Newton v. Akers

Filing 21

MEMORANDUM (Order to follow as separate docket entry) RE: Complaint 1 filed by Sye Newton. Signed by Magistrate Judge Martin C Carlson on 2/6/24. (rw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SYE NEWTON,

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Plaintiff,
v.
CORDT CULLEN AKERS,
Defendant.

CIV NO. 3:23-CV-1469

(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
I.

Statement of Facts and of the Case
This case, which was reassigned to us on February 4, 2023, is a pro se civil

legal malpractice action brought by a federal prisoner, Sye Newton, against his
criminal defense counsel, Cordt Cullen Akers, who represented Newton in a federal
criminal case in the United States District Court for the Southern District of Texas,
United States v. Newton, 4:19-CR-816. This pro se complaint is almost entirely
devoid of well-pleaded facts, but the meager facts alleged in the complaint reveal
that Newton has filed this case in the wrong court. Specifically, the complaint names
a defendant who lives and works in Texas and makes allegations of legal malpractice
relating to a case which was filed in the United States District Court for the Southern
District of Texas.
Thus, according to the complaint, it appears that the matters complained of by
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the plaintiff occurred exclusively in the Southern District of Texas, and the
defendant may be found in that venue. Given these well-pleaded facts, we lack venue
over these claims and parties. Accordingly, for the reasons set forth below, it is
ordered that this case be transferred to the United States District Court for the
Southern District of Texas for further proceedings.
II.

Discussion
This case is a federal civil action. In such cases, 28 U.S.C. § 1391(b) defines

the proper venue and provides that an action should:
[B]e 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).
In this case, with respect to Newton’s claims, “a substantial part of the events
or omissions giving rise to the claim” appear to have taken place within the venue
of the United States District Court for the Southern District of Texas. It also appears
that the defendant may be found in that venue. Therefore, this case currently appears
to fall within the venue of the United States District Court for the Southern District
of Texas.
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This court is permitted, sua sponte, to raise the issue of an apparent lack of
venue, provided the court gives the plaintiff notice of its concerns and an opportunity
to be heard on the issue. See, e.g., Stjernholm v. Peterson, 83 F.3d 347, 349 (10th
Cir. 1996) (“[A] district court may raise on its own motion an issue of defective
venue or lack of personal jurisdiction; but the court may not dismiss without first
giving the parties an opportunity to present their views on the issue”); Costlow v.
Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). In this case, through the filing of this
Memorandum, we are placing the plaintiff on notice that this complaint does not
appear to allege facts that would currently give rise to venue in this court.
When it appears that a case is being pursued in the wrong venue, there are two
potential remedies available to the court. First, the court may dismiss the action for
lack of venue pursuant to 28 U.S.C. § 1406 and Rule 12(b)(3) of the Federal Rules
of Civil Procedure. However, the court may also, in the interests of justice, provide
another form of relief, one which ensures that venue is proper without prejudicing
the rights of any plaintiffs. Under 28 U.S.C. § 1406:
The district court of a district in which is filed a case laying venue in
the wrong . . . district shall dismiss, or if it be in the interest of justice,
transfer such case to any district . . . in which it could have been
brought.

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28 U.S.C. § 1406(a) (emphasis added).1
In this case, since venue over this matter appears to lie in the United States
District Court for the Southern District of Texas, in order to protect the plaintiff=s
rights as a pro se litigant, we will order this case transferred to that court for further
proceedings. Such a transfer order avoids any prejudice to the plaintiff that might
flow from a dismissal of this action on venue grounds. See Burnett v. New York
Cent. R. Co., 380 U.S. 424, 430 (1965). Moreover, addressing the current lack of
venue in this fashion would not constitute a ruling on the merits of the plaintiff=s
claims, thus assuring that the plaintiff can have this case heard on its merits in the
proper forum. See 18 Wright, Miller & Cooper Federal Practice and Procedure §
4436, at 338 (stating that “a dismissal for lack of jurisdiction or improper venue does
not operate as an adjudication upon the merits”) (footnote omitted).
Finally, we note that:
A motion to transfer venue ... involves a non-dispositive pretrial matter
which a magistrate judge may determine pursuant to 28 U.S.C. §
636(b)(1)(A). See Silong v. U.S., 5:05–CV–55–OC–10GRJ, 2006 WL
948048, at *1 n. 1 (M.D.Fla. April 12, 2006); Blinzler v. Marriott Int'l,
In addition, we note that, even if venue was still somehow appropriate here, it is
clear that the preferred venue for litigation of this particular case would now be in
the United States District Court for the Southern District of Texas. In such instances,
28 U.S.C. § 1404(a) also expressly provides that: “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 . . . .” 28 U.S.C. §
1404 (a).
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Inc., No. Civ. A. 93–0673L, 1994 WL 363920, at *2 (D.R.I. July 6,
1994); O'Brien v. Goldstar Tech., Inc., 812 F.Supp. 383
(W.D.N.Y.1993); Russell v. Coughlin, No. 90 Civ. 7421, 1992 WL
209289 (S.D.N.Y. Aug.19, 1992); Hitachi Cable Am., Inc. v. Wines,
Civ.A. No. 85–4265, 1986 WL 2135 (D.N.J. Feb.14, 1986). This is true
“because it can only result in the transfer of a case to another federal
district, not in a decision on the merits or even a determination of
federal jurisdiction.” Adams v. Key Tronic Corp., No. 94 Civ. AO535,
1997 WL 1864, at *1 (S.D.N.Y. Jan. 2, 1997) (collecting cases).
Berg v. Aetna Freight Lines, CIV.A. 07–1393, 2008 WL 2779294 (W.D. Pa. July
15, 2008). Therefore, the decision to transfer a case rests within the jurisdiction and
sound discretion of a United States Magistrate Judge under 28 U.S.C. §
636(b)(1)(A), subject to appeal to the district court for an abuse of that discretion.
See Franklin v. GMAC, CIV.A. 13–0046, 2013 WL 140042 (W.D. Pa. Jan. 10,
2013); Holley v. Robinson, 2010 WL 1837797, at *2 (M.D. Pa. 2010).
III.

Conclusion
For the foregoing reasons, we will order that this case be transferred to the

United States District Court for the Southern District of Texas for all further
proceedings.
An appropriate order follows.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
DATE: February 6, 2024
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