# TUSHA v. GREENFIELD

> District Court, W.D. Pennsylvania · April 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10416511

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** April 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10416511

## How later opinions describe it (automated extraction)

- noting that transfer is in the interests of justice where the “reason which constitutes an impediment to a decision on the merits in the transferor district . . . would not be an impediment in the transferee district”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SIMON TUSHA, *

Plaintiff, *

v. * Civil Action No. GLR-20-2143

STANLEY GREENFIELD, *

Defendant. *
***
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Stanley Greenfield’s Motion to
Dismiss Plaintiff’s Complaint (ECF No. 7). The Motion is ripe for disposition, and no
hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below,
the Court will grant Greenfield’s Motion and transfer this case to the United States District
Court for the Western District of Pennsylvania.
I. BACKGROUND1
This case involves actions taken by Greenfield in 2019 and 2020 while Plaintiff
Simon Tusha was an inmate at the Federal Correctional Institution Loretto (“FCI Loretto”).
(Compl. ¶¶ 1–12, ECF No. 1).2 Greenfield is an attorney licensed in the State of
Pennsylvania who maintains a law office in Pittsburgh, Pennsylvania. (See Greenfield

1 Unless otherwise noted, the Court takes the following facts from Tusha’s
Complaint and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations omitted).
2 FCI Loretto is located in Cambria County, Pennsylvania, in the Western District
of Pennsylvania. See Fed. Bureau of Prisons, FCI Loretto,
https://www.bop.gov/locations/institutions/lor/ (last visited Apr. 8, 2021).
Decl. ¶¶ 2, 4, ECF No. 7-1).3 Tusha alleges that he initially retained Greenfield to represent
him in a criminal proceeding in September 2016. (Compl. ¶ 16). In 2018, Tusha was

diagnosed with prostate cancer and multiple melanomas requiring immediate surgery and
follow-up treatment. (Id. ¶¶ 18–19). In January 2019, Tusha was sentenced to twenty-one
months of incarceration at FCI Loretto. (Id. ¶ 17).
Tusha sought Greenfield’s services again in or around August 2019, hoping to
pursue legal action to remedy inadequate medical care he was receiving during his
incarceration. (Id. ¶¶ 1, 5). Between September and October 2019, Tusha met with several

health care providers who agreed that he needed “critical and time sensitive medical
treatment” relating to a diagnosis of multiple melanomas. (Id. ¶¶ 2, 21). FCI Loretto refused
to provide Tusha the medical care he needed. (Id. ¶ 9). Tusha consulted with other inmates
at FCI Loretto, conducted his own legal research, and advised Greenfield as to the best way
to pursue a remedy for FCI Loretto’s wrongful actions. (Id. ¶¶ 3–5). Tusha also provided

evidence demonstrating the inadequate care he was receiving at FCI Loretto. (Id. ¶ 8).
Among other things, Tusha sought to have his sentence modified so that he could obtain
medical treatment at the Johns Hopkins Medical Center in Baltimore, Maryland. (Id.).
On the basis of advice he received from Greenfield, Tusha spent months pursuing
administrative remedies within FCI Loretto. (Id. ¶ 6). Tusha alleges that this advice was

incorrect and significantly delayed his efforts to obtain a remedy. (Id.). In or around

3 Because Greenfield’s Motion is brought under Federal Rules of Civil Procedure
12(b)(2) and 12(b)(3), the Court may consider evidence outside the pleadings in ruling on
the Motion. See Structural Pres. Sys., LLC v. Andrews, 931 F.Supp.2d 667, 671 (D.Md.
2013) (citations omitted).
December 2019, Greenfield concluded that Tusha’s recommended course of action was
correct and “filed a [18 U.S.C. §] 3582 motion with the Federal Court” seeking a remedy

on Tusha’s behalf. (Id. ¶ 7). The motion, however, failed to include certain relevant details
about which Tusha had informed Greenfield. (Id. ¶ 9). Between December 2019 and March
2020, when Tusha requested copies of the § 3582 motion, Greenfield refused to provide
them. (Id. ¶ 10). Greenfield finally provided Tusha a copy of the motion in or around March
2020. (Id.). Tusha alleges that upon reviewing the pleadings in the case, he discovered that
Greenfield had allowed his motion to be wrongly dismissed by the court. (Id. ¶ 11).

Moreover, Greenfield ultimately settled the case without Tusha’s knowledge or consent.
(Id. ¶¶ 7, 12).
Proceeding pro se, Tusha filed a Complaint against Greenfield on July 17, 2020.
(ECF No. 1). The six-count Complaint alleges: breach of fiduciary duty (Count I); breach
of contract (Count II); fraud upon the court (Count III); legal malpractice (Count IV);

intentional infliction of emotional distress and pain (Count V); and negligent infliction of
emotional distress and pain (Count VI). (Id. ¶¶ 22–40). Tusha seeks compensatory and
punitive damages. (Id. ¶¶ 24, 27, 30, 34, 37, 40).
On October 1, 2020, Greenfield filed a Motion to Dismiss. (ECF No. 7). Tusha filed
an Opposition to the Motion on October 16, 2020. (ECF No. 10). Greenfield filed a Reply

on November 3, 2020. (ECF No. 11).
II. DISCUSSION
A. Standard of Review

1. Rule 12(b)(2)
When a court’s power to exercise personal jurisdiction over a nonresident defendant
is challenged by a motion under Federal Rule of Civil Procedure 12(b)(2), “the
jurisdictional question is to be resolved by the judge, with the burden on the plaintiff
ultimately to prove grounds for jurisdiction by a preponderance of the evidence.” Carefirst
of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003)

(citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59–60 (4th Cir. 1993)). If the existence
of jurisdiction turns on disputed facts, the court may resolve the challenge after a separate
evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the
jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). If the court
chooses to rule without conducting an evidentiary hearing, relying solely on the basis of

the complaint, affidavits, and discovery materials, “the plaintiff need only make a prima
facie showing of personal jurisdiction.” Carefirst, 334 F.3d at 396; see also Mylan, 2 F.3d
at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima
facie case of personal jurisdiction, the court “must draw all reasonable inferences arising
from the proof, and resolve all factual disputes, in the plaintiff’s favor.” Mylan, 2 F.3d at

60; Carefirst, 334 F.3d at 396. As set forth above, in resolving motions brought under
Federal Rule of Civil Procedure 12(b)(2), the Court may consider evidence outside the
pleadings. See Structural Pres. Sys., LLC v. Andrews, 931 F.Supp.2d 667, 671 (D.Md.
2013) (citations omitted).
Personal jurisdiction may be established through either of two avenues. If the
defendant’s contacts with the forum state form the basis for the suit, they may establish

“specific jurisdiction.” In determining whether specific jurisdiction exists, a court must
consider: (1) the extent to which the defendant has purposefully availed itself of the
privilege of conducting activities in the state; (2) whether the plaintiff’s claims arise out of
those activities directed at the state; and (3) whether the exercise of personal jurisdiction
would be constitutionally “reasonable.” Carefirst, 334 F.3d at 396; see also ALS Scan, Inc.
v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711–12 (4th Cir. 2002); Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). If, however, the
defendant’s contacts with the state are not also the basis for the suit, then jurisdiction over
the defendant must arise from the defendant’s general, more persistent, but unrelated
contacts with the state. Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. &
Placement, 326 U.S. 310, 318 (1945). To establish general jurisdiction, the defendant’s

“affiliations with the State [must be] so continuous and systematic as to render it essentially
at home in the forum state.” Daimler AG v. Bauman, 571 U.S. 117, 139 (2014).
Absent a federal statute specifying different grounds for personal jurisdiction,
federal courts may exercise jurisdiction in the manner provided by state law. Fed.R.Civ.P.
4(k)(1)(A). “[F]or a district court to assert personal jurisdiction over a nonresident

defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be
authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction must
comport with the due process requirements of the Fourteenth Amendment.” Carefirst, 334
F.3d at 396. With certain exceptions not at issue here, Maryland’s long-arm statute provides
for personal jurisdiction over a nonresident defendant to the extent the defendant:

(1) Transacts any business or performs any character of work
or service in the State;
(2) Contracts to supply goods, food, services, or manufactured
products in the State;
(3) Causes tortious injury in the State by an act or omission in
the State;
(4) Causes tortious injury in the State or outside of the State by
an act or omission outside the State if he regularly does or
solicits business, engages in any other persistent course of
conduct in the State or derives substantial revenue from goods,
food, services, or manufactured products used or consumed in
the State;
(5) Has an interest in, uses, or possesses real property in the
State; or
(6) Contracts to insure or act as surety for, or on, any person,
property, risk, contract, obligation, or agreement located,
executed, or to be performed within the State at the time the
contract is made, unless the parties otherwise provide in
writing.

Md. Code Ann., Cts. & Jud. Proc. § 6-103(b). “[T]o the extent that a defendant’s activities
are covered by the statutory language, the reach of the statute extends to the outermost
boundaries of the due process clause.” Dring v. Sullivan, 423 F.Supp.2d 540, 545 (D.Md.
2006) (quoting Joseph M. Coleman & Assocs., Ltd. v. Colonial Metals, 887 F.Supp. 116,
118–19 n.2 (D.Md. 1995)).
2. Rule 12(b)(3)
Federal courts are empowered to dismiss or transfer a case if venue is improper in
the plaintiff’s chosen forum. Fed.R.Civ.P. 12(b)(3). “In this circuit, when venue is
challenged by a motion to dismiss, the plaintiff bears the burden of establishing that venue
is proper.” Jones v. Koons Automotive, Inc., 752 F.Supp.2d 670, 679–80 (D.Md. 2010)
(citing Gov’t of Egypt Procurement Office v. M/V ROBERT E. LEE, 216 F.Supp.2d 468,
471 (D.Md. 2002)). To survive a motion to dismiss or transfer venue pursuant to Rule

12(b)(3), the plaintiff must only make a prima facie showing that venue is
proper. See Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004). Courts may consider
evidence outside the complaint and need not accept the pleadings as true when determining
whether the plaintiff has sustained this burden. See Sucampo Pharms., Inc. v. Astellas
Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006). As with a motion to dismiss for lack of
personal jurisdiction, “in deciding a motion to dismiss [for improper venue], all inferences

must be drawn in favor of the plaintiff, and the facts must be viewed as the plaintiff most
strongly can plead them.” Three M Enters., Inc. v. Tex. D.A.R. Enters., Inc., 368 F.Supp.2d
450, 454 (D.Md. 2005) (internal quotation marks and citation omitted).
Venue may be proper in more than one district. The Court must therefore focus not
on whether a given district is the best venue, but rather whether the relevant acts or

omissions occurred within that district are “sufficiently substantial to support venue” in the
plaintiff’s chosen forum. Mitrano, 377 F.3d at 405. Courts making such a determination
look to “the entire sequence of events underlying the claim” rather than only considering
those facts that “directly led to the filing of the action.” Id. (citations omitted).
When venue is improper in a plaintiff’s chosen forum, the court may dismiss the

case or, “if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.” 28 U.S.C. § 1406(a). Transfer is in the interests of
justice where the “reason which constitutes an impediment to a decision on the merits in
the transferor district . . . would not be an impediment in the transferee district,” such as
incorrect venue or an absence of personal jurisdiction. Porter v. Groat, 840 F.2d 255, 258
(4th Cir. 1988).

B. Analysis

1. Personal Jurisdiction

Greenfield asserts that the Court lacks personal jurisdiction over him as it relates to
this dispute. (Def.’s Mot. Dismiss Pl.’s Compl. [“Def.’s Mot.”] at 1, ECF No. 7). As an
initial matter, there is no question that this case involves specific, rather than general,
jurisdiction, as Greenfield does not maintain systematic and continuous contacts with
Maryland. See Daimler AG, 571 U.S. at 139. Moreover, the applicable subsection of the
Maryland long-arm statute appears to be § 6-103(b)(1), which authorizes jurisdiction over
a nonresident who “[t]ransacts any business or performs any character of work or service
in the State.”
For the purposes of the Court’s jurisdictional inquiry, Greenfield states that he is
not licensed to practice law in Maryland, nor does he maintain an office or a residence in
Maryland. (Greenfield Decl. ¶¶ 3, 5, 7). Greenfield states that he performs no work in
Maryland, does not conduct business in or directed at Maryland, and has not caused any
injury by any act or omission in Maryland. (Id. ¶¶ 8–16). Tusha notes, however, that on
one occasion he met with Greenfield in Tusha’s daughter’s Maryland residence in

December 2018, where Greenfield provided legal advice to Tusha. (Pl.’s Reply Def.’s Mot.
Dismiss [“Opp’n”] at 2, ECF No. 10).4

4 Courts generally will not permit plaintiffs to revise their pleadings through their
briefs. See Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (“[Plaintiff] is
Greenfield argues that his single contact with Tusha in Maryland, a visit he made as
a “favor” during a family trip, is insufficient to grant this Court personal jurisdiction over

him. The Court disagrees. “[E]ven a single contact with the forum can satisfy the
transaction of business standard in subsection (b)(1).” Hausfeld v. Love Funding Corp., 16
F.Supp.3d 591, 599 (D.Md. 2014) (citing Jason Pharm., Inc. v. Jianas Bros. Packaging
Co., 617 A.2d 1125, 1130 (Md.Ct.Spec.App. 1993)). Under Maryland law, “a defendant
need not even engage in ‘commerce or transactions for profit’ to come within the scope
of § 6-103(b)(1) as long as the party’s conduct represents purposeful activity in the forum

State.” Brown Inv. Advisory & Tr. Co. v. Allen, No. JKB-19-2332, 2020 WL 5833034, at
*6 (D.Md. Sept. 29, 2020) (citing Malinow v. Eberly, 322 F.Supp. 594, 598 (D.Md. 1971)).
Greenfield cites no case to support the position that conducting business during an
otherwise personal trip renders those contacts null for the purpose of the Court’s
jurisdictional analysis. This Court declines to create such an exception. See Dring, 423

F.Supp.2d at 545 (“[T]o the extent that a defendant’s activities are covered by the statutory
language, the reach of the statute extends to the outermost boundaries of the due process
clause.”) (quoting Joseph M. Coleman & Assocs., 887 F.Supp. at 118–19 n.2).
Accordingly, the Court will not dismiss this case on the basis that it lacks personal
jurisdiction.

bound by the allegations contained in its complaint and cannot, through the use of motion
briefs, amend the complaint.”), aff’d, 141 F.3d 1162 (4th Cir. 1998). Given Tusha’s pro se
status and the fact that Greenfield’s Motion is brought under Rules 12(b)(2) and 12(b)(3),
however, the Court will consider this additional jurisdiction-related information in ruling
on the Motion.
2. Venue
Greenfield next argues this Court is an improper venue for this dispute. At bottom,

the Court agrees and will transfer this case to the United States District Court for the
Western District of Pennsylvania.
Plaintiffs in federal court are permitted to bring claims against defendants in the
following venues:
(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is
located;
(2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in
which any defendant is subject to the court's personal
jurisdiction with respect to such action.

28 U.S.C. § 1391(b). In this case, Tusha has not alleged that Greenfield resides in Maryland
or that a “substantial part of property that is the subject of the action” is situated in
Maryland. Accordingly, venue is appropriate in this Court only if Tusha can establish that
“a substantial part of the events or omissions giving rise to the claim occurred” in
Maryland.
This case contains both contractual and tort claims. When considering a permissible
venue for a tort claim, “courts will generally consider both where the activities
arose and where the harm was felt.” Coastal Lab’ys, Inc. v. Jolly, No. RDB-20-2227, 2020
WL 6874332, at *11 (D.Md. Nov. 23, 2020) (citing Seidel v. Kirby, 296 F.Supp.3d 745,
751–52 (D.Md. 2017)). In the context of contractual claims, “courts consider a number of
factors, including where the contract was negotiated or executed, where it was to be
performed, and where the alleged breach occurred.” Payne v. Howard Univ., No. RDB-20-

1314, 2020 WL 7588260, at *2 (D.Md. Dec. 22, 2020) (quoting Structural Grp., LLC v.
Fyfe Co., LLC, No. CCB-14-78, 2014 WL 3955439, at *3 (D.Md. Aug. 11, 2014)).
For both types of claims, the District of Maryland is not an appropriate venue for
this lawsuit. The activities forming the basis for this lawsuit arose and the harm was felt in
Cambria County, Pennsylvania, which is located in the Western District of Pennsylvania.
Similarly, the contract was negotiated, executed, and performed in the Western District of

Pennsylvania, and the alleged breach occurred in that district. It is true that in this District,
“a substantial part of the events, as used in 1391(b)(2), does not mean a majority of the
events.” Coastal Lab’ys, 2020 WL 6874332, at *11. But in this case, Tusha can recount
only one event that occurred in Maryland, and that event appears to be unsubstantial. This
is insufficient for this Court to be an appropriate venue for this lawsuit.

Finally, the Court notes that a defendant “entity”—as opposed to a “natural
person”—is “deemed to reside, if a defendant, in any judicial district in which such
defendant is subject to the court’s personal jurisdiction with respect to the civil action in
question[.]” 28 U.S.C. § 1391(c)(2). Thus, this Court may have been an appropriate venue
for this action if the lawsuit had been brought against a business. It was not. The only

Defendant named in this lawsuit was Greenfield, a natural person. Accordingly,
§ 1391(c)(2) does not apply.
“When venue is improper in this district, the Court will ordinarily transfer the action
rather than dismiss it.” Sewell v. Commodity Futures Trading Comm’n, No. PX-16-2457,
2017 WL 1196614, at *4 (D.Md. Mar. 31, 2017), aff’d, 709 F.App’x 231 (4th Cir. 2018);
see also Porter v. Groat, 840 F.2d 255, 258 (4th Cir. 1988) (noting that transfer is in the

interests of justice where the “reason which constitutes an impediment to a decision on the
merits in the transferor district . . . would not be an impediment in the transferee district”).
The appropriate venue for this claim is the Western District of Pennsylvania. Accordingly,
the Court will transfer this action to that district.
III. CONCLUSION
For the foregoing reasons, the Court will grant Greenfield’s Motion to Dismiss

Plaintiff’s Complaint (ECF No. 7) on the basis of improper venue and transfer this case to
the United States District Court for the Western District of Pennsylvania. A separate Order
follows.
Entered this 19th day of April, 2021.

/s/
George L. Russell, III
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416511. Public record. Not legal advice.