Bibiano v. The Law Office of Amy E. Harrison, P.L.L.C. et al
ORDER denying 6 Motion to Dismiss; ORDER TRANSFERRING CASE to Eastern District of Oklahoma. Docket Sheet and case documents sent to receiving court. Signed by Honorable Susan O. Hickey on January 20, 2017. (mll) [Transferred from arwd on 1/20/2017.]
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CASE NO. 4:16-CV-04070
THE LAW OFFICE OF AMY E. HARRISON,
P.L.L.C.; and AMY HARRISON, individually
Before the Court is Defendants’ Motion to Dismiss. ECF No. 6. Plaintiff has filed a
response. ECF No. 7. The Court finds this matter ripe for consideration.
Plaintiff filed his Complaint on August 1, 2016. ECF No. 1. Plaintiff states that on or
about June 4, 2013, he was involved in a motor vehicle accident in McCurtain County,
Oklahoma. ECF No. 1, ¶ 7. Plaintiff claims that he suffered severe injuries and was air lifted to
Mercy Hospital in Fort Smith, Arkansas. ECF No. 1, ¶ 7. Plaintiff alleges that, while being
treated in Fort Smith, Arkansas, Defendant Amy Harrison “came to Plaintiff’s hospital room
unsolicited on multiple occasions, eventually securing the Plaintiff’s signature on an attorneyclient agreement authorizing her to prosecute the Plaintiff’s claims against the at-fault driver[.]”
ECF No. 1, ¶ 8. The record is unclear as to whether the parties executed the aforementioned
agreement in Arkansas or Oklahoma.
Plaintiff subsequently mailed Defendants a letter, dated November 4, 2014, stating that
he no longer wished for Defendants to represent him. ECF No. 6-1. Defendants responded by
letter dated November 12, 2014, and acknowledged Plaintiff’s letter and stated that “the contract
of representation is no longer in effect.” ECF No. 6-2. Defendants further advised Plaintiff that
he should seek the advice of an attorney regarding relevant deadlines, and warned Plaintiff that
failure to meet those deadlines would result in his claim being barred. ECF No. 6-2. However, on
June 11, 2015, Defendants filed a Petition in the District Court of McCurtain County, Oklahoma,
seeking relief on behalf of Plaintiff for injuries and damages incurred as a result of the motor
vehicle accident of June 4, 2013. ECF No. 1, ¶ 2; ECF No. 1-1. It is unclear why Defendants
filed suit on behalf of Plaintiff, as it appears Plaintiff terminated the representation and the
termination was acknowledged by Defendants.
Plaintiff claims that the petition filed in Oklahoma state court was “filed one week
outside of the applicable statute of limitations under Oklahoma Law [sic]; and therefore, Plaintiff
is forever barred from recovering damages incurred as a result of the negligence of the at-fault
driver in the aforementioned wreck.” ECF No. 1, ¶ 10. Based on this assertion, Plaintiff now
seeks recovery under theories of (1) negligence, (2) breach of contract, and (3) fraud.
Defendants filed the present Motion to Dismiss in response to Plaintiff’s Complaint. ECF
No. 6. Defendants seek dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), (3), and
(6) as well as Okla. Stat. tit. 12, § 19.1. ECF No. 6, p. 1. Specifically, Defendants argue: (1) that,
pursuant to 28 U.S.C. § 1391, Plaintiff filed the present action in the incorrect venue and that it
should have been filed in the Eastern District of Oklahoma; (2) that dismissal is warranted
because Plaintiff failed to submit an affidavit of merit, as required by Okla. Stat. tit. 12, § 19.1;
and (3) that “Plaintiff has failed to state a claim for breach of contract, or to plead fraud with
particularity.” ECF No. 6, p. 1. Alternatively, Defendants request that the Court transfer this
action to the Eastern District of Oklahoma. ECF No. 6, p. 1. Defendants further state that
Plaintiff has failed to address the fact that he ended the representation in November 2014, and
argue that “[a]ny inadvertent filing of suit thereafter is irrelevant.” ECF No. 6, p. 2. Defendants
take the position that, in light of Plaintiff’s letter ending the representation, there was no
attorney-client relationship and therefore Defendants owed no duty to file suit on behalf of
Plaintiff. ECF No. 6, p. 2.
Defendants devote a large portion of the present Motion to the issue of venue and the
propriety of dismissal or transfer. In response, Plaintiff argues that, if the Court finds that the
present action was filed in the improper venue, the case should be transferred to the Eastern
District of Oklahoma. The Court will first address whether venue is proper in the Western
District of Arkansas and then discuss the effect of that determination.
A. Determination of Proper Venue
Venue is proper in “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[.]” 28 U.S.C. § 1391(b)(2).
In the present case, Plaintiff argues that venue is proper in the Western District of
Arkansas pursuant to 28 U.S.C. § 1391(b)(2). ECF No. 7, p. 3. Plaintiff states that Defendant
Amy Harrison approached him while he was hospitalized in Fort Smith, Arkansas, and sought to
represent him in his Oklahoma state court personal injury case. ECF No. 7, p. 3. Although
Plaintiff has not re-asserted his argument that the attorney-client contract was entered into in Fort
Smith, 1 he takes the position that “[Defendant Harrison’s] conduct in soliciting the attorneyclient relationship within the state of Arkansas was a significant event material to Plaintiff’s
claim, as no claim for any further conduct by Defendants would exist if not for the attorney-
Defendants argue that time and date marks on the contract itself, attached to Defendants’ Motion to Dismiss,
indicate that it was sent to Arkansas via facsimile and returned via facsimile to Oklahoma for Defendant Harrison’s
signature. ECF No. 6, p. 7; ECF No. 6-3. This may explain why Plaintiff has failed to argue, as he did in his
Complaint, that the contract in question was actually executed in Arkansas.
client relationship, which began in the State of Arkansas.” ECF No. 7, p. 4. Plaintiff argues that
this solicitation constitutes “a substantial part of the events or omissions giving rise to the claim”
as contemplated by 28 U.S.C. § 1391(b)(2) and therefore venue is proper in the Western District
of Arkansas. In contrast, although contending that the contract was not executed in the State of
Arkansas, Defendants argue that “the execution of the agreement is not the basis of Plaintiff’s
claims, under the facts alleged, or a substantial part of the ‘events or omissions’ giving rise to
this action.” Therefore, Defendants argue, 28 U.S.C. § 1391(b)(2) does not support a finding that
venue is proper in the Western District of Arkansas. The present issue of whether venue is proper
turns on the language of 28 U.S.C. § 1391(b)(2) and the Court must determine whether
Defendants’ actions were sufficient to render venue proper in the Western District of Arkansas.
Under 28 U.S.C. § 1391(b)(2), “venue may be proper in any of a number of districts,
provided only that a substantial part of the events giving rise to the claim occurred there.” Steen
v. Murray, 770 F.3d 698, 702 (8th Cir. 2014) (quoting Woodke v. Dahm, 70 F.3d 983, 985 (8th
Cir. 1995)). “Under [§ 1391(b)(2)], we no longer ask which district among two or more potential
forums is the ‘best’ venue.” Id. (quoting Setco Ent. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th
Cir. 1994)). In making a venue determination under 28 U.S.C. § 1391(b)(2), “the court's focus
must be on relevant activities of the defendant in the forum state[.]” Id. at 703 (emphasis in
original). When determining whether venue is proper under a claim for breach of contract, courts
look at various factors such as (1) where the contract was negotiated and/or executed, (2) the
place of performance, and (3) the place where the contract was breached. 2 See, e.g., Jenkins
Brick Co. v. Bremer, 321 F.3d 1366 (11th Cir. 2003).
The Court will not discuss venue in the Western District of Arkansas as related to Plaintiff’s fraud and negligence
claims, as the wrongful actions Plaintiff alleges regarding those claims took place in Oklahoma.
In the present case, the record indicates that the parties disagree on the exact location
where the representation agreement was executed. That being said, it appears to be undisputed
that Defendant Amy Harrison approached Plaintiff and proposed representation while he was in
Arkansas and, likely, negotiated the terms of representation while in Arkansas. However, the
subject matter of the representation agreement centered around an automobile accident that
occurred in Oklahoma, and Plaintiff wished to pursue recovery for that accident in Oklahoma
under Oklahoma law. Thus, it is clear that the contract was to be wholly performed in Oklahoma.
Furthermore, Plaintiff alleges that Defendants breached the contract by failing to timely file
Plaintiff’s personal injury action in Oklahoma, establishing that the alleged breach occurred in
Now the Court will turn to whether Defendant Amy Harrison’s actions in the State of
Arkansas were sufficient to constitute “a substantial part of the events or omissions giving rise to
the claim” as contemplated by 28 U.S.C. § 1391(b)(2). Although it is evident that some actions
pertaining to the representation contract occurred within the state of Arkansas, those actions
cannot be said to have been a substantial part of the events or omissions giving rise to the claim.
It is certainly true that Defendants could not have allegedly breached the contract if Defendant
Amy Harrison had not solicited Plaintiff in Arkansas and begun the contracting process, but the
wrongful action complained of is a failure to timely file Plaintiff’s personal injury suit. Thus, the
action that gave rise to Plaintiff’s claim occurred in Oklahoma. Therefore, the Court finds that
venue is not proper in the Western District of Arkansas. 3
The Court also notes that, even if venue were proper in the Western District of Arkansas, the Texarkana Division
would not be the correct division, as the only connection to the Texarkana Division is the fact that Plaintiff resides in
De Queen, Arkansas.
B. Dismissal Versus Transfer Pursuant to 28 U.S.C. § 1406
“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 brought.” 28 U.S.C. § 1406(a). Thus, the Court must decide
whether to dismiss the present action or transfer it to the appropriate venue. Courts generally
prefer transfer as opposed to dismissal. See, e,g., Brimer v. Levi, 555 F.2d 656 (8th Cir. 1977);
14D CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, RICHARD D. FREER,
FEDERAL PRACTICE AND PROCEDURE § 3827 (4th ed. 2013).
In the present case, it appears that transfer to the Eastern District of Oklahoma is
appropriate, as venue is clearly established in that district and the interest of justice is best served
by transfer. The Court notes that the record provides ample support for this conclusion. First,
Plaintiff initially filed in the Western District of Arkansas, and erroneously believed venue
proper there, due to Defendant Harrison’s actions, namely soliciting Plaintiff while he was
within the boundaries of the Western District of Arkansas. Likewise, the present case alleges
causes of action that call into question an attorney’s ability to perform her legal and ethical
duties. Although the District Court for the Eastern District of Oklahoma may well find that
Defendant Harrison has not acted inappropriately or committed legal malpractice, this is an
important issue that needs to be decided on the merits. Finally, the Court finds that principles of
judicial economy are best served by transfer.
Thus, the Court finds that, pursuant to 28 U.S.C. § 1406(a), the present action should be
transferred to the Eastern District of Oklahoma.
For the reasons stated above, the Court finds that Defendants’ Motion to Dismiss (ECF
No. 6) should be and hereby is DENIED. The Clerk is directed to immediately transfer this case
to the United States District Court for the Eastern District of Oklahoma for further adjudication.
IT IS SO ORDERED, on this 20th day of January, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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