HEINISCH v. BERNARDINI et al

Filing 30

ORDER denying as moot 27 Motion to Dismiss for Failure to State a Claim; denying as moot 27 Motion to Dismiss Complaint; denying as moot 28 Motion to Stay; denying as moot 29 Motion to Dismiss; granting 29 Motion to Transfer Case; den ying as moot 11 Motion to Transfer Case; denying as moot 12 Motion to Dismiss for Failure to State a Claim; denying as moot 12 Motion to Dismiss Complaint; denying as moot 13 Motion to Stay; denying as moot 14 Amended Motion. The Clerk of Court is Directed to process this matter for TRANSFER TO THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA for resolution. Ordered by U.S. District Judge W LOUIS SANDS on 10/3/14 (wks) Modified on 10/3/2014 (wks).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
AMANDA HEINISCH, Individually
and on behalf of her minor child, K.S.,

:
:
:
Plaintiffs,
:
:
v.
:
:
ALEX CHRISTOPHER BERNARDINI, :
SAVANNAH CHRISTIAN CHURCH, :
INC., REBECCA G. CROWE, and
:
BRYAN COUNTY, GEORGIA
:
:
Defendants.
:
:

CASE NO.: 1:14-cv-41 (WLS)

ORDER
Before the Court are several motions from Defendants Bryan County, Georgia and
Rebecca G. Crowe: Motion to Transfer Case (Doc. 11), Amended Motion to Transfer Case
(Doc. 14), Renewed Motion to Dismiss or Transfer Case (Doc. 29), Motion to Dismiss for
Failure to State a Claim (Doc. 11), Renewed Motion to Dismiss for Failure to State a Claim
(Doc. 27), Motion to Stay Discovery (Doc. 13), and Renewed Motion to Stay Discovery
(Doc. 28). On August 15, 2014, the Court granted Plaintiff’s Motion to Amend Complaint,
and on September 23, 2014, Plaintiff filed an amended complaint. (Docs. 25, 26.) For the
reasons set forth below, the Court GRANTS Defendants’ Renewed Motion to Transfer
Case (Doc. 29) and DENIES Defendants’ Motion to Transfer Case (Doc. 11) and
Amended Motion to Transfer Case (Doc. 14) as moot.
DISCUSSION
A party may move to dismiss a claim for improper venue pursuant to Federal Rule of
Civil Procedure 12(b)(3). Where a defendant moves to dismiss for improper venue, “the
plaintiff bears the burden of showing that venue in the forum is proper.” Home Insurance Co.
v. Thomas Industries, Inc., 896 F.2d 1352, 1355 (11th Cir. 1990). In order to overcome a motion
to dismiss for improper venue, “the plaintiff must present only a prima facie showing of
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venue . . . .” DeLong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th
Cir. 1988). Further, “[t]he facts as alleged in the complaint are taken as true to the extent
they are uncontroverted by defendants' affidavits.” Id.
28 U.S.C. Section 1391 provides that venue is proper 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.
Section 1391 defines residency of a natural person as “the judicial district in which that
person is domiciled” and residency of an entity with capacity to sue and be sued as “any
judicial district in which such defendant is subject to the court’s personal jurisdiction.”
None of the Parties assert that the third provision of Section 1391 is applicable here.
Rather, Defendants assert that because no part of the claims arose in the Middle District of
Georgia and none of the Defendants reside in the Middle District, venue is not proper here.
(Doc. 29.) Plaintiff states that she chose the Middle District of Georgia as the venue for this
case because Defendant Bernardini, who is incarcerated in Calhoun State Prison, Calhoun
County, Georgia, resides there. Defendants argue that venue is improper because Defendant
Bernardini is not a resident of the Middle District. (Doc. 18 at 1-2.)
First, the Court notes that Plaintiff has not pleaded that any of the alleged events
took place in the Middle District of Georgia. Rather, Plaintiff has pleaded that all of the
events giving rise to the claim took place in the Southern District of Georgia. The Court
therefore finds that if venue were to be determined on the basis of Section 1391(b)(2), venue
would only be proper in the Southern District of Georgia. Further, Plaintiff pleaded and
Defendants have not contested that Defendants Bryan County and Crowe are residents of
the Southern District of Georgia for venue purposes. (Docs. 29 at 1; 26 at 1-2.) For this
reason, the Court declines to address the propriety of venue as to Plaintiff’s claims against
those Defendants. The Court now considers only whether venue is proper in the Middle

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District of Georgia under Section 1391(b)(1) based on Defendant Bernardini’s residency,
taking as true the pleaded fact that Defendants Bryan County and Crowe are residents of the
Southern District of Georgia.
Defendant Bernardini is currently incarcerated at Calhoun State Prison, located in
Calhoun County, which lies in the Middle District of Georgia. Under Section 1391(c)(1).
Prior to incarceration, Bernardini resided in Chatham County, Georgia. (Doc 29 at 1.)
Defendant Bernardini is a resident of the judicial district in which he is domiciled. However,
Defendants argue that Bernardini is domiciled where he resided prior to incarceration. (Doc.
29 at 2-4.) Defendant Bernardini has made no pleadings regarding his domicile, but
Defendants Bryan County and Crowe submitted an affidavit from Crowe in which she swore
that the Clerk of the Superior Court of Bryan County’s file on Defendant Bernardini’s
conviction states that his last home address was in Savannah, Chatham County, Georgia.
(Doc. 14-1 at 1-2.)
Defendants Bryan County and Crowe rely on Polakoff v. Henderson, a case in which the
district court, later affirmed by the Fifth Circuit,1 held, “A prisoner does not acquire a new
domicile in the place of his imprisonment, but retains the domicile he had prior to
incarceration.” 370 F. Supp. 690, 693 (N.D. Ga. 1973), aff’d 488 F. 2d 977 (5th Cir. 1974).
Though the Polakoff court was considering the prisoner’s domicile for purposes of
determining whether diversity jurisdiction existed under 28 U.S.C. Section 1332, the
legislative intent in the most recent amendment to Section 1391 was that the word
“domicile” carry the same meaning in both Sections 1332 and 1391. H.R. Rep. No. 112-10,
at 21 (2011). Further, the Eleventh Circuit has held that a defendant’s domicile is his
“permanent” residence, that place where a defendant “has his true, fixed, and permanent
home, and to which he has the intention of returning in the future although he may
presently be absent therefrom.” Manley v. Engram, 755 F.2d 1463, 1466 n. 3 (11th Cir. 1985).
The legislative intent behind the most recent amendment to the venue statute was to
preclude consideration of defendants’ temporary residences for venue purposes. H.R. Report
112-10 at 20-21.
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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Plaintiff cites Stifel v. Hopkins, a Sixth Circuit case holding that “[n]o good reason
appears for applying a contrary per se rule to [a prisoner] by making the presumption that he
has retained his former domicile an irrebuttable one.” 477 F.2d 1116, 1124 (6th Cir. 1973).
In Stifel, the Sixth Circuit did not hold that a prisoner is always domiciled in the place of his
incarceration, but rather that a prisoner could make a showing that his intent to remain in
the place of his incarceration sufficient to establish domicile there. Plaintiff also cites a
similar case from the Seventh Circuit. Sullivan v. Freeman, 944 F.2d 334 (7th Cir. 1991). Even
if this precedent from sister Circuits were binding in the Eleventh Circuit, it would merely
implement a rebuttable presumption instead of a per se rule that a prisoner’s domicile does not
automatically change to the place of his incarceration. Here, Defendant Bernardini has made
no showing that he intends to make Calhoun County his place of domicile. A presumption
of unchanged domicile has not been rebutted. The Court therefore finds that Defendant
Bernardini is a resident of Chatham County, Georgia where he resided prior to incarceration.
Based on the pleadings, the Court finds that no defendants reside in the Middle
District of Georgia and none of the alleged events giving rise to Plaintiff’s claims took place
in the Middle District of Georgia. Accordingly, the Court finds that venue is improper in the
Middle District. 28 U.S.C. Section 1406(a) commits the decision whether to dismiss for
improper venue or transfer to a proper venue in the interest of justice to the sound
discretion of the Court. Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689
F.2d 982, 985 (11th Cir. 1982). There is, however, a presumption in favor of transfer over
dismissal. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962); Simbaqueba v. U.S. Department
of Defense, 2010 WL 2990042 at * 3 (S.D. Ga. 2010). The Court finds that transferring this
case to the Southern District of Georgia is in the interest of justice.
CONCLUSION
Based on the foregoing reasons, it is hereby ORDERED that Defendants Crowe’s
and Bryan County, Georgia’s Renewed Motion to Transfer (Doc. 29) is GRANTED.
Accordingly, the Court declines to address Defendants’ Renewed Motion to Dismiss (Doc.
27) and Renewed Motion to Stay Discovery (Doc. 28). Defendants’ original Motions to
Transfer (Doc. 11), Dismiss (Doc. 12), and Stay Discovery (Doc. 13) and Amended Motion

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to Transfer (Doc. 14) are DENIED as moot. The Clerk of Court is DIRECTED to
process this matter for transfer to the U.S. District Court for the Southern District of
Georgia for resolution.
SO ORDERED, this 3rd day of October, 2014.
/s/ W. Louis Sands_________________
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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