Sumter v. Hussey
ORDER: The Court has subject matter and personal jurisdiction over defendant Creighton Hussey, and defendants Quality Project Management, LLC and John Doe warrant dismissal, but ruling on them is deferred to the Northern District of Georgia, to which this case is TRANSFERRED on venue grounds. Meanwhile plaintiffs fee-payment obligations (as noted above) will be processed by the Clerk for the Northern District of Georgia. Signed by Magistrate Judge G. R. Smith on 4/14/17. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
CRAIG R. SUMTER,
CREIGHTON R. HUSSEY,
In Sumter v. Quality Project Management, LLC, CV416-108 (S.D.
Ga. May 10, 2016), pro se plaintiff Craig Sumter sued Quality Project
Management, LLC (QPM), claiming that QPM employee Creighton
Hussey “physically attacked [him] on October 19, 2013 in Plaintiff’s
apartment while in Atlanta Georgia for work, under the auspices of
[QPM].” Doc. 1 at 1-2. Suing only QPM (in CV416-108), Sumter alleges
that QPM is vicariously liable for Hussey’s actions. Id. at 1.
But in a second lawsuit, Sumter sued Hussey personally, and on
pretty much the same facts. Sumpter v. Hussey , CV416-109, doc. 1 (S.D.
Ga. May 10, 2016). The Court thus consolidated CV416-108 into CV416-
109 -- sparing him two filing fees. It also granted his motion to proceed
in forma pauperis (IFP), then ordered him (since he was an inmate when
he filed this case) to return the required Prison Litigation Reform Act
(“PLRA”) forms, 28 U.S.C. § 1915(a)(2). He has complied, (CV416-109,
docs. 5 & 6) and, upon preliminary screening, 1 the Court concludes that
Sumter has established subject matter jurisdiction plus personal
jurisdiction over Hussey, but he states no claim against QPM or John
Doe. Further, the Northern District of Georgia is a preferable venue for
all of Sumter’s claims, so the Court transfers the case there. Rather than
The PLRA requires federal courts to conduct early screening of all suits filed by
prisoners or detainees for the purpose of identifying claims that are subject to
immediate dismissal because they are frivolous or malicious, fail to state a claim for
relief, or seek monetary damages from a defendant who is immune from such relief.
See 28 U.S.C. § 1915A (which applies to prisoner/detainee complaints against
governmental entities or officials, whether plaintiff is proceeding IFP or has paid the
filing fee); 28 U.S.C. § 1915(e)(2)(B) (imposing the same dismissal obligation as to
any case filed IFP, whether by a prisoner/detainee or any other “person”); 42 U.S.C. §
1997e(c)(1) (imposing the same dismissal obligation as to “any action brought with
respect to prison conditions”). On initial screening of a prisoner complaint, only
“cognizable claims” may be allowed to proceed. 28 U.S.C. § 1915A(b).
All three statutory provisions contemplate the dismissal of non-cognizable claims
prior to service of process upon any defendant. See § 1915A (requiring screening
“before docketing if feasible or . . . as soon as practicable after docketing”); §
1915(e)(2) (requiring dismissal “at any time” the court determines the suit to be
factually or legally insubstantial); and § 1997e(c)(1) (requiring dismissal of
insubstantial claims on the court’s “own motion”). But here no prison conditions or
government officials are sued, so review is under 28 U.S.C. § 1915(e)(2)(B). Sumter
must pay the Court’s $350 filing fee under the PLRA’s “installment” plan
implemented below. He is not subject to the PLRA’s exhaustion requirement,
however, since he is not suing his jailers or any other state actors.
rule on Sumter’s claims piecemeal, however, the Court defers
recommending final disposition on any claims to allow review after
I. JURISDICTION & VENUE
Before it can pass on Sumter’s claims, this Court
must have at least one of the three types of subject-matter
jurisdiction: (1) jurisdiction pursuant to a specific statutory grant;
(2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3)
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Baltin v.
Alaron Trading Corp ., 128 F.3d 1466, 1469 (11th Cir. 1997). The
party asserting jurisdiction has the burden of establishing that
their cause lies within this limited grant of jurisdiction. Kokkonen
v. Guardian Life Ins. Co. of Am ., 114 S. Ct. 1673, 1675 (1994). For
actions brought under 28 U.S.C. § 1332, the burden is on the party
seeking federal jurisdiction to demonstrate that diversity exists by
a preponderance of the evidence. Molinos Valle Del Cibao, C. por A.
v. Lama , 633 F.3d 1330, 1340 (11th Cir. 2011). A Plaintiff must
plead facts that support the existence of federal diversity
jurisdiction. McCormick v. Aderholt , 293 F.3d 1254, 1257 (11th Cir.
2002); Las Vistas Villas, S.A. v. Petersen , 778 F. Supp. 1202, 1203
(M.D. Fla. 1991).
Lawrence v. Wells Fargo Bank, N.A ., 2016 WL 7013528 at * 2 (S.D. Ga.
Nov. 4, 2016); see also id . (for diversity, no defendant can be a citizen of
the same state as any plaintiff and the amount in controversy must
exceed $75,000); Holston Invs., Inc. B.V.I. v. LanLogistics Corp. , 677 F.3d
1068, 1070 (11th Cir. 2012) (“Diversity jurisdiction is determined at the
time the complaint was filed.”).
A. Subject Matter Jurisdiction
Sumter has filed a consolidating, Amended Complaint in which he
pleads diversity jurisdiction and adds a “John Doe” defendant. Doc. 7 at
1-2. He sues Hussey for state-law torts (assault, battery, stalking,
invasion of privacy, etc.) that occurred in the Atlanta, Georgia area. Id.
at 4 (“Mr. Hussey justifies his presence in Atlanta by bidding for work
trips in the area but his true intent has been to stalk plaintiff.”); see also
id. ¶ 6 (“On two occasions Mr. Hussey attempted to persuade Plaintiff to
move out of Atlanta, once threatening his life”). Plaintiff sues QPM
because Hussey came to Atlanta while employed by QPM. He otherwise
does not allege that Hussey was acting within the scope of QPM’s
employment. Id . at 3. Sumter initially sought $125,000, doc. 1 at 6, but
now wants $6,125,000 from all three defendants. Id. at 14. That meets
the $75,000 requirement.
That leaves the residency requirement. Sumter is incarcerated
within this judicial district (Wheeler Correctional Facility in Wheeler
County, Georgia). Doc. 7 at 15. Hussey is a Minnesota resident and
QPM (possibly) is an Arizona resident. 2 Id . at 2. Plaintiff provides no
information about John Doe. Id . For the moment, he has established
diversity jurisdiction (involving over $75,000 in claims against citizens of
B. Personal Jurisdiction
Sumter must also allege sufficient facts to establish personal
jurisdiction over each defendant. United Techs. Corp. v. Mazer , 556 F.3d
1260, 1274 (11th Cir. 2009); Brannies v. Internet ROI, Inc ., 67 F. Supp.
3d 1360, 1362 (S.D. Ga. 2014). Here the case law delves in “general”
versus “specific” jurisdiction distinctions. General (also known as “allpurpose”) jurisdiction over a defendant is based on a forum nexus (the
defendant’s domicile, for example) unrelated to the conduct on which the
This conclusion is not final. There’s a fairly thick layer of complication that can
arise out of “LCC” citizenship determinations. See Purchasing Power, LLC v.
Bluestem Brands, Inc ., ___ F.3d ___, 2017 WL 1046103 at * 1 (11th Cir. Mar. 20,
2017) (“When determining citizenship of the parties for diversity jurisdiction
purposes, a limited liability company (LLC) is a citizen of every state that any
member is a citizen of. And it is common for an LLC to be a member of another LLC.
Consequently, citizenship of LLCs often ends up looking like a factor tree that
exponentially expands every time a member turns out to be another LLC, thereby
restarting the process of identifying the members of that LLC. The simplest misstep
has the potential to derail years of litigation and result in a massive financial
sanction, as happened here. It is in everyone's best interest, both the litigants' and
the courts', to verify that diversity jurisdiction exists before proceeding with the case.
Everyone involved in this case trusted that diversity jurisdiction existed, but no one
underlying suit is premised. 3 Walden v. Fiore , ___ U.S. ___, 134 S.Ct.
1115, 1122 n. 6 (2014).
Specific (case-linked) jurisdiction turns on the nexus between the
forum and the underlying controversy -- the action in the forum state
that subjects the actor to that state's regulation: “A,” a non-Georgian,
commits an intentional tort or performs a certain contract in Georgia.
“A” can be haled into that state when sued on that tort or contract.
Specific jurisdiction thus has been recognized
over defendants who have purposefully reached out beyond
their State and into another by, for example, entering a
contractual relationship that “envisioned continuing and
The U.S. Supreme Court has essentially created an “at home” standard -- an outof-state defendant can endure personal jurisdiction if its general activities (not a
particular tort for which it is sued) within the state is continuous enough. Daimler
AG v. Bauman , ___ U.S. ___, 134 S.Ct. 746, 760-61 (2014). But the showing is fairly
the affiliation between the defendant and the forum state must be so
continuous and systematic that the defendant is “comparable to a domestic
enterprise in that State.” Daimler, 134 S.Ct. at 758 n. 11. Both Daimler and
[ Goodyear Dunlop Tires Operations, S.A. v. Brown , ___U.S. ___, 131 S.Ct.
2846, 2851 (2011)] emphasized that the paradigm forum for the exercise of
general jurisdiction is the defendant's domicile (which, in the case of a
corporation, is the place of incorporation and principal place of business).
Goodyear , 131 S.Ct. at 2853; Daimler, 134 S.Ct. at 760. The Supreme Court
did not hold that a corporation may be subject to general jurisdiction only in a
forum where it is incorporated or has its principal place of business. However,
the court stated that a defendant might be subjected to general jurisdiction in
some other forum only in an “exceptional case.” Daimler, 134 S.Ct. at 761.
NExTT Solutions, LLC v. XOS Technologies, Inc ., 71 F. Supp. 3d 857, 861-62 (N.D.
wide-reaching contacts” in the forum State, or by circulating
magazines to deliberately exploit a market in the forum State.
And although physical presence in the forum is not a
prerequisite to jurisdiction, physical entry into the State -either by the defendant in person or through an agent, goods,
mail, or some other means -- is certainly a relevant contact.
Walden , 134 S.Ct. at 1122 (quotes, cites and alterations omitted).
To summarize, the exercise of specific jurisdiction over, for
example, an out-of-state intentional tortfeasor, must be based on
intentional conduct that creates the necessary contacts with the
Walden , 134 S.Ct. at 1122-23. How many is a matter of
degree: “Due process requires that a defendant be haled into court in
a forum State based on his own affiliation with the State, not based on
the random, fortuitous, or attenuated contacts he makes by
interacting with other persons affiliated with the State.” Id . at 1123.
But the standard is spongy: “A forum State's exercise of jurisdiction
over an out-of-state intentional tortfeasor must be based on
intentional conduct by the defendant that creates the
contacts with the forum.”
Id . (emphasis added). “Necessary,” say
lower courts, means that the defendant's conduct supplies the “butfor” cause of the tort at issue.
Waite v. AII Acquisition Corp ., 2016
WL 2346743 at *3 (S.D. Fla. May 4, 2016); Erwin v. Ford Motor
Company , 2016 WL 7655398 at * 7 (M.D. Fla. Aug. 31, 2016).
Walden , by the way, demonstrates what does not make the
specific-jurisdiction grade. There two airline passengers brought a
Bivens action against a police officer, alleging that he violated their
Fourth Amendment rights by seizing their gambling cash from them
in Atlanta, Georgia on their return trip to Nevada. The officer (by
way of a bogus forfeiture affidavit) retained their money even after
concluding that it did not come from drug-related activity.
134 S.Ct. at 1119-20. The Nevada federal court where the plaintiffs
sued him dismissed him for lack of personal jurisdiction, but the
Ninth Circuit reversed: The officer had “expressly aimed his
submission of the allegedly false affidavit at Nevada by submitting the
affidavit with knowledge that it would affect persons with a
Id . at 1121 (quotes and cite
significant connection to Nevada.”
Reminding that “[f]ederal courts ordinarily follow state law in
determining the bounds of their jurisdiction over persons,” 4 but any
such exercise of jurisdiction must “compor[t] with the limits imposed
by federal due process,” Walden , 134 S.Ct. at 1121, the Supreme Court
held that the officer lacked the minimal contacts with Nevada
required for exercise of personal jurisdiction -- even if he knew that
his allegedly tortious conduct in Georgia would delay the return of the
money to the passengers with connections to Nevada.
Id . The
defendant officer was not subject to jurisdiction in Nevada because the
Nevada resident plaintiff was the only link between him and that
forum, and that was simply not enough. Id . at 1126. “Due process
requires that a defendant be haled into court in a forum State based
on his own affiliation with the State, not based on the random,
fortuitous, or attenuated contacts he makes by interacting with other
Id. at 1123 (quotes and cite
persons affiliated with the State.”
omitted). Officer Walden’s contacts never went beyond that
Id. at 1126 (his “relevant conduct occurred entirely in
“This is because a federal district court's authority to assert personal jurisdiction in
most cases is linked to service of process on a defendant ‘who is subject to the
jurisdiction of a court of general jurisdiction in the state where the district court is
located.’ Fed. Rule of Civ. Proc. 4(k)(1)(A).” Walden , 134 S.Ct. at 1121.
Georgia, and the mere fact that his conduct affected plaintiffs with
connections to the forum State does not suffice to authorize
The Court must always focus on the “‘relationship among the
defendant, the forum, and the litigation’ [which] is the essential
foundation of in personam jurisdiction.” Helicopteros Nacionales
de Colombia, S.A. v. Hall , 466 U.S. 408, 414 (1984) (quoting
Shaffer v. Heitner , 433 U.S. 186, 204 (1977)). “The proper
question is not where the plaintiff experienced a particular
injury or effect but whether the defendant's conduct connects
him to the forum in a meaningful way.” Walden , 134 S.Ct. at
AMA Multimedia LLC v. Sagan Limited , 2016 WL 5946051 at *3 (D.
Ariz. Oct. 13, 2016); see also Blizzard Entertainment Inc. v. Bossland
GmbH et al ., 2017 WL 412262 at * 7 (C.D. Cal. Jan. 25, 2017)
(personal jurisdiction established in California over a German
company for allegedly developing and selling malicious software
enabling users to cheat in some of plaintiff’s computer games).
The foregoing discussion touches the general, constitutional
contours guiding the personal-jurisdiction determination. But the
Walden, Daimler and Goodyear cases did not disturb the obligation of
federal courts to apply state law, which therefore must be consulted
To determine whether a nonresident defendant is subject to
personal jurisdiction, the Court must perform a two-part analysis.
United Techs. Corp. v. Mazer , 556 F.3d 1260, 1274 (11th Cir. 2009).
First, the Court must determine whether the exercise of personal
jurisdiction is proper under the forum state's long-arm statute as
that statute would be interpreted by the state's Supreme Court. Id .
Next, the Court must determine whether there are sufficient
“minimum contacts” with the forum state to satisfy the Due
Process Clause of the Fourteenth Amendment. Id .; Int'l Shoe Co. v.
Washington Office of Unemployment Comp. & Placement , 326 U.S.
Paws Holdings, LLC v. Daikin Industries, Ltd ., 2017 WL 706624 at * 8
(S.D. Ga. Feb. 22, 2017) (footnote omitted). Georgia's long-arm statute is
O.C.G.A. § 9-10-91, 5 and the Court must first resolve whether exercising
jurisdiction under it violates the Due Process Clause.
Henriquez v. El
Pais Q'Hubocali.com, 500 F. App’x 824, 827-28 (11th Cir. 2012). In that
regard, O.C.G.A. § 9-10-91
[“]does not grant courts in Georgia personal jurisdiction that is
coextensive with procedural due process,” but instead “imposes
independent obligations that a plaintiff must establish for the
exercise of personal jurisdiction that are distinct from the demands
of procedural due process.” Diamond Crystal Brands, Inc . [ v. Food
Movers Intern., Inc. , 593 F.3d 1249, 1259 (11th Cir. 2010)].
Sumter doesn’t expressly cite to it but he is proceeding pro se, the Court thus must
construe his Complaint liberally, Evans v. Georgia Regional Hosp ., ___ F.3d ___, 2017
WL 943925 at * 3 (11th Cir. Mar. 10, 2017), so O.C.G.A. § 9–10–91 is being applied.
“[C]ourts [therefore] must apply the specific limitations and
requirements of O.C.G.A. § 9-10-91 literally and must engage in a
statutory examination that is independent of, and distinct from, the
constitutional analysis to ensure that both, separate prongs of the
jurisdictional inquiry are satisfied.” Id . at 1263.
Paws , 2017 WL 706624 at * 17 n. 14; see also Perrigo Company v. Merial
Limited , ___ F. Supp. 3d ___, 2016 WL 6106744 at * 7 (N.D. Ga. Oct. 6,
2016) (same). Georgia law instructs that a court in Georgia:
may exercise personal jurisdiction over any nonresident . . . in the
same manner as if he or she were a resident of this state, if in
person or through an agent, he or she:
. . . .
(2) Commits a tortious act or omission within this state . . . ;
(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 engaged in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this state;
. . . .
O.C.G.A. § 9-10-91.
Byrd v. Drive Electric, LLC, 2016 WL 3964239 at * 3 (S.D. Ga. July 20,
The Eleventh Circuit interprets and applies “Georgia's long-arm
statute in the same way as would the Georgia Supreme Court.”
LABMD, Inc. v. Tiversa, Inc ., 509 F. App’x 842, 844 (11th Cir. 2013)
(quotes and cite omitted). 6 And, at this (screening) stage, the Court
accepts plaintiff’s factual allegations as true. Byrd , 2016 WL 3964239
at * 2.
Sumter alleges that Hussey committed a wide variety of
malicious acts against him.
See doc. 7 at 2 ¶ 4 (Hussey physically
attacked him while in Atlanta on business); id. at 3-4 ¶ 6 (stalked him
in Atlanta, near Sumter’s apartment complex); id. at 5-6 (plaintiff
obtained a “Temporary Protective Order” against Hussey over the
stalking, and Hussey retaliated by filing a fraudulent-statementsbased, “Harassment Restraining Order in his home state of
Minnesota,” then later sought a misdemeanor charge for violating it -which also constitutes “an attempt to hinder Plaintiff from getting out
of prison.”); id. at 8-9 (in addition to assaulting Sumter, Hussey
Hence, that court cited Georgia cases for some important distinctions:
For purposes of personal jurisdiction under Georgia's long-arm statute,
Georgia courts have ruled that -- when a defendant uses the telephone or email
to contact a Georgia resident -- defendant's conduct occurs at the place where
defendant speaks into the telephone or types and sends his email . See
Anderson v. Deas , 279 Ga. App. 892, 893-94, 632 S.E.2d 682 (Ga. Ct. App.
2006) (no personal jurisdiction existed over a defendant who made harassing
telephone calls to a Georgia resident from another state); Huggins v. Boyd , 304
Ga. App. 563, 565, 697 S.E.2d 253 (Ga. Ct. App. 2010) (concluding -- based on
Anderson -- that no personal jurisdiction existed over a nonresident defendant
who emailed Georgia residents).
LABMD , 509 F. App’x at 844.
successfully triggered that Minnesota-based, misdemeanor
prosecution against him); id. at 7 (on two occasions in 2014, Hussey
hacked plaintiff’s “Google Drive and Gmail accounts” and deleted data
and documents “which were evidence of [Hussey] assaulting Plaintiff.
This is invasion of privacy, stalking, and obstruction of justice. It is
[also] an act of spoliation. . . .”); id. at 10 (Hussey hacked into
Sumter’s Facebook account and deleted his posts); id. at 10-11 (on two
occasions Hussey hacked plaintiff’s online airlines account and
canceled his flight reservations); id. at 11 (another Facebook hack to
delete a photo Sumter posted of himself -- depicting his injuries from
the night Hussey physically attacked him in Atlanta); id. (same re:
Sumter’s Twitter account); id. at 12 (telephone harassment); id.
(threatened his life if he sued two individuals not named in this
lawsuit); id. at 12-13 (social media stalking); id . at 13-14 (Hussey
“intentionally and vindictively elicited a technical violation of
[Sumter’s] parole for an incorrect address.”); id. at 14 (alleging that
Hussey was “negligent” for failing to take his “mood stabilizer
Celexa,” and that preceded the assault).
Sumter has pled personal jurisdiction over Hussey. “A tortious act
occurs either where the allegedly negligent act or omission was made . . .
or where the damage was sustained.” Exceptional Marketing Group, Inc.
v. Jones , 749 F.Supp.2d 1352, 1363 (N.D. Ga. 2010) (quotes and cite
omitted), cited in Paws , 2017 WL 706624 at * 8; see also supra n. 6.
Hussey, says Sumter, committed intentional acts both inside and outside
Georgia, damaging Sumter inside the state. Too, plaintiff has alleged at
least one actionable tort claim (civil assault and battery) against Hussey.
See, e.g. , Kohler v. Van Peteghem , 330 Ga. App. 230, 235 (2014). It is not
necessary to recognize any other torts 7 -- Hussey can litigate them away
when he appears -- in that the Court need only ensure that jurisdiction
exists at this phase of the case.
See Troncalli v. Jones , 237 Ga.App. 10, 12-13 (1999) (reversing jury verdict as to
civil stalking claim because there is no cause of action for stalking simply because a
criminal statute prohibits it); see also Rock v. BAE Systems, Inc ., 556 F. App’x. 869
(11th Cir. 2014) (discussing whether and how civil causes of action can be derived
from criminal statutes), cited in Smith v. Alphabet Inc ., 2016 WL 3660725 at * 7 n. 7
(S.D. Ala. May 23, 2016); see also id. (“The CDA is a criminal statute that prohibits
the making of “obscene or harassing” telecommunications. 47 U.S.C. § 223(a).
Certainly a criminal statute may supply an implied right of action, but only if
Congress so intended. See Thompson v. Thompson , 484 U.S. 174, 179, 108 S.Ct. 513,
98 L.Ed.2d 512 (1988).”); Shakur El-Bey v. Menefee , 2014 WL 6633544, at *18 (M.D.
Ala. Oct. 27, 2014) (collecting cases rejecting implied causes of action derived from
criminal statutes); Entwisle v. State , 340 Ga.App. 122, 796 S.E.2d 743, 749-50 ( 2017)
(discussing evidence needed to support a criminal invasion of privacy conviction);
O.C.G.A. § 16-9-93(c)).
However, Sumter has pled no claim over QPM because he has
failed to allege that Hussey was acting within the scope of his
employment when Hussey committed the various alleged acts against
him. It is not enough to claim that Hussey simply came to town on his
See, e.g. , Corrugated Replacements, Inc. v. Johnson ,
Ga. App. ___, 2017 WL 715963 at * 2 (Feb. 23, 2017) (driver's
employer was not liable for death of passenger of van arising out of
collision with truck and for injuries sustained by other passengers, based
on theory of respondeat superior, even though truck was owned by
employer, where driver was not acting within course and scope of
employment at time of accident, but was engaged in purely personal
activity); Ahmed v. Air France-KLM , 165 F.Supp.3d 1302, 1310 (N.D. Ga.
2016) (employer could not be held liable on respondeat superior theory
under Georgia law for employee's alleged fraud, false imprisonment, and
infliction of emotional distress on airline passengers of Somali descent, as
such actions were purely personal in nature, unrelated to employee's
duties, and were therefore outside the scope of employment because they
were not in furtherance of employer's business; employee's
discrimination, demanding of bribes, and acts preventing passengers
from boarding their flights to the United States were solely for his own
Hence, QPM faces dismissal from this case on the merits, if not for
lack of personal jurisdiction -- though for the moment the Court defers
formal ruling on this point. Meanwhile, since Sumter makes no
allegations of any kind against Doe, Doe also faces dismissal (and if
Sumter subsequently amends to add him as a party, he would have to
allege sufficient facts to establish a cause of action and jurisdiction).
“Finally, while personal jurisdiction is assessed with regard to the
forum state, venue focuses on the federal districts in which litigants
reside or in which events underlying the claims took place.” 14D F ED .
P RAC . & P ROC . JURIS . § 3801 (4th ed. Jan. 2017). In that regard,
[c]ourts routinely observe that venue doctrine is “primarily a
matter of choosing a convenient forum.” The principal focus of a
venue inquiry is the “convenience of litigants and witnesses.”
Courts evince greater concern with the litigant who has not chosen
the forum than with the litigant who has. Thus, “[i]n most
instances, the purpose of statutorily specified venue is to protect
the defendant against the risk that a plaintiff will select an unfair
or inconvenient place of trial.” On the other hand, if venue is
proper, the plaintiff's choice of forum is entitled to some deference,
and transfer to another district under 28 U.S.C.A. § 1404(a) will be
ordered only if the defendant demonstrates that the convenience of
the parties and the witnesses, and the interest of justice, strongly
Id. (footnotes omitted).
While “federal courts generally apply state statutes in ruling on
personal jurisdiction, federal law governs questions of federal-court
venue.” 14D F ED . P RAC . & P ROC . JURIS . § 3801 . Also, “even when a
statute indicates that venue is proper wherever the defendant is subject
to personal jurisdiction, many federal courts have concluded that the
defendant must have minimum contacts with the district in which venue
is laid, and that venue cannot be based solely on a provision allowing
national service of process.” Id. The venue statute (28 U.S.C. § 1391(b))
otherwise “permits the plaintiff to lay venue in ‘any civil action’ either in
the district in which the defendant resides or the district where a
substantial part of the claim arose.” Id. § 3808; see also Avent v. Pirrello ,
2017 WL 1062372 at * 5 (N.D. Ga. Mar. 20, 2017) (“the venue analysis
must focus on the Defendant's actions and omissions.”).
Sumter evidently chose this Court because he is incarcerated
within the Southern District of Georgia. But, apparently, all of the
alleged events evidently transpired in the Northern District, which
Hussey presumably would find more convenient. Hence, the Clerk is
DIRECTED to TRANSFER this case to the Northern District of
Georgia, which can rule on whether QPM and Doe should be dismissed. 8
II. FILING FEE
Sumter must pay the $350 filing fee for this case. His PLRA
paperwork (doc. 6) supports a $50.00 initial partial filing fee.
U.S.C. § 1915(b) (1) (requiring an initial fee assessment “when funds
exist,” under a specific 20 percent formula). Plaintiff’s custodian (or
designee) shall therefore remit the $50.00 and shall set aside 20 percent
of all future deposits to his account, then forward those funds to the
Northern District of Georgia’s Clerk each time the set aside amount
reaches $10.00, until the balance of the Court's $350.00 filing fee has
been paid in full.
Also, this Court’s Clerk is DIRECTED to send this Order to
plaintiff's account custodian immediately, as this payment directive is
nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule
72(b) adoption is required. In the event plaintiff is transferred to
another institution, his present custodian shall forward a copy of this
In the meantime, nothing is preventing Sumter from filing with that district,
within 14 days of the date of this Order, any additional pleadings and briefs in
support of this case).
Order and all financial information concerning payment of the filing fee
and costs in this case to plaintiff's new custodian. The balance due from
plaintiff shall be collected by the custodian at his next institution in
accordance with the terms of the payment directive portion of this Order.
The Court has subject matter and personal jurisdiction over
defendant Creighton Hussey, and defendants Quality Project
Management, LLC and John Doe warrant dismissal, but ruling on them
is deferred to the Northern District of Georgia, to which this case is
TRANSFERRED on venue grounds. Meanwhile plaintiff’s fee-payment
obligations (as noted above) will be processed by the Clerk for the
Northern District of Georgia.
SO ORDERED , this 14th day of April, 2017.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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