Gross v. Dannatt

Filing 8

OPINION AND ORDER OF TRANSFER to Northern District of Texas, San Angelo Division.(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2) [Transferred from Texas Southern on 11/16/2017.]

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROBERT H GROSS,
Plaintiff,
VS.
JEANINE E DANNATT,
Defendant.

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November 16, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-323

OPINION AND ORDER OF TRANSFER
This is a civil action filed by federal prisoner Robert H. Gross. 1 He is currently
assigned to the Federal Corrections Institution in Big Spring, Texas (FCI-Big Spring).
Plaintiff filed this civil action on October 16, 2017, asserting that this Court has diversity
jurisdiction.
I.

PROCEDURAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS
Plaintiff sues his ex-wife, Jeanine E. Dannatt, who currently resides in Dartford,

England. A Spears2 hearing was conducted on November 9, 2017. On November 13,
2017, Plaintiff filed an amended complaint. (D.E. 7).

The following representations

were made either at the Spears hearing or in Plaintiff’s original and amended complaints
(D.E. 1, 7):
1

On December 17, 2015, following a guilty plea, Plaintiff was convicted of health care fraud in the Northern
District of Texas, San Angelo Division. (United States v. Gross, Criminal No. 6:14-cr-38 (N.D. Tex. 2015).
Plaintiff was sentenced to seventy-one months in prison. (Id., D.E. 99).
2

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (stating
that testimony given at a Spears hearing is incorporated into the pleadings).

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On May 3, 2005, the parties entered into a prenuptial contract for marriage. The
prenuptial agreement was signed while the parties were living in Pennsylvania and is
governed by the laws of that state. Plaintiff and Defendant subsequently married in Los
Vegas, Nevada on May 7, 2005.
Plaintiff and Defendant moved to Texas sometime in 2007. Around November of
2014, Defendant filed for divorce in the 391st District Court of Tom Green County, San
Angelo, Texas. At that time, the parties were living in San Angelo, Texas. Plaintiff, who
was represented by counsel in the divorce proceeding, appeared mainly by telephone
because he had been taken into pre-trial federal custody.
Plaintiff testified at the Spears hearing that he owned: (1) vacation property and
land upon which to build a retirement home in Rockport, Texas; and (2) residential
property in San Angelo, Texas. The disposition of these properties was part of the
prenuptial agreement.

In accordance with the settlement agreement entered in the

divorce proceeding, Defendant now owns a 50% portion of the Rockport properties.
Plaintiff testified that, under the prenuptial agreement, these properties were designated
as separate properties and should not have been equally divided between the parties.
Plaintiff further indicated that he and Defendant have a ten-year old child and that child
custody and support issues were addressed in both the prenuptial agreement and the
divorce proceeding.
Plaintiff’s counsel advised Plaintiff that the prenuptial agreement was not valid,
and it was, therefore, not considered in connection with the divorce proceeding in the
Tom Green County district court. On May 4, 2015, a final divorce hearing was held in
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that court without knowledge of the existence of the prenuptial agreement. Plaintiff
indicated that he never read through or signed the settlement agreement that was
ultimately finalized as part of the divorce decree.
Plaintiff appealed from the final divorce degree to the Texas Third Court of
Appeals in Austin, Texas, which serves numerous counties including Tom Green County.
However, pursuant to a docket equalization policy, the case was transferred to the
Thirteenth Court of Appeals. Plaintiff contended before the Texas appellate court that the
trial court had improperly awarded his separate property to Defendant and that his
counsel rendered ineffective assistance. See Gross v. Dannatt, No. 13-15-00309-CV
(Tex. App.- Corpus Christi Opinion issued on June 22, 2017). The Thirteenth Court of
Appeals affirmed the trial court’s judgment, and Plaintiff has appealed the ruling to the
Texas Supreme Court. Plaintiff’s appeal to the Texas Supreme Court remains pending.
In his complaint as amended, Plaintiff claims that Defendant: (1) breached the
prenuptial agreement by failing in the past and in the present to fulfill her obligations
under the agreement; (2) breached her fiduciary responsibilities under the prenuptial
agreement in several respects; (3) committed fraud by misleading the Texas district court
into entering the settlement agreement while knowing about the existence of the
prenuptial agreement; and (4) intentionally and negligently inflicted emotional distress on
Plaintiff. (D.E. 7, pp. 2-6). Plaintiff seeks damages in the amount of $2.3 million as well
as punitive damages based on Plaintiff’s willful and wanton conduct. (D.E. 7, pp. 7-8).
II.

DISCUSSION
Pursuant to the general venue statute, a civil action may be brought in:

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(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, Defendant neither resides in this district nor is subject
to personal jurisdiction in this district.
Plaintiff states, however, that venue is proper in this Court under § 1391(b)(2)
because “a substantial part of the events or omissions giving rise to [his claims] occurred
within this judicial district.” (D.E. 7, p. 1). The undersigned disagrees and finds instead
that the substantial part of the events in this action occurred in San Angelo, Texas.
Plaintiff and Defendant entered into a prenuptial agreement in Pennsylvania.
However, they moved to Texas in 2007 and were living in San Angelo, Texas at the time
their divorce proceedings commenced in Tom Green County. The parties have a small
child and matters pertaining to child custody relate more to events occurring in San
Angelo with no nexus to this district. Plaintiff testified that certain real properties were
part of both the prenuptial agreement and divorce settlement, including residential
property in San Angelo, Texas, a vacation property in Rockport, Texas, and retirement
property in Rockport. The fact that two of these properties are located within this district
does not establish that the substantial part of the events at issue occurred here. Venue,
therefore, is not proper in this Court pursuant to 28 U.S.C. § 1391(b).
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When venue is improper, the 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.”
28 U.S.C. § 1406(a). The interests of justice would be served by a transfer of this action
to the San Angelo Division of the Northern District of Texas.
III.

CONCLUSION
For the foregoing reasons, it is ORDERED that this case be transferred to the

United States District Court for the Northern District of Texas, San Angelo Division.
ORDERED this 16th day of November, 2017.
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Jason B. Libby
United States Magistrate Judge

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