendants have not filed a responsive
pleading or Rule 12 motion that waives improper venue. See Fed. R. Civ. P. 12(h).
Consequently, an Order was entered, directing Plaintiff to show cause why this
action should not be dismissed for improper venue. Plaintiff responded that she
lives in Elmore County, that she is receiving medical treatment in Alabama, and
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that she believes this forum is a convenient one. Plaintiff asks, in the alternative,
that the court should “allow her to reinstate in an alternate forum without
prejudice.” (Pl.’s Resp., at 2.)
IV. DISCUSSION
Plaintiff has not shown that venue is proper in this district under any of the
three methods available under § 1391. Plaintiff suggests that venue is proper under
§ 1391(a)(2) because she receives ongoing medical treatment from physicians and
medical facilities in the Middle District of Alabama, but she cites no authority to
support her suggestion that a substantial portion of the events occurred in this
district.
The relevant inquiry is “whether the forum activities played a substantial
role in the circumstances leading up to the plaintiff’s claim.” Crowe & Dunlevy,
P.C. v. Stidham, 609 F. Supp. 2d 1211, 1221 (N.D. Okla. 2009). The events that
underlie this action are twofold. They involve, first, the allegedly negligent and
wanton driving of Ms. Stevens, and, second, the allegedly negligent and wanton
failure of Mr. Scapecchi to maintain, inspect, and repair the vehicle.

The

Complaint does not allege that these acts occurred in the Middle District of
Alabama, but it does allege that the motor vehicle accident occurred in the
Northern District of Florida. The medical treatment Plaintiff has received and
continues to receive “are the damages suffered and do not constitute a substantial
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part of the events giving rise to the claim.” Whiting v. Hogan, 855 F. Supp. 2d
1266, 1286 (D.N.M. 2012); see also Wisland v. Admiral Beverage Corp., 119 F.3d
733, 736 (8th Cir. 1997) (holding that in a personal injury case, venue was not
proper in Wisconsin, even though the plaintiff received treatment in Wisconsin,
because the nature of the plaintiff’s medical treatment was not at issue). Based
upon the foregoing authority, there are no facts showing that a substantial part of
the events occurred in this district, see § 1391(a)(2). There also are no facts
establishing that either Defendant resides in this district, see § 1391(a)(1), or that
Defendants are subject to personal jurisdiction here, see § 1391(a)(3).
There are facts, however, showing that Plaintiff could have brought this
action in the Northern District of Florida because a substantial part of the events
giving rise to her damage claims – namely, the motor vehicle accident – occurred
in that district. The issue then is whether to dismiss this action or transfer it to the
Northern District of Florida.
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
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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
held:
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
technicalities.
Id. at 466–67 (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 forum”).
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
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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.”).
Some circuit court decisions 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).
Applying these principles in view of the circumstances of this case, the court
concludes for two reasons that a transfer is not “in the interest of justice,”
§ 1406(a), and that dismissal is required. First, Plaintiff has not contended that, if
this action is dismissed, the statute of limitations would pose a bar to the refiling of
this action in the Northern District of Florida. She suggests otherwise through her
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alternative request that a dismissal be without prejudice so that she can “reinstate”
this action in an alternative forum. (Pl.’s Resp., at 2.) Although the court declines
to engage in a full analysis of Florida’s statute of limitations absent briefing from
Plaintiff, there is authority indicating that Plaintiff’s claims remain timely under
Florida’s statute of limitations. See, e.g., Fla. Stat. § 95.11(3) (four-year statute of
limitations for negligence actions). Plaintiff has not shown that she would suffer
undue prejudice by application of the statute of limitations if this action is
dismissed without prejudice.
Second, Plaintiff desires to proceed in this venue on grounds of convenience,
but convenience to the plaintiff is not a factor bearing on the § 1391 analysis.
Venue is proper only if Plaintiff demonstrates that one of the subsections of § 1391
applies, and, as stated, she has not made that showing. Plaintiff offers no other
explanation for why she filed in this district, and, thus, she has not shown that, in
filing her action here, she “made an erroneous guess with regard to an elusive
fact.” Nichols, 991 F.2d at 1201 (quoting Goldlawr, 369 U.S. at 466). Rather, a
plain reading of § 1391 indicates that her attempt to lay venue in this district
amounts to an “obvious error.” Id.
In sum, venue is not proper in this district, and the interest of justice does not
justify a transfer of this action under § 1406(a) in lieu of dismissal. The dismissal
will be without prejudice, however, to permit Plaintiff to file in a proper venue.
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V. CONCLUSION
For the foregoing reasons, it is ORDERED that this action is DISMISSED
without prejudice for improper venue.
DONE this 14th day of October, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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