Stone v. Nelson Mullins Riley & Scarborough LLP

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Barbara Stone, Robert Sarhan, and Lesa M. )

Martino, )

) Civil Action No.: 3:20-cv-01290-JMC

Plaintiffs, )

) ORDER AND OPINION

v. )

)

Nelson Mullins Riley & Scarborough, )

LLP; James K. Lehman, William C. )

Hubbard, George B. Wolfe, Trey Gowdy, )

David Wilkins, Mark F. Raymond, Carl )

Rosen, Douglas E. Starcher, and C. David )

Brown, II, individually and in their )

capacities as shareholders and managing )

partners with Nelson Mullins Riley & )

Scarborough, LLP and Nelson Mullins )

Broad and Cassel LLP; Ronald Desantis, )

individually and in his capacity as )

Governor of the State of Florida; Ashley )

Moody, individually and in her capacity )

as Attorney General of the State of )

Florida; Alan Stone; William Elmore, )

individually and in his capacity as a )

Manager and Investment Advisor with )

Oppenheimer and Co.; Oppenheimer )

Holdings, Inc.; Oppenheimer & Co., Inc.; )

Albert G. Lowenthal, individually and in )

his capacity as CEO and a Director of )

Oppenheimer Holdings, Inc.; Carol-Lisa )

Phillips, individually and in her capacity )

as a Judge in the Broward County Court; )

Milton Hirsch, individually and in his )

capacity as a Judge in the Dade County )

Court; and Jimmy Patronis, individually )

and in his capacity as Florida’s Chief )

Financial Officer; Shiva V. Hodges, )

individually and in her capacity as a )

Magistrate Judge in the U.S. District Court )

of South Carolina, )

)

Defendants. )

___________________________________ )

This matter is before the court pursuant to Plaintiffs Barbara Stone, Robert Sarhan, and

Lesa M. Martino’s (collectively “Plaintiffs”) pro se action alleging they have suffered harm due

to an “organized racketeering enterprise.” (ECF No. 1.) Pursuant to 28 U.S.C. § 636(b)(1) and

District of South Carolina Local Civil Rule 73.02, the matter was referred to the United States

Magistrate Judge for pre-trial handling.1 On April 17, 2020, the Magistrate Judge issued a Report

and Recommendation (“Report”) (ECF No. 8) recommending that Plaintiffs’ action be transferred

to the Southern District of Florida because venue is not proper in the District of South Carolina.

This court has conducted a de novo review of the issues in this case and concludes, for reasons set

forth herein, the Magistrate Judge has properly applied the applicable law. Thus, this court

ACCEPTS the Magistrate Judge’s Report and thereby TRANSFERS venue to the Southern

District of Florida.

I. FACTUAL AND PROCEDURAL BACKGROUND

The court recites only the facts which are relevant to the analysis of Plaintiffs’ Objections.

Plaintiffs, as Florida residents, allege in their action “an organized racketeering enterprise

where probate court judges, attorneys, and guardians are ruling competent senior citizens

incapacitated to strip them of their civil and human rights.” (ECF No. 1 at 4.) In turn, Plaintiffs

claim to be victims of the crimes committed by these organized crime rackets taking place in state

and federal courts “by lawless corrupt state and federal judges and attorneys in collusion with other

state and federal government officials.” (Id. at 5.)

The origins of this action began with individual litigation in Florida courts which centers

1 In their initial filings, Plaintiffs specifically objected to the matter being assigned to a Magistrate

Judge. (See ECF No. 4.) However, in the District of South Carolina, “[a]ll pretrial proceedings

involving litigation by individuals proceeding pro se” are automatically assigned to a Magistrate

Judge pursuant to Local Civil Rule 73.02(B)(2) (D.S.C.).

around guardianship proceedings involving a parent of each Plaintiff. (Id. at 16–20.) Plaintiffs

collectively assert their claims under the Racketeer Influenced and Corrupt Organization (“RICO”)

Act, 18 U.S.C. §§ 1961–1968, as well as claims for “discrimination and retaliation in violation of

Americans with Disability Act, 42 U.S.C. § 12101–12213, and “deprivation of rights under color

of law.” (Id. at 60–62, 72–73.) Each Plaintiff seeks relief on individual grounds (id. at 52–81, 81–

84, 85–88), as well as collective damages and relief, including investigation and arrest of

Defendants. (See id. at 37, 71.)

Four sets of Defendants are alleged by Plaintiffs to participate in this enterprise: (1) the

law firm Nelson Mullins Riley & Scarborough, LLP (“NMRS”) and associated Florida-based firm

Nelson Mullins Broad and Cassel (“NMBC”), as well as various managing partners and

shareholders of NMRS and NMBC, all located in South Carolina and Florida; (2) the financial

services company Oppenheimer Holding, Inc. (“Oppenheimer”), and related entities, as well as

the CEO Albert G. Lowenthal, located in New York, and investment advisor William Elmore,

located in Florida (“Oppenheimer Defendants”); (3) Florida officials: Governor Ronald Desantis

(“Desantis”), Attorney General Ashley Moody (“Moody”), Chief Financial Officer Jimmy

Patronis, as well as two Florida judges, Carol-Lisa Phillips and Milton Hirsch; and (4) Alan Stone,

Plaintiff Stone’s brother, located in Florida and whom was involved in Stone’s previous litigation

(collectively, “Defendants”). Plaintiffs Sarhan and Martino bring claims solely against Desantis

and Moody, who are termed “Florida Public State Actor Defendants” in Plaintiffs’ Complaint. (Id.

at 1–3.)

The Magistrate Judge issued a Report on April 17, 2020, determining that venue was not

appropriate in this District and recommended a transfer of venue to the Southern District of Florida.

(ECF No. 8.) Plaintiffs filed a timely Objection to the Report on April 30, 2020, (ECF No. 10),

which alleged the Report to be void because Plaintiffs amended their Complaint to include

Magistrate Judge Shiva V. Hodges as Defendant in their action, (ECF No. 11). In the Amended

Complaint, filed on May 11, 2020, Plaintiffs requested a disqualification of “all judges in the

United States District Court of South Carolina, as well as a transfer of venue to a district “wherein

there are no judges with connections to any of the defendants; there are no judges who are members

of the Florida bar; and which district judges do not fall within the appellate jurisdiction of the 4th

Circuit.”2 (ECF No. 11 at 1.)

II. STANDARD OF REVIEW

The court conducts a careful review of the record that the factual and procedural

determination of the Magistrate Judge’s Report is accurate, and the court adopts this summary as

its own. (ECF No. 8.)

The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local

Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a

recommendation to this court, which has no presumptive weight. The responsibility to make a

final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976).

The court is charged with making a de novo determination of those portions of the Report to which

specific objections are made. Diamond v. Colonial Life and Acc. Ins. Co., 416 F.3d 310, 315 (4th

Cir. 2005).

Because Plaintiffs are pro se litigants, the court is required to liberally construe their

arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those

arguments that, under the mandated liberal construction, it has reasonably found to state a claim.

2 On May 11, 2020, and June 2, 2020, Plaintiffs filed separate “Motion[s] to Disqualify All Judges

in the United States District Court of South Carolina and Transfer the Matter to Another United

States District Court . . . .” (See ECF Nos. 14, 17.)

Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

Moreover, even when the filing fee is paid, the court possesses the inherent authority to

ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous.

Ross v. Baron, 493 F. App’x 405, 406 (4th Cir. 2012) (per curiam).

III. ANALYSIS

While Plaintiffs do not address the substance of the Magistrate Judge’s Report in their filed

Objection (ECF No. 10), they do address the issue of venue in their subsequent Amended

Complaint (ECF No. 11). For this reason, the court will construe Plaintiffs’ Amended Complaint

as an Objection per the liberal construction requirement afforded to pro se Plaintiffs. Gordon, 574

F.2d at 1151.

Because this suit arises from events occurring in Florida and Defendants are connected to

Florida, venue is improper in this district.

Venue in general—A civil action may be brought—

(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 person jurisdiction with respect to such action.

28 U.S.C. § 1391(b).

28 U.S.C. § 1404(a) provides that “[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 . . . .” Id. “Whether a case should be transferred to an alternative

venue rests within the sound discretion of the district court.” Sw. Equip., Inc. v. Stoner & Co.,

Inc., C/A No. 6:10-1765-HMH, 2010 WL 4484012, at *2 (D.S.C. Nov. 1, 2010) (citing In re

Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir. 1984)). A district court must “engage in an

‘individualized case-by-case consideration of convenience and fairness [ ]’” when considering a

motion to transfer. Id. (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)); see

also Avant v. Travelers Ins. Co., 668 F. Supp. 509, 510 (D.S.C. 1987) (“Generally, the test of

whether an action should be transferred to another jurisdiction is one of balancing convenience”).

When undertaking this individualized analysis, courts weigh the following factors: (1) the ease of

access to the sources of proof; (2) the convenience of the parties and witnesses; (3) the cost of

obtaining the attendance of the witnesses; (4) the availability of compulsory process; (5) the

possibility of a view [of the premises] by the jury; (6) the interest in having local controversies

decided at home; and (7) the interest of justice. Id. (citing Landers v. Dawson Constr. Plant, Ltd.,

Nos. 98-2709, 98-2763, 1999 WL 991419, at *2 (4th Cir. Nov. 2, 1999)).

Plaintiffs have requested a venue which Defendants have no connection to (ECF No. 11),

but their request runs contrary to the rationale for requiring personal jurisdiction. The purpose of

personal jurisdiction is to afford Plaintiffs the optimal venue in which their case may be ultimately

decided on its substantive merits. The Southern District of Florida is the most appropriate venue

for the case at hand because the legal events from which this action arises occurred in Florida. The

Southern District of Florida would most likely (1) have access to witnesses related to the events;

(2) have access to relevant evidence; and (3) be equipped to apply Florida law to Plaintiff Stone’s

claims for wrongful death, legal malpractice, fraud, and other state-law claims. Moreover, the

Southern District of Florida would have personal jurisdiction over Defendants who are Florida

residents, as well as the out-of-state residents pursuant to the RICO venue provision, 18 U.S.C. §

1965, and pendent personal jurisdiction: “When a federal statute provides for nationwide service

of process, it becomes the statutory basis for personal jurisdiction.” Koch v. Royal Wine

Merchants, Ltd., 847 F. Supp. 2d 1370, 1374 (S.D. Fla. 2012) (quoting Republic of Panama v.

BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997).

While Plaintiffs have named Defendants who are alleged to be residents of South Carolina,

there is no mention of these Defendants in Plaintiffs’ 96-page complaint. (ECF No. 1.) In addition,

while the Complaint names NMRS and various Oppenheimer entities as Defendants located in

South Carolina and New York, all references to these parties are in context of their connections to

Florida. (/d.)

Given Plaintiffs’ pro se status, transfer, rather than dismissal, is more appropriate when

considering the ultimate goal of allowing cases to be decided on their substantive merits, as

opposed to being decided on procedural grounds. See Goldlawr v. Heiman, 396 U.S. 463, 466-67

(1962); Porter v. Groat, 840 F.2d 255, 258 (4th Cir. 1988).

IV. CONCLUSION

Accordingly, the Magistrate Judge was correct in determining that the Southern District of

Florida is the appropriate venue for this action. Based on the aforementioned reasons and a

thorough review of the Report of the Magistrate Judge and the record in this case, the court

ACCEPTS the Report of the Magistrate Judge, (ECF No. 8), and TRANSFERS venue to the

Southern District of Florida. Plaintiffs’ objection and construed objection (ECF Nos. 10, 11) are

OVERRULED.

IT IS SO ORDERED.

t

i Muchalle. CRlde)

United States District Judge

June 5, 2020

Columbia, South Carolina