Rudolph v. The HR Specialist et al

Filing 35

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 4/11/14. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
YVETT C. RUDOLPH,

)

)

Plaintiff,
)

)

v.
) Civ. No. 13-859-SLR
)
THE HR SPECIALIST, INC., BUSINESS)
MANAGEMENT DAILV, CAPITAL
)
INFORMATION GROUP, INC., ALLIE )
P. ASH, JR., PHILLIP ASH, STEVEN
)
STURM, PATRICK DI DOMENICO,
)
ADAM GOLDSTEIN, and WILLIAM H. )
STURGES,
)
)
Defendants.
)

Vvett C. Rudolph, Johnson City, Tennessee. Pro se Plaintiff.
Gary William Lipkin, Esquire, Duane Morris LLP, Wilmington, Delaware. Counsel for
Defendants.

MEMORANDUM OPINION

Dated: April 1\ ,2014
Wilmington, Delaware

I. INTRODUCTION

Plaintiff Yvett C. Rudolph ("plaintiff") proceeds pro se and has been granted
leave to proceed in forma pauperis. She filed this lawsuit on May 17, 2013 raising a
defamation claim as well as claims under Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 2101, et seq. (0.1. 2, 9) Presently before the court is defendants' motion to
dismiss, opposed by plaintiff. (0.1. 28) The court has jurisdiction pursuant to 28 U.S.C.

§ 1331. For the following reasons, the court will deny without prejudice to renew the
pending motion to dismiss and will transfer the matter to the United States District Court
for the Eastern District of Virginia, Alexandria Division.

II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff, who resides in Johnson City, Tennessee, filed this action against
defendants The HR Specialist, Inc., ("HR Specialist"), Business Management Daily
("Business Management"),1 Capital Information Group, Inc. ("Capital Information"),
President and Officer of Capital Information Allie P. Ash, Jr. ("Ash, Jr."), Vice-President,
Officer and Director of Capital Information Phillip Ash ("Ash"), Vice President and Officer
of Capital Information Steven Sturm ("Sturm"), Editorial Director of Business
Management Patrick DiDomenico ("DiDomenico"), Associate Publisher of Business
Management Adam Goldstein ("Goldstein"), and attorney, editor and author William H.
Sturges ("Sturges"). Sturges is located in Charlotte, North Carolina and all other
defendants are located in Falls Church, Virginia.

1An online newsletter.

Plaintiff alleges that defendants defamed her through the publication of an article
and in violation of her rights under Title VII and the ADA. Plaintiff filed an employment
discrimination case in the United States District Court for the Western District of North
Carolina, Rudolph v. Buncombe Cnty Gov't, Civ. No.1 0-203, alleging that, as a result of
her disability, she had been denied reasonable accommodation, had suffered a hostile
work environment, and had been discharged during probationary period in violation of
Americans with Disabilities Act? On March 1, 2012, the district court found that plaintiff
was not entitled to relief and granted defendants' motion for summary judgment and
denied plaintiff's motion for summary judgment. Plaintiff appealed. Prior to a ruling by
the appellate court, plaintiff logged on to the Living with ADHD website and discovered
an article which discussed her case. The article had been sent through The HR
Specialist for North Carolina, an online newsletter of Business Management Daily.
Plaintiff alleges that the article "has no accuracy" and is "totally untrue."
On October 16,2013, the COLIrt screened the complaint pursuant to 28 U.S.C.

§ 1915(e)(2). (See D.1. 11) Therein, it ordered the parties to file briefs addressing why
this court is the appropriate venue or whether another United States District Court might
be a more convenient venue for this matter, particularly the Eastern District of
Tennessee, Greeneville Division; the Eastern District of Virginia, Alexandria Division; or
the Western District of North Carolina, Charlotte Division.3

2The decision was affirmed on August 14, 2012. Rudolph v. Buncombe Cnty.
Gov't, 474 F. App'x 931 (4th Cir. 2012) (unpublished).
3The Third Circuit has not decided whether a district court may transfer venue
under 28 U.S.C. § 1404(a) on its own motion. Courts within this Circuit have held that
when no motion to transfer to a more convenient venue has been filed, the court may

2

On November 18, 2013, plaintiff advised the court that when she filed this action,
"she used the location of formation of the corporation, being Delaware, especially
because there were multiple part[ies]-plaintiff residences." (0.1. 12) In plaintiff's brief

(0.1. 27), she states that Delaware is the appropriate forum for this action given it is
"defendants' state of legal formation." Defendants responded by filing a motion to
dismiss (0.1. 28) for failure to state a claim upon which relief may be granted pursuant to
Fed. R. Civ. P. 12(b)(6). In the alternative, they request that the matter be transferred
to the United States District Court for the Eastern District of Virginia. Plaintiff opposes
the motion.

III. LEGAL STANDARDS
A civil action may 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;
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) if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is subject to the
court's personal jurisdiction with respect to such action. 28 U.S.C. § 1391 (b).

sua sponte transfer the case, but only after first providing the parties with an opportunity
to brief the transfer issue. See, e.g., Johnson v. U.S. Bancorp, 2012 WL 1133689 (D.
Del. Mar. 30, 2012); Bank Express Inn v. Kang, 265 F.Supp.2d 497,507 n.12 (E.D. Pa.
2003). See also Fioran; v. Chrysler Group, 510 F. App'x 109,111 (3d Cir. 2013)
(unpublished) (sua sponte dismissal with prejudice as frivolous of in forma pauperis
complaint was not appropriate sanction for improper venue, rather, district court should
have considered whether interests of justice warranted transfer of complaint to
appropriate venue).

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Pursuant to 28 U.S.C. § 1404(a), a district court may transfer any civil action to
any other district where the action might have been brought for the convenience of
parties and witnesses and in the interests of justice. Congress intended through § 1404
to place discretion in the district court to adjudicate motions to transfer according to an
individualized, case-by-case consideration of convenience and the interests of justice.
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Affymetrix, Inc. v. Synteni,
Inc., 28 F. Supp. 2d 192, 208 (D. Del. 1998).
"Unless the balance is strongly in favor of a transfer, the plaintiff's choice of
forum should prevaiL" ADE Corp. v. KLA-Tencor Corp., 138 F. Supp. 2d 565, 567-68
(D. Del. 2001); Shutte v. Armco Steel Corp., 431 F.2d 22,25 (3d Cir. 1970). The
deference afforded a plaintiff's choice of forum will apply as long as a plaintiff has
selected the forum for some legitimate reason. Medtronic, Inc. v. Boston Scientific
Corp., 587 F. Supp. 2d 648,654 (D. Del. 2008); Cypress Semiconductor Corp. v.
Integrated Circuit Sys., Inc., 2001 WL 1617186, at *2 (D. Del. Nov. 28, 2001);
Continental Cas. Co. v. American Home Assurance Co., 61 F. Supp. 2d 128, 131 (D.
Del. 1999). Although transfer of an action is usually considered as less inconvenient to
a plaintiff if the plaintiff has not chosen its '''home turf' or a forum where the alleged
wrongful activity occurred, the plaintiffs choice of forum is still of paramount
consideration, and the burden remains at all times on the defendants to show that the
balance of convenience and the interests of justice weigh strongly in favor of transfer."
In re ML-Lee Acquisition Fund II, L.P., 816 F.Supp. 973, 976 (D. Del. 1993).
With regard to transfer under § 1404, the analysis is very broad. Jumara v. State
Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Although "there is no definitive formula

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or list of factors," potential private and/or public interests are considered. The private
interests include: (1) plaintiff's forum preference as manifested in the original choice; (2)
defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of
the parties as indicated by their relative physical and financial condition; (5) the
convenience of the witnesses but only to the extent that the witnesses may actually be
unavailable for trial in one of the fora; and (6) location of books and records (similarly
limited to the extent that the files could not be produced in the alternative forum)." Id.
(citations omitted). The public interests include: "(1) the enforceability of the judgment;
(2) practical considerations that could make the trial easy, expeditious or inexpensive;
(3) the relative administrative difficulty in the two fora resulting from court congestion;
(4) the local interest in deciding local controversies at home; (5) the public policies of
the fora; and (6) the familiarity of the trial judge with the applicable state law in diversity
cases." Id. (citations omitted).

IV. DISCUSSION
Plaintiff indicates that, except for defendant Sturges, who is located in Charlotte,
North Carolina, the other defendants. "through their attachment to the parent company"
(Le., Capital Information). share the same business address in Falls Church. Virginia.
and have postal boxes in McLean, Virginia. Capital Information is a Delaware
corporation registered in the State of Virginia. The complaint identifies Sturges as an
attorney, the editor of The (NC) HR Specialist, and the author directing the publication
of the article at issue.
Defendants acknowledge, and the court agrees, that venue is not proper in
Delaware. Not all defendants are resident of Delaware. See 28 U.S.C. § 1391(b)(1).

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Only Capital Information is a resident of Delaware by virtue of its Delaware
incorporation. In addition, there are no allegations that any of the events at issue took
place in Delaware.
Plaintiff indicates that she did not file this action in North Carolina "due to litigator
problems" she experienced, followed by a complaint to the F.B.I. and the United States
Attorney General's office. Plaintiff "expects" the court to understand her "desire to
bypass the Charlotte Court option and eliminate it as an option." (D.I. 27, ,-r 6) Plaintiff
wishes the case to remain in Delaware noting that, "[T]he staff is pleasant and
informative. It is no further than Virginia or Washington, D.C. for this Plaintiff and 4 day
mail is no more than from Charlotte or Virginia." (Id. at,-r 10)
Although venue is improper, defendants ask the court to retain jurisdiction in the
interest of judicial economy. In the alternative, they ask that the matter be transferred to
the United States District Court for the Eastern District of Virginia. Defendants note that
this action could have originally been brought in the Eastern District of Virginia because
a substantial part of the events or omissions giving rise to the claim occurred there.
The complaint refers to conduct by two defendants both of whom are located in the
Eastern District of Virginia. The HR Specialist and Business Management Daily. and
one Sturges who is located in North Carolina. Defendants advise that all other
defendants are located in the Eastern District of Virginia. In addition, defendants
indicate that the books and records of The HR SpeCialist and Business Management
Daily are located in the Eastern District of Virginia.
In viewing all the Jumara factors, the Court finds that the balance is strongly in
favor of a transfer under § 1404. Only one defendant has a Delaware presence and no

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actions took place in this district. The allegations refer to acts taken by defendants who
are in Virginia and North Carolina. Although plaintiff filed this action in Delaware, she
does not reside in Delaware, and she advises that she has no problem traveling to
Delaware. Notably, the courthouse to which this matter will be transferred is
approximately one hundred miles closer to plaintiff's residence. In addition, defendants'
records are located in the Eastern District of Virginia. As discussed, the some of the
alleged wrongs by defendants are alleged to have occurred in Virginia and North
Carolina. Hence, for those claims raised under Virginia law, the Eastern District of
Virginia has a stronger interest in deciding the dispute, and the presiding judge will have
more familiarity with the applicable law.
Finally, the court finds that plaintiff failed to provide a legitimate reason for
commencing the case in this district. Plaintiff states that she filed the case here
because Capital Information is a Delaware corporation. Yet, by her own admission, she
chose not to file the action in North Carolina (where at least some of the alleged acts
took place) because she was unhappy with the outcome of her underlying employment
discrimination case filed there.
Despite the deference afforded to a plaintiff's choice of forum, the balance of
factors is strongly in favor of a transfer to the United States District Court for the Eastern
District of Virginia.

IV. CONCLUSION
For the above reasons, the court will deny without prejudice to renew the pending
motion to dismiss (D.1. 28) and will order the action transferred to the United States
District Court for the Eastern District of Virginia, Alexandria Division.
An appropriate order will issue.

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