OLDHAM v. THE PENNSYLVANIA STATE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JENNIFER OLDHAM, )

)

Plaintiff, )

)

v. )

)

THE PENNSYLVANIA STATE )

UNIVERSITY; CHRISTOPHER J. ) 1:20-cv-466

HARRIS, as agent for Penn )

State in his official )

capacity; WIESLAW R. GLON, in )

his official and individual )

capacities; and GEORGE G. )

ABASHIDZE, in his official and )

individual capacities, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This case arises from an alleged sexual assault committed on

a cross-country flight by an employee of the athletic department

of Pennsylvania State University. Before the court are three

motions: Defendant Wieslaw R. Glon’s motion to dismiss pursuant to

Federal Rules of Civil Procedure 12(b)(2), (3), (6), and 28 U.S.C.

§ 1406, or in the alternative, to transfer pursuant to 28 U.S.C.

§ 1404 (Doc. 22); Defendants Pennsylvania State University (“Penn

State”) and Christopher J. Harris’s motion to dismiss pursuant to

Federal Rules of Civil Procedure 12(b)(2), (3), and (6), or in the

alternative, to transfer pursuant to 28 U.S.C. § 1404(a) (Doc.

24); and Defendant George G. Abashidze’s motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(2) (Doc. 31). For the

reasons set forth below, the motions to transfer will be granted

and the case will be transferred to the Middle District of

Pennsylvania pursuant to 28 U.S.C. § 1406(a) and § 1404(a),

rendering the motions to dismiss moot.

I. BACKGROUND

The basic facts alleged in the complaint, as relevant to the

motions before the court, are as follows:

Plaintiff Jennifer Oldham, a resident of Durham County, North

Carolina, is the owner and Head Coach of Mid-South Fencers’ Club,

a private fencing club. (Doc. 1 ¶ 11.) Defendant Penn State is

an independently-governed university associated with

Pennsylvania’s Commonwealth System of Higher Education. (Id.

¶ 12.) Defendant Harris is Penn State’s Title IX Coordinator.

(Id. ¶ 13.) Defendant Glon is the Head Coach of Penn State’s

fencing team, and Defendant Abashidze was an Assistant Coach. (Id.

¶¶ 14, 15.) All three individually-named Defendants in this action

are residents of Centre County, Pennsylvania.1 (Id. ¶¶ 13–15.)

On December 12, 2017, Oldham was seated next to Abashidze on

a flight from Portland, Oregon to Chicago O’Hare Airport. (Id. ¶¶

1, 6.) Both Oldham and Abashidze were returning from a USA Fencing

1 Although Oldham asserts that Abashidze lives in Ohio as of August 17,

2020 (Doc. 27 at 27), Abashidze himself confirmed on September 4, 2020

that, as the complaint alleges, he resides in Pennsylvania (see Doc. 32

at 2).

North American Cup tournament, which they had each attended in

their capacity as coaches. (Id. ¶¶ 7, 8.) During the course of

the flight, Abashidze made numerous, unwelcome lewd comments to

Oldham, touched her legs, arms, and face without her consent, and

repeatedly demanded that she engage in sexual relations with him.

(Id. ¶ 2.) Somewhere over the Great Plains, Abashidze thrust his

hand between Oldham’s legs and sexually assaulted her without her

consent. (Id. ¶ 1.) These events were witnessed by a third person

seated next to Oldham. (See id. ¶¶ 9, 53.) Upon returning home

to North Carolina, Oldham shared the details of the sexual assault

with her husband, Jeff Kallio. (Id. ¶ 36.)

Oldham sought advice about how to deal with the assault from

her professional mentor and former fencing coach, Ed Korfanty.

(Id. ¶ 37.) As a long-time friend of Defendant Glon, Penn State’s

fencing coach, Korfanty called him on January 15, 2018 to speak

with him about the incident. (Id. ¶¶ 37, 38.) After that

conversation, Glon allegedly spoke with Abashidze and formed a

conspiracy to cover up the assault. (Id. ¶ 39.) Glon did not

report the assault to Penn State’s Title IX Coordinator or anyone

else in the Penn State Athletic Department. (Id. ¶ 40.)

In February 2018, Glon and Abashidze travelled to Durham,

North Carolina with the Penn State fencing team for a competition

at Duke University. (Id. ¶ 41.) At that time, at Oldham’s urging,

Glon and Oldham met. (Id. ¶ 42; Doc 25. at 8.) During the meeting,

Oldham informed Glon of the details of the sexual assault and

provided a written summary of the assault. (Doc. 1 ¶ 43.) Oldham

then asked Glon if he was going to report the assault to Penn

State, to which he replied, “no.” (Id. ¶¶ 44, 45.) Glon went on

to tell Oldham that it would be embarrassing for her if the assault

became known and that no one would believe her claims against

Abashidze. (Id. ¶ 46.) Glon then brought Abashidze into the

conversation and directed him to apologize to Oldham, after which

the meeting ended. (Id. ¶ 48.)

In April 2018, Oldham attended a USA Fencing North American

Cup tournament in Richmond, Virginia. (Id. ¶ 52.) At that time,

Korfanty asked her to speak with him and Glon over coffee. (Id.)

During that meeting, Glon pressured Oldham not to engage in an

ongoing investigation into the assault by SafeSport, an

independent investigative agency.2 (Id. ¶ 53.) Glon also

reiterated that no one would believe Oldham’s allegations and tried

to impress upon her that Abashidze was a “good guy.” (Id. ¶¶ 54,

55.) Oldham suggested that Glon had a duty to report the assault

to Penn State, but Glon replied that he did not believe Abashidze

was a “danger” to the team. (Id. ¶¶ 56, 57.)

In July 2018, Kallio emailed Penn State Athletic Director

2 SafeSport is an independent organization focused on ending all forms

of abuse in sports. (Id. ¶ 46 n.5.) SafeSport initiated an investigation

into Oldham’s assault based on a report by the third-party witness. (Id.

¶ 53.)

Sandy Barbour to discuss Oldham’s assault. (Id. ¶ 70.) In

response, Defendant Harris and Penn State Athletics Integrity

Officer Robert Boland contacted Kallio by email and phone. (Id.

¶ 71.) According to Harris and Boland, Kallio’s email was the

first they had heard of the assault. (Id. ¶ 72.)

On August 14, 2018, Harris and others had a conference call

with Oldham. (Id. ¶ 73.) During that call, Oldham informed them

of Abashidze’s assault and Glon’s failure to report the assault.

(Id.) After the call, Harris began an Affirmative Action Office

(“AAO”) investigation into these events. (Id. ¶ 74.)

Between August 2018 and February 2019, Oldham did not hear

anything from Harris regarding the investigation. (Id. ¶ 75.)

During that period, Oldham experienced harassment and retaliation,

both through electronic mediums and at international fencing

tournaments. (Id. ¶ 76.) This harassment was allegedly

perpetuated by Abashidze’s friends and supporters with the

knowledge of Abashidze and Glon. (Id. ¶¶ 76, 77.)

In February 2019, Oldham contacted Penn State for an update

on the investigation and was informed that it was ongoing. (Id.

¶ 78.) Shortly thereafter, Harris emailed the initial AAO

determination to Oldham. (Id. ¶ 79.) The initial determination

substantiated and admitted as true her factual allegations of

assault and harassment, but also concluded that Abashidze had not

violated any Penn State policy. (Id. ¶¶ 79, 80.) The

determination did not mention Glon’s failure to report. (Id.

¶ 82.)

After that time, Oldham repeatedly tried to arrange a personal

meeting with Harris at Penn State but was discouraged from doing

so. (Id. ¶ 83.) Instead, she had a brief telephone call with

Harris and others. (Id. ¶ 85.) During that call, Oldham

communicated her thoughts and disagreements regarding the initial

determination. (Id. ¶ 85.) Despite this conversation, the final

AAO determination reached the same conclusions as the initial

determination. (Id.)

The final AAO determination deferred making a final judgment

until after a future and separate determination could be made by

Boland’s parallel Inter Collegiate Athletics (“ICA”)

investigation. (Id. ¶ 88.) Oldham was not asked to be involved

in that investigation, nor was she given an opportunity to review

or comment on the ICA report. (Id. ¶ 90.) Further, she was never

given notice of that investigation’s outcome or its impact on the

AAO determination. (Id.) When Oldham called Penn State to ask

about the outcome of the ICA investigation, Harris told her that

the process was complete but that he could not share any further

information. (Id. ¶ 91.) Harris suggested that Oldham look at

Penn State’s website to “figure out” what happened with Abashidze.

(Id. ¶ 92.)

In April 2019, Oldham submitted to Penn State a written Title

IX complaint against Glon based on his failure to report. (Id.

¶ 93.) Oldham alleged that Glon had sexually harassed and

discriminated against her at numerous points, including when he

told her that no one would believe her claims, that she would be

embarrassed if her assault became known, and that he was not going

to report her claim. (Id.) Penn State never responded to this

complaint. (Id. ¶ 94.)

In March 2020, the United States Department of Education

Office of Civil Rights (“OCR”) published a compliance review of

sexual misconduct cases at Penn State from 2011 to 2020. (Id.

¶ 95.) Among OCR’s findings was the conclusion that Penn State

failed to respond promptly and equitably to complaints of sexual

harassment. (Id.)

On May 27, 2020, Oldham filed the present complaint alleging

seven causes of action against Defendants, collectively and

individually, stemming from Oldham’s assault and failures of Penn

State’s Title IX process relating to that assault. (Id.) Against

all Defendants, she brings claims alleging violations of Title IX

of the Education Amendments Of 1972, 20 U.S.C. § 1681 et seq., and

civil conspiracy (deliberate indifference); violations of Title IX

and civil conspiracy (erroneous outcome) in relation to her

allegations against Abashidze; negligence/gross negligence; and

negligent or intentional infliction of emotional distress. (Id.

¶¶ 100–61.) Against Glon, Harris, and Penn State, she alleges

violations of Title IX and civil conspiracy (erroneous outcome) in

relation to her allegations against Glon as well as a failure to

train and/or supervise employees regarding sexual misconduct

claims. (Id.) Against Penn State and Abashidze, she brings a

claim of battery. (Id.)

Beginning on July 27, 2020, the Defendants filed their current

motions: Glon, Penn State, and Harris move to dismiss or, in the

alternative, to transfer pursuant to 28 U.S.C. § 1404. (Docs. 22,

24.) Abashidze moves to dismiss pursuant to Rule 12(b)(2). (Doc.

31.) The motions are fully briefed and ready for resolution. (See

Docs. 27, 29, 30, 34, 35.)

II. ANALYSIS

Defendants each move to dismiss, in part, under Federal Rule

of Civil Procedure 12(b)(2) for lack of personal jurisdiction.

Three of the four defendants also move to dismiss for improper

venue pursuant to Rule 12(b)(3). Although “there is no mandatory

sequencing of jurisdictional issues,” Sinochem Int'l Co. v.

Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (internal

quotation marks omitted), when faced with motions to dismiss based

on both lack of personal jurisdiction and improper venue, courts

typically address personal jurisdiction first. BSN Med., Inc. v.

Am. Med. Prods., LLC, 3:11cv092-GCM-DSC, 2012 WL 171269, at *2

(W.D.N.C. Jan. 20, 2012). However, “the Supreme Court has held

that ‘when there is a sound prudential justification for doing so,

. . . a court may reverse the normal order of considering personal

jurisdiction and venue.’” Id. (quoting Leroy v. Great W. United

Corp., 443 U.S. 173, 180 (1979)); see also Sucampo Pharm., Inc. v.

Astellas Pharma, Inc., 471 F.3d 544, 550 n.3 (4th Cir. 2006) (“[A]

district court has the discretion to dismiss on the basis of

improper venue before reaching the issue of personal

jurisdiction.”). Where, as here, a plaintiff brings claims against

multiple defendants, each of whom contests personal jurisdiction,

over whom personal jurisdiction is doubtful, and where the court

would need to reach the issue of venue regardless, courts have

exercised their discretion to address venue first. See, e.g.,

Mylan Labs., Inc. v. Akzo, N.V., No. CIV. A. 89-1671, 1990 WL

58466, at *1 (D.D.C. Mar. 27, 1990) (considering venue prior to

personal jurisdiction when eight defendants challenged personal

jurisdiction); Boyd v. Koch Foods, No. 5:10-CV-349-D, 2011 WL

2413844, at *2–3 (E.D.N.C. June 10, 2011) (transferring venue

without consideration of personal jurisdiction where jurisdiction

over a corporate defendant was “in serious doubt”); Tyler v. Gaines

Motor Lines, Inc., 245 F. Supp. 2d 730, 734 (D. Md. 2003)

(exercising discretion to transfer on the basis of improper venue

where the issue of personal jurisdiction was “a close one”);

Datasouth Comput. Corp. v. Three Dimensional Techs., Inc., 719 F.

Supp. 446, 450, 453 (W.D.N.C. 1989) (transferring venue without

determining issues of personal jurisdiction where the

jurisdictional issues presented “a difficult question”)

(collecting cases). “A court need not have personal jurisdiction

over a defendant to transfer a case pursuant to 28 U.S.C. §§

1404(a) or 1406(a).” BSN Med., 2012 WL 171269, at *2; see also

DEB USA, Inc. v. CWGC LA Inc., No. 316-CV-00521-MOC-DCK, 2017 WL

581328, at *4 (W.D.N.C. Feb. 13, 2017).

“When an objection to venue has been raised under Rule

12(b)(3), the burden lies with the plaintiff to establish that

venue is proper in the judicial district in which the plaintiff

has brought the action.” Turfworthy, LLC v. Dr. Karl Wetekam &

Co. KG, 26 F. Supp. 3d 496, 502 (M.D.N.C. 2014) (internal quotation

marks omitted). “[I]n a case involving multiple defendants and

multiple claims, the plaintiff bears the burden of showing that

venue is appropriate as to each claim and as to each defendant.”

Bartko v. Wheeler, No. 1:13CV1006, 2014 WL 29441, at *8 (M.D.N.C.

Jan. 3, 2014), aff'd, 589 F. App'x 181 (4th Cir. 2015) (quoting

Hickey v. St. Martin's Press, Inc., 978 F. Supp. 230, 240 (D. Md.

1997)). Absent an evidentiary hearing, a plaintiff need only make

a prima facie showing that venue is proper. Mitrano v. Hawes, 377

F.3d 402, 405 (4th Cir. 2004). In making a venue determination,

the court can consider evidence outside the pleadings and should

view the facts in the light most favorable to the plaintiff.

Turfworthy, 26 F. Supp. 3d at 502.

Under 28 U.S.C. § 1391(b), venue is proper in

(1) a judicial district in which any defendant resides, if

all defendants are residents of the State in which the

district is located;

(2) a judicial district in which a substantial part of the

events or omissions giving rise to the claim occurred . . . ;

or

(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.

In the event venue is improper in the district in which a case is

filed, the district court retains discretion to dismiss or, if in

the interest of justice, to transfer the case to any district in

which it could have been brought. 28 U.S.C. § 1406(a).

“[T]ransfer is generally considered to be more in the interest of

justice than dismissal and, therefore, doubts should be resolved

in favor of preserving the action, particularly where it appears

that venue may be properly laid in the proposed transferee

district.” Blue Rhino Glob. Sourcing, Inc. v. Best Choice Prod.,

No. 1:17CV69, 2018 WL 4784006, at *3 (M.D.N.C. June 20, 2018)

(internal quotations).

Oldham now has had an opportunity to directly address the

propriety of venue in this district, as well as the prospect of

transfer to the Middle District of Pennsylvania. After carefully

reviewing the complaint and Oldham’s responses to the present

motion, the court concludes, for reasons detailed below, that venue

is improper in this district and the court will therefore transfer

this action.

A. Venue is not proper in this district

Oldham claims that venue is proper in this district pursuant

to 28 U.S.C. § 1391(b)(2) because “a substantial part of the events

. . . giving rise to Oldham’s action occurred in the district,

and/or more so than in any other single district.” (Doc. 1 ¶ 21.)

This argument is unavailing.

“In 1990, [the general federal venue statute] was amended to

make venue proper in any ‘judicial district in which a substantial

part of the events or omissions giving rise to the claim

occurred.’” Mitrano, 377 F.3d at 405 (quoting 28 U.S.C. § 1391)

(emphasis added). The statute as amended makes it possible for

venue to be proper in more than one judicial district. Id.; see

also Red Bull GmbH v. RLED, LLC, 515 F. Supp. 2d 641, 646 (M.D.N.C.

2007) (“Substantial activities may occur in other districts

without disqualifying this district as a proper venue, so long as

‘substantial’ activities occurred in this district also[,] . . .

even if more substantial or the most substantial activities took

place elsewhere.” (internal citations omitted)).

While venue may be appropriate in multiple districts,

district courts should “take seriously the adjective

‘substantial.’” Bartko, 2014 WL 29441, at *9 (quoting Gulf Ins.

Co. v. Glasbrenner, 417 F .3d 353, 356–57 (2d Cir. 2005)); see

also Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir.

2003) (“The new language thus contemplates some cases in which

venue will be proper in two or more districts. This does not mean,

however, that the amended statute no longer emphasizes the

importance of the place where the wrong has been committed.

Rather, the statute merely . . . reduc[es] the degree of

arbitrariness in close cases.”). Determining an appropriate venue

is a question of quality, not quantity. N.C. Mut. Life Ins. Co.

v. Stamford Brook Cap., LLC, No. 1:16CV1174, 2019 WL 4747851, at

*6 (M.D.N.C. Sept. 27, 2019). In evaluating the appropriateness

of a given venue, courts review the entire sequence of events

underlying a claim. Mitrano, 377 F.3d at 405. Ultimately, “what

matters most is whether the material acts or omissions within the

forum ‘bear a close nexus to the claims.’” Stamford Brook, 2019

WL 4747851, at *6 (quoting Daniel v. Am. Bd. of Emergency Med.,

428 F.3d 408, 433 (2d Cir. 2005)). “That means for venue to be

proper, significant events or omissions material to the

plaintiff's claim must have occurred in the district in question,

even if other material events occurred elsewhere.” Bartko, 2014

WL 29441, at *9 (quoting Gulf Ins., 417 F.3d at 357); see also

Setra of N. Am., Inc. v. Schar, No. 1:03CV711, 2004 WL 1554195, at

*8 (M.D.N.C. July 7, 2004) (unpublished) (recommendation of

Eliason, M.J., adopted by Beaty, J.) (“Under the plain language of

the venue statute, only events and omissions giving rise to a claim

are considered.” (emphasis in original)).

Here, a small number of events relating to Oldham’s claims

took place in North Carolina. Beyond telephone calls and emails

exchanged between Penn State officials in Pennsylvania and Oldham

in North Carolina, the only event alleged to have occurred in North

Carolina was a meeting between Oldham, Glon, and Abashidze in

February 2018. At that time, allegedly at Oldham’s request, Glon

and Abashidze met with Oldham while they were in North Carolina

for a fencing tournament at Duke University. This meeting occurred

after Abashidze allegedly assaulted Oldham. It also occurred after

Glon learned of the assault claim — and his duty to report arose

— and after Glon and Abashidze allegedly formed a conspiracy to

cover it up. However, the meeting occurred before Penn State was

made aware of the assault allegation and before it began its

investigation. In light of the entire series of events underlying

Oldham’s claims, this meeting is not enough to justify venue in

the present venue.

At the center of all of Oldham’s claims is the assault

allegedly perpetrated by Abashidze and the failure of the

responsible officials to properly act on Oldham’s reports. In

relation to these claims, the vast majority of underlying events

did not occur in the Middle District of North Carolina. Rather,

with the exception of the assault itself (which was perpetrated

mid-flight over the Great Plains region), the substantial events

alleged in this case occurred in Centre County, Pennsylvania, in

the Middle District of Pennsylvania. For example, Glon’s initial

failure to report Oldham’s assault became actionable following his

January 2018 phone call with Korfanty. At the time, Glon was in

the Pennsylvania district. (Doc. 29 at 3, 4.) Similarly, the

alleged conspiracy to cover-up the assault was formed between Glon

and Abashidze in that district. (Doc. 22 at 12.) All of Penn

State’s investigations into Oldham’s assault were conducted in the

Pennsylvania district, and all of the related reports were produced

there. (Id. at 12, 13.) Likewise, all of Defendants’ alleged

failures to sufficiently train coaching staff in Title IX

procedures occurred in the Pennsylvania district. (Id.) In view

of the entire course of events and the claims brought by Oldham,

a single meeting in North Carolina, coupled with phone calls and

emails incidental to Oldham’s claims, do not justify venue in the

Middle District of North Carolina.

Oldham argues that venue is appropriate in the Middle District

of North Carolina because “the discriminatory impacts of

[Defendants’] actions have [] occurred” here. (Doc. 27 at 25.)

However, only the events giving rise to a claim may justify venue,

not impacts felt by a plaintiff after an action accrues. See

Taylor v. City & Cnty. of Honolulu, No. 7:16-CV-410-D, 2017 WL

3526660, at *3 (E.D.N.C. Aug. 16, 2017) (seeking medical care after

an accident in a given district not sufficient to establish proper

venue); Apr. Ademiluyi v. Nat'l Bar Ass'n, No. GJH-15-02947, 2016

WL 4705536, at *3 (D. Md. Sept. 8, 2016) (feeling “all the

injuries” from defendants’ actions in a given district not

sufficient to establish proper venue); Massi v. Lomonaco, No.

C/A0:10-265-CMC-PJG, 2010 WL 2429313, at *1 (D.S.C. May 25,

2010), report and recommendation adopted, No. C/A0:10CV-265CMC-

PJG, 2010 WL 2429234 (D.S.C. June 11, 2010) (“Any argument that

[plaintiff] has suffered monetarily in this district from

[defendant’s actions] is insufficient to confer venue in [this

district] . . . because otherwise venue almost always would be

proper at the place of the plaintiff's residence.”); see also

McClintock v. Sch. Bd. E. Feliciana Par., 299 Fed. App’x 363, 365

(5th Cir. 2008) (“Venue [] cannot lie simply because a plaintiff

continues to experience the psychological effects of an injury in

a particular place.”). As such, the discriminatory impacts of

Defendants’ actions felt by Oldham in this district cannot justify

venue here.

Oldham further characterizes the February 2018 meeting as an

instance of sexual harassment and gender-based discrimination

perpetrated by Glon against her. As Defendants suggest, this is

a legal conclusion. However, even accepting that claim as true,

this would make venue appropriate solely over any Title IX claims

Oldham brings against Glon as well as related claims against Penn

State for failure to properly investigate. Oldham has not

established how this meeting in North Carolina would make venue

appropriate in relation to her battery claim against Abashidze or

her associated Title IX-based deliberate indifference, erroneous

outcome, and failure to train claims, nor her negligence and

negligent or intentional infliction of emotional distress claims

brought against Defendants other than Glon.

Put another way, “[a]lthough § 1391 no longer requires the

court to identify the single best venue for a plaintiff's

claim[s],” in this case the connections of Oldham's claims to the

Middle District of Pennsylvania “so far predominate over those in

[this district] as to make it impossible to conclude that a

‘substantial part of the events or omissions giving rise to the

claim[s]’ occurred in this district.” MTGLQ Invr’s, L.P. v. Guire,

286 F. Supp. 2d 561, 566 (D. Md. 2003) (internal citation omitted);

see also Daniel, 428 F.3d at 434 (finding venue lacking where the

“[p]laintiffs allege[d] a series of actions by [the] defendants

... [and] the vast majority of these acts occurred outside” the

district in which the plaintiffs filed the case). A more

appropriate venue for Oldham’s claims is the Middle District of

Pennsylvania.3 Not only is venue proper there under § 1391(a)(1)

because all Defendants reside in the Middle District of

Pennsylvania, but also because the bulk of the witnesses to

Oldham’s sexual harassment and discrimination claims, as well as

3 The court expresses no opinion as to whether other districts might also

be proper venues.

the witnesses who can testify as to Penn State’s investigations

into those claims, are located there.

B. Appropriateness of transfer

As provided by § 1406(a), a case brought in an improper venue

may be “dismiss[ed], or if it be in the interest of justice,

transfer[red] . . . to any district or division in which it could

have been brought.’” 28 U.S.C. § 1406(a). The analysis of whether

a transfer is in the interest of justice is the same under both 28

U.S.C. § 1404(a) and § 1406(a). Nichols v. G.D. Searle & Co., 991

F.2d 1195, 1201 n. 5 (4th Cir. 1993). Accordingly, this court

will look to § 1404(a) to determine whether transfer is

appropriate.

In order to transfer venue pursuant to § 1404(a), the

transferee district must first be determined to be a district where

the action initially may have been brought. The Middle District

of Pennsylvania meets this requirement. As discussed above, all

Defendants reside in Pennsylvania and do not contest personal

jurisdiction in that forum. Further, the bulk of the substantial

events underlying Oldham’s claims occurred in that district.

In determining whether transfer is appropriate, the court

must next consider the “convenience and fairness” of such a

transfer. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29

(1988). In so doing, the court has broad discretion, see Nichols,

991 F.2d 1195, and weighs the following factors:

(1) the plaintiff's initial choice of forum; (2)

relative ease of access to sources of proof; (3)

availability of compulsory process for attendance of

unwilling witnesses, and the cost of obtaining

attendance of willing and unwilling witnesses; (4)

possibility of a view of the premises, if appropriate;

(5) enforceability of a judgment, if one is obtained;

(6) relative advantage and obstacles to a fair trial;

(7) other practical problems that make a trial easy,

expeditious, and inexpensive; (8) administrative

difficulties of court congestion; (9) local interest in

having localized controversies settled at home; (10)

appropriateness in having a trial of a diversity case in

a forum that is at home with the state law that must

govern the action; and (11) avoidance of unnecessary

problems with conflicts of laws.

Dillon v. BMO Harris Bank, N.A., 16 F. Supp. 3d 605, 617 (M.D.N.C.

2014) (citation omitted).4 As a general rule, “unless the

balancing of these factors weighs strongly in favor of the

defendant, the plaintiff's choice of forum [] should not be

disturbed.” Casana Furniture Co., Ltd. v. Coaster Co. of Am., No.

1:08CV744, 2009 WL 783399, at *2 (M.D.N.C. Mar. 24, 2009) (quoting

Brown v. Flowers, 297 F. Supp. 2d 846, 850 (M.D.N.C. 2003));

Collins v. Straight, Inc., 748 F.2d 916, 921 (4th Cir. 1984).

Moreover, “[w]hile a district court has discretion to transfer the

4 The Fourth Circuit has enunciated a similar, but shorter test listing

the following four factors: “(1) the weight accorded to plaintiff’s

choice of venue; (2) witness convenience and access; (3) convenience of

the parties; and (4) the interest of justice.” Trs. Of the Plumbers &

Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436,

444 (4th Cir. 2015). These factors are inherently or expressly

incorporated into the more expansive test applied by district courts in

this circuit. See Triangle Grading & Paving, Inc. v. Rhino Servs., LLC,

No. 1:19CV486, 2020 WL 2086188, at *16 n.17 (M.D.N.C. Apr. 30, 2020)

(collecting cases); see also Hunter v. Mountain Com. Bank, No.

1:15CV1050, 2016 WL 5415761, at *9 (M.D.N.C. Sept. 28, 2016).

action to a more appropriate venue, a court should not transfer

venue where doing so would only shift the inconvenience to another

party.” Casana, 2009 WL 783399, at *2.

As this court has already determined that Oldham’s choice of

forum is not an appropriate venue, the court will give it little

weight. See Alvarez v. Babik, No. 1:13-CV-252, 2014 WL 1123383,

at *3 (N.D. W. Va. Mar. 21, 2014); see also Parham v. Weave Corp.,

323 F. Supp. 2d 670, 674 (M.D.N.C. 2004) (explaining that although

the plaintiff’s choice of forum is ordinarily given considerable

weight, that weight is diminished when the conduct giving rise to

the complaint did not occur in the forum).

The remaining relevant factors weigh largely in favor of

transfer. First, the Middle District of Pennsylvania has greater

ease of access to witnesses. As discussed above, the vast majority

of the witnesses to Oldham’s sexual harassment and discrimination

claims, as well as the witnesses to Penn State’s investigation

into those claims, are located in Pennsylvania. Additionally, the

sole third-party witness to Abashidze’s assault on Oldham resides

in New Jersey, making the Middle District of Pennsylvania — which

partially borders New Jersey — a significantly more convenient

forum for that witness. As all Defendants are located in

Pennsylvania, that forum is also significantly more accessible for

most of the parties involved.5 While Oldham asserts that a number

of key witnesses reside in North Carolina, those witnesses — with

the exception of Oldham and Kallio — have knowledge only of the

impact of these events on Oldham, rather than knowledge of the

events themselves. (See Doc. 27 at 28.) As such, the court finds

that the Middle District of Pennsylvania has greater ease of access

to the key witnesses in this case.

Second, as most witnesses are located in Pennsylvania, that

court also is better situated to exercise compulsory process over

unwilling witnesses in this case. By that same merit, the cost of

obtaining attendance of witnesses in that forum is notably less

burdensome. Third, the Middle District of Pennsylvania is able to

impose an enforceable judgment on Defendants because they are each

subject to personal jurisdiction in that court.

Finally, the local interest in having localized controversies

settled at home weighs in favor of transfer. “Courts have

determined that litigation should take place in the federal

judicial district or division with the closest relationship to the

operative events.” Speed Trac Techs., Inc. v. Estes Express Lines,

Inc., 567 F. Supp. 2d 799, 804 (M.D.N.C. 2008); Weishaupt v. Boston

Coll., No. 1:11-cv-1122, 2012 WL 1439030, at *5 (M.D.N.C. Apr. 24,

5 Although the Middle District of Pennsylvania is admittedly less

convenient for Oldham, as her first choice and most convenient forum is

not an appropriate venue, this cannot be helped.

2012). If acts or omissions primarily occurred in one state, that

forum should resolve the dispute, even if the harm occurred

elsewhere. See Triangle Grading & Paving, Inc. v. Rhino Servs.,

LLC, No. 1:19CV486, 2020 WL 2086188, at *18 (M.D.N.C. Apr. 30,

2020); Weishaupt, 2012 WL 1439030, at *5. Here, the alleged

wrongful acts occurred primarily in the Middle District of

Pennsylvania, and all of the acts are alleged to have been

committed by individuals and entities associated with the

Commonwealth of Pennsylvania. In light of this, the local interest

in resolving the case is significant.

However, at least one factor does not weigh in favor of

transfer. Specifically, as Oldham has brought several North

Carolina tort claims alongside her federal claims, the Middle

District of Pennsylvania is not “at home with the state law”

governing those claims. However, the claims and issues brought

under federal law in this action largely outweigh those brought

under North Carolina law. There is also no reason to believe that

the federal court in Pennsylvania cannot apply general North

Carolina tort law, if that law is applicable. As the other

relevant factors weigh heavily in favor of transfer, Oldham’s North

Carolina tort claims do not disturb that balance.

It is in the interest of justice for Oldham to have her day

in court. There is no reason why the matter should be dismissed

rather than transferred. Thus, the court finds that it is more

appropriate to transfer Oldham’s claims to the Middle District of

Pennsylvania rather than to dismiss, as Defendants request. See

Carolina Archery Prod., Inc. v. Alpine Archery Inc., No. 1:03 CV

00176, 2004 WL 1368863, at *9 (M.D.N.C. June 15, 2004)

(transferring case because it was “in the interest of justice for

plaintiffs to have their day in court” and there were no

“countervailing reasons to deny transfer”); see also Davis Media

Grp. v. Best W. Int'l, 302 F. Supp. 2d 464, 470 (D. Md. 2004) (“In

addressing the issue of proper venue in the context of a possible

dismissal of the action, the usual procedure should be transfer

rather than dismissal.” (internal quotation marks omitted)). In

light of the lack of venue over the claims against Penn State,

Harris, and Glon in the Middle District of North Carolina, the

court will transfer the claims against them to the Middle District

of Pennsylvania pursuant to § 1406(a).

C. Venue over claims against Abashidze

Unlike Defendants Penn State, Harris, and Glon, Abashidze has

not contested venue in his motion to dismiss pursuant to Rule

12(b)(2). As such, the court must consider whether transferring

the claims against him is appropriate.

Venue is considered a “personal privilege[] of the defendant,

rather than [an] absolute stricture[] on the court.” Leroy, 443

U.S. at 180. A defendant, therefore, may waive his privilege to

demand a proper venue if he does not make a “timely and sufficient

objection.” See 28 U.S.C. § 1406(b). Under Rule 12(b) of the

Federal Rules of Civil Procedure, “[e]very defense to a claim for

relief . . . must be asserted in the responsive pleading if one is

required,” but certain defenses, including the defense of improper

venue, may be asserted by motion. Fed. R. Civ. P. 12(b). “As a

general rule, a defendant waives its right to challenge venue if

it fails to do so either in a responsive pleading or in the first

Rule 12 motion filed before a responsive pleading.” Blue Rhino,

2018 WL 4784006, at *2 (citing Rules 12(b) and 12(h)(1)).

In this case, as Abashidze did not raise the issue of venue

in his Rule 12(b) motion, he is considered to have waived that

objection and to have accepted venue in this court. He does

contest this court’s exercise of personal jurisdiction over him.

But that issue is moot if the court exercises its discretion to

also transfer the claims against Abashidze to the Pennsylvania

federal court. See BSN Med., 2012 WL 171269, at *2 (“A court need

not have personal jurisdiction over a defendant to transfer a case

pursuant to 28 U.S.C. §§ 1404(a) or 1406(a).”).

“[W]hen venue is proper for one defendant but not for another,

and dismissal is inappropriate, the [c]ourt can either (1)

‘transfer the entire case to another district that is proper for

both defendants,’ or (2) ‘sever the claims, retaining jurisdiction

over one defendant and transferring the case as to the other

defendant to an appropriate district.’” Gore v. Air & Liquid Sys.

Inc., No. 1:15-cv-465, 2016 WL 11680149, at *4 (M.D.N.C. June 21,

2016) (quoting Cottman Transmission Sys., Inc. v. Martino, 36 F.3d

291, 296 (3d Cir. 1994)). The court “should not sever if the

defendant over whom jurisdiction is retained” — even if that

defendant has waived its objection to venue — “is so involved in

the controversy to be transferred that partial transfer would

require the same issues to be litigated in two places.” Id. Here,

Abashidze is a central figure in Oldham’s claims, and the court’s

consideration of the claims against him when the rest of the action

is transferred to the Middle District of Pennsylvania could result

in multiple proceedings involving many of the same issues and

witnesses. Such duplicative, piecemeal litigation is contrary to

notions of judicial economy and efficiency. In the interest of

justice, the court will transfer the claims against Abashidze to

the Middle District of Pennsylvania pursuant to 28 U.S.C.

§ 1404(a). See Feller v. Brock, 802 F.2d 722, 729 n.7 (4th Cir.

1986) (stating that a district court may sua sponte consider

transfer pursuant to § 1404(a)). This results in transfer of the

entire action to the Middle District of Pennsylvania.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that the motions to transfer venue by

Defendants Penn State, Harris, and Glon (Docs. 22, 24) are GRANTED,

and the action shall be TRANSFERRED to the United States District

Court for the Middle District of Pennsylvania. Defendants’ motions

to dismiss (Docs. 22, 24, 31) are DENIED as MOOT. The Clerk of

Court is directed to close this file.

/s/ Thomas D. Schroeder

United States District Judge

December 16, 2020