TYNDALL v. MAYNOR
Filing
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MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE JAMES A. BEATY, JR., on 4/10/2012, that Defendant's Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer [Doc. # 16 ] is hereby DENIED. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AMOS TYNDALL, Administrator of
Timothy E. Helms, Incompetent,
Deceased,
Plaintiff,
v.
TIMOTHY DEAN MAYNOR,
Defendant.
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1:11cv836
MEMORANDUM OPINION & ORDER
This matter is before the Court on a Motion to Dismiss for Improper Venue, or in the
Alternative, Motion to Transfer [Doc. #16] filed by Defendant Timothy Dean Maynor
(“Defendant”). For the reasons set forth below, Defendant’s Motion will be denied.
At all times relevant to the this case, Defendant, a resident of Catawba County, North
Carolina, worked as a correctional officer at Alexander Correctional Institution (“ACI”).
(Compl. ¶ 4; Ans. ¶ 4). Plaintiff Amos Tyndall, a resident of Orange County, North Carolina,
is the Administrator of the Estate of Timothy E. Helms (“Mr. Helms”), deceased. Prior to his
death, Mr. Helms was an inmate at ACI from September of 2007 until August 4, 2008. (Compl.
¶ 3; Ans. ¶ 3). Plaintiff originally filed this action in the Superior Court of Orange County,
North Carolina, seeking redress under state law and pursuant to 42 U.S.C. § 1983, based
primarily on injuries Mr. Helms allegedly sustained due to Defendant’s alleged use of excessive
force and alleged indifference to Mr. Helms’ rights and safety while Mr. Helms was incarcerated
at ACI. Defendant timely filed a Notice of Removal pursuant to 28 U.S.C. §§ 1441 & 1446, and
this case was removed to the Middle District of North Carolina.
In his present Motion, Defendant seeks dismissal for improper venue, pursuant to 28
U.S.C. § 1391, or, in the alternative, transfer of venue to the Western District of North Carolina,
pursuant to 28 U.S.C. §§ 1404 & 1406. With regard to his Motion to dismiss for improper
venue, Defendant, in his Brief in support of his Motion, originally contended that venue, as
governed by § 1391, would be proper in the “judicial district where any defendant resides, if all
defendants are residents of the State in which the district is located,” 28 U.S.C. § 1391(b)(1), or
in the “‘judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred.’” (Def.’s Br. at 3 (quoting 28 U.S.C. § 1391(b)(2))). Based on the provisions of
§ 1391, Defendant contended that venue in this case is proper in the Western District of North
Carolina, and not the Middle District of North Carolina, because Defendant resides in Catawba
County, North Carolina, the events or omissions giving rise to this action occurred at ACI,
located in Alexander County, North Carolina, and both counties lie within the Western District
of North Carolina. As such, Defendant originally contended that the Court should dismiss this
action for improper venue.
However, following Plaintiff’s Response in this matter, which challenged the application
of § 1391 to the present case, Defendant, in his Reply, conceded that dismissal for improper
venue pursuant to § 1391 is not applicable here given that this action was not filed directly in
federal court, but rather was removed to federal court. Polizzi v. Cowles Magazines, Inc., 345
U.S. 663, 665, 73 S. Ct. 900, 902, 97 L. Ed. 1331 (1953) (“[O]n the question of venue, § 1391 has
no application to this case because this is a removed action.”). In a removed action, such as this
case, venue is governed by Title 28, United States Code, Section 1441. Id. Section 1441 permits
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removal to one particular venue, that is, “the district court of the United States for the district
and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a); see
Godfredson v. JBC Legal Grp., P.C., 387 F. Supp. 2d 543, 556 (E.D.N.C. 2005) (“[Section]
1441(a) only allows one possible venue for removal.”). “This is true even if venue would not
have been proper in the district ‘embracing’ the state court where the action is pending under
section 1391.” IHFC Props., LLC v. APA Mktg., Inc., __ F. Supp. 2d __, 2012 WL 610192, at
*5 (M.D.N.C. Feb. 24, 2012). In the present case, Plaintiff originally filed the Complaint in the
Superior Court of Orange County, North Carolina. The Middle District of North Carolina
“embraces” Orange County. Therefore, the Court finds that venue for this removed action is
proper in the Middle District of North Carolina pursuant to § 1441. As such, the Court
concludes that, to the extent that Defendant requests dismissal of this case for improper venue,
that request is denied.
In the alternative to dismissal for improper venue, Defendant requests a transfer of venue
to the Western District of North Carolina. Based on Defendant’s briefing, it appears that
Defendant requests such a transfer pursuant to two separate statutory provisions: Title 28,
United States Code, Section 1406, and Title 28, United States Code, Section 1404. To the extent
that Defendant seeks transfer pursuant to § 1406, the Court notes that, per its terms, the transfer
provision of § 1406 assumes that the current venue is improper under the general venue
provisions set forth in § 1391, and therefore the Court is required to transfer the case to the
proper venue. 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying
venue in the wrong division or district shall . . . if it be in the interest of justice, transfer such
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case to any district or division in which it could have been brought.”). In support of his Motion
to transfer pursuant to § 1406, Defendant raises the same contentions that he raised in support
of his motion for dismissal. Specifically, Defendant asserts that “[t]here is no circumstance
under which the Middle District could have been the appropriate forum for this action had it
been brought originally in the federal courts,” and therefore, “applying 28 U.S.C. § 1391 and 28
U.S.C. § 1406(a) as Congress intended, this Court must transfer this action to the Western
District.” (Def.’s Reply at 3). However, as noted above, § 1391 does not govern venue here,
since this case was removed to federal court pursuant to § 1441. Polizzi, 345 U.S. at 665, 73 S.
Ct. at 902. Furthermore, as the Court previously found in this Memorandum Opinion, the
Middle District of North Carolina is the proper venue for this case under § 1441. Therefore,
because venue is proper in the Middle District of North Carolina, the provision in § 1406
requiring transfer based on improper venue does not apply to this case. As such, the Court
concludes that, to the extent that Defendant requests transfer of venue pursuant to § 1406, such
a request is denied.
To the extent that Defendant seeks transfer of venue pursuant to § 1404, the Court notes
that such a request may be made “[f]or the convenience of the parties and witnesses,” or “ in
the interest of justice.” 28 U.S.C. § 1404(a). In addition, the Court notes that unlike § 1406,
which mandates transfer of venue where the original venue is improper, § 1404 does not focus
on proper venue, but rather “‘is intended to place discretion in the district court to adjudicate
motions for transfer according to an individualized, case-by-case consideration of convenience
and fairness.’” Republic Mortg. Ins. Co. v. Brightware, Inc., 35 F. Supp. 2d 482, 484 (M.D.N.C.
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1999) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 2244, 101 L.
Ed. 2d 22 (1988) (internal quotations omitted)). The exercise of such discretion involves the
weighing and consideration of a number of factors, including:
(1) the plaintiff’s initial choice of forum; (2) relative ease of access to sources of proof;
(3) availability of compulsory process for attendance of unwilling witnesses; (4) possibility
of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is
obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems
that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court
congestion; (9) local interest in having localized controversies settled at home; (10)
appropriateness in having a trial of a diversity case in a forum that is at home with the
state law that must govern the action; and (11) avoidance of unnecessary problems with
conflicts of laws.
IHFC Props., LLC, 2012 WL 610192, at *12 (quoting Plant Genetic Sys., N.V. v. Ciba Seeds,
933 F. Supp. 519, 527 (M.D.N.C. 1996)). The moving party, in this case Defendant, bears the
burden of proving that the balance of these factors favors transfer of venue. Rebel Debutante
LLC v. Forsythe Cosmetic Grp., Ltd., 799 F. Supp. 2d 558, 565 (M.D.N.C. 2011). In addition,
“‘[w]hen deciding a motion to transfer, it is important to bear in mind that such a motion should
not be granted if it simply shifts the inconvenience from the defendant to the plaintiff.’”
Netalog, Inc, v. Tekkeon, Inc., No. 1:05CV00980, 2007 WL 534551, at *5 (M.D.N.C. Feb. 15,
2007) (quoting Plant Genetic Sys., N.V., 933 F. Supp. at 527).
In support of his request for transfer based on the convenience of the parties and
witnesses, Defendant does not expressly mention the factors noted above, but rather generally
notes that the transactions and occurrences alleged in the Complaint took place at ACI, located
in Alexander County, in the Western District of North Carolina, and that many of the material
witnesses in this case are employed by ACI and live in Alexander County. In addition,
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Defendant notes that Mr. Helms received his initial medical treatment at Catawba Memorial
hospital, located in Catawba County, in the Western District of North Carolina, and that the
doctors and nurses who may be called to testify live in or around Catawba County. As such,
Defendant contends that the witnesses “will incur unnecessary expense traveling to this district”
and “will be compelled to lose invaluable time away from their professional obligations.” (Def.’s
Br. at 4-5).
In his Response, Plaintiff expressly addresses the relevant factors listed above, noting first
that Plaintiff originally brought this action in Orange County, North Carolina, where Plaintiff
lives, and which lies within the Middle District of North Carolina. In addition, Plaintiff notes
that during the last years of his life, Mr. Helms lived in a rehabilitation hospital in the Middle
District of North Carolina, and that the medical providers who may testify as to that period of
time live in or around Guilford County, North Carolina, which lies within the Middle District
of North Carolina. As such, Plaintiff contends that the access to sources of proof and any
inconvenience to witnesses balances out because “[t]hough the site of the underlying incident
is in the Western District, the witnesses to decedent’s long-term, severe injuries, and his
autopsy,1 are in the Middle District.” (Pl.’s Resp. at 4). Furthermore, Plaintiff notes that both
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In support of his position, Plaintiff makes two statements regarding potential witness
testimony to Mr. Helms’ autopsy. Plaintiff first notes that the state medical examiner, who may
be a witness in this case, is based in Wake County, North Carolina. In addition, Plaintiff notes
that witnesses to Mr. Helms’ autopsy are in the Middle District of North Carolina. Based on
these two statements, however, it is unclear whether Plaintiff is distinguishing the location of the
state medical examiner’s office and the site of Mr. Helms’ autopsy, or whether Plaintiff is basing
the autopsy site on the state medical examiner’s office location. The distinction, if one exists,
is relevant because Wake County, North Carolina, lies in the Eastern District of North Carolina,
rather than in the Middle District of North Carolina. As such, to the extent that Plaintiff asserts
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Districts face “similar case loads and logistical burdens,” and that there are no conflict of law
issues present in this case, since the case is not based on diversity and both Districts at issue are
within North Carolina. (Pl.’s Resp. at 5). Therefore, Plaintiff contends that Defendant has failed
to meet his burden of showing that the balance of factors favors a transfer of venue in this case.
As such, Plaintiff asks that the Court deny Defendant’s Motion.
In considering a motion to transfer venue based on the convenience of the parties and
witnesses, the Court notes that the plaintiff’s choice of forum “is accorded great weight,
particularly where the plaintiff has brought suit in its home forum.” Netalog, Inc., 2007 WL
534551, at *5. A defendant seeking to transfer venue away from the plaintiff’s choice of forum
“must demonstrate that the balance of the factors weighs ‘strongly in [his] favor.’” IHFC
Props., LLC, 2012 WL 610192, at *13 (quoting Mamani v. Bustamante, 547 F. Supp. 2d 465, 469
(D. Md. 2008)). Courts should afford less weight to the plaintiff’s choice of forum, however,
if “the suit is filed in a foreign forum or the cause of action bears little relation to the chosen
forum.” Id. In the present case, Plaintiff chose to bring this action in Orange County, North
Carolina, where Plaintiff resides. In addition, based on the information presented by Plaintiff,
which Defendant does not appear to dispute, subsequent to the alleged injuries in this case, Mr.
Helms lived and received medical care in a rehabilitation facility located in the Middle District
that Mr. Helms’ autopsy took place in the Middle District because the state medical examiner’s
office lies in Wake County, North Carolina, such an assertion would be incorrect. However, the
Court notes that Wake County, North Carolina, is closer in proximity to the Middle District of
North Carolina, than to the Western District of North Carolina. As such, Plaintiff’s reference
to any witnesses in Wake County may serve to support his position that the Western District of
North Carolina is not a more convenient venue for purposes of potential witness testimony in
this case.
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of North Carolina. As such, the Court finds that the Middle District of North Carolina serves
as both Plaintiff’s home forum, and a forum to which the causes of action in this case, and the
damages sought, relate. Therefore, the Court concludes that Defendant must show that the
balance of factors weighs strongly in his favor if this Court is to transfer this case away from
Plaintiff’s choice of forum.
After considering the appropriate factors in light of the information presented by both
parties, the Court concludes that Defendant has failed to meet his burden of showing that the
balance of these factors weighs strongly in favor of transferring venue to the Western District
of North Carolina. In so concluding, the Court specifically notes that the parties refer to
potential witnesses who work or reside in each of the Western, Middle, and Eastern Districts of
North Carolina, some of which will have to travel to proceedings relevant to this case.
However, the Court finds that the Middle District of North Carolina provides a venue that will
likely be only somewhat inconvenient to the relevant witnesses, and such inconvenience, to the
extent it exists, can be found on both sides of this case. The Court concludes that such a finding
does not strongly weigh in favor of transfer of this case to the Western District of North
Carolina. As such, to the extent that Defendant requests transfer for the convenience of the
parties and witnesses, pursuant to § 1404, such a request is denied.
Based on the foregoing, the Court concludes that venue is proper in the Middle District
of North Carolina and that considerations of convenience do not favor transfer of venue to the
Western District of North Carolina. As such, Defendant’s Motion to Dismiss for Improper
Venue, or in the Alternative, Motion to Transfer is denied.
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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss for Improper
Venue, or in the Alternative, Motion to Transfer [Doc. #16] is hereby DENIED.
This the 10th day of April, 2012.
United States District Judge
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