WEATHERS V. THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL ET AL

Filing 45

ORDER granting 28 Motion to Transfer Case; granting 12 Motion to Change Venue. The action is transferred to the United States District Court for the Middle District of North Carolina. All other motions remain pending. The Middle District of North Carolina is better positioned to resolve those motions. Signed by Chief Judge James C. Dever III on 3/20/2017. (Briggeman, N.) [Transferred from North Carolina Eastern on 3/21/2017.]

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
No. 5:16-CV-775-D

ANDREA C. WEATHERS,
Plaintiff,

v.
THE UNIVERSITY OF NORTH
CAROLINA at CHAPEL HILL, et al.,
Defendants.

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ORDER

On August 16, 2016, Dr. Andrea C. Weathers ("Weathers" or "plaintiff'), proceeding pro
se, filed a complaint against the University ofNorth Carolina at Chapel Hill (the "University"), four
current or former University employees, Herbert B. Peterson, Jonathan Kotch, Barbara K. Rimer,
and SandraL. Martin (collectively, the "University defendants"), and two attorneys, Gregory Connor
and Thomas Ziko (collectively, "defendants") in Wake County Superior Court [D.E. 1-1]. Weathers
asserts claims for relief relating to her past employment with the University and prior litigation
involving all parties to this action. On August 29, 2016, all defendants except Connor timely
removed the action to this court [D.E. 1].
All defendants now move to transfer the case to the United States District Court for the
Middle DistrictofNorth Carolina [D.E. 12, 28]. Weathers opposes any transfer of venue [D.E. 23,
30]. On October 11, 2016, all defendants except Connor moved to dismiss the complaint under
Federal Ru1es of Civil Procedure 12(b)(1) and (6) [D.E. 31]. Plaintiff seeks permission to file
electronically [D .E. 17] and "a complete copy of Plaintiffs record on file in the Wake County
Superior Court" [D.E. 21]. As discussed below, the court grants defendants' motions to transfer
venue to the Middle District of North Carolina.

I.
Weathers was employed by the University as "an Assistant Professor in the MCH Department
in the UNC Gillings School of Global Public Health." Compl. [D.E. 1-1] ~ 1.

In 2010, Weathers .... brought various racial discrimination claims against
the University [and University defendants] for denying her reappointment and tenure.
Weathers was represented by attorney Gregory S. Connor. Her claims were
dismissed at summary judgment. Weathers v. Univ. of N.C. at Chapel Hill
(WeathersD, No. 1:08CV847, 2010 WL4791809, at *1 (M.D.N.C. Nov. 18, 2010).
She appealed, and the Fourth Circuit affirmed the dismissal in an unpublished, per
curiam opinion. 447 F. App'x 508 (4th Cir. 2011).
In 2013, Weathers filed a prose complaint against the University, Peterson,
Kotch, Rimer, and Martin. The action brought seven claims, including a request to
set aside the Weathers I judgment for alleged fraud on the court under Federal Rule
of Civil Procedure 60(b) and an independent action in equity. Weathers also brought
various State law tort claims, as well as claims for constitutional violations.
Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss all the
claims. Weathers then retained her attorney from Weathers I, Connor, to oppose the
motion. Ultimately, the district court found no fraud on the court and dismissed all
claims. Weathers v. Univ. ofN.C. at Chapel Hill (Weathers II), No. 1:12CV1059,
2013 WL 5462300, at *8 (M.D.N.C. Sept. 30, 2013). Weathers then moved the court
to reconsider its Judgment pursuant to Federal Rule of Civil Procedure 59. That
motion was denied by the court. Weathers v. Univ. of N.C. at Chapel Hill, No.
1:12CV1059, 2014 WL 198216 (M.D.N.C. Jan. 15, 2014). Weathers appealed these
rulings pro se, and the Fourth Circuit again affirmed by an unpublished, per curiam
opinion. 578 F. App'x 300 (4th Cir. 2014).
Weathers v. Ziko, 113 F. Supp. 3d 830, 831-32 (M.D.N.C. 2015) ("Weathers IV"), aff'd, 648 F.
App'x 350 (4th Cir. 2016) (per curiam) (unpublished); see Compl.

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9-15.

In 2014, proceeding prose, Weathers filed a fourth complaint which "provided the District
Court with evidence of the involvement of Attorney-Defendants Ziko and Connor in the fraud, as
well as evidence of their misconduct in an effort to conceal their involvement in the fraud from both
the Court and Plaintiff (by Mr. Connor)" in the prior lawsuits. Compl. ~ 15; see Weathers IV, 113
F. Supp. 3d at 832. On June 25,2015, the court dismissed the action. See Compl. ~ 21; Weathers
IV, 113 F. Supp. 3d at 833. On May 16, 2016, the United States Court of Appeals for the Fourth
Circuit affirmed. See Compl. ~ 22; Weathers v. Ziko, 648 F. App'x 3 50 (4th Cir. 20 16) (per curiam)
(unpublished)
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In this action, Weathers alleges claims of wrongful discharge related to her 2007
"participation in the application process for tenure" and further alleges ''that during Weathers I and
II, Defendants Ziko and Connor intentionally suborned perjury and concealed material evidence"
relating to her employment-discrimination claims. Compl. ~~ 27-42.
Defendants ask this court to transfer the action to the United States District Court for the
Middle District ofNorth Carolina. "When an action is removed to federal court, the removal statute
(28 U.S.C. § 1441), rather than general venue statute (28 U.S.C. § 1391), governs the issue of
venue." Jenkins v. Albuquerque Lonestar Freightliner, LLC, 464 F. Supp. 2d 491,493 (E.D.N.C.
2006); see Polizzi v. Cowles Magazines. Inc., 345 U.S. 663, 665 (1953); see Am. Ins. Mktg. Corp.
v. 5 Star Life Ins. Co., 958 F. Supp. 2d 609,613 (D. Md. 2013). Under 28 U.S.C. § 1441, ''the only
question that must be answered to determine the propriety of venue is whether removal was
effectuated to the district court 'for the district and division embracing the place' where the suit was
filed originally." Am. Ins. Mktg. Corp., 958 F. Supp. 2d at 613. "Thus, when the action was
properly removed to this court, venue was proper in this court." Jenkins, 464 F. Supp. 2d at 493.
Nevertheless, "[f]or 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." 28 U.S.C. § 1404(a); see Trustees of the Plumbers & Pipefitters Nat'l Pension Fund v.
Plumbing Servs.. Inc., 791 F .3d 4 36, 444 (4th Cir. 20 15). "[T]he question of transfer under section
1404(a) is committed to the sound discretion of the district court." Jenkins, 464 F. Supp. 2d at 493.
Additionally, ''the Fourth Circuit has held that transfers can be made under section 1406(a) even if
venue (as here) is proper in the transferor court." Id. at 494; see Porter v. Groat, 840 F.2d 255, 258
(4th Cir. 1988).
The court has considered the motions to transfer under the governing standard. See, ~'
Plumbing Servs.• Inc., 791 F.3d at 444-45; Porter, 840 F.2d at 258; Szulik v. TAG V.I.. Inc., 858
F. Supp. 2d 532, 547-48 (E.D.N.C. 2012); Jenkins, 464 F. Supp. 2d at 493-94. First, personal

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jurisdiction and venue would have been proper in the Middle District ofNorth Carolina; therefore,
plaintiff could have sued all defendants in that court. Next, the court has considered the record and
the relevant factors, including "(1) the weight accorded to plaintiff's choice of venue; (2) witness
convenience and access; (3) convenience of the parties; and (4) the interest of justice." Plumbing
Servs.. Inc., 791 F.3d at 444. Only the first factor-plaintiff's choice of venue-weighs against
transfer. Thus, having reviewed the entire record, the court grants defendants' motions to transfer
venue.

II.
In sum, the court GRANTS defendants' motions to transfer the action to the United States
District Court for the Middle District ofNorth Carolina [D.E. 12, 28], and the action is transferred
to the United States District Court for the Middle District of North Carolina. All other motions
remain pending. The Middle District ofNorth Carolina is better positioned to resolve those motions.
SOORDERED. This

to

dayofMarch2017.

J
S C. DEVER III
Chief United States District Judge

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