Roberts v. Gallagher, et al
ORDER that defendant Liberty Mutual Insurance Company's motion to dismiss (dkt. #15 ) is GRANTED, on the ground that transfer is warranted for improper venue. The remaining defendants' motions to dismiss are DENIED without prejudice as moot. This matter is TRANSFERRED to the District of Arizona. Signed by District Judge William M. Conley on 11/17/2021. (lam),(ps) [Transferred from wiwd on 11/19/2021.]
N THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
WILLIAM RUSSELL ROBERTS,
OPINION AND ORDER
LEE ANNE GALLAGHER,
MAPFRE INSURANCE d/b/a THE
COMMERCE INSURANCE COMPANY,
VOLKSWAGON GROUP OF AMERICA, INC.,
LIBERTY MUTUAL INSURANCE,
HERTZ GLOBAL HOLDINGS, INC.,
ENTERPRIZE RENTAL COMPANY, and
NORTHERN ARIZONA HEALTHCARE,
In this civil action (“the ‘299 case”), pro se plaintiff William Roberts has again sued
numerous individuals and entities for injuries he incurred following an automobile accident
that occurred in Arizona on April 26, 2017. In Case No. 19-cv-331 (“the ’331 case”),
Roberts initially brought claims against defendants Lee Anne Gallagher, Nina J. Foppe,
MAPFRE Insurance, EAN Holdings LLC (also referred to as “Enterprise Rental Company,”
“Enterprise Holding, Inc.,” all of which will be referred to in this opinion as “Enterprise”),
Volkswagon Group of America, Northern Arizona Healthcare Corporation (“NAHC”)
(referred to by Roberts as “Northern Arizona Healthcare”), Liberty Mutual Insurance,
Joseph Ezra Roberts (hereinafter “Joseph Roberts”), Joyson Safety Systems, Inc., Dollar
Thrifty Group, Hertz Global Holdings, Inc., Hertz Vehicles LLC, Dollar Thrifty
Automotive Group, Inc, and “Hertz Corporate Headquarters.”
Then, in April 2020,
Roberts filed this second lawsuit, asserting the same claims but omitting as defendants
Joseph Roberts, Foppe and Joyson, while naming Hertz Global Holdings, Inc., rather than
multiple entities associated with Hertz. Also, in this lawsuit, Roberts describes defendant
MAPFRE Insurance as “d/b/a The Commerce Insurance Company.” In
Roberts purported to invoke this court’s diversity jurisdiction under 28 U.S.C. § 1332.
The defendants in each lawsuit filed motions to dismiss on several grounds,
including lack of subject matter jurisdiction, personal jurisdiction, venue, inadequate
service of process and for failure to state a claim upon which relief can be granted. (No.
’331, dkt. ##24, 35, 43, 45; No. ’299, dkt. ##4, 11, 15, 20, 47.)1 In an order dated
December 3, 2020, the court concluded that the ’331 case had to be dismissed for lack of
subject matter jurisdiction, and that this case was subject to dismissal for the same reason.
While dismissing the ’331 case without prejudice for lack of subject matter jurisdiction,
however, the court gave Roberts the opportunity to amend his complaint in this case, to
allege sufficient facts for the court to determine diversity of citizenship.
Roberts timely submitted an amended complaint that includes allegations of each
of the defendant’s citizenship. (Dkt. #58.)2 Having reviewed his amended allegations,
the court is satisfied that his allegations are sufficient to invoke this court’s subject-matter
The Commerce and Enterprise defendants also seek dismissal of this lawsuit because it improperly
splits Roberts’ claims between two lawsuits (see dkt. #21, at 2-4), and Volkswagon seeks dismissal
as duplicative of the ’331 case (dkt. #48, at 3-4). Volkswagon’s argument is on point: Roberts’
allegations against it are identical to the ’331 case, and as explained above, the parties are almost
identical. However, given that the ’331 case has already been dismissed without prejudice for lack
of subject matter jurisdiction, the court declines to dismiss the ’299 as duplicative. McReynolds v.
Merrill Lynch Co. Inc., 694 F.3d 873, 888-89 (7th Cir. 2012) (district courts have broad discretion
to dismiss a complaint “for reasons of wise judicial administration . . . whenever it is duplicative of
a parallel action already pending in another federal court”) (quotation marks and citations omitted).
Roberts includes Hertz Global Holdings, Inc., as a defendant. However, this defendant was
previously dismissed from this lawsuit without prejudice, upon notice of suggestion of bankruptcy.
(Dkt. #28.) That dismissal remains effective as to those defendants.
jurisdiction. Accordingly, the court turns to defendants’ motions to dismiss. Although
only raised by Liberty Mutual, the court finds that venue is improper in this district. Under
28 U.S.C. § 1406(a), therefore, the court will transfer this pro se action to the District of
Arizona, warts and all.
ALLEGATIONS OF FACT3
On April 25, 2017, Roberts’ brother, defendant Joseph Roberts, rented a 2016
Volkswagon Jetta from Thrifty car rental in Phoenix, Arizona. That evening, plaintiff
Roberts and another individual drove that car to Flagstaff, Arizona. The following day,
April 26, Roberts and his companion drove to the Grand Canyon. As Roberts was driving
away on State Road 64 in Coconino County, Arizona, he got into a head-on collision with
defendant Lee Gallagher. According to Roberts, after the accident, Gallagher told him that
another vehicle pulled out in front of her, which was why she turned into his lane. Roberts
also says Gallagher admitted taking her hands off the wheel before the collision to protect
Roberts was next transported from the scene of the collision to Flagstaff Medical
Center (operated by NAHC), where he was admitted to intensive care with contusions on
his heart and elevated blood pressure. However, he was discharged from the hospital
without seeing a cardiologist.
In addressing any pro se litigant’s complaint, the court must read the allegations generously,
resolving ambiguities and making reasonable inference in plaintiff’s favor. Haines v. Kerner, 404
U.S. 519, 521 (1972).
Almost a year later, on March 10, 2018, Roberts suffered cardiac arrest from
blockages in his heart and was transported by helicopter to Eau Claire, Wisconsin, where
he underwent a double bypass. Roberts claims that his blockages were due to the airbag
of his Volkswagon rental care deploying violently and improperly. Roberts also claims
Volkswagon and Hertz should have known that the vehicle’s airbags were problematic,
claiming product liability and negligence. Finally, he claims that Gallagher failed to operate
her vehicle properly.
Gallagher and MAPFRE (“the Commerce Defendants”), NAHC, Liberty Mutual,
Enterprise and Volkswagon seek dismissal on differing grounds, but the court begins and
ends with Liberty Mutual’s motion to dismiss on venue grounds.
Specifically, Liberty Mutual seeks dismissal on the grounds that this court is an
improper venue for Roberts’ claims under Fed. R. Civ. P. 12(b)(3), and because Robert has
failed to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
(’299 case, dkt. #15.) Since Liberty Mutual has established that the Western District of
Wisconsin is an improper venue for this lawsuit, the court will grant its motion on that
Under 28 U.S.C. § 1391(b), since there is no question that this suit could have been
brought in Arizona, excluding § 1391(b)(3) as a basis for venue, a civil action may also be
brought in: “(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located; [or] (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 located.” “The district court of a district
in which is filed a case laying venue in the wrong division or district shall dismiss, or if it
be in the interest of justice, transfer such case to any district or division in which it could
have been brought.” 28 U.S.C. § 1406(a).
There is no dispute that Roberts’ claims, such as they are, arose from an auto
accident and subsequent health care that took place in Arizona, so venue is not proper
under § 1391(b)(2). That Roberts subsequently suffered a heart attack in Wisconsin is
not a basis to conclude that the substantial part of the events giving rise to his claims took
place in this district. Indeed, he expressly alleges the heart attack itself arose out of
multiple acts of negligence that all took place in Arizona. As a result, the heart attack
relates only to his alleged damages, not to any of the defendants’ alleged wrongdoing. See
Hanyuan Dong v. Garcia, 553 F. Supp. 2d 962, 965 (N.D. Ill. 2008) (“The fact that [the
plaintiff] alleges to have suffered from his injuries after returning to Illinois does not
constitute a ‘substantial part of the events or omissions giving rise to the claim.’”).
Nor is venue appropriate under § 1391(b)(1). Roberts has not suggested that all
the defendants reside in the State of Wisconsin for purposes of venue; nor could he
reasonably take that position. For venue purposes, a natural person that is a resident of
the United States is deemed to reside in the judicial district in which that person is
domiciled. 28 U.S.C. § 1391(c)(1). A defendant entity is deemed to reside in the district
where it is subject to the court’s personal jurisdiction. Id. § 1391(c)(2). Although plaintiff
Roberts alleges that he is a resident and citizen of Wisconsin, a plaintiff’s state of residency
is not a basis for venue under § 1391(c). Given that he alleges that Gallagher is a citizen
of Massachusetts, Roberts has effectively conceded that not all defendants are residents of
the State of Wisconsin. Accordingly, venue is improper in this district court.
Finding venue improper in this district court, the question becomes how to resolve
the remaining defendants’ motions to dismiss. Some district courts have taken the tact of
choosing one of three ways to proceed: (1) dismiss the action; (2) transfer the action to
another district, provided venue is proper in that district for all defendants; or (3) sever
claims, retaining jurisdiction only over those defendants for whom venue is proper, and
either transferring or dismissing the case as to those defendants for whom venue is
improper. CCD Holdings, LLC v. Cenergy USA, Inc., No. 18-cv-2749, 2019 WL 10369661,
at *2 (N.D. Ill. Feb. 6, 2019) (citing Starr Indem. & Liab. Co. v. Luckey Logistics, Inc., No.
116 CV 01377JBMJEH, 2017 WL 2466505, at *6 (C.D. Ill. June 7, 2017)); Egan v. Duell,
No. 88 C 4388, 1989 WL 36206, at *5 (N.D. Ill. Apr. 13, 1989); LaSalle Nat. Bank v.
Arroyo Office Plaza, Ltd., No. 87 C 463, 1988 WL 23824, at *5 (N.D. Ill. Mar. 10, 1988)).
Here, the best course of action is transfer of this case. Indeed, the Supreme Court
has been explicit: when “venue is improper . . . the case must be dismissed or transferred
under § 1406(a).” Atl. Marine Const. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S.
49, 56 (2013).4
The court reaches this finding despite the Commerce Defendants and NAHC raising personal
jurisdiction as additional grounds for dismissal. Federal courts have “leeway to choose among
threshold grounds for denying audience to a case on the merits.” In re LimitNone, LLC, 551 F.3d
572, 576-77 (7th Cir. 2008). And “the Supreme Court has approved . . . of addressing venue before
personal jurisdiction.” Id. (citing Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979)).
Finding venue improper in this district court, the court reluctantly concludes that
transfer, rather than dismissal, of this action, will serve the interest of justice. In particular,
although a number of defendants point out potentially meritorious defenses to the claims
against them, it would be premature to conclude that no claims may go forward, and this
court will not preclude plaintiff an opportunity, however remote, from pursuing those
claims in a proper venue, without adding a statute of limitation defense that might not
exist if transfer is allowed, rather than dismissal. At the same time, the court would strongly
encourage plaintiff to retain a competent personal injury lawyer in Arizona to represent
him, as he appears to lack the necessary expertise to proceed on his own and the only
reason he is unlikely to find counsel willing to represent him on a contingency basis would
likely be because his claims lack any reasonable chance of success.
IT IS ORDERED that:
1. Defendant Liberty Mutual Insurance Company’s motion to dismiss (dkt. #15)
is GRANTED, on the ground that transfer is warranted for improper venue.
2. The remaining defendants’ motions to dismiss are DENIED without prejudice
3. This matter is TRANSFERRED to the District of Arizona.
Dated this 17th day of November, 2021.
BY THE COURT:
WILLIAM M. CONLEY
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