Smith v. Donald et al

Filing 5

MEMORANDUM OPINION by Judge David J. Hale. Action will be dismissed by separate Order. cc: plaintiff pro se, TNWD (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CHARMANE SMITH,

Plaintiff,

v.

Civil Action No. 3:17-cv-P347-DJH

JOHN DONALD et al.,

Defendants.
* * * * *
MEMORANDUM OPINION

Plaintiff Charmane Smith initiated this pro se action by filing a document titled
“Application for Injunction.” The document invokes the Fair Credit Billing Act. She names as
Defendants Tennessee state court judge John Donald, Memphis, TN; attorney Timothy L.
Edington, Louisville, KY; Fenton and McGarvey Law Firm, P.S.C., Louisville, KY; and
Comenity Bank, Columbus, OH. Her address is located in Memphis, TN. In addition to alleging
violations of the Fair Credit Billing Act, Plaintiff alleges legal malpractice and collusion by
Judge Donald and Attorney Edington in Judge Donald’s court.
Plaintiff did not pay the filing fee. Instead she filed a motion for leave to proceed in
forma pauperis.
There is no special venue statute for an action under the Fair Credit Billing Act.
Therefore, 28 U.S.C. § 1391 controls. Under § 1391(b), 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
1

any defendant is subject to the court’s personal jurisdiction with
respect to such action.
Here, venue is not proper in this Court under § 1391(b)(1) because all Defendants are not
residents of this State. Based on the allegations in the complaint, it appears that the events set
forth in the complaint occurred in Memphis, TN; therefore, venue would be proper in the district
court for the Western District of Tennessee under § 1391(b)(2).
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 in the interest of justice, transfer such
case to any district or division in which it could have been brought.” “A court may decline to
order a transfer if it determines that the case was filed in bad faith,” Williams v. Nathan, 897
F. Supp. 72, 77 (E.D.N.Y. 1995), or where the outcome of the case is foreordained. McCain v.
Bank of Am., 13 F. Supp. 3d 45, 55 (D.D.C. 2014) (finding significant and substantive problems
with pro se plaintiff’s complaint meant that dismissal rather than transfer was appropriate as a
transfer would only delay the inevitable dismissal).
A search of Pacer.gov reveals that Plaintiff has filed numerous lawsuits (well over 100)
in multiple jurisdictions (at least 15) over the past 20 years. As the District Court of Delaware
recently noted in a case in which Plaintiff sought to remove a Tennessee state court action filed
against her by Comnity Bank:
Smith is a frequent pro se and in forma pauperis litigator in other United States
District Courts. See Smith v. MasterCard Int’l, 2017 WL 103966, at *1 (E.D. Mo.
Jan. 10, 2017). She has been barred from filing actions in at least five other
districts. See Smith v. United States, Civ. No. 00-2302 (D.D.C. Sept. 27, 2000)
(enjoining Plaintiff from filing actions in forma pauperis in the absence of an
allegation of imminent danger of serious physical injury); Smith v. United States,
Civ. No. 01-450 (N.D. Tex. May 30, 2001) (enjoining Plaintiff from filing cases
without prior judicial permission); Smith v. Dell, Inc., 2007 WL 221530 (W.D.
Tenn. Jan. 24, 2007) (enjoining Plaintiff from filing actions in forma pauperis and
applying the order to any action that is filed in another district and transferred to
the Western District of Tennessee); Smith v. Spitzer, 531 F. Supp. 2d 360

(N.D.N.Y. 2008) (barring Plaintiff from filing actions without obtaining counsel
or prior court approval); Smith v. Chase Bank, Civ. No. 11-2270-LAP (S.D.N.Y.
Dec. 2, 2016) (barring Plaintiff from filing actions in forma pauperis without first
obtaining leave of court to file).
Comenity Bank v. Charmane Smith, No. CV 16-1229-RGA, 2017 WL 1293988, at *1 n.1
(D. Del. Apr. 5, 2017).
Plaintiff has been banned from filing suit in the Western District of Tennessee since
2007. In Smith v. Dell, Inc., 2007 WL 221530, at *4, the Western District of Tennessee ordered
that Charmane Smith “may not commence any action in this district without paying the full civil
filing fee” and ordered the clerk of that court “not to file any new civil action submitted by Smith
unless it is accompanied by the civil filing fee or unless specifically directed to do so by a district
judge or magistrate judge of this district.” The Western District of Tennessee specifically
provided that “[t]his order shall apply to any action that is filed in another district and transferred
to this district.”
Therefore, the Court finds that dismissal is appropriate in this case. It would not be in the
interest of justice to transfer this action to the Western District of Tennessee because that court
has barred her from filing any new civil action unless accompanied by the filing fee or unless
specifically directed to do so by a district or magistrate judge of that district, including “any
action that is filed in another district and transferred to [the Western District of Tennessee].”
Accordingly, by separate Order, this Court will dismiss the instant action.
Date: June 8, 2017

David J. Hale, Judge
United States District Court
cc:

Plaintiff, pro se
District Court for the Western District of Tennessee
4415.009