Turner v. ILG Technologies LLC

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

MADISON B. TURNER

Plaintiff,

v. Case No. 2:21-cv-04192-NKL

ILG TECHNOLOGIES, LLC,

Defendant.

ORDER

Pro Se Plaintiff Madison Turner claims Defendant ILG Technologies, LLC (“ILG”)

offered deficient software to administer the August 2020 Florida Bar Exam, which resulted in its

cancelation, damaging Ms. Turner. Ms. Turner brings two claims of negligence against ILG. ILG

moves to dismiss Ms. Turner’s claims, arguing that Ms. Turner failed to join an indispensable

party, the Florida Board of Bar Examiners (the “FBBE”); that venue is improper in the Western

District of Missouri; and that Ms. Turner has failed to state a claim upon which relief can be

granted. As explained in detail below, only ILG’s Rule 12(b)(6) arguments have merit.

Accordingly, ILG’s Motion to Dismiss, Doc. 32, is GRANTED in part and this case is

DISMISSED without prejudice. ILG’s Motion to Strike and for Sanctions, Doc. 52, is DENIED,

however Ms. Turner’s unauthorized declarations, Doc. 47; Doc. 48, are STRICKEN. Finally, Ms.

Turner’s Motion for Leave to File an Amended Complaint, Doc. 57, is DENIED. Within 14 days

of this Order, Ms. Turner may file a Second Amended Complaint if, and only if, she can plead

facts to address the deficiencies identified by this Order.

I. BACKGROUND

Ms. Turner originally filed a four-count Complaint on October 12, 2021. Doc. 1. The

Court dismissed Ms. Turner’s original complaint because she had not properly served any of the

named defendants. Doc. 24. Ms. Turner filed an Amended Complaint, which named only ILG

and included only two counts: (1) res ipsa loquitor and (2) emotional distress. Doc. 27. The same

theory of negligence underlies each count. Ms. Turner alleges that ILG was an independent

contractor engaged by the FBBE to provide software permitting portions of the Florida Bar Exam

to be completed in a secure offline electronic format. Doc. 27, at ¶¶ 3–4. Ms. Turner alleges that

she was registered to take the Florida Bar Exam that was scheduled for July 2020. Doc. 27, at ¶

11. However, because of complications caused by the COVID-19 pandemic, the July 2020 Florida

Bar Exam was ultimately postponed to August 19, 2020. Doc. 27, at ¶ 12. The Exam is typically

two days and completed in person, but ILG was tasked with administering the August 19, 2020,

Florida Bar Exam as a one-day, fully remote examination. Just a few days before it was scheduled

to take place, the FBBE cancelled the August 19, 2020, exam because of issues with ILG’s

technology. Doc. 27, at ¶ 13. Ms. Turner alleges that ILG knew about various technical issues

with its software, and the risks posed by proceeding with that software, before agreeing to remotely

administer the August 2020 Florida Bar Exam. Doc. 27, at ¶¶ 17, 21–23. Ms. Turner alleges that

ILG was negligent because it knowingly offered faulty software, which failed, causing the August

19, 2020, Florida Bar Exam to be cancelled. Doc. 27, at ¶¶ 14–18. As a result, Ms. Turner alleges,

she incurred various types of damages. Doc. 27, at ¶¶ 19–20.

II. DISCUSSION

A. Whether this Case Should Be Dismissed Because the FBBE Is an

Indispensable Party

ILG first argues that Ms. Turner’s Amended Complaint must be dismissed because she

failed to join an indispensable party, the FBBE. Under Rule 12(b)(7)1 a party may move to dismiss

a complaint for “failure to join a party under Rule 19.” Fed. R. Civ. P. 12(b)(7). To determine

whether a party is indispensable, and therefore whether dismissal is warranted under Rule 19, the

Court conducts a three-step inquiry to evaluate (1) whether the absent party is “required,” (2)

whether joinder of the absent party is feasible, and (3) whether the lawsuit can continue “in equity

and good conscience” in that party’s absence. See Fed. R. Civ. P. 19; accord Republic of

Philippines v. Pimentel, 553 U.S. 851, 856-57 (2008). When conducting this inquiry, the court

accepts the plaintiff’s allegations as true, but may consider matters outside the pleadings. Omega

Demolition Corp. v. Hays Grp., Inc., 306 F.R.D. 225, 227 (D. Minn. 2015). The burden rests with

the defendant to produce evidence establishing both “the nature of the interest possessed by an

absent party and that the protection of that interest will be impaired by the absence.” Id. (internal

quotation marks omitted). Although Rule 12(b)(7) permits dismissal, “courts are generally

‘reluctant to grant motions to dismiss of this type.’” Fort Yates Sch. Dist. No. 4 v. Murphy ex rel.

C.M.B., 786 F.3d 662, 671 (8th Cir. 2015).

A party is “required” if:

(A) in that [party’s] absence, the court cannot accord complete relief among existing

parties; or

1 ILG styles its Motion to Dismiss for Failure to Join an Indispensable Party as a Motion to Dismiss

for Lack of Subject Matter Jurisdiction, pursuant to Rule 12(b)(1), because joining the FBBE

would destroy the Court’s diversity jurisdiction. ILG concedes that the requirements of diversity

have been met by the parties currently before the Court. Doc. 32, at 10. Regardless of whether

the Motion is considered under Rule 12(b)(1) or Rule 12(b)(7), the analysis turns on Rule 19.

Accordingly, while the distinction—at this stage—is largely academic, the Court will treat the

motion as made pursuant to Rule 12(b)(7), which specifically targets a failure to join a party

required under Rule 19, rather than 12(b)(1), which addresses more general issues with the Court’s

subject matter jurisdiction. See generally Schweyer Imp.-Schnittholz GmbH v. Genesis Capital

Fund, L.P., 220 F.R.D. 582, 585 (S.D. Iowa 2004) (proceeding under Rule 12(b)(7) when movant

argued failure to join an indispensable party and joinder would destroy diversity); Wells Fargo Tr.

Co., Nat’l Ass’n v. S. Sioux City, 20-CV-359, 2022 WL 1426623, at *4 (D. Neb. May 5, 2022).

(B) that [party] claims an interest relating to the subject of the action and is so situated that

disposing of the action in the [party’s] absence may:

(i) as a practical matter impair or impede the [party’s] ability to protect the interest;

or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple,

or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1). ILG argues that the FBBE is a necessary party because Ms. Turner’s

claims ultimately turn on actions taken by the FBBE. For example, ILG notes that Ms. Turner’s

Amended Complaint includes numerous allegations regarding “apparent miscommunications

between Plaintiff and FBBE,” which led to Ms. Turner’s registering for the July 2020 Florida Bar

Examination. See Doc. 32, at 11. ILG also says that Ms. Turner is attempting to have “ILG defend,

and hold ILG liable for, actions that were taken by the FBBE that relate to her petition for

admittance to [t]he Florida Bar[.]” Id. This, however, incorrectly describes Ms. Turner’s claims.

While the Amended Complaint does include factual allegations relating to Ms. Turner’s

interactions with the FBBE after Ms. Turner failed the Florida Bar Exam in February 2020, Ms.

Turner’s claims do not turn on the FBBE’s actions. C.f. Two Shields v. Wilkinson, 790 F.3d 791,

797 (8th Cir. 2015) (suggesting that a party would be required if it “emerges as an active participant

in the allegations made in the complaint that are critical to the disposition of the important issues

in the litigation.”) (quoting Laker Airways, Inc. v. British Airways, PLC, 182 F.3d 843 (11th Cir.

1999)). This case is about ILG’s technology failures and how they contributed to the cancellation

of the August 2020 Florida Bar Exam for which Ms. Turner subsequently registered. Contrary to

ILG’s suggestions, this case is not about—and has never been about—Ms. Turner’s original failing

score or the FBBE’s actions thereafter. Compare Doc. 32, at 2 (“Plaintiff purports to hold

Defendant responsible for her failure to pass the Florida Bar Exam in February 2020[.]”) with Doc.

27. at 10-14 (explaining that Ms. Turner’s negligence claims arise from ILG’s technology failures

that led to the postponement of the Florida Bar Exam from August 2020 to October 2020, unrelated

to Ms. Turner’s previous attempts to take the Florida Bar Exam). Nor does Ms. Turner fault the

FBBE for canceling or postponing the August 2020 Florida Bar Exam because of ILG’s

technology failures.

ILG has the burden of identifying the FBBE’s interest in this litigation. Omega Demolition

Corp., 306 F.R.D. at 227. The only FBBE interest identified by ILG related to Ms. Turner’s

properly construed claims appears to be that litigating this negligence cause of action might

implicate the contract between the FBBE and ILG. But ILG does not explain why that would be

true. Indeed, as ILG points out, the contract creates no third-party rights which would benefit Ms.

Turner. Doc. 32, at 13. Accordingly, the duty Ms. Turner claims ILG violated arises only under

tort law, not the contract between the FBBE and ILG, and the contract therefore should bear little

on whether ILG breached that duty and caused Ms. Turner to suffer damages.

Simply referencing a third party in a complaint does not make it legally required or

indispensable. The FBBE is not an “active participant” in Ms. Turner’s allegations against ILG,

and resolving this matter will not require an evaluation of the propriety of the FBBE’s actions.

C.f. Two Shields, 790 F.3d at 797 (quoting Laker Airways, 182 F.3d 843). In short, ILG has not

explained why the Court cannot afford Ms. Turner complete relief without joining the FBBE, and

therefore has failed to show the FBBE is required under Rule 19(a)(1)(A). ILG also has not

adequately explained how proceeding without the FBBE would imperil its interests, or risk ILG

incurring double, multiple, or inconsistent obligations, as required under Rule 19(a)(1)(B). ILG

has not met its burden, and the Court therefore concludes that the FBBE is not a required party

under Rule 19(a).2

Therefore, ILG’s Motion to Dismiss for Failure to Join an Indispensable Party is DENIED.

B. Whether Venue is Proper in the Western District of Missouri

ILG also argues that this case should be dismissed because venue is improper pursuant to

Rule 12(b)(3). Claims should be dismissed pursuant to Rule 12(b)(3) “when venue is wrong or

improper in the forum in which it was brought.” Atl. Marine Constr. Co. v. U.S. Dist. Court for

W. Dist. of Tex., 571 U.S. 49, 55 (2013). A party seeking dismissal under this rule bears the burden

to establish that venue is improper. United States v. Orshek, 164 F.2d 741, 742 (8th Cir. 1947).3

Ms. Turner claims venue is proper in this District under 28 U.S.C. § 1391(b)(2), which provides:

“A civil action may be brought 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); see also Doc. 27, at 7. “[T]he propriety of venue

in a given court is to be determined exclusively as a matter of statutory interpretation.” In re Union

Elec. Co., 787 F.3d 903, 906 (8th Cir. 2015). Section 1391(b)(2) “does not posit a single

appropriate district for venue; venue may be proper in any of a number of districts, provided only

2 Because the Court finds that FBBE is not a required party under 19(a), the Court need not

discuss Fed. R. Civ. P.19(b).

3 ILG argues that it is Ms. Turner’s burden to prove that venue is proper in the Western District of

Missouri. ILG has identified a split in this District, as there are indeed cases that have so held.

Kobush v. Am. Suzuki Motor Corp., No. 89-4332, 1990 WL 13511, at *1 (W.D. Mo. Feb. 6, 1990);

Pfeiffer v. Int’l Acad. of Biomagnetic Med., 521 F. Supp. 1331, 1336 (W.D. Mo. 1981). However,

this Court is bound by the Eighth Circuit’s opinion in United States v. Orshek, in which the Eighth

Circuit required the movant to show that venue was improper on a motion to dismiss for improper

venue. See 164 F.2d 741, 742 (8th Cir. 1947); see also Coug & Co., Inc. v. Cougar Paws, Inc.,

No. 4:21-CV-271, 2022 WL 1439848, at *6 (S.D. Iowa Jan. 5, 2022) (holding that Orshek remains

controlling, despite subsequent developments in the case law, and collecting cases); Mader v.

United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (holding that, in the event of conflicting

Eighth Circuit decisions, courts must follow the earliest controlling precedent). So long as a

plaintiff makes a prima facie showing that venue is proper in this District, it is for the defendant

to prove that it is not. Caricato v. Nissan N. Am., Inc., No. 4:20-CV-01007-NKL, 2021 WL

5044867, at *1 (W.D. Mo. June 1, 2021).

that a substantial part of the events giving rise to the claim occurred there.” Woodke v. Dahm, 70

F.3d 983, 985 (8th Cir. 1995). The Court “do[es] not ask which district among two or more

potential forums is the ‘best’ venue, rather [the Court] ask[s] whether the district the plaintiff chose

had a substantial connection to the claim, whether or not other forums had greater contacts.”

Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 563 (8th Cir. 2003).

In deciding whether venue is proper under Section 1391(b)(2), the Court must focus on

ILG’s alleged wrongful activity. Steen v. Murray, 770 F.3d 698, 703 (8th Cir. 2014). Ms. Turner

argues that “[m]ost of the Defendant’s negligent acts presumably took place in Cole County,”

indeed less than ten minutes from the Federal Courthouse in Jefferson City, where ILG’s principal

place of business is located. Doc. 41, at 8, 10. Joseph Figo, one of ILG’s two member-managers,

also resides within the Western District of Missouri. Id. at 10. ILG counters that Ms. Turner’s

claims generally relate to her inability to pass the Florida Bar Exam and cites to Ms. Turner’s

allegations relating to her interactions with the FBBE. At bottom, ILG argues that Ms. Turner’s

claim is that “ILG negligently attempted to administer the Florida Bar Exam in or about August

2020—in Florida.” Doc. 32, at 15.

While ILG is incorporated under the laws of Florida, its software was to be used in Florida,

and the FBBE ultimately chose to reschedule the exam in Florida, there is still venue in the Western

District of Missouri. Drawing all inferences in Ms. Turner’s favor, and construing the Amended

Complaint liberally, she alleges that ILG’s software was developed and maintained in, and its

corporate decisions were made from, ILG’s principal place of business in Jefferson City, Missouri.

Dullea v. Pension Benefit Guarantee Corp., No. 14-CV-5108, 2015 WL 13699274, at *2 (D. Minn.

June 16, 2015) (“When evaluating Rule 12(b)(3) motions to dismiss for improper venue, courts

‘must draw all reasonable inferences in favor of the non-moving party and resolve all factual

conflicts in favor of the non-moving party.’” (citing Murphy v. Schneider Nat’l, Inc., 362 F.3d

1133, 1138 (9th Cir. 2004)); Olsen as Tr. for Xurex, Inc. v. Di Mase, 24 F.4th 1197, 1202 (8th Cir.

2022) (explaining that all pro se litigants are entitled to liberal construction of their filings).

ILG has the burden to prove that the activities at issue in this case did not take place within

this district, but it has not done so. See n.3 supra at 6. Despite submitting a declaration from Mr.

Figo, ILG has not demonstrated that Ms. Turner’s allegations about ILG’s connections to the

Western District of Missouri are false. See generally See Doc. 32-1, ¶ 5 (Declaration of Joseph

Figo); Doc. 32-1, Ex. D, P. 18 (Florida incorporation records showing, ILG’s Principal Address in

Jefferson City, Missouri). ILG spends almost no time discussing its business practices or, more

importantly, its software development and maintenance and its corporate decision-making. Thus,

the Court must conclude for purposes of this motion that the activities that lay at the heart of Ms.

Turner’s claims took place within the Western District of Missouri.4

C. Whether Venue Should be Transferred to the Northern District of Florida

ILG alternatively asks this Court to transfer this case to the Northern District of Florida.

ILG originally sought transfer pursuant to 28 U.S.C. § 1406, which permits transfer when venue

is improper. Because the Court has determined that venue is indeed proper in this District, and

because the analyses are similar, the Court will look instead to 28 U.S.C. § 1404(a), which governs

transfer when venue is otherwise proper. See generally Dakota Provisions, LLC v. Hillshire

4 Alternatively, while not argued by the Parties, it appears venue is proper in the Western District

of Missouri under Section 1391(b)(1), which states that venue is proper in “a judicial district in

which any defendant resides, if all defendants are residents of the State in which the district is

located.” 28 U.S.C. § 1391. For the purposes of venue, ILG resides in “any judicial district in

which [it] is subject to the court’s personal jurisdiction with respect to the civil action in

question[.]” 28 U.S.C § 1391(c)(2). ILG is subject to personal jurisdiction in the Western District

of Missouri, as one of its member managers resides here. GMAC Commercial Credit LLC v.

Dillard Dept. Stores, Inc., 357 F.3d 827, 829 (8th Cir. 2004); see also Doc. 32-1, ¶ 5; Doc. 32-1,

Ex. D, at P. 17. ILG is the only defendant in this case, and therefore, because ILG is a resident of

the Western District of Missouri, venue is proper here.

Brands Co., 226 F. Supp. 3d 945, 959 (D.S.D. 2016) (explaining the difference between 28 U.S.C.

§ 1404(a) and § 1406).

Under Section 1404(a), “[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 or to any district or division to which all parties have consented.” 28 U.S.C. §

1404(a). “In general, federal courts give considerable deference to a plaintiff’s choice of forum

and thus the party seeking a transfer under section 1404(a) typically bears the burden of proving

that a transfer is warranted.” Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 695 (8th Cir.

1997). That burden is heavy. Sleep No. Corp. v. Young, 507 F. Supp. 3d 1081, 1090 (D. Minn.

2020) (citations omitted). The Eighth Circuit has “declined to offer an ‘exhaustive list of specific

factors to consider’ in making the transfer decision[.]” In re Apple, Inc., 602 F.3d 909, 912 (8th

Cir. 2010) (quoting Terra Int’l, 119 F.3d at 693). Instead, it has instructed district courts to “weigh

any ‘case-specific factors’ relevant to convenience and fairness to determine whether transfer is

warranted.” Id. (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Courts

generally consider “(1) the convenience of the parties, (2) the convenience of the witnesses, and

(3) the interests of justice.” Terra Int’l, 119 F.3d at 691.

i. Convenience Factors

When deciding whether transfer is appropriate, courts broadly consider which forum would

be more convenient. In doing so, courts look to (1) the convenience of the parties, (2) the

convenience of the witnesses—including the willingness of witnesses to appear, the ability to

subpoena witnesses, and the adequacy of deposition testimony, (3) the accessibility of records and

documents, (4) the location where the conduct complained of occurred, and (5) the applicability

of each forum state’s substantive law. Terra Int’l, Inc., 119 F.3d at 696. When transfer would

“merely shift the inconvenience from one [party] to the other,” it should not be permitted. Id. at

696–99; Houk v. Kimberly-Clark Corp., 613 F. Supp. 923, 928 (W.D. Mo. 1985) (internal citations

omitted).

a. Whether Transfer is More Convenient for the Parties

“The logical starting point for analyzing the convenience of the parties is a consideration

of their residences in relation to the district court and the proposed transferred district.” Fluid

Control Prods., 2011 WL 620115, at * 2 (internal quotation omitted). ILG argues that proceeding

in the Northern District of Florida is more convenient. However, ILG’s only support for that

position is that one of its member-managers lives in Sarasota County, Florida (located in the

Middle District of Florida), see Doc. 32-1, ¶ 5, it is incorporated under the laws of Florida, and it

has a registered agent there (seemingly in the Southern District of Florida).5 Doc. 32-1, ¶ 5; Doc.

32-1, Ex. D, at P. 18. However, ILG’s other member-manager resides—and its principal place of

business is located—mere minutes from the federal courthouse in Jefferson City, Missouri. Doc.

41, at 10; see also Doc. 32-1; Ex. D., at P. 17; Doc. 30-5 (ILG’s 2022 Annual Report). ILG does

not appear to have an office or any official presence in Florida, beyond its member-manager and

registered agent. ILG has not shown how having its registered agent and a member-manager in

Florida (in the Southern and Middle Districts, respectively) would make it more convenient to

litigate in the Northern District of Florida. Because, from the record before the Court and drawing

all inferences in Ms. Turner’s favor, ILG seems to operate out of its headquarters in the Western

District of Missouri, the Court finds transfer would not be more convenient for ILG.

While litigating in the Western District of Missouri may be somewhat burdensome for Ms.

Turner—a student living in Gainesville, Florida—she has elected to proceed here. As discussed

5ILG’s registered agent, Fabricant & Company PA, appears to be a third-party accounting and

litigation support firm that works on ILG’s behalf. Doc. 32-1, Ex. D., P. 18.

in more detail below, her choice is entitled to some weight. In short, ILG has failed to show that

proceeding in the Western District of Missouri is inconvenient for the parties based on their

respective locations.

Courts also consider the demands that the discovery process is likely to place on each party.

Med. Shoppe Int’l v. Tambellini, 191 F.Supp.2d 1065, 1070 (E.D. Mo. 2002). ILG argues that

most of the records and documents related to this case are in the Northern District of Florida. As

an initial matter, the Court is not persuaded that this is true. ILG explained that relevant documents

are in the Northern District of Florida because of the agreement between ILG and the FBBE, which

required that any information received by ILG because of its contractual relationship with the

FBBE be returned to the Northern District of Florida. See Doc. 32-1, at ¶¶ 28–30. While it is

reasonable to believe some of the documents held in the Northern District of Florida could become

relevant, there is nothing in ILG’s briefing or Mr. Figo’s supporting declaration that suggests that

most, or even many, of the relevant documents—for example, documents related to ILG’s software

development and maintenance, past complaints or other evidence of software malfunctions, or

internal correspondence reflecting corporate decision making—would have been implicated by the

contract with the FBBE or would otherwise be held in the Northern District of Florida. Instead, it

seems much more likely that these documents are located at ILG’s main office in Jefferson City,

Missouri.

To the extent there are documents in the Northern District of Florida—for example,

documents related to the FBBE’s decision to cancel the August 2020 Florida Bar Exam—there is

no argument that they are so voluminous or stored in such a way that would make their transfer

for use in this District unduly burdensome. When records can be easily be transferred or

transported, their location does not factor into the Court’s analysis. Biometics, LLC v. New Womyn,

Inc., 112 F. Supp. 2d 869, 876 (E.D. Mo. 2000) (“The patent prosecution records would be easily

transported, or could be obtained from the United States Patent Office, and therefore do not factor

into the Court’s analysis.”). Indeed, ILG has indicated that most of the documents are stored

electronically. The Court sees no reason why electronically stored information cannot be sent,

with little burden, to the Western District of Missouri.

Ms. Turner’s medical records presumably being located in the Northern District of Florida

similarly does not alter the Court’s analysis. Ms. Turner’s medical records are easily obtainable

and there is no indication that proceeding in this District will make doing so substantially more

difficult or costly. ILG has not met its heavy burden to show that, on the facts of this case, it would

be unduly burdensome to litigate this case in the Western District of Missouri because of the

location of the relevant documents and evidence. See CSI Tech., Inc. v. Commtest Instruments

Ltd., 08-cv-450, 2008 WL 4057546, at *7 (D. Minn. Aug. 26, 2008) (“CSI has made no showing

that the relevant documents are so voluminous that their transport would entail a ‘major

undertaking.’”) (citing Becnel v. Smile Cmty. Action Agency, Inc., 207 F.Supp.2d 520, 522 (M.D.

La. 2001)).

In sum, ILG has not shown that transfer to the Northern District of Florida is substantially

more convenient for the Parties.

b. Whether Transfer is More Convenient for Potential Witnesses

ILG also argues that the Northern District of Florida is more convenient for any witnesses

required for trial. This factor is not simply controlled by the number of witnesses for each side

and where those witnesses are located. See, e.g., Terra Int’l, 119 F.3d at 696 (noting that the “sheer

number of witnesses will not decide which way the convenience factor tips”). The Court must

also look at the importance of the anticipated witnesses’ testimony. Nw. Airlines, Inc. v. Filipas,

Civ. No. 07–4803, 2008 WL 1773756, at *5 (D. Minn. Apr. 15, 2008) (“The court must examine

the materiality and importance of the anticipated witnesses’ testimony and determine whether the

forum is convenient for them”). “In analyzing the convenience-of-witnesses factor, the Court must

focus on non-party witnesses, since it is generally assumed that witnesses within the control of the

party calling them, such as employees, will appear voluntarily in a foreign forum.” Cosm.

Warriors Ltd. v. Abrahamson, 723 F. Supp. 2d 1102, 1106 (D. Minn. 2010) (internal citations and

quotation marks omitted). This factor is considered the most important in the transfer analysis.

Biometics, 112 F. Supp. 2d at 876. ILG anticipates four witnesses: “(1) a corporate representative

of ILG; (2) a corporate representative of FBBE; (3) Plaintiff; and (4) a records custodian and/or

corporate representative with respect to Plaintiff’s medical expenses.” Doc. 32-1, ¶ 33. For her

part, Ms. Turner identified two witnesses located in Jefferson City, Missouri, two witnesses who

reside in Nevada, and one witness who resides in California. Doc. 41, at 10. Ms. Turner has not

explained who these witnesses are or what she plans for them to discuss.6

ILG first points to the FBBE corporate representative, who presumably resides in the

Northern District of Florida. Although the FBBE is an ancillary player in Ms. Turner’s theory of

ILG’s negligence, the FBBE allegedly postponed the Florida Bar Exam because of ILG’s

negligence, and as a result, the FBBE will likely have some information regarding ILG’s software,

6 After ILG filed its Reply in Support of its Motion to Dismiss, Doc. 46, Ms. Turner filed two

declarations. Doc. 47; Doc. 48. These declarations address points raised by ILG in its Reply,

including the identity of one of her proposed witnesses. Ms. Turner further mentions, for the first

time, an ethics complaint against Mr. Figo. The Court construes these filings as a Motion for

Leave to File a Surreply, which the Court DENIES. The Court accordingly has not considered

those declarations in deciding the motion to dismiss, and the Court will STRIKE Docs. 47 and 48

from the record. ILG asks the Court to sanction Ms. Turner for these filings. While Ms. Turner

is obligated to follow the Federal Rules of Civil Procedure and this District’s Local Rules even

though she is proceeding pro se, the Court must exercise its inherent powers with “restraint and

discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Ms. Turner’s filings were

improper, but she is not yet an attorney. Her filings were at most, a modest inconvenience for the

Court and the Defendant. ILG has not shown that sanctions are appropriate. ILG’s Motion to

Strike and for Sanctions, Doc. 52, is DENIED.

its malfunction, and the decision to cancel the August 2020 Florida Bar Exam. The FBBE is not

a party, and this Court cannot compel an FBBE representative to appear for trial. See generally

Fed. R. Civ. P. 45(c). That said, the FBBE is subject to discovery, and deposition testimony or

virtual testimony could alleviate some of the inconvenience. Terra Int’l, Inc. v. Mississippi Chem.

Corp., 922 F. Supp. 1334, 1360 (N.D. Iowa 1996) (finding convenience of witnesses factor “flat”

when foreign non-party witness was subject to discovery and alternative methods of testimony,

like recorded deposition, could adequately convey testimony if the case were presented to a jury)

aff’d, 119 F.3d 688 (8th Cir. 1997). ILG has not explained why similar alternative methods would

be inappropriate or burdensome in this case.

The same holds true for any medical witnesses that the parties intend to use to explore Ms.

Turner’s medical damages. While these witnesses might be in Florida, if securing their presence

in the Western District of Missouri becomes unduly burdensome, the parties will have numerous

tools at their disposal to secure their testimony through alternate means.

Ms. Turner has also identified two witnesses in the Western District of Missouri, although

Ms. Turner provided no information from which the Court could analyze the importance of their

testimony. Of course, as for ILG’s corporate witness, litigation in the Western District of Missouri

is presumably more convenient for the Missouri-based witnesses.

Ms. Turner also has identified three witnesses who reside in neither Missouri nor Florida.

She argues that because the Northern District of Florida is even farther from these witnesses—

who reside in Nevada and California—the Western District of Missouri is a more convenient

forum. The Court is not persuaded that this is true. These witnesses would be forced to travel

either way, and, given the realities of modern travel, the Court will not speculate whether it would

be more convenient for these witnesses to travel to Jefferson City, Missouri or Tallahassee, Florida.

See generally Trident Steel Corp. v. Oxbow Steel Int’l, LLC, No. 4:09-CV-1332 TCM, 2009 WL

3242045, at *5 (E.D. Mo. Oct. 5, 2009) (finding that transfer to California was not justified by

witnesses who resided in China, Taiwan, and Texas “in light of the ease of airplane travel and the

availability of alternative methods of presenting witness testimony”).

Taken together, the convenience of the witnesses factor does not weigh in favor of either

forum. Because the testimony of the non-party witnesses who reside outside this District seems

less integral to Ms. Turner’s claims, and because that testimony can be preserved and presented in

alternative ways, such as by recorded deposition or by virtual appearances, the Court does not find

the burden on these witnesses to be so substantial as to justify transfer. What’s more, transfer to

the Northern District of Florida would not eliminate, or even substantially alleviate, the burdens

of trial testimony. It would only change who would be required to travel. “‘[W]hen the

inconvenience of the alternative venues is comparable, there is no basis for a change of venue; the

tie is awarded to the plaintiff[.]’” Trident Steel, 2009 WL 3242045, at *4 (quoting In re Nat’l

Presto Indus., Inc., 347 F.3d 662, 665 (7th Cir. 2003)).

The other convenience factors similarly do not favor transfer. As previously explained, the

alleged negligence Ms. Turner targets occurred—at least on the face of the pleadings and limited

record before the Court—in the Western District of Missouri. Ms. Turner claims ILG created and

maintained faulty software, and, despite knowing about the software’s weaknesses, negligently

agreed to remotely administer the Florida Bar Exam. While the causal chain may have ended in

Florida, drawing all inferences in Ms. Turner’s favor, it began long before, with an epicenter in

ILG’s corporate headquarters in the Western District of Missouri. Similarly, there are no

substantive legal differences that would weigh in favor of transfer. Should this Court transfer this

case to the Northern District of Florida, that court, like this Court, would follow Missouri’s choice

of law rules. Eggleton v. Plasser & Theurer Exp. Von Bahnbaumaschinen Gesellschaft, MBH,

495 F.3d 582, 586 (8th Cir. 2007) (“[I]f a district court in one state transfers an otherwise properly

filed case to a district court in another state solely “[f]or the convenience of parties and witnesses,”

28 U.S.C. § 1404(a), the transferee court applies the choice-of-law rules of the state in which the

transferor court sits.”) (citing Ferens v. John Deere Co., 494 U.S. 516, 531 (1990)). This

consideration therefore weighs in favor of denying the motion to transfer.

For these reasons, ILG has failed to carry its heavy burden to prove that transfer to the

Northern District of Florida is appropriate on account of the convenience of the witnesses.

ii. Interest of Justice Factors

Next, the Court must determine whether transfer is in the interest of justice. Included in

the interests of justice factor are such considerations as “judicial economy,” “the plaintiff’s choice

of forum,” “the comparative costs to the parties in litigating in each forum,” “obstacles to a fair

trial,” and “the advantages of having a local court determine questions of local law.” Terra Int’l,

Inc., 119 F.3d at 696. ILG does not mention several of these factors. For example, ILG does not

suggest that judicial economy favors transfer (the Court does not see how it would), that there are

obstacles to a fair trial in this District (the Court is aware of none), nor does it claim that there are

any relevant local concerns that would affect transfer (again, the Court sees none). ILG instead

focuses on Ms. Turner’s chosen forum and the cost of litigating in the Western District of Missouri.

The Court will address these points below.

a. Whether Ms. Turner’s Choice of Forum is Entitled to Weight

As noted, Courts generally give a plaintiff’s chosen venue considerable deference. ILG

counters that this deference is defeated both by the fact that Ms. Turner does not reside in the

Western District of Missouri and because she engaged in forum shopping. First, the Court’s

deference to Ms. Turner’s choice of forum need not be weakened by the fact that she is not a

resident of the Western District of Missouri. Courts consider, in addition to the plaintiff’s

residence, whether the cause of action relates to the chosen forum. When it does not, and the

plaintiff is not a resident, then a plaintiff’s choice is given little weight. See, e.g., Biometics, LLC

v. New Womyn, Inc., 112 F. Supp. 2d 869, 877 (E.D. Mo. 2000) (“The Court therefore gives less

deference to plaintiff’s choice of forum than it would if plaintiff resided here or if defendants’

allegedly infringing activity was centered here.”); Verosol B.V. v. Hunter Douglas, Inc., 806 F.

Supp. 582, 592 (E.D. Va. 1992) (“However, when, as here, a plaintiff chooses a foreign forum and

the cause of action bears little or no relation to that forum, the plaintiff’s chosen venue is not

entitled to such substantial weight.”).

While Ms. Turner is not a resident of the Western District of Missouri, as discussed above,

her claim relates to the forum. ILG did nothing to counter that assertion. The Court will not

discount Ms. Turner’s decision to proceed in this District, even though she does not reside here,

because ILG has not shown that Ms. Turner’s claims are not related to this forum.

ILG next argues that Ms. Turner’s choice should be completely disregarded as she has

engaged in forum shopping. ILG is correct that when a plaintiff’s choice of forum is motivated by

forum shopping, it is entitled to no weight. See, e.g., Nicklaw v. CitiMortgage, Inc., No. 14-CV-

1795, 2015 WL 13158028, at *4 (E.D. Mo. Apr. 8, 2015). ILG argues that Ms. Turner herself

suggested that she chose to proceed in this Court because of actions taken by the court in her

previous case in the Northern District of Florida, Turner v. Canady et al. Doc. 41, at 8, 11. Ms.

Turner stated that, after the Canady Court made several comments in its Order denying her Motion

to File a Second Amended Complaint Under Seal, she “decided to take her truthful allegations and

substantiating photos, videos, text messages, emails, and eyewitness testimony elsewhere.” Doc.

41, at 8. She voluntarily dismissed her claims, brought an administrative claim to address the

constitutional issues in Canady, “and filed this lawsuit in Missouri.” Id. Separately, Ms. Turner

explained that proceeding in the Northern District of Florida caused her anxiety and was more

burdensome because the Canady court denied her access to its e-filing program. Id. at 11.

While these comments suggest that Ms. Turner indeed believes it more convenient to

proceed in the Western District of Missouri, this is not a traditional case of forum shopping. First,

contrary to ILG’s arguments, it does not appear Ms. Turner is seeking to avoid a decision of the

Canady court. Neither ILG nor Ms. Turner’s claims against it were ever before the Court in

Canady. Ms. Turner originally alleged that the defendants in Canady, all government actors,

violated her constitutional rights in violation of 42 U.S.C. § 1983. See Doc. 37-1, 1–8, 33–44.

ILG suggests that Ms. Turner attempted to add ILG as a party in that case in her Second Amended

Complaint, along with claims for breach of contract, negligence, negligent misrepresentation,

negligent infliction of emotional distress, and res ipsa loquitur. However, ILG did not provide a

copy of Ms. Turner’s Proposed Second Amended Complaint, and it is not in any of the materials

submitted by Ms. Turner. It also does not appear that the Proposed Second Amended Complaint

was filed in the Northern District of Florida. Accordingly, the Court cannot determine the scope

of the claims in the Proposed Second Amended Complaint. But even accepting that Ms. Turner’s

claims in this Court were included in her Proposed Second Amended Complaint in the Northern

District of Florida, she ultimately never filed a Second Amended Complaint, and therefore her

claims never became a part of the case in Canady. This is not because the Canady Court stopped

her, but rather because she chose to voluntarily dismiss her case. The Canady Court did not

discuss—and may not have even seen—the merits of any of Ms. Turner’s claims against ILG,7 and

accordingly Ms. Turner’s choice to proceed in this Court cannot be seen as an attempt to

circumvent an order by the Northern District of Florida.

What’s more, the only order identified by ILG is the Canady court’s Order denying Ms.

Turner’s Motion to Seal; it was in that Order that the Canady court made comments that led Ms.

Turner to dismiss her case. Ms. Turner did not try to circumvent the Northern District of Florida’s

order, as she did not try to file her complaint under seal in this Court. Instead, as Ms. Turner

explained, she simply chose to pursue each of her claims, which could have been—but need not

have been—joined in one lawsuit in Florida, separately. Doc. 41, at 8–9. This includes her claims

against ILG, which were not originally part of Ms. Turner’s claims in Canady. That is not forum

shopping.

Second, ILG has not identified any substantive benefit to Ms. Turner afforded by

proceeding in this Court. At most, ILG identifies Ms. Turner’s ability to file electronically. Even

if Ms. Turner knew that she would be able to file electronically in this Court,8 this attendant benefit

is not substantial enough to support a charge of forum shopping.

At bottom, ILG has failed to show the Court that Ms. Turner’s decision to bring this case

in Missouri is motivated by a perception that she will receive a more favorable ruling here or to

avoid a decision of the Canady Court.

b. Whether Litigating in the Western District of Missouri Is More

Costly

7 The comments in the Canady Court’s Order highlighted by Ms. Turner, at most, address the

generally applicable standards of Rule 11, referencing Ms. Turner’s discussion of her allegations

against the Government defendants, and appear wholly unrelated to any claim against ILG.

8 Indeed, it appears Ms. Turner did not begin e-filing until nearly two months after filing her initial

Complaint in this Court.

Cost is a relevant consideration under the interest of justice analysis. See, e.g.,

GMAC/Residential Funding Corp. v. Platinum Co. of Real Estate & Fin. Servs., Inc., Civ. No. 02–

1224, 2003 WL 1572007, at *2 (D. Minn. Mar. 13, 2003) (noting that the relative ability of parties

to absorb litigation cost in each forum is relevant to interest-of-justice analysis). ILG suggests that

litigating in the Western District of Missouri would make this case more expensive to litigate. As

previously expressed, the Court doubts this to be true. ILG’s principal place of business is in

Jefferson City, Missouri, and it has no physical presence in Florida beyond its registered agent and

one member-manager, neither of whom resides in the Northern District of Florida. Doc. 32-1, ¶

5; Doc. 32-1, Ex. D, P. 18. Accordingly, if the Court were to transfer this case, ILG would

effectively be litigating in a foreign forum.

Furthermore, litigating in this Court will not substantially change the cost or scope of

discovery. This is especially so because ILG already has counsel in both Missouri and Florida to

assist it with managing the discovery process. While ILG may incur expenses should this case go

to trial because certain witnesses are in Florida, the same would be true if this case were transferred

to the Northern District of Florida, away from ILG’s principal place of business, because certain

witnesses are in Missouri.

In sum, ILG has not carried its heavy burden to show that the cost of litigating in the

Northern District of Florida is substantially less than the cost of litigating in the Western District

of Missouri.

* * *

Taken together, the interest of justice factors, as argued by ILG, do not weigh in favor of

transfer.

iii. Sum of the Factors

For the reasons discussed above, ILG has failed to meet its burden to show that transfer to

the Northern District of Florida is warranted. None of the relevant factors weigh in favor of

transfer, and accordingly, ILG’s Motion is DENIED on this point.

D. Whether Ms. Turner Fails to State a Claim

ILG also argues that Ms. Turner has failed to state a claim upon which relief can be granted.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). “The plausibility standard . . . asks for more than a sheer possibility that a

defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’

a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement

to relief.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557

(2007)). Accordingly, a plaintiff’s complaint must plead “enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555. Ultimately, “[d]etermining whether a complaint

states a plausible claim for relief will . . . be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

In analyzing a motion to dismiss, the Court must “accept as true all factual allegations in

the complaint and draw all reasonable inferences in favor of the nonmoving party . . . but [is] not

bound to accept as true [t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements or legal conclusions couched as factual allegations.” McDonough v.

Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015) (internal citations and quotation marks omitted).

What’s more, when the plaintiff is proceeding pro se, she is held to a “lesser pleading standard,”

Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d at 849 (quoting Fed. Express Corp. v.

Holowecki, 552 U.S. 389, 402 (2008)), and the Court must construe her filings “liberally[.]” Miles

v. Ertl Co., 722 F.2d 434, 434 (8th Cir. 1983) (citing Haines v. Kerner, 404 U.S. 519, 520-21

(1972)).

Ms. Turner’s Amended Complaint includes two counts. The first is titled “Res Ipsa

Loquitur (Negligence)” and the second, “Emotional Distress (Negligence).” Doc. 27, at 10–12.

As an initial matter, the Court construes Count I as pleading a traditional negligence claim and

Count II as pleading negligent infliction of emotional distress. Although they are not titled as

such, the essence of Ms. Turner’s allegations are best understood this way. Stone v. Harry, 364

F.3d 912, 915 (8th Cir. 2004) (“When we say that a pro se complaint should be given liberal

construction, we mean that if the essence of an allegation is discernible, even though it is not

pleaded with legal nicety, then the district court should construe the complaint in a way that permits

the layperson’s claim to be considered within the proper legal framework.”).9

Similarly, because Ms. Turner cites case law discussing negligent infliction of emotional

distress claims under Missouri law in defending Count II, see Doc. 41, at 14–15, the Court will

treat Count II as such, requiring Ms. Turner to plead and prove two additional elements beyond

her general negligence claim: “that the defendant should have realized that his conduct involved

an unreasonable risk of causing distress” and “that the emotional distress or mental injury [was]

9 Contrary to Ms. Turner’s assertion, the doctrine of res ipsa loquitor does not provide plaintiffs

with an independent cause of action. Lopez v. Accu-Screen, Inc., No. 13-cv-04069-NKL, 2013

WL 12155464, at *1 n.3 (W.D. Mo. June 19, 2013). It is merely an evidentiary rule affecting the

way in which plaintiffs can prove breach in the context of a larger negligence claim. Id. To the

extent Ms. Turner reads Lopez to suggest that she states a claim by pleading only the requirements

of res ipsa loquitor, she misunderstands the law. Id. (“The plaintiff is still responsible for

articulating the other elements of her negligence claim, namely duty, causation, and injury.”). Nor

does res ipsa save Ms. Turner’s complaint here. See n.11 infra at 26. As explained below, Ms.

Turner has not pled enough facts from which the Court could plausibly say res ipsa applies, nor

does it seem res ipsa could apply given Ms. Turner appears to have pled specific acts of negligence.

Carter v. Skelly Oil Co., 363 Mo. 570, 575 (1952) (explaining that while res ipsa generally has no

application on the pleadings, a plaintiff must still prove facts sufficient to invoke res ipsa’s

applicability and provide notice of the nature of the inference plaintiff intends to rely upon); see

also Fed. Elec. Co. v. Taylor, 19 F.2d 122, 125 (8th Cir. 1927) (“The res ipsa loquitur doctrine . .

. can never be invoked when the specific negligence is pleaded.”).

medically diagnosable and [was] of sufficient severity so as to be medically significant.”

Thornburg v. Fed. Express Corp., 62 S.W.3d 421, 427 (Mo. Ct. App. 2001). Accordingly, if Ms.

Turner’s negligence claim fails, so too does her negligent infliction of emotional distress claim.

Id.

ILG argues that both counts must fail because Ms. Turner has not pled facts to support a

plausible prima facie case of negligence. To state a claim for negligence under Missouri law, a

plaintiff must plead: (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached

the duty, and (3) the plaintiff suffered an injury proximately caused by the defendant’s breach.

Pippin v. Hill–Rom Co., Inc., 615 F.3d 886, 889 (8th Cir. 2010) (citing Lopez v. Three Rivers Elec.

Coop., Inc., 26 S.W.3d 151, 155 (Mo. 2000)). Accordingly, to successfully state a claim, Ms.

Turner must plead enough facts to plausibly support each element of her claim. ILG argues that

Ms. Turner has failed to sufficiently allege, beyond mere conclusory statements, that ILG owed a

duty and was negligent by violating the standard of care imposed by any duty. The Court agrees.

First, Ms. Turner has failed to plausibly allege that ILG owed her a duty. Ms. Turner’s

primary argument in support of a duty appears to be that the res ipsa doctrine relieves her of an

obligation to establish duty. As discussed, that is not the law; Ms. Turner must still plausibly

allege that ILG owed a duty, even if res ipsa applies. See n.9, supra at 22. Drawing all inferences

in her favor, Ms. Turner appears to also suggest that ILG owed her a duty because, under Missouri

law, a duty arises “[i]f, under the circumstances, a reasonably prudent person would have

anticipated danger and provided against it.” Millard v. Corrado, 14 S.W.3d 42, 47 (Mo. Ct. App.

1999). Even under this theory, Ms. Turner has failed to plead a plausible case.

As an initial matter, most of Ms. Turner’s allegations that could suggest that “a reasonably

prudent person would have anticipated danger and provided against it” are conclusory. See, e.g.,

Doc. 27, at ¶¶ 15 (Throughout ILG’s ownership and operation of the software, the software has

had a variety of technical issues); 17 (“ILG was aware of existing software issues before agreeing

to remotely administer the August 2020 Florida Bar Exam. ILG failed to use due care.”); 23 (“ILG

should have realized that acting negligently and undertaking the duty of administering a remote

bar examination despite not having capable software for administering a remote bar examination

constituted conduct which involved an unreasonable risk of causing severe emotional distress.”).

That aside, Ms. Turner, at most, alleges only that ILG once before offered a software solution that

malfunctioned. Ms. Turner’s Amended Complaint indicates that ILG offered software used by the

State of Georgia in 2015 and 2016 to facilitate linking bar exam scores to individual test takers.

Doc. 27, ¶¶ 21–22 (citations omitted). That software malfunctioned, resulting in some test takers

receiving inaccurate test results. Id. But nothing in Ms. Turner’s Amended Complaint links the

software used in Georgia to the software ILG ultimately developed to attempt to offer the Florida

Bar Exam. ILG did not administer the Georgia Bar Exam, it only offered software to link bar

exam scores to individual test takers.10 Ms. Turner does not allege that ILG’s Georgia software

was repurposed for, or otherwise incorporated into, the software ILG developed to administer the

Florida Bar Exam for the FBBE. Given ILG’s different role in Georgia, a malfunction in that

10 In Georgia, ILG’s task was to develop software that offered “(1) a ‘personalized information

and communications portal . . . for use by Bar Applicants;’ and (2) a ‘software tool for [the Georgia

Office of Bar Admissions’] management and administration of Applications for Certification of

Fitness to Practice Law, Bar Examination Applications and related back-office processes.”

Murray v. ILG Techs., LLC, 798 Fed. Appx. 486, 488–89 (11th Cir. 2020). The Court takes judicial

notice of the related Georgia litigation. See, e.g., PPW Royalty Tr. by & through Petrie v. Barton,

841 F.3d 746, 753 (8th Cir. 2016) (“We also take judicial notice of the opinions and orders from

the prior Willits cases, including the facts of what issues and claims were litigated[.]”), as amended

(Oct. 28, 2016); Donner v. Alcoa, Inc., 709 F.3d 694, 697 n.2 (8th Cir. 2013) (“We may take

judicial notice of the matters filed in this related case.”); Great Plains Tr. Co. v. Union Pac. R.R.

Co., 492 F.3d 986, 996 (8th Cir. 2007) (“[W]e may take judicial notice of proceedings in other

courts that relate directly to matters at issue.”).

software—used to do a different job—cannot, without more, plausibly suggest that ILG should

have foreseen that the software it developed for the Florida Bar would cause harm to Ms. Turner.

Nor does Ms. Turner plead facts that otherwise demonstrate that ILG should have anticipated a

danger to Ms. Turner. At bottom, while Ms. Turner is entitled to all reasonable inferences and a

more liberal pleading standard, beyond ILG’s prior unrelated malfunction, Ms. Turner pleads no

facts plausibly suggesting a “foreseeable likelihood that [ILG’s] acts or omissions [would have]

cause[d] harm or injury” to Ms. Turner. Millard, 14 S.W.3d at 47. Therefore, Ms. Turner has

failed to establish ILG owed a duty.

For similar reasons, Ms. Turner has failed to plausibly plead the second element of a

negligence claim, that ILG breached any duty of care. To successfully plead a breach of a duty of

care, a plaintiff must allege—and ultimately prove—that a defendant deviated from an established

standard of care. See generally MAI 11.02. Drawing all inferences in her favor, Ms. Turner argues

that ILG was negligent because it failed to act as an ordinarily careful software company would

when it agreed to administer the Florida Bar Exam remotely because ILG knew, or should have

known, that it would be unable to do so successfully. Doc. 27, ¶ 17. However, Ms. Turner has

failed to allege facts to support that theory, or otherwise indicate that ILG acted unreasonably. The

only allegations in the Amended Complaint relate to ILG’s software malfunction in Georgia. As

discussed, Ms. Turner has failed to allege any facts that link ILG’s previous software malfunction

with the software ILG ultimately developed to administer the Florida Bar Exam. Just as Ms.

Turner’s limited allegations regarding ILG’s previous malfunction cannot, as a matter of law,

support a duty of care, they cannot alone plausibly establish that ILG deviated from any standard

of care or acted unreasonably. In sum, there is nothing in the Amended Complaint to support that

ILG had any indication when it agreed to administer the Florida Bar Exam that it would not

succeed. Nor does Ms. Turner otherwise explain how ILG acted unreasonably by agreeing to offer

services to facilitate the Florida Bar Exam. See, e.g., Berry v. Union Pac. R.R. Co., 22-cv-331,

2022 WL 2292884, at *6 (S.D. Tex. June 24, 2022) (finding that complaint failed to plausibly

plead breach of a duty of care because plaintiff failed to specifically explain how he believed the

defendant failed to act reasonably, there, how the plaintiff failed to provide adequate warnings).11

Here, Mr. Turner has done no more than suggest misconduct by ILG is possible; that is not enough.

Iqbal, 129 S.Ct. at 1950 (“[When a complaint does] not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’—that the

pleader is entitled to relief.”).

Furthermore, the larger context in which ILG operated is not enough, without more, to

plausibly suggest ILG acted unreasonably. Even if ILG thought that developing appropriate

software would be difficult, and even if certain of ILG’s competitors chose not to proceed when

ILG did, these facts alone cannot establish that ILG was negligent. After all, technology

companies are often called upon to innovate and find solutions to novel and complex challenges.

11 Ms. Turner attempts to rely on the res ipsa doctrine to prove breach. Ms. Turner must still plead

enough facts to plausibly suggest that it applies. See generally Carter, 363 Mo. at 575. She has

not. See Giesing v. Schindler Elevator Corp., 2:21-CV-4181-NKL, 2022 WL 4072859, at *3

(W.D. Mo. Sept. 2, 2022) (discussing the general requirements of res ipsa under Missouri law).

And because it appears that Ms. Turner attempts to plead specific negligence—by alleging that

ILG was negligent for the specific act of agreeing to enter an agreement with the FBBE)—she

cannot. In Missouri, res ipsa cannot be used to infer negligence when the plaintiff pleads the real

or precise cause of an injury. See Rea v. St. Louis-San Francisco Railway Co., 411 S.W.2d 96, 99

(Mo. 1967); Williams v. St. Louis Public Service Co., 363 Mo. 625, 633 (Mo. 1952). Here, Ms.

Turner pleads that her injuries were directly caused by ILG’s negligent decision to offer defective

software, which directly caused the cancellation of the Florida Bar Exam; there is no reason for

the jury to rely on res ipsa. See generally Rea, 411 S.W.2d at 99 (“The plaintiff is bound by his

evidence in a res ipsa case just as he is in an ordinary negligence action and cannot in effect say

to the jury, ‘I have shown you exactly how this collision occurred but you are, nevertheless, still

at liberty to speculate and presume that it may have happened some other way.’”); see also Doc.

27, ¶¶ 14, 16.

Ms. Turner must plead facts to plausibly suggest that, in this larger context, ILG did not act

reasonably—that it did not act as a reasonable software company would—by agreeing to

administer the Florida Bar Exam. Ms. Turner does not plead facts, beyond that ILG once before

failed in an unrelated task in Georgia, suggesting that ILG’s decision was unreasonable or deviated

from the standard of care, and therefore, even assuming ILG owed a duty, Ms. Turner’s Amended

Complaint must be dismissed for failing to plausibly plead that ILG breached any duty.

i. Whether Ms. Turner’s Motion for Leave to File a Second Amended

Complaint Should be Granted

While this Motion was pending, Ms. Turner also sought leave to file a Second Amended

Complaint. Doc. 57. That Motion is DENIED. Ms. Turner failed to show good cause to justify

her Second Amended Complaint months after the deadline for amendment has passed. The Court

ordered that any motion to amend the pleadings be filed on or before June 23, 2022. Doc. 50. Ms.

Turner filed her Motion on August 25, 2022, almost two months later. Accordingly, Ms. Turner

must show good cause. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008).

Ms. Turner seeks to file her Second Amended Complaint because, while preparing for mediation,

she decided she wanted to include additional allegations regarding ILG’s duty. Ms. Turner knew

ILG’s arguments related to duty, raised in its Rule 12(b)(6) Motion to Dismiss, for months and did

nothing. Ms. Turner does not allege that she discovered new information that was previously

unavailable to her, or that she was otherwise precluded from making these allegations within the

Court’s original timeline. Accordingly, Ms. Turner has failed to show good cause.

For the avoidance of doubt, the Proposed Second Amended Complaint would not have

remedied the deficiencies the Court has identified. While the Proposed Second Amended

Complaint more clearly establishes Ms. Turner’s theory of ILG’s negligence, it does not plead any

additional facts substantiating Ms. Turner’s theory of ILG’s duty or breach.

At bottom, to plausibly allege duty, Ms. Turner must allege some facts that show “a

foreseeable likelihood that particular acts or omissions will cause harm or injury.” Millard v.

Corrado, 14 S.W.3d 42, 47 (Mo. Ct. App. 1999). Ms. Turner has not alleged anything new in her

Proposed Second Amended Complaint to do that. Just as before, her allegation that ILG previously

failed in Georgia—at a different task—is not enough.

For the same reason, the Proposed Second Amended Complaint fails to plausibly plead that

ILG breached any duty to Ms. Turner by deviating from a standard of care. Ms. Turner pled no

additional facts in her Proposed Second Amended Complaint suggesting that ILG failed to act as

a reasonably prudent software company would in its situation. That an unrelated ILG software

had failed in the past and that ILG—and all bar exam software companies—faced an

unprecedented challenge in administering bar exams during the COVID-19 pandemic are not

enough, without more, to establish that ILG acted unreasonably by agreeing to administer the

Florida Bar Exam.

ii. Whether the Court Should Dismiss With Prejudice

The Court will dismiss Ms. Turner’s Amended Complaint without prejudice. The Court

may dismiss Ms. Turner’s claim with prejudice only when amendment would be futile. Knowles

v. TD Ameritrade Holding Corp., 2 F.4th 751, 758 (8th Cir. 2021). Amendment is generally futile

when it would not permit a claim to survive a future Rule 12(b)(6) motion or when the identified

defect cannot otherwise be remedied through more specific pleading. See Silva v. Metro. Life Ins.

Co., 762 F.3d 711, 719–20 (8th Cir. 2014). However, generally, “[u]nless it is absolutely clear

that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's

deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corr.,

66 F.3d 245, 248 (9th Cir. 1995); Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013)

(“A pro se complaint should not be dismissed without the Court’s granting leave to amend at least

once when a liberal reading of the complaint gives any indication that a valid claim might be

stated.”) (internal quotation marks and brackets omitted). The Court cannot definitively say

amendment is futile at this time. Therefore, dismissal must be without prejudice.

The Court cautions Ms. Turner to realistically consider the deficiencies identified by the

Court before she again attempts to file an amended complaint. As an initial matter, Ms. Turner

has already had two bites at the apple. The Court will permit one more, but if Ms. Turner fails to

address the deficiencies identified by the Court, dismissal will then be with prejudice. Leadsinger,

Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (a district court may deny leave to

amend for, among other reasons, “repeated failure to cure deficiencies by amendments previously

allowed ... [and] futility of amendment”); Thomas v. Thurston, 18-CV-4007, 2019 WL 2420056,

at *2 (S.D.N.Y. June 10, 2019) (warning pro se plaintiff that if his amended complaint failed to

remedy the deficiencies identified by the court’s opinion, his action would be dismissed with

prejudice).

Furthermore, Ms. Turner—even as a pro se litigant—is not insulated from the reach of

Federal Rule of Civil Procedure 11. Carman v. Treat, 7 F.3d 1379, 1382 (8th Cir. 1993); Burgs v.

Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (noting that pro se litigants are not excused from

complying with procedural law). This is especially so given Ms. Turner is a law school graduate.

See generally Emrit v. Sec’y of Hawaii, 17-cv-00504, 2018 WL 264851, at *2 (D. Haw. Jan. 2,

2018) (recognizing that expectations of pro se plaintiff were higher given he was knowledgeable

about federal court filing and pleading responsibilities, given numerous prior actions); Tracy v.

Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (“In some circumstances, such as when a particular

pro se litigant is familiar with the procedural setting as a result of prior experience . . . it falls well

within a district court's discretion to lessen the solicitude that would normally be afforded [to a pro

se litigant].”). If Ms. Turner chooses to file a Second Amended Complaint, the Court will fully

enforce the requirements of Rule 11—specifically that by pleading the additional facts necessary,

she certifies that “to the best of . . . [her] knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances,” the “factual contentions have evidentiary support[.]”

Fed. R. Civ. P 11(b)(3) (emphasis added); see also Moore v. Rosenblatt, 15-cv-8021, 2016 WL

6783341, at *5 (C.D. Cal. Oct. 11, 2016) (warning a pro se plaintiff that it appeared his complaint

violated Fed. R. Civ. P. 11 because his allegations appeared to be supported by facts that he could

not personally know or support) (subsequent history omitted); Gordon v. Target Corp., 20-CV-

9589, 2022 WL 836773, at *19 (S.D.N.Y. Mar. 18, 2022) (warning plaintiff to only file a second

amended complaint if she has a good faith basis to do so).12

Ms. Turner should only file a Second Amended Complaint if she can plead the additional

facts necessary to support her theory of ILG’s duty and breach of that duty. The Court cautions

Ms. Turner to carefully evaluate any additional factual allegations she may make against the

requirements of Rule 11. Carman, F.3d at 1382 (stating that if the Court finds that Rule 11 has

been violated, “it must impose a sanction.”). Such a complaint, if any, must be filed within 14

days of this Order.

III. CONCLUSION

For the reasons discussed above, ILG’s Motion to Dismiss, Doc. 32, is GRANTED in part,

and Ms. Turner’s Amended Complaint is DISMISSED without prejudice. Furthermore, ILG’s

12 See also Thaut v. Hsieh, 15-CV-0590, 2015 WL 4508779, at *16 (E.D. Cal. July 24, 2015)

(warning pro se plaintiffs that they should not pursue claims if, given the deficiencies identified

by the court, they “cannot in good faith allege facts” necessary to support their claims); Robinson

v. City of Las Vegas, 22-CV-00174, 2022 WL 656364, at *4 (D. Nev. Mar. 4, 2022) (warning

plaintiff that any amendment in response to deficiencies identified by the court must be truthful

and have good faith evidentiary support).

Motion to Strike and for Sanctions, Doc. 52, is DENIED, however Ms. Turner’s unauthorized

declarations, Doc. 47; Doc. 48, are hereby STRICKEN. Ms. Turner’s Motion for Leave to File an

Amended Complaint, Doc. 57, is DENIED.

Dated: 9/28/2022 s/ Nanette K. Laughrey

Jefferson City, Missouri NANETTE K. LAUGHREY

United States District Judge