Barbour v. Gorman

Filing 14

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 09/09/2013. (bas, Deputy Clerk)(c/m on 8/9/13 bca

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

CAROL BARBOUR,
Plaintiff,
v.
PETER GORMAN, et al.,
Defendants.

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Civil Action No. 13-cv-01290-AW

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MEMORANDUM OPINION
Pending before the Court is Defendant Peter Gorman’s Motion to Dismiss for lack of
personal jurisdiction, Plaintiff Carol Barbour’s Motion to Transfer Venue, and Gorman’s Motion
for Leave to File a Surreply in Response to Plaintiff’s Motion. Doc. Nos. 6, 9, 13. The Court has
reviewed the motion papers and concludes that no hearing is necessary. Loc. R. 105.6 (D. Md.
2011). For the reasons that follow, the Court will GRANT-IN-PART and DENY-IN-PART
Defendant’s Motion to Dismiss, DENY Plaintiff’s Motion to Transfer, and DENY as moot
Defendant’s Motion for Leave to File a Surreply.

I.

BACKGROUND
Plaintiff brings this action in diversity seeking to recover damages for defamation, false

light invasion of privacy, tortious interference with prospective advantage, and conspiracy. Doc.
No. 1. Plaintiff’s action stems from a related case in the District of Maryland where she alleged
that the Prince George’s County Public Schools (PGCPS) participated in race and age
discrimination and retaliation when they refused to hire her as a principal in 2009. See Barbour
v. Bd. of Educ. of Prince George’s Cnty., No. 8:12-cv-00937-JFM. In that case, PGCPS’s former

superintendent and co-defendant in the present case, William R. Hite, filed an affidavit
supporting PGCPS’s motion for summary judgment1 in which he stated that in or about May
2010, he contacted his “good friend” Gorman, then the superintendent of the CharlotteMecklenburg Schools (CMS) in North Carolina, about Plaintiff. Statements made during their
phone call, where Gorman advised against hiring Plaintiff and allegedly described her as
“terrible” and “one of the worst principals he had ever been associated with,” are the subject of
the present action, which was filed on April 30, 2013.
On June 18, 2013, Gorman filed a motion to dismiss for lack of personal jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(2). Doc. No. 6. In briefs filed on July 5, 2013,
Plaintiff concedes that the Court does not have personal jurisdiction over Gorman and requests
that the Court transfer the claims against him to the Western District of North Carolina, Charlotte
Division. Doc. Nos. 9, 10. The motions are fully briefed and ripe for the Court’s consideration.
II.

ANALYSIS
Plaintiff now concedes that the Court lacks personal jurisdiction over Gorman. See Doc.

Nos. 9, 10. The remaining issue is whether the Court should dismiss the claims against Gorman,
as urged by Defendant, or transfer the case against Gorman to the Western District of North
Carolina, as argued by Plaintiff. Plaintiff requests a transfer pursuant to: (1) 28 U.S.C. §
1404(a), which allows a district court to transfer any civil action to any other district or division
where it might have been brought, for the convenience of the parties and witnesses and in the
interest of justice, and/or (2) 28 U.S.C. § 1406(a), which provides: “The 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

1

Judge Motz granted PGCPS’s motion for summary judgment on July 12, 2013. See Case No. 12-cv-937-JFM,
Doc. No. 59.

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brought.” “[T]he analysis of whether a transfer is ‘in the interest of justice’ is the same under
section 1404(a) as it is under section 1406(a).” Nichols v. G.D. Searle & Co., 991 F.2d 1195,
1201 n.5 (4th Cir. 1993). The moving party must establish by a preponderance of the evidence
that the transfer promotes the interest of justice. Helsel v. Tishman Realty & Constr. Co., 198 F.
Supp. 2d 710, 711 (D. Md. 2002).
The Court finds that Plaintiff has not satisfied her burden to prove a transfer is in the
interest of justice. First, Plaintiff filed her Motion to Transfer upon the conclusory assertion that
transferring is in the interest of justice, while simultaneously conceding that this Court does not
have jurisdiction over Defendant. Doc. Nos. 9, 10. Section 1406(a) was enacted to avoid
injustice when a transfer movant made “an erroneous guess with regard to the existence of
some elusive fact,” and filed the claim in a district court that lacked jurisdiction. Nichols, 991
F.2d at 1201 (emphasis in original) (citing Goldlawr, Inc. v. Heinman, 369 U.S. 463, 466
(1962)). Absent such error, the district court may deny a transfer motion when “the plaintiff’s
attorney could reasonably have foreseen that the forum in which he/she filed was improper.”
Nichols, 991 F.2d at 1202. Plaintiff has not cited an erroneous guess or elusive fact that caused
her to bring this action against Gorman in the District of Maryland, despite knowledge that the
statements in question were given via telephone from North Carolina, where Gorman resides and
works.
Plaintiff claims that transfer is in the interest of justice given that she “has already
expended time and costs in prosecuting this case.” Doc. No. 12 at 4. However, by filing in the
incorrect forum, Plaintiff has also spent the Court’s resources and required Defendant to incur
costs. A district court may dismiss instead of transfer a case where, without dismissal, a plaintiff
would be allowed to “impose[] substantial unnecessary costs on both the defendant and the

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judicial system, simply to transfer his/her action to the proper court, with no cost to him/herself
or his/her attorney.” Nichols, 991 F.2d at 1201.
Even if Plaintiff is barred by the statute of limitations from refiling her claim against
Defendant elsewhere, this Court’s decision is not affected. Dismissal of the case is permissible
because the “proper penalty for obvious mistakes that impose costs on opposing parties and on
our judicial system is a heavy one.” Id. (quoting Cote v. Wadel, 796 F.2d 981, 985 (7th Cir.
1986) (affirming order of dismissal and denial of transfer where it resulted in plaintiff’s claims
being barred by the statute of limitations)). Accordingly, if Plaintiff wants to pursue her claims
against Defendant in the Western District of North Carolina, she will have to refile.
In closing, the Court holds that Plaintiff has failed to carry her burden to prove that
transferring this case is in the interest of justice. Accordingly, the Court finds that a venue
transfer is not appropriate and dismissal of the case is warranted.2

III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss for Lack of Jurisdiction will be

GRANTED-IN-PART and DENIED-IN-PART, Plaintiff’s Motion to Transfer will be DENIED,
and Defendant’s Motion for Leave to File a Surreply will be DENIED as moot. A separate Order
will follow.

August 9, 2013
Date

/s/
Alexander Williams, Jr.
United States District Judge

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Although the Court will dismiss the claims against Gorman, that dismissal will be without prejudice to refiling in
the proper forum. See, e.g., Russell v. Med. Bus. Bureau, LLC, RDB-12-2983, 2013 WL 3805118, at *4 (D. Md.
July 19, 2013) (dismissing claims without prejudice where personal jurisdiction was lacking); The Cleaning Auth.,
Inc. v. Neubert, 739 F. Supp. 2d. 807, 817 (D. Md. 2010) (same). Therefore, to the extent Gorman seeks dismissal
with prejudice, that request will be DENIED.

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