Gonsalves-Carvalhal v. Aurora Bank et al

Filing 38

ORDER granting 32 Motion to Transfer Venue. For the reasons set forth in the attached Memorandum & Order, the Court grants McCurdy & Candler's motion to transfer venue as to the claims against McCurdy & Candler pursuant to 28 U.S.C. § 14 06. The court transfers, in the interest of justice, the claims against the Aurora Defendants pursuant to 28 U.S.C. § 1404(a). The Aurora Defendants' 37 motion to dismiss is dismissed with leave to refile in the Northern District of Georgia. The entire action shall be transferred to the Northern District of Georgia.. Ordered by Judge Margo K. Brodie on 1/16/2014. (Prakash, Swati)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------ANTINO GONSALVES-CARVALHAL,
Plaintiff,

MEMORANDUM & ORDER
12-CV-2790 (MKB)

v.
AURORA BANK, FSB, AURORA LOAN
SERVICES, LLC, and MCCURDY & CANDLER,
LLC,
Defendants.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Antino Gonsalves-Carvalhal, proceeding pro se, brings the above-captioned
action against Defendants Aurora Bank, FSB (“Aurora Bank”), Aurora Loan Services, LLC
(“Aurora Loan”) (together “the Aurora Defendants”) and McCurdy & Candler, LLC, (“McCurdy
& Candler”), pursuant to the Fair Debt Collection Practices Act (“FDCPA”), the Truth in
Lending Act (“TILA”), the Real Estate Settlement Procedures Act (“RESPA”), the Fair Credit
Billing Act (“FCBA”) and Georgia state law. The Aurora Defendants moved to dismiss the
Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim. McCurdy & Candler moved to dismiss the Amended Complaint pursuant
to Rule 12(b)(6) and, in the alternative, for a transfer of venue to the Northern District of Georgia
pursuant to 28 U.S.C. § 1404 and § 1406. For the reasons set forth below, the Court grants
McCurdy & Candler’s motion to transfer venue pursuant to 28 U.S.C. § 1406. In addition, the
Court finds that a transfer of the claims against the Aurora Defendants is in the interest of justice
pursuant to § 1404(a), and transfers the entire action to the Northern District of Georgia.

I.

Background
The facts alleged in the Amended Complaint are assumed to be true for the purposes of

this Memorandum and Order. Plaintiff’s claims arise from a mortgage agreement between
Plaintiff and Bayrock Mortgage Corporation (“Bayrock”) dated June 15, 2007, to finance the
purchase of Plaintiff’s retirement home (“the property”) in Atlanta, Georgia. (Docket Entry
No. 22 “Am. Compl.” ¶¶ 12, 17, Ex. A.) As part of the mortgage agreement, Plaintiff signed a
security deed conveying a security interest to Mortgage Electronic Registration Systems, Inc.
(“MERS”), acting as the nominee for Bayrock and its successors.1 (Am. Compl. Ex. B
(“Security Deed”) at 3.) Plaintiff defaulted on the mortgage loan, (Am. Compl. ¶ 60), and on
January 13, 2011, Plaintiff received a letter from McCurdy & Candler informing Plaintiff that it
had been retained by MERS to “collect the debt secured by the above-referenced property, which
may involve foreclosure proceedings,” and that Plaintiff owed $138,847, (Am. Compl. Ex. 100
at 1). On February 10, 2011, MERS assigned the security interest in Plaintiff’s home to Aurora
Loan, (Am. Compl. Ex. D), a subsidiary of Aurora Bank, (Am. Compl. ¶1).2 On October 12,
2011 and April 10, 2012, McCurdy & Candler sent letters to Plaintiff informing Plaintiff that it
“represents Aurora Bank, the creditor on the above referenced loan,” and advising Plaintiff that it
had been retained to collect the debt secured by the property.3 (Am. Compl. Ex. 200; Docket
Entry No. 32, McCurdy & Candler Motion to Dismiss (“McCurdy Mot.”) Ex. B.) The letter
1

Bayrock Mortgage Corporation was dissolved by the Georgia Secretary of State in
August 2011. (Am. Compl. Ex. C.)
2

Plaintiff alleges that Aurora Loan was involved with servicing his loan as early as 2009
or 2010, prior to the assignment of the security interest. (Am. Compl. ¶¶ 22, 58.)
3

McCurdy & Candler states that Aurora Loan assigned the security interest in the
property to Aurora Bank on September 14, 2011, (McCurdy Mem. ¶ 3), but has not provided any
supporting documentation. McCurdy & Candler attaches to its moving papers only the
assignment made by MERS to Aurora Loan. (See McCurdy Mem. Ex. A.)

2

listed Aurora Bank as the “Creditor” and Aurora Loan as the “Servicer” in the address heading.
(Am. Compl. Ex. 200; McCurdy Mot. Ex. B.)
Plaintiff’s Amended Complaint centers around five allegedly unlawful events: (1) his
original lender, Bayrock, engaged in predatory lending, (Am. Compl. ¶ 49); (2) Bayrock
unlawfully named MERS as its nominee / fiduciary in the security deed signed by Plaintiff, (id.
¶¶ 37, 49(b)); (3) MERS lacked the power to assign a security interest in the property to Aurora
Bank in February 2011, (id. ¶¶ 49(e), 72–76); (4) Bayrock and its successor, Aurora Bank, failed
to respond to a rescission notice sent by Plaintiff in November 2011, (id. ¶¶ 79–88); and (5) the
Aurora Defendants and McCurdy & Candler acted unlawfully with respect to the attempts to
collect on the mortgage loan debt and attempts to foreclosure on the property, (id. ¶¶ 90–110).
Plaintiff also alleges that he is the victim of Aurora Bank’s “anticipatory breach” of a Consent
Order entered into between Aurora Bank and the federal Office of Thrift Supervision. (Id. ¶¶ 2,
45, 68; see also Am. Compl. Ex. 850, “Consent Order”.) Plaintiff seeks equitable and injunctive
relief, including declaratory judgments and an immediate cease and desist order, as well as
damages under various state and federal statutes.
The Aurora Defendants moved to dismiss for failure to state a claim, on the basis that
Plaintiff’s Amended Complaint is an impermissible “shotgun pleading,” that Plaintiff fails to
plead fraud with particularity, and that there is no basis for declaratory relief that would enjoin
the pending state proceeding of the foreclosure on Plaintiff’s home. (Docket Entry No. 37,
“Aurora Mem.” 1.) McCurdy & Candler moved to dismiss or in the alternative, to transfer venue
pursuant to 28 U.S.C. § 1404 and § 1406, arguing that the case is improperly venued and should
be transferred to federal court in Georgia. (Docket Entry No. 32, Attach. 1 “McCurdy Mem.”)

3

Plaintiff opposes Defendants’ motions on the basis that another party, “RALI Series 2007
– Q05 purports to own [Plaintiff’s] loan,” and argues that neither the mortgage nor the
promissory note were legally transferred to this party, and that “Aurora is not the proper party in
interest to foreclose Plaintiff’s property. . . .” (Docket Entry No. 37, Attach. 6 “Pl. Opp. Aff.”
¶¶ 3–6.) Plaintiff seeks discovery to “determine whether Plaintiff is obligated to make payments
to Aurora or RALI Series 2007 – Q05,” (id. ¶¶ 8–9), and appends a “Property Securitization
Analysis Report” prepared by Certified Forensic Loan Auditors, LLC, (Docket Entry No. 32
Attach. 7 “Pl. Opp. Aff. Ex. 2000”) to his opposition papers.
II. Discussion
a.

Standard of Review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court must “accept as true all allegations in the complaint and draw all reasonable
inferences in favor of the non-moving party.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A
complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson, 631 F.3d at 63 (quoting Iqbal, 556 U.S. at 678). “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled
to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). In reviewing a pro se
complaint, the Court must be mindful that the plaintiff’s pleadings should be held “to less
stringent standards than formal pleadings drafted by lawyers.” Ahlers v. Rabinowitz,
4

684 F.3d 53, 60 (2d Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), cert.
denied, 568 U.S. ---, 133 S. Ct. 466 (2012). “While pro se complaints must contain sufficient
factual allegations to meet the plausibility standard, we are obliged to construe a pro se
complaint liberally to raise the strongest arguments it suggests.” Bamba v. U.S. Dep’t of
Homeland Sec., --- F. App’x ---, ---, 2013 WL 5485916, at *1 (2d Cir. Oct. 3, 2013) (alteration
and internal quotation marks omitted) (citing Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)
and Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009)).
b.

Venue is Not Proper in the Eastern District of New York

McCurdy & Candler seeks to transfer venue of this proceeding to the Northern District of
Georgia, (Docket Entry No. 32 “McCurdy Notice of Mot.”; McCurdy Mem. ¶¶ 43–51), pursuant
to 28 U.S.C. § 1404 and § 1406. Once venue is challenged, “the plaintiff has the burden of
establishing that it has chosen the proper venue.” Jackson v. Am. Brokers Conduit, No. 09-CV6045, 2010 WL 2034508, at *1 (S.D.N.Y. May 13, 2010) (citing Bell v. Classic Auto Grp., Inc.,
No. 04-CV-0693, 2005 WL 659196, at *4 (S.D.N.Y. Mar. 21, 2005)). However, at the motion to
dismiss stage, where the Court relies only on pleadings and affidavits, “the plaintiff need only
make a prima facie showing of [venue].” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355
(2d Cir. 2005) (alteration in original) (citing CutCo Indus. v. Naughton, 806 F.2d 361, 364–65
(2d Cir. 1986)). “Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may
defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction.”
Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v.
Metallurgie Hoboken–Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). “In analyzing whether
the plaintiff has made the requisite prima facie showing that venue is proper, we view all the
facts in a light most favorable to plaintiff.” Magi XXI, Inc. v. Stato della Citta del Vaticano,

5

714 F.3d 714, 720 (2d Cir. 2013) (citing Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir.
2007)).
Improper venue is a waivable defense. Any objection to venue must be raised in a
defendant’s responsive pleading or pre-answer motion, otherwise a party is deemed to have
waived the objection.4 Fed. R. Civ. P. 12(b)(3), 12(h); Tri-State Employment Servs., Inc. v.
Mountbatten Sur. Co., Inc., 295 F.3d 256, 261 (2d Cir. 2002) (finding that a “[d]efendant [who]
failed to raise any venue challenge in a pre-answer motion or responsive pleading . . . is deemed
to have waived any objection to venue.” (citing Fed. R. Civ. P. 12(h)(1)(B) and Concession
Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 & n. 1 (2d Cir. 1966)); see also Joe Hand
Promotions, Inc. v. Elmore, No. 11-CV-3761, 2013 WL 2352855, at *1 n. 2 (E.D.N.Y.
May 29, 2013) (noting that “it is well settled that improper venue is a waivable defense”)
(collecting cases).
When a defendant raises a proper objection to venue, and the plaintiff has not made a
prima facie showing of venue, 28 U.S.C. § 1406 requires that the court “dismiss, or if it be in the
4

The Aurora Defendants did not raise a venue challenge in their pre-answer motion to
dismiss (Docket Entry No. 37), and therefore waive their objection to venue. Although
McCurdy & Candler argues that venue is not proper as to the Aurora Defendants, (McCurdy
Mem. ¶ 46 n. 9), “venue is a personal privilege that is waivable at will,” Gross v. British Broad.
Corp., 386 F.3d 224, 234 (2d Cir. 2004) (citing Concession Consultants, Inc. v. Mirisch, 355
F.2d 369, 371 (2d Cir. 1966)). Consequently, a party may raise objections to venue only as to
itself, and not as to another party. See Brossart v. Lynx Bus. Intelligence Consulting, Inc., No.
08-CV-0609, 2008 WL 2561592, at *2 (D. Ariz. June 25, 2008) (“The defense of improper
venue is generally personal, such that one defendant may not obtain dismissal or transfer because
venue is improper as to a codefendant, unless that codefendant is an indispensable party.” (citing
Anrig v. Ringsby United, 603 F.2d 1319, 1324 (9th Cir. 1979))); Dean v. Anderson, No. 01-CV2599, 2002 WL 1067454, at *1 (D. Kan. May 2, 2002) (“[A] defendant ‘may not
challenge venue on the ground that it is improper as to a codefendant.’” (citing Pratt v. Rowland,
769 F. Supp. 1128, 1132 (N.D. Cal. 1991)); Pratt, 769 F. Supp. at 1132 (“Improper venue is a
defense personal to the party to whom it applies. Thus one defendant may not challenge venue
on the ground that it is improper as to a co-defendant.” (citing Camp v. Gress, 250 U.S. 308, 314
(1919)).

6

interest of justice, transfer such case to any district or division in which it could have been
brought.” 28 U.S.C. § 1406(a); Gonzalez v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011); see also
First State Ins. v. Nat’l Cas. Co., No. 13-CV-0704, 2013 WL 5439143, at *3 (S.D.N.Y. Sept. 27,
2013) (“If the plaintiff cannot establish that the chosen venue is correct, ‘[t]he district court . . .
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.’” (quoting 28 U.S.C. § 1406)); Azrelyant v. B. Manischewitz
Co., No. 98-CV-2502, 2000 WL 264345, at *3 (E.D.N.Y. Jan. 13, 2000) (“Where a suit is filed
in federal court in a district in which venue is improper, and a timely and sufficient objection to
the defect is raised, a change of venue may be made under 28 U.S.C. § 1406(a) . . . .”). “Courts
enjoy considerable discretion in deciding whether to transfer a case [under § 1406] in the interest
of justice.” White v. Rock, No. 10-CV-5163, 2013 WL 527804, at *5 (E.D.N.Y. Feb. 4, 2013)
(quoting Daniel v. American Board of Emergency Medicine, 428 F.3d 408, 435 (2d Cir. 2005)).
Plaintiff alleges that “[v]enue is proper in this District under 28 USC § 1391(b).”
(Am. Compl. ¶ 10.) This statute provides, in pertinent part, that an 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
any Defendant is subject to the court’s personal jurisdiction with
respect to such action.
28 U.S.C. § 1391(b).

7

i.

Venue is not Proper Pursuant to Section 1391(b)(1)

In this case, not all Defendants “reside” in New York, the state in which the Eastern
District of New York is located, as required by § 1391(b)(1), therefore venue in the Eastern
District of New York is not properly based on the residence of Defendants. See 28 U.S.C.
§ 1391(b)(1) (providing that a civil action may be brought in “a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located”).
According to Plaintiff, Aurora Bank has a “principal place for doing business located at 1271
Avenue of the Americas, New York NY 10019,” and McCurdy & Candler’s principal address is
3525 Piedmont Road, Atlanta, Georgia, with a registered agent at the same address. (Am.
Compl. ¶¶ 13–16.) Thus, while Plaintiff may have alleged that at least one Defendant — Aurora
Bank — “resides” in New York, the state in which the Eastern District of New York is located,
Plaintiff cannot establish that all Defendants are residents of New York state.
For purposes of determining proper venue, a business entity such as a corporation “shall
be deemed to reside, if a Defendant, in any judicial district in which such Defendant is subject to
the court’s personal jurisdiction with respect to the civil action in question.” 28 U.S.C.
§ 1391(c)(2); see also 5381 Partners LLC v. Shareasale.com, Inc., No. 12-CV-4263, 2013 WL
5328324, at *12 (E.D.N.Y. Sept. 23, 2013) (“under Section 1391(c)(2), a defendant that is a
corporation ‘shall be deemed to reside . . . in any judicial district in which such defendant is
subject to the court’s personal jurisdiction with respect to the civil action in question.’” (quoting
§ 1391(c)(2))); Indus. Quick Search, Inc. v. Miller, Rosado & Algois, LLP, No. 09-CV-1340,
2013 WL 4048324, at *2 (E.D.N.Y. Aug. 9, 2013) (noting that “the venue question [under
§ 1391(c)(2)] turns on whether the [district court] has personal jurisdiction over this corporate
defendant.” (quoting § 1391(c)(2))).

8

Personal jurisdiction, in turn, is determined by “a two-step inquiry.” Licci ex rel. Licci
v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 169 (2d Cir. 2013), reh'g denied, No. 10-CV1306, 2013 WL 5700963 (2d Cir. Oct. 18, 2013) (citing Best Van Lines, Inc. v. Walker, 490 F.3d
239, 242 (2d Cir. 2007) and Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). First, the
Court “look[s] to the law of the forum state”5 to determine whether there is personal jurisdiction.
Id. If there is personal jurisdiction under state law, the Court still must consider whether the
exercise of personal jurisdiction over the out-of-state Defendant “comports with due process
protections established under the United States Constitution.” Id.
1.

The Court Does Not Have Personal Jurisdiction.

Under New York state law, a court has jurisdiction over a non-domiciliary corporation
that commits a tortious act outside New York State but causes harm to someone in the state, if
that corporation “(i) 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
the state, or (ii) expects or should reasonably expect the act to have consequences in the state and
derives substantial revenue from interstate or international commerce.” N.Y. C.P.L.R.
§ 302(a)(3); Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010). Here,
McCurdy & Candler is alleged to have committed a tortious act outside of New York State in its
actions with respect to the property, and is a non-domiciliary entity, as “a Georgia corporation,”
(Am. Compl. ¶ 13), whose “principal address is located’ in Atlanta, Georgia, (id. ¶ 14).
Therefore, McCurdy & Candler is subject to personal jurisdiction in New York if it either
“regularly does or solicits business” in New York, or “should reasonably expect the act to have
consequences in the state.” N.Y. C.P.L.R. § 302(a)(3)(i)–(ii); see also Levans v. Delta Airlines,
5

“Forum state” refers to the state in which a lawsuit is filed.

9

Inc., No. 12-CV-00773, 2013 WL 6841984, at *5 (E.D.N.Y. Dec. 23, 2013) (“Pursuant
to § 302(a)(3), a court may exercise personal jurisdiction over a non-domiciliary who . . .
‘commits a tortious act without the state causing injury to person or property within the state . . .
if he (i) 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 the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives
substantial revenue from interstate or international commerce’” (citing § 302(a)(3))); Richtone
Design Grp., LLC v. Live Art, Inc., No. 12-CV-7652, 2013 WL 5904975, at *5 (S.D.N.Y.
Nov. 4, 2013) (same). Plaintiff has not alleged that McCurdy & Candler “regularly does or
solicits business” in New York, and McCurdy & Candler states that it is a “Georgia limited
liability company which only advertises itself as a provider of legal services” throughout Georgia
and Tennessee. (McCurdy Mem. ¶ 47.) Plaintiff also does not allege that McCurdy & Candler
should reasonably expect its actions with respect to the property to have had consequences in the
state of New York. McCurdy & Candler’s allegedly unlawful actions were (1) facilitating the
“questionable assignment” of a security interest in the property from MERS to Aurora Loan, and
entering the assignment into Georgia’s land records, (Am. Compl. ¶¶ 102–03), and (2) its debt
collection and attempted foreclosure activities with respect to the property, (id. ¶¶ 90–97).
McCurdy & Candler’s role in the assignment of security interest by MERS to Aurora
Loan Services had no connection to the Eastern District of New York. The assignment was
prepared by an individual from Aurora Loan Services located in Scottsbluff, Nebraska, stamped
with MERS’s Delaware corporate seal, filed and recorded in Fulton County, Georgia, and
annotated with an instruction to return to McCurdy & Candler in Atlanta, Georgia. (Am. Compl.
Ex. D.) Plaintiff acknowledges that the assignment was filed with the state of Georgia. (Am.

10

Compl. ¶ 103.) Nothing connected with the MERS assignment to Aurora implicates the Eastern
District of New York — not the location of any of the people or the entry of the assignment into
the land records itself. Similarly, all of McCurdy & Candler’s activities with respect to the debt
collection and attempted foreclosure, including all of McCurdy & Candler’s communications
with Plaintiff, were sent to the property in Atlanta, Georgia. (See Am. Compl. Ex. 100 (letter
dated January 13, 2011); Ex. 200 (letter dated October 12, 2011); McCurdy Mot. Ex. B (letter
dated April 12, 2012)). Likewise, Plaintiff’s communications with McCurdy & Candler were
sent either to Nebraska or Atlanta. (See Am. Compl. Ex. 400 (“Revocation of Power of
Attorney”) at 4; Ex. 500 (“Final Notice to Remove Property from Alleged Non Judicial
Foreclosure Sale”) at 2–3; Ex. 725 (“Qualified Written Request”) at 6.) Therefore, Plaintiff has
not alleged any action by McCurdy & Candler that could have led McCurdy & Candler to
“reasonably expect” that its actions would have consequences in the state of New York. Because
McCurdy & Candler is not domiciled in New York, does not regularly conduct or solicit business
in New York, and should not have reasonably expected its actions with respect to the property in
Atlanta to have consequences in New York, personal jurisdiction cannot be established over
McCurdy & Candler under N.Y. C.P.L.R. § 302(a)(3).6

6

Even if Plaintiff could establish that McCurdy & Candler is subject to personal
jurisdiction in New York under New York law, the assertion of personal jurisdiction over
McCurdy & Candler in the Eastern District of New York would not comport with the
constitutional requirements of due process. A defendant in a civil lawsuit is entitled to “due
process of law” under the Fifth and the Fourteenth Amendments of the Constitution, which
means that such a defendant can only be subject to the personal jurisdiction of a court when it
has “certain minimum contacts [with the forum state] such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.” Licci, 732 F.3d at 169
(quoting Int’l Shoe, 326 U.S. at 316). Plaintiff does not allege that McCurdy & Candler has
conducted any business in New York, nor that it has any contacts with New York, let alone the
“minimum contacts” that are required for personal jurisdiction. All of the events alleged in the
Amended Complaint took place in Georgia, and McCurdy & Candler’s mailing address and

11

2.

McCurdy & Candler Does Not “Reside” in New York

Because McCurdy & Candler is not subject to the personal jurisdiction of a court in any
judicial district in New York, it does not “reside” in New York for venue purposes. See
28 U.S.C. § 1391(c)(2) (corporations are deemed to reside, for purposes of venue, “in any
judicial district in which such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question”); cf. Indus. Quick Search, Inc., 2013 WL 4048324, at *4
(finding that corporate defendant was subject to personal jurisdiction in the Southern District of
New York, and therefore that venue was proper in that district); 5381 Partners LLC, 2013 WL
5328324, at *12 (finding that venue was proper in the Northern District of Illinois with respect to
corporate defendant under § 1391(c)(2), as it was undisputed that defendant’s principal place of
business was in that district). As a result, Plaintiff has not satisfied the precondition to
§1391(b)(1) — that “all defendants are residents of the State in which the district is located” —
making venue improper under § 1391(b)(1).
ii.

Venue is Not Proper Pursuant to Section 1391(b)(2)

Venue in the Eastern District of New York is not proper under § 1391(b)(2), because “a
substantial part of the events or omissions giving rise to the claim” did not occur in the Eastern
District of New York, nor is “a substantial part of [the] property that is the subject of the action
. . . situated” in the Eastern District of New York. 28 U.S.C. § 1391(b)(2). To determine
whether venue is proper under § 1391(b)(2), courts apply a two-part test: “First, a court should
identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to
those claims. Second, the court should determine whether a substantial part of those acts or
omissions occurred in the district where suit was filed, that is, whether ‘significant events or
place of incorporation is in Georgia. Without more evidence of contacts with New York, due
process prohibits the exercise of personal jurisdiction over McCurdy & Candler.

12

omissions material to those claims . . . have occurred in the district in question.’” Deufrains v.
Karcauskas, No. 12-CV-2576, 2013 WL 4806955, at *13 (E.D.N.Y. Sept. 9, 2013) (citing
Daniel, 428 F.3d at 432); see also Delgado v. Villanueva, No. 12-CV-3113, 2013 WL 3009649,
at *2 (S.D.N.Y. June 18, 2013) (same).
Plaintiff alleges violations of several state and federal laws in connection with the
making, transfer, and management of the mortgage loan made on the property which is his
retirement home in Atlanta, Georgia. (See generally Am. Compl.) Plaintiff does not allege that
any acts or omissions relevant to his claims occurred in the Eastern District of New York;
instead, Plaintiff alleges that venue is proper based in part on the fact that “the homeowner now
lives in New York.” (Am. Compl. ¶ 9 (emphasis added).) However, none of the alleged events
or omissions, as pleaded by Plaintiff, took place in the Eastern District of New York. Plaintiff
entered into a mortgage agreement with Bayrock to finance the purchase of the property in
Atlanta, Georgia, and agreed to send his monthly payments to Alpharetta, Georgia. (Am. Compl.
Ex. A at 1–2.) As part of this mortgage agreement, Plaintiff assigned a security interest in the
property to MERS, acting as the nominee for Bayrock and its successors, which assignment was
recorded in Fulton County, Georgia. (Security Deed at 1, 3.) MERS assigned the security
interest to Aurora Loan, which assignment took place in Fulton County, Georgia, (Am. Compl.
Ex. D), and the communications from McCurdy & Candler to Plaintiff were mailed from
McCurdy & Candler in Georgia to Plaintiff at the address of the property in Atlanta, Georgia.
One communication from a non-party, law firm McGinnis, Tessitore, Wutscher, LLP, originated
in Chicago, Illinois. (Am. Compl. Ex. 600.)
Because no events, let alone any “substantial” events, took place in the Eastern District of
New York, venue cannot be established based on a substantial occurrence pursuant to

13

§ 1391(b)(2).7 The fact that Plaintiff now lives in the Eastern District of New York, without
more, is not a sufficient basis to establish venue pursuant to § 1391(b)(2).8 The fact that this
action arises out of a mortgage on a property located in Atlanta, Georgia, outside the Eastern
District of New York, further indicates that venue is not proper in this District. See Adams v.
U.S. Bank, NA, No. 12-CV-4640, 2013 WL 5437060, at *5 (E.D.N.Y. Sept. 27, 2013)
(dismissing challenges to foreclosure and eviction proceedings and noting “that claims regarding
[dismissed plaintiffs’] property should generally be filed in the jurisdiction where the property is
located and the claim arose.” (citing 28 U.S.C. § 1391(b))).
iii. Venue is Not Proper Pursuant to Section 1391(b)(3)
Venue in the Eastern District of New York is not proper under § 1391(b)(3), because
there is another district in which this action “may otherwise be brought.” Section 1391(b)(3)
provides that venue is proper in “any judicial district in which any Defendant is subject to the
court’s personal jurisdiction with respect to such action” — but only “if there is no district in
7

Plaintiff’s allegation that he is the victim of an “anticipatory breach” of the Consent
Order between Aurora Bank and the federal government — assuming it could be a valid basis for
a claim — references only Aurora Bank’s place of incorporation in Delaware. (Am. Compl.
¶ 68.) The Consent Order expressly states “Nothing in this Stipulation or the Order, express or
implied, shall give to any person or entity, other than the parties hereto, and their successors
hereunder, any benefit or any legal or equitable right, remedy or claim under this Stipulation or
the Order.” (Am. Compl. Ex. 850 ¶ 12.) Plaintiff also acknowledges that “[t]here is no defined
right to sue granted to private individual [sic] under the Consent Order for violations or breach of
agreement.” (Am. Compl. ¶ 11.)
8

Although Plaintiff does not allege that he was based in New York when he entered into
the mortgage agreement that gives rise to his claims, he does include some communications to
Defendants which originated in New York, (see, e.g., Revocation of Power of Attorney at 1,
Qualified Written Request at 5–6), attempting to rescind his mortgage and otherwise make legal
demands on Defendants. Because these letters were sent subsequent to the events that give rise
to Plaintiff’s claims, they do not comprise a sufficient basis for establishing venue under
§ 1391(b)(2), in light of the otherwise overwhelming connections to Atlanta and Fulton County,
Georgia.

14

which an action may otherwise be brought as provided in this section” (emphasis added); see
Daniel, 428 F.3d at 434 (“the phrase ‘if there is no district in which the action may otherwise be
brought’ indicates that venue may be based on that subsection only if venue cannot be
established in another district pursuant to any other venue provision.”). Here, under
§ 1391(b)(2), venue would be proper in the Northern District of Georgia, where a substantial part
of the acts or omissions that give rise to Plaintiff’s claims took place, and where the property that
is the subject of the mortgage is located. Therefore, 1391(b)(3) is not applicable, because,
contrary to its requirements, there is another district “in which [the] action may otherwise be
brought.” 28U.S.C. § 1391(b)(3); see also Daniel, 428 F.3d at 435 (finding that, because
plaintiffs could have brought a claim in the Western District of Michigan under § 1391(b)(2),
where “a substantial part” of the alleged events giving rise to the claim took place, “they cannot
rely on § 1391(b)(3) to support venue in the Western District of New York.”); Safety Software
Ltd. v. Rivo Software, Inc., No.11-CV-7433, 2012 WL 1267889, at *5 (S.D.N.Y. Apr. 11, 2012)
(declining to apply § 1391(b)(3) where the action could be brought in another district, noting that
“[b]y the plain language of the statute, however, [§ 1391(b)(3)] applies only if there is no other
district in which the action may be brought”).
iv. Transfer is Proper Under Section 1406
In sum, because venue in the Eastern District of New York is not proper under any of the
provisions of § 1391(b), and McCurdy & Candler has timely objected to venue, pursuant to
28 U.S.C. § 1406, the Court must either dismiss the claims against McCurdy & Candler or
transfer them to a district where venue is proper. See Gonzalez, 651 F.3d at 324. In light of the
fact that dismissal would require pro se Plaintiff to incur additional filing costs, and re-filing the
Amended Complaint in the appropriate district would delay the proceeding, the Court transfers
the claims against McCurdy & Candler to the Northern District of Georgia. See Fredriksson v.
15

Sikorsky Aircraft Corp., Inc., No. 07-CV-0214, 2008 WL 752469, at *4 (E.D.N.Y. Mar. 19,
2008) (transferring a case pursuant to § 1406 and observing that “Congress, by the enactment of
§ 1406(a), recognized that ‘the interest of justice’ may require that the complaint not be
dismissed but rather that it be transferred in order that the plaintiff not be penalized by . . . ‘timeconsuming and justice-defeating technicalities.’”) (quoting Goldlawr, Inc. v. Heiman, 369 U.S.
463, 466 (1962)); Int’l Flavors & Fragrances Inc. v. Van Eeghen Int’l B.V., No. 06-CV-490,
2006 WL 1876671, at *8 (S.D.N.Y. July 6, 2006) (“Dismissal is a harsh remedy that is best
avoided when another avenue is open.”).9 Although dismissal rather than transfer under is
encouraged when a case is a “sure loser,” Gonzalez, 651 F.3d at 324, or “clearly doomed,”
Daniel, 428 F.3d at 436, the Court cannot conclude that there is no merit to any of Plaintiff’s
claims. See Zaltz v. JDATE, No. 12-CV-3475, 2013 WL 3369073, at *12 n. 8 (E.D.N.Y. July 8,
2013) (transferring under § 1404(a) “even if plaintiff’s claims might be difficult to sustain, it
does not appear that they are ‘clearly doomed’”). In particular, in light of relevant Eleventh

9

The Court transfers the claims as to McCurdy & Candler, notwithstanding McCurdy &
Candler’s argument that the Court lacks personal jurisdiction over it. 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.”); see also Deufrains v. Karcauskas, No. 12-CV-2576, 2013 WL 4806955, at *14 (E.D.N.Y.
Sept. 9, 2013) (“A district court has the authority [under § 1406] to transfer a case to another
district, even if the transferring court does not have personal jurisdiction over the Defendant.”
(citing Goldlawr, 369 U.S. at 466, and SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179
n. 9 (2d Cir. 2000)); Brown v. City of New York, No. 10-CV-5229, 2013 WL 3245214, at *8
(E.D.N.Y. June 26, 2013) (28 U.S.C. § 1406(a) “permits a court to transfer claims to another
venue even if the transferring court lacks personal jurisdiction over the Defendants” (citing
Goldlawr, 369 U.S. at 466–67)).

16

Circuit case law, Plaintiff may have stated a claim against McCurdy & Candler for violations of
the Fair Debt Collection Practices Act.10
c.

Claims against the Aurora Defendants

The Court also transfers Plaintiff’s claims against the Aurora Defendants pursuant to
28 U.S.C. § 1404(a) in the interest of justice and for the convenience of the parties. Because the
Aurora Defendants waived their objection to venue, transfer of the claims against them under
§ 1406 is not proper. See Azrelyant, 2000 WL 264345, at *3 (“If a party’s objection to venue,
however, is not timely and sufficient, or if the party has waived the right to object to venue,
transfer under 1406(a) is improper and unwarranted.”); Orb Factory, Ltd. v. Design Sci. Toys,
10

For example, Plaintiff alleges a claim against both McCurdy & Candler and the
Aurora Defendants under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq., (Am.
Compl. ¶¶ 5, 91, 111.E), which McCurdy & Candler argues must be dismissed because
foreclosing on a mortgage is not debt collection for purposes of the FDCPA. (See McCurdy
Mem. ¶ 20 (citing, inter alia, Warren v. Countrywide Home Loans, Inc., 342 F. App’x 458, 460
(11th Cir. 2009); Beadle v. Haughey, No. 04-CV-272, 2005 WL 300060, at *3 (D.N.H. Feb. 9,
2005).) The October 12, 2011 and April 10, 2012 letters sent by McCurdy & Candler to Plaintiff
specifically state: “Notice pursuant to the Fair Debt Collection Practices Act 15 USC 1692 Initial
Communications Letter,” “This law firm is acting as a debt collector and attempting to collect a
debt,” and, “As of the date of this letter, you owe $138,847.65.” (Am. Compl. Exs. 100, 200.)
The Eleventh Circuit has held that a letter featuring identical language sent by law firms in
Georgia, attempting to collect a debt on behalf of mortgage loan holders were attempts to collect
a debt under the FDCPA. See Bourff v. Rubin Lublin, LLC, 674 F.3d 1238, 1240–41 (11th Cir.
2012) (“The FDCPA applies to the notice here in question because the notice was an attempt at
debt collection. The notice stated that Rubin Lublin had been retained to ‘collect the loan,’ stated
in bold capital letters that it was ‘an attempt to collect a debt,’ and advised Bourff to contact
Rubin Lublin to ‘find out the total current amount needed to either bring your loan current or to
pay off your loan in full.’”). In addition, to the extent that Plaintiff alleges that McCurdy &
Candler engaged in abusive debt collection practices by naming a false creditor in its attempt to
collect a debt, such a claim is cognizable under the FDCPA. See id. at 1241; Shoup v. McCurdy
& Candler, LLC, 465 F. App’x 882, 885 (11th Cir. 2012) (holding that plaintiff stated a claim
under the FDCPA by alleging that letter from law firm attempting to collect a debt on a mortgage
loan falsely represented the name of the plaintiff’s creditor). In light of the Eleventh Circuit’s
case law on these precise issues, and the factual similarity between the allegations in Shoup and
Plaintiff’s allegations here, the Court is not prepared to dismiss Plaintiff’s Complaint as failing to
state a claim or find that Plaintiff’s case is a “sure loser.” See Gonzalez v. Hasty, 651 F.3d 318,
324 (2d Cir. 2011).

17

Ltd., 6 F. Supp. 2d 203, 207 (S.D.N.Y. 1998) (“Once objections to venue are waived, any defect
in venue is cured, and the benefits of a § 1406(a) transfer for lack of venue are no longer
available.”). However, where, as here, the conduct of the Aurora Defendants is “central to the
issues raised” by Plaintiff against McCurdy &Candler, in the interest of justice and for the
convenience of the parties, rather than sever the claims and hear only the claims against the
Aurora Defendants, the Court transfers the entire proceeding against all Defendants to the
Northern District of Georgia. See 28 U.S.C. § 1404(a) (“For the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought or to any district or division to which all
parties have consented.”); Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 296 (3d Cir.
1994) (stating that when one of two co-Defendants objects to improper venue and the other
waives objection, if the co-Defendant who has waived the objection “is central to the issues
raised by the plaintiff against those subject to transfer, . . . the proper procedure in this case [is]
to transfer the case in its entirety . . . .”); Indymac Mortgage Holdings, Inc. v. Reyad, 167
F. Supp. 2d 222, 239 (D. Conn. 2001) (“[w]hen the conduct of a co-Defendant as to whom venue
is proper is central to the issues raised by the plaintiff against those subject to transfer, the grant
of a severance would not ordinarily be consistent with the sound exercise of discretion.” (quoting
Cottman, 36 F.3d at 296)); accord Montoya v. Fin. Fed. Credit, Inc., 872 F. Supp. 2d 1251, 1283
(D.N.M. 2012); Barnes Grp., Inc. v. Midwest Motor Supply Co., Inc., No. 07-CV-1164, 2008
WL 509193, at *3–4 (S.D. Ohio Feb. 22, 2008); see also Brossart v. Lynx Bus. Intelligence
Consulting, Inc., No. 08-CV-0609, 2008 WL 2561592, at *2 (D. Ariz. June 25, 2008) (“[I]f we
transfer an action against a particular defendant for improper venue, we may exercise our
discretion to transfer the rest of the action to any district where it might have been brought for

18

‘the convenience of the parties and witnesses’ pursuant to 28 U.S.C. § 1404(a).” (citing
17 Moore’s Federal Practice § 111.35[2] (3d ed. 2006))); WRIGHT & MILLER, 14D FED. PRAC. &
PROC. JURIS. § 3827 (3d ed. 2005) (“If venue is proper for some Defendants but improper for
others, the district court has wide discretion. It may transfer the entire case to another forum that
would be proper for all the Defendants as many courts have done. Alternatively, it may retain
the case as to those Defendants who have been properly sued there and either transfer the severed
portion of the case for those Defendants for whom venue is improper or dismiss the action as to
those Defendants.” (citing cases)); cf. Paul v. Shinseki, No. 09-CV-1591, 2010 WL 3927077, at
*6 (E.D.N.Y. Sept. 29, 2010) (“Where, as here, a district court finds venue improper with respect
to a given claim, it may as a matter of discretion transfer rather than dismiss the improperly
venued claim where transfer is in the interest of justice.”).
The claims against the Aurora Defendants may be properly transferred pursuant to
28 U.S.C. § 1404(a). The purpose of Section 1404(a) “is to prevent waste of time, energy and
money and to protect litigants, witnesses and the public against unnecessary inconvenience and
expense.” Adams, 2013 WL 5437060, at *5 (citing Blechman v. Ideal Health, Inc., 668 F. Supp.
2d 399, 403 (E.D.N.Y. 2009) and Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)). As
discussed above, this action could have been brought in the Northern District of Georgia
pursuant to § 1391(b), as the “events or omissions” giving rise to Plaintiff’s claims took place in
that district, and the property is located there.
Under § 1404(a), a court determines whether a transfer is warranted “for the convenience
of the parties and witnesses, in the interest of justice,” by analyzing various factors including:
“(1) the plaintiff’s choice of forum, (2) the convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the

19

locus of operative facts, (6) the availability of process to compel the attendance of unwilling
witnesses, and (7) the relative means of the parties.” Id. at *6 (citing N.Y. Marine & Gen. Ins.
Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010) and Phillips v. Reed Grp., Ltd., No.
07-CV-3417, 2013 WL 3340293, at *5 (S.D.N.Y. July 1, 2013)). “[S]ubstantial weight is
accorded a plaintiff’s choice of forum.” Dornoch Ltd. ex rel. Underwriting Members of Lloyd’s
Syndicate 1209 v. PBM Holdings, Inc., 666 F. Supp. 2d 366, 372 (S.D.N.Y. 2009) (citation
omitted). However, “when the transactions or facts giving rise to the action have no material
relation or significant connection to plaintiff’s chosen forum, then the plaintiff’s choice is not
accorded the same ‘great weight’ and in fact is given reduced significance.” Donde v. Romano,
No. 09-CV-04407, 2010 WL 3173321, at *7 (E.D.N.Y. Aug. 10, 2010) (internal quotation marks
omitted) (quoting Romano v. Banc of Am. Insurances Servs., 528 F. Supp. 2d 127, 130 (E.D.N.Y.
2007) and Hernandez v. Graebel Van Lines, Inc., 761 F. Supp. 983, 990 (E.D.N.Y.1991))).
Here, the first and the seventh factors weigh in favor of Plaintiff, who currently resides in
the Eastern District of New York and who, as an individual plaintiff proceeding pro se, likely is
of less means than the incorporated Defendants. However, all of the remaining factors weigh
strongly in favor of litigating the claims against the Aurora Defendants in the Northern District
of Georgia. The claims against the Aurora Defendants are essentially disputes over Plaintiff’s
mortgage on the property which is located in Atlanta, Georgia. Any witnesses to the signing of
the mortgage and the challenged assignments are more likely to be located in the Northern
District of Georgia, as are Georgia state land records and other relevant documents. See
Crutchfield v. Country Wide Home Loans, No. 02-CV-9092, 2003 WL 102879, at *1–2
(S.D.N.Y. Jan. 10, 2003) (finding that venue was more appropriate in Oklahoma district where
property that was the subject of a challenged mortgage was located, because “a critical element

20

of the events at issue relates to the mortgage financing of the Property . . . and the material
witnesses and documents regarding that aspect of the underlying transaction are in Oklahoma”).
More importantly, any of the witnesses who currently reside in Georgia are outside this Court’s
subpoena power, raising the costs and complicating the logistics of any discovery that may be
needed to resolve the claims against the Aurora Defendants. See Fed. R. Civ. P. 45(b)(2)
(providing that “a subpoena may be served at any place: (A) within the district of the issuing
court; (B) outside that district but within 100 miles of the place specified for the deposition,
hearing, trial, production, or inspection”); Crutchfield, 2003 WL 102879 at *2 (“The location of
such witnesses and documents within the Court’s subpoena power is an essential consideration in
determining the appropriateness and convenience of plaintiff’s choice of forum.” (citing AyalaBranch v. Tad Telecom, Inc., 197 F. Supp. 2d 13, 15 (S.D.N.Y. 2002) and Summit v. U.S.
Dynamics Corp., No. 97-CV-9224, 2000 WL 502862, at *2 (S.D.N.Y. Apr. 27, 2000)));
Deufrains, 2013 WL 4806955, at *16 (“The most compelling factors to the Court in its finding
that transfer is in the interest of justice . . . relate to the convenience of witnesses and the access
to judicial process to compel unwilling witnesses to testify.”).
In addition to the fact that most of the witnesses likely live in Georgia and would not be
subject to the Court’s subpoena power, the claims against both sets of Defendants share many
common facts. Severing and addressing the claims against the Aurora Defendants in the Eastern
District of New York while permitting the claims against McCurdy & Candler to proceed in the
Northern District of Georgia will effectively result in duplicate litigation of Plaintiff’s claims,
taxing judicial resources and burdening Plaintiff as well as Defendants. McCurdy & Candler is a
“foreclosure specialty” law firm retained by at least one of the Aurora Defendants to foreclose on
the property after Plaintiff defaulted on his mortgage. (Am. Compl. ¶¶ 13, 25; Exs. 100, 200.)

21

Plaintiff’s Amended Complaint alleges that, subsequent to the collapse of loan modification talks
between Plaintiff and Aurora Loan, “Defendant McCurdy made three attempts to foreclose by
non-judicial sale on behalf of Aurora Loan Services, LLC,” (Am. Compl. ¶¶ 22–25), and
“Plaintiff’s Revocation notices were sent to Aurora [Loan] and to McCurdy as a legal
notification to refrain them from their continued action under their scheme to misrepresent their
relationship with the Plaintiff.” (Am. Compl. ¶ 36.) Plaintiff also alleges that McCurdy &
Candler “knew or should have known” that “MERS is an unlawful fiduciary and nominee for
Bayrock as a matter of law,” and that McCurdy’s “action to participate and encourage Aurora to
proceed is unconscionable.” (Id. ¶¶ 37–38.) Finally, Plaintiff notes that the third attempt at
foreclosure by McCurdy & Candler occurred after Aurora Bank had signed a Consent Order with
the Office of Thrift Supervision. (Id. ¶ 42.)
While the claims against McCurdy & Candler could be separated to focus solely on its
role in attempting to foreclose on Plaintiff’s property, another court could not address the claims
against McCurdy & Candler without significantly duplicating the litigation before this Court
involving the Aurora Defendants. See Brossart, 2008 WL 2561592, at *3 (transferring entire
action from Arizona to California where venue was improper as to one of two defendants, and “a
substantial part of the events giving rise to all of plaintiff’s claims occurred in” California rather
than in Arizona, because both defendants were subject to personal jurisdiction of a California
court, “a majority of witnesses and evidence” were in California, and a “district judge in
California will have greater familiarity with California law”). Because the conduct of the Aurora
Defendants is central to the issues raised by the Plaintiff in the claims against McCurdy &
Candler, which are subject to transfer, the Court finds that severance of the claims and transfer of
only the claims against McCurdy & Candler is not “consistent with the sound exercise of

22

discretion.” See Indymac, 167 F. Supp. 2d at 239.
III. Conclusion
For the foregoing reasons, the Court grants McCurdy & Candler’s motion to transfer
venue as to the claims against McCurdy & Candler pursuant to 28 U.S.C. § 1406 and, in the
interest of justice, transfers the claims against the Aurora Defendants pursuant to 28 U.S.C.
§ 1404(a). The Aurora Defendants’ motion to dismiss is dismissed with leave to refile in the
Northern District of Georgia. The entire action shall be transferred to the Northern District of
Georgia.
SO ORDERED:

s/MKB
MARGO K. BRODIE
United States District Judge
Dated: January 16, 2014
Brooklyn, New York

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