DeBarros v. Family Practice Group, P.C.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

ELSON M. DEBARROS, :

Plaintiff, :

:

v. : C.A. No. 19-367WES

:

FAMILY PRACTICE GROUP, P.C., :

SUSAN REDMOND M.D., JENNIFER :

HILLERY, and ARLINGTON FAMILY :

PRACTICE, :

Defendants. :

MEMORANDUM AND ORDER1

TRANSFERRING VENUE TO THE DISTRICT OF MASSACHUSETTS

Patricia A. Sullivan, United States Magistrate Judge.

In his pro se complaint prepared with assistance from an attorney who is identified in the

text, Plaintiff Elson M. DeBarros has sued a Massachusetts physician practice (Family Practice

Group, P.C., and Arlington Family Practice), a Massachusetts physician (Dr. Susan Redmond)

and a Massachusetts employee of one of the practices (Jennifer Hillery) in the District of Rhode

Island. His complaint alleges that, in 2016, he sought medical treatment in Massachusetts at the

practices, following which he sent flowers, a card and emails expressing love for Dr. Redmond.

Based on this conduct, he was charged by the Commonwealth of Massachusetts with accosting

and annoying a person of the opposite sex; his Massachusetts jury trial ended in a mistrial due to

a hung jury. Plaintiff’s pleading asserts claims against Defendants for malicious prosecution,

1 A motion to transfer venue is properly referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A).

McEvily v. Sunbeam-Oster Co., 878 F. Supp. 337, 340 (D.R.I. 1994) (motion to transfer venue is nondispositive and

magistrate judge should make determination). While Defendants’ original motion was to dismiss (and therefore was

referred for report and recommendation), it relies on 28 U.S.C. § 1406(a), which also contemplates transfer.

Plaintiff’s counter motion asks only for transfer and Defendants did not object. Because I find that transfer rather

than dismissal is appropriate, I have addressed the motions in this memorandum and order. To the extent that

Defendants wish to assert an objection to transfer in lieu of dismissal, they may do so as if that ruling were in a

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), mindful that any objection must be both specific

and timely (filed and served within fourteen days of the receipt of this decision). See Fed. R. Civ. P. 72(b)(2).

defamation and disability discrimination pursuant to the Americans with Disabilities Act of 1990

(42 U.S.C. § 12101, et seq.); he also seeks a declaration that his right of privacy was breached.

All of his allegations – both his federal question claim and his state law claims – pertain to

events that occurred entirely in Massachusetts.

Now pending before the Court is Defendants’ motion to dismiss based on lack of

personal jurisdiction over all of the Massachusetts-based Defendants pursuant to Fed. R. Civ. P.

12(b)(2) and based on improper venue pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §

1406(a) because all Defendants and all operative events occurred completely in Massachusetts

contrary to 28 U.S.C. § 1391(b). ECF No. 13. Plaintiff does not disagree; his response to

Defendants’ motion concedes that “[i]t’s hereby evident that the matter cannot be heard or

determined by the District Court of Rhode Island because it does not have personal jurisdiction

over the defendants.” ECF No. 15 at 1. Instead of opposing the motion, he filed a counter

motion to transfer pursuant to 28 U.S.C. § 1404(a). ECF No. 15. Facing Plaintiff’s

convenience-based request for transfer, Defendants have not objected; their time to reply has

come and gone.

Mindful of Plaintiff’s pro se status,2 the Court has carefully reviewed Defendants’ motion

and finds that it is more than adequate to establish that none of the named Defendants has

sufficient contact with the District of Rhode Island to permit this Court to exercise general

personal jurisdiction over them, as well as that the complaint’s allegations rule out specific

personal jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 126, 139 (2014) (no general

jurisdiction unless parties’ “affiliations with the State are so ‘continuous and systematic’ as to

render [them] essentially at home in the forum State”); id. at 126 (citing “canonical opinion,”

2 Plaintiff’s motion has been read with the leniency required for all filings of pro se litigants. Diaz v. Wall, C.A. No.

17–94 WES, 2018 WL 1224457, at *3 (D.R.I. Mar. 8, 2018).

Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)); Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 919 (2011) (error to exercise jurisdiction over defendants lacking

sufficient contacts for general jurisdiction based on claims insufficient for specific jurisdiction,

which “is confined to adjudication of ‘issues deriving from, or connected with, the very

controversy that establishes jurisdiction’”). Accordingly, this Court lacks the jurisdiction to

issue any orders as to these Defendants and the case cannot proceed here. United Elec., Radio &

Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1099 (1st Cir. 1992) (where

“plaintiffs failed to establish that the court below was entitled to exercise in personam

jurisdiction[,] . . . the district court’s orders were coram non judice and, therefore, no more than

serial nullities”). It is equally clear that venue is improper in this District. 28 U.S.C. § 1391(b);

see Benedict v. Folsted, C.A. No. 18-242 WES, 2018 WL 3491697, at *3 (D.R.I. July 20, 2018)

(when defendant is not resident of Rhode Island and no facts are alleged that would support the

assertion of personal jurisdiction over defendant in Rhode Island, venue does not lie in Rhode

Island).

The only question is whether the Court should dismiss as Defendants urge or transfer as

Plaintiff requests.

To answer this question, federal law directs the Court to focus on what is just.

Specifically, 28 U.S.C § 1631 provides that when a court “finds that there is a want of

jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other

such court . . . in which the action or appeal could have been brought at the time it was filed or

noticed.” Relatedly, the statute invoked by Defendant, 28 U.S.C. § 1406(a), permits transfer

when venue is improper “in the interest of justice.” The First Circuit has interpreted § 1631 to

establish a presumption in favor of transfer, rather than dismissal, when the forum court lacks

personal jurisdiction. TargetSmart Holdings, LLC v. GHP Advisors, LLC, 366 F. Supp. 3d 195,

213-14 (D. Mass. 2019) (citing Federal Home Loan Bank of Boston v. Moody’s Corp., 821 F.3d

102, 119 (1st Cir. 2016), abrogated on other grounds, Lightfoot v. Cendant Mortg. Corp., 137 S.

Ct. 553 (2017)). And although § 1406(a) does not explicitly mention jurisdiction, the Supreme

Court has interpreted its mandate to “authorize the transfer of cases, however wrong the plaintiff

may have been in filing his case as to venue, whether the court in which it was filed had personal

jurisdiction over the defendants or not.” Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962).

Consequently, it is clear that this Court may transfer this case under either 28 U.S.C. § 1631 or

under 28 U.S.C. § 1406(a) if it is in the “interest of justice,” which depends in turn on whether

“the administration of justice would be better served by dismissal.” Britell v. United States, 318

F.3d 70, 74 (1st Cir. 2003).

On this record, particularly with the parties essentially in agreement, there is no

indication that dismissal, rather than transfer, would facilitate the speedy and efficient resolution

of this case. Rather, it appears plain that all Defendants are subject to personal jurisdiction in

Massachusetts, that the District of Massachusetts would have subject matter jurisdiction based on

Plaintiff’s pleading of a federal question and that venue would be proper there. Nor is this a

circumstance where the core of the claims is so “fanciful or frivolous” such that “it is in the

interest of justice to dismiss [the entire case] rather than keep it on life support (with the

inevitable result that the transferee court will pull the plug).” TargetSmart Holdings, 366 F.

Supp. 3d at 214. Rather, a transfer to the District of Massachusetts would allow the claims to

move forward in a location with proper jurisdiction over all parties and the subject matter.

Finding nothing on the record to rebut the presumption in favor of transfer, I hereby order the

case is transferred to the District of Massachusetts pursuant to both 28 U.S.C. § 1631 and 28

U.S.C. § 1406(a).3

Based on the foregoing, Defendants’ motion to dismiss (ECF No. 13) is granted in part to

the extent they seek relief under 28 U.S.C. §§ 1631 and 1406(a) based on the lack of personal

jurisdiction over any of Defendants and the improper venue in the District of Rhode Island. It is

denied in part insofar as they ask for the remedy of dismissal. Plaintiff’s motion to transfer (ECF

No. 15) the case to the District of Massachusetts is granted in part in that transfer pursuant to 28

U.S.C. §§ 1631 and 1406(a) is in the interest of justice. It is denied in part because his request

for transfer pursuant to 28 U.S.C. § 1404(a) is moot. Pursuant to 28 U.S.C. §§ 1631 and 1406(a),

this case is transferred to the District of Massachusetts.

/s/ Patricia A. Sullivan

PATRICIA A. SULLIVAN

United States Magistrate Judge

October 3, 2019

3 With no personal jurisdiction over any Defendant, I do not reach Plaintiff’s request for transfer based on

convenience pursuant to 28 U.S.C. § 1404(a). Although the District of Massachusetts is a “district . . . where [this

case] might have been brought,” id., it would not be appropriate to make findings about what is convenient for

parties and witnesses in a case where Defendants have appeared specially only to contest personal jurisdiction. ECF

No. 13 at 1 n.1.