Scott v. Bentley et al

Filing 44

ORDER: Defendant U.S. Office of Personnel and The Thrift Savings Plan's 24 Motion to Dismiss is DENIED as moot, while Defendants' motions to dismiss 4 , 7 , 8 , and 26 , construed as motions to dismiss or to transfer, are GRANTED. Th e Clerk is DIRECTED TO TRANSFER the entire case to the Northern District of Alabama. All other pending motions are reserved for consideration by the district judge assigned to the case in the Northern District of Alabama. Signed by Judge Richard W. Story on 1/6/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CALVIN W. SCOTT,
Plaintiff,
v.
ROBERT BENTLY, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
1:14-CV-1039-RWS

ORDER
This case comes before the Court on Defendants’ Motions to Dismiss [4,
7, 8, 24, 26]; Plaintiff’s Motion for Partial Summary Judgment [15]; Plaintiff’s
Motion to Void the State Court’s Judgment Due to Fraud on the Court [18];
Plaintiff’s Motion for Clarification of Venue [27]; Plaintiff’s Motion for an
Expedited Order to Show Cause [30]; Plaintiff’s Ex Parte Motion and
Declaration for an Expedited Hearing [31]; Plaintiff’s Motion for Leave to File
a Second Motion to Amend Complaint to Add Additional Defendants [36];
Plaintiff’s Ex Parte Motion to Lift Stay of Discovery [37]; Plaintiff’s Motion to
Lift Stay of Discovery [38]; Plaintiff’s Motion to Amend Jurisdiction [39];
Plaintiff’s Motion to Compel Production [40]; and Plaintiff’s Notice of, and

AO 72A
(Rev.8/82)

Motion for Summary Judgment, and Request for Sanctions [41]. After
reviewing the record, the Court enters the following Order.
Background
Plaintiff Calvin Scott filed this action seeking to recover benefits against
numerous Defendants, including Governor Robert Bentley of Alabama; Judge
James Woodroof of the Limestone County, Alabama Circuit Court; Lucile B.
Scott, Plaintiff’s former wife; Donald L. Dixon, a human resources supervisor;
the U.S. Office of Personnel Management (“OPM”); the Federal Retirement
Thrift Investment Board (“FRTIB”); Redstone Federal Credit Union; and
Joseph Newberry, Chief Executive Officer of Redstone.1
Plaintiff alleges Defendants are denying him federal retirement benefits
to which he is entitled as a former spouse of a federal employee. (Compl., Dkt.
[1] at 6.) During Plaintiff’s divorce from Defendant Lucile Scott, Plaintiff
moved from Huntsville, Alabama, to Atlanta, Georgia. (Id.) By late March
2012, Plaintiff had not received notice of a hearing related to his divorce, so he

1

According to Defendants, Plaintiff misnames Governor Bentley as “Bently”
and Judge Woodroof as “Woodruff.” Plaintiff also names the “U.S. Office of
Personnel” and the “Thrifty Savings Plan” as Defendants. The federal Defendants
assert that the proper Defendants are the Office of Personnel Management and the
Federal Retirement Thrift Investment Board, which manages the Thrift Savings Plan.
2

AO 72A
(Rev.8/82)

contacted the court and found out that a hearing had already been held. (Id.)
Judge Woodroof entered the final judgment of divorce on April 18, 2012. (Dkt.
[1-1] at 7.) Plaintiff alleges that Judge Woodroof abused his authority by
denying Plaintiff his request for division of Ms. Scott’s retirement benefits.
The court apparently dismissed Plaintiff’s claim for alimony and retirement
benefits as a sanction for his failure to appear at a hearing or to provide required
discovery responses. (See id.) Plaintiff asserts that Judge Woodroof’s decision
violated provisions of the Americans with Disabilities Act (“ADA”), the
Employee Retirement Income Security Act (“ERISA”), and the Spouse Equity
Act of 1984, in addition to violating due process of law. While Plaintiff names
numerous other Defendants, his Complaint primarily details the errors he
believes Judge Woodroof made in issuing the divorce decree.
Plaintiff filed this action pro se on April 9, 2014. Defendants filed
motions to dismiss based on lack of personal jurisdiction, improper venue, lack
of subject matter jurisdiction, and failure to state a claim. On June 2, 2014, the
Court stayed proceedings until it ruled on the pending motions. However,
Plaintiff continued to file motions, which the Court will not consider in this
Order in light of the stay.
3

AO 72A
(Rev.8/82)

Discussion
I.

Motions to Dismiss for Lack of Personal Jurisdiction [4, 7, 8]
“As a general rule, courts should address issues relating to personal

jurisdiction before reaching the merits of a plaintiff’s claims.” Republic of
Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 940 (11th Cir. 1997).
Because Defendants challenge the Court’s personal jurisdiction over them, the
Court must resolve this issue before turning to the merits because “[a] defendant
that is not subject to the jurisdiction of the court cannot be bound by its
rulings.” Id.
On a motion to dismiss for lack of personal jurisdiction, “[t]he district
court must accept the facts alleged in the complaint as true, to the extent that
they are uncontroverted by the defendant’s affidavits.” Cable/Home Commc’n
Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). Because
Plaintiff is proceeding pro se, his “pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “This
leniency, however, does not require or allow courts to rewrite an otherwise

4

AO 72A
(Rev.8/82)

deficient pleading in order to sustain an action.” Thomas v. Pentagon Fed.
Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
A federal court properly may exercise personal jurisdiction over out-ofstate defendants “only if two requirements are met: (1) the state long-arm
statute, and (2) the Due Process Clause of the Fourteenth Amendment.” Posner
v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999). Thus, the Court uses a
“two-step inquiry in determining whether the exercise of personal jurisdiction
over a non-resident defendant is proper.” Internet Solutions Corp. v. Marshall,
557 F.3d 1293, 1295 (11th Cir. 2009). First, courts must consider whether the
exercise of personal jurisdiction of the defendant would comport with Georgia’s
long-arm statute. Id. If so, courts then consider whether the defendant has
sufficient minimum contacts with the state such that the exercise of jurisdiction
would not offend due process notions of “fair play and substantial justice.” Id.
(citation omitted). Finally, “ ‘[a] plaintiff seeking the exercise of personal
jurisdiction over a nonresident defendant bears the initial burden of alleging in
the complaint sufficient facts to make out a prima facie case of jurisdiction.’ ”
Scutieri v. Chambers, 386 F. App’x 951, 956 (11th Cir. 2010) (emphasis in

5

AO 72A
(Rev.8/82)

original) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th
Cir. 2009)).
Under the relevant portion of the Georgia long-arm statute,
A court of this state may exercise personal jurisdiction over any
nonresident . . . as to a cause of action arising from any of the acts .
. . enumerated in this Code section, in the same manner as if he or
she were a resident of this state, if in person or though an agent, he
or she:
(1)

Transacts any business within this state . . . .

(2)

Commits a tortious act or omission within this state, except
as to a cause of action for defamation of character arising
from the act;

(3)

Commits a tortious injury in this state caused by an act or
omission outside this state if the tort-feasor regularly does or
solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this state

(4)

Owns, uses, or possesses any real property situated within
this state;

(5)

With respect to proceedings for divorce, . . . maintains a
matrimonial domicile in this state at the time of the
commencement of this action or if the defendant resided in
this state preceding the commencement of the action,
whether cohabiting during that time or not. . . . ; or

(6)

Has been subject to the exercise of jurisdiction of a court of
this state which has resulted in an order of alimony, child
6

AO 72A
(Rev.8/82)

custody, child support, equitable apportionment of debt, or
equitable division of property if the action involves
modification of such order and the moving party resides in
this state . . . .
O.C.G.A. § 9-10-91 (emphasis added).
Plaintiff fails to establish that any of the non-federal Defendants are
subject to personal jurisdiction in Georgia under any of the prongs of Georgia’s
long-arm statute. All Defendants’ actions, to the extent any are alleged, took
place in connection with divorce proceedings that occurred in the Limestone
County Circuit Court. Thus, even if Defendants maintained any contacts with
Georgia, none of those contacts relate to Plaintiff’s cause of action. In any
event, Plaintiff does not allege that Defendants transact business in Georgia or
committed any torts within the state. Assuming Plaintiff alleges that
Defendants committed a tortious injury within Georgia caused by an act outside
the state, the long-arm statute requires that Defendants regularly conduct or
solicit business in Georgia, engage in any other persistent course of conduct, or
derive substantial revenue from goods used or consumed or services rendered in
Georgia. Plaintiff fails to allege that Defendants meet any of these
requirements. Furthermore, Plaintiff’s cause of action does not arise from any

7

AO 72A
(Rev.8/82)

property owned by Defendants in Georgia. Finally, with respect to subsections
(5) and (6), this is not a proceeding for divorce, and no Defendant has been
subject to the jurisdiction of a Georgia court resulting in a domestic relations
order. Accordingly, the Court lacks personal jurisdiction over Defendants
Scott, Bentley, Woodroof, Redstone, and Newberry.
II.

OPM and FRTIB’s Motion to Dismiss for Improper Venue [24, 26]
Defendants OPM and FRTIB argue that venue is improper.2 “Once a

defendant challenges venue through a Rule 12(b)(3) motion, the burden is on
the plaintiff to show that venue in the forum is proper.” Centaur v. Prisoner
Transp. Servs. of Am., No. 1:12-CV-2626-TWT, 2013 WL 5614303, at *1
(N.D. Ga. Oct. 11, 2013) (citation omitted) (internal quotation marks omitted).
Defendants note that the FRTIB is the federal agency responsible for
administering the Thrift Savings Plan, the entity Plaintiff names in his
Complaint. (See OPM & FRTIB’s Br., Dkt. [26] at 5-6.) Suits concerning the

2

Defendants also initially argued that Plaintiff had not properly served the OPM
or FRTIB but later withdrew this argument in their Corrected Motion to Dismiss [26]
when they determined that Plaintiff had served all appropriate entities. Because the
OPM and FRTIB filed a Corrected Motion to Dismiss [26], their earlier Motion to
Dismiss [24] is DENIED as moot.
8

AO 72A
(Rev.8/82)

Thrift Savings Plan are governed by 5 U.S.C. § 8477. This statute includes a
specific venue provision:
An action under this subsection may be brought in the District
Court of the United States for the District of Columbia or a district
court of the United States in the district where the breach alleged in
the complaint or petition filed in the action took place or in the
district where a defendant resides or may be found.
5 U.S.C. § 8477(e)(7)(B).
According to Defendants, because the divorce proceedings and alleged
breach occurred in Alabama, venue would not lie in the Northern District of
Georgia. Furthermore, all the individually named Defendants reside in
Alabama. And, because the main offices of the OPM and FRTIB are located in
Washington, D.C., Defendants assert that they are not “found” in the Northern
District of Georgia. (See OPM & FRTIB’s Br., Dkt. [26] at 7.)
Plaintiff does not respond to Defendants’ venue arguments but instead
reiterates his allegations that Judge Woodroof violated numerous laws in
issuing the divorce decree. (See generally Pl.’s Resp., Dkt. [33-1].) The Court,
for its part, can locate only one case applying the venue provision in 5 U.S.C. §
8477(e)(7)(B). In Gill v. Federal Retirement Thrift Investment Board, a
plaintiff sued claiming that she was the beneficiary under a decedent’s Thrift
9

AO 72A
(Rev.8/82)

Savings Plan. No. 2:11-cv-0351-GDB-KJN, 2011 WL 2946379, at *1 (E.D.
Cal. July 21, 2011). The plaintiff divorced the decedent several years before his
death. Following his death, the FRTIB could not locate a designation of
beneficiary form and thus determined that the funds in the decedent’s account
would be paid in accordance with the statutory order of payment. Id. The
decedent, however, did not have a surviving spouse, living children, or
surviving parents. Id. The plaintiff alleged that she was a named beneficiary
and that the FRTIB failed to keep accurate records. Id.
The FRTIB, citing 5 U.S.C. § 8477(e)(7)(B), argued that the suit should
be dismissed for improper venue because it did not reside and was not found in
the Eastern District of California. See id. at *2. The plaintiff responded that
venue was proper because the beneficiary form was lost in Sacramento, which
is in the Eastern District of California. Id. at *3. The court found, on the other
hand, that the plaintiff failed to “demonstrate that Defendant had possession of
the referenced beneficiary form in California, or otherwise breached any
obligation concerning the referenced beneficiary form in California.” Id.
Furthermore, the FRTIB submitted an affidavit showing that it operated one
office located in Washington, D.C. Id. The court then rejected the plaintiff’s
10

AO 72A
(Rev.8/82)

argument that venue was proper because the beneficiary designation form was
executed in Sacramento, the decedent died in California, and the plaintiff
resided in California, holding that those arguments were not bases for venue
under 5 U.S.C. § 8477(e)(7)(B). Id.
Like in Gill, Plaintiff here fails to carry his burden to show that venue in
the Northern District of Georgia is proper. Plaintiff alleges no facts showing
that the FRTIB or OPM can be found in Georgia, while Defendants assert that
the Court may take judicial notice that the main offices of the OPM and FRTIB
are located in Washington, D.C. See http://www.opm.gov/about-us/contact-us/;
http://www.frtib.gov/contacts.html. In addition, Plaintiff does not allege that
the breach occurred in the Northern District of Georgia, as all divorce
proceedings took place in Alabama. There is thus no basis for laying venue in
the Northern District of Georgia.
Under 28 U.S.C. § 1406(a), “[t]he 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.” So, rather than dismissing the case for lack
of personal jurisdiction and improper venue, the Court has discretion to transfer
11

AO 72A
(Rev.8/82)

the case. 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.”). The Court finds that it is in the interest of justice to
transfer the case instead of dismissing it because Plaintiff is proceeding pro se
and has paid the filing fees. Transfer would therefore save Plaintiff time and
expense in refiling this action. See Stallings v. Hoffman, No. 1:14-cv-806WSD, 2014 WL 2040101, at *2 (N.D. Ga. May 12, 2014) (finding that it was in
the interest of justice to transfer a case brought in the wrong district because a
pro se plaintiff “likely does not known the venue laws”).
Defendants show that this action could have originally been brought in
the Northern District of Alabama because that appears to be where most of the
Defendants reside. (See Bentley & Woodroof’s Br., Dkt. [7] at 22 n.4.)
Moreover, as explained above, under the venue provision related to suits
concerning the Thrift Savings Plan, venue is proper where the alleged breach
occurred or where any defendants reside. See 5 U.S.C. § 8477(e)(7)(B).
Accordingly, venue under 5 U.S.C. § 8477(e)(7)(B) is also proper in the
12

AO 72A
(Rev.8/82)

Northern District of Alabama because that is where the divorce proceedings
leading to the alleged breach were adjudicated. For these reasons, the Court
GRANTS Defendants’ motions to dismiss, construed as motions to dismiss or
to transfer,3 based on lack of personal jurisdiction and improper venue.
Conclusion
For the foregoing reasons, Defendant OPM and FRTIB’s Motion to
Dismiss [24] is DENIED as moot, while Defendants’ motions to dismiss [4, 7,
8, 26], construed as motions to dismiss or to transfer, are GRANTED. The
Clerk is DIRECTED TO TRANSFER the entire case to the Northern District
of Alabama. All other pending motions are reserved for consideration by the
district judge assigned to the case in the Northern District of Alabama.
SO ORDERED, this 6th day of January, 2015.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

3

Defendants Bentley and Woodroof expressly sought transfer in the alternative.
13

AO 72A
(Rev.8/82)

14

AO 72A
(Rev.8/82)