# Drake v. FedEx Corporation

> District Court, W.D. Tennessee · March 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10441852

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** March 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ERIC DRAKE, )
)
Plaintiff, )
)
v. ) Case No. 2:21-cv-02636-JTF-atc
)
FEDEX GROUND PACKAGE SYSTEM, )
INC., et al., )
)
Defendants. )

ORDER ADOPTING REPORT AND RECOMMENDATION TO TRANSFER VENUE
AND DENY WITHOUT PREJUDICE MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT; DENYING MOTION FOR RECUSAL

Before the Court are two matters. First is the Magistrate Judge’s Report and
Recommendation (“R&R”) on Defendants FedEx Ground Package System’s (“FedEx Ground”)
Motion to Dismiss Plaintiff’s Third Amended Complaint for Lack of Personal Jurisdiction and
Improper Venue, or in the alternative, Motion to Transfer Venue (“Motion to Dismiss”), and
Plaintiff Eric Drake’s Motion for Leave to File his Fourth Amended Complaint (“Motion to
Amend”), submitted on February 12, 2024. (ECF No. 78.) FedEx Ground filed its Motion to
Dismiss on March 14, 2023. (ECF No. 68.) Drake filed his Response on March 28, 2023, and
FedEx Ground filed their Reply on April 11, 2023. (ECF Nos. 71 & 73.) Drake filed his Motion
to Amend on March 28, 2023. (ECF No. 70.) FedEx Ground filed their Response on April 11,
2023. (ECF No. 72.) Both Motions were referred to the Magistrate Judge on September 1, 2023.
(ECF No. 77.) Drake filed two documents which arguably constitute objections to the R&R on
February 13, 2024 and February 23, 2024. (ECF Nos. 79 & 81.) FedEx Ground did not file any
objections, and the time to do so has passed. Second is Drake’s Motion to Recuse Magistrate
Judge Annie Christoff, filed on February 22, 2024. (ECF No. 80.) For the reasons set forth
below, the R&R is ADOPTED and the Motion to Dismiss is GRANTED IN PART, the Motion
for Leave to Amend is DENIED WITHOUT PREJUDICE and the Motion to Recuse is
DENIED. This matter is TRANSFERRED to the United States District Court for the Northern

District of Texas.
I. REPORT AND RECOMMENDATION
A. Standard of Review
Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts by
permitting the assignment of certain district court duties to magistrates.” United States v. Curtis,
237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear and
determine any pretrial matter pending before the Court, except various dispositive motions. 28
U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a
recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R. Civ. P.
72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who

disagrees with a magistrate’s proposed findings and recommendation may file written objections
to the report and recommendation. Fed. R. Civ. P. 72(b)(2). However, “[w]hen no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee notes.
The district court is not required to review, and indeed “should adopt[,] the findings and rulings
of the Magistrate Judge to which no specific objection is filed.” Brown v. Bd. of Educ. of Shelby
Cty. Sch., 47 F. Supp. 3d 665, 674 (W.D. Tenn. 2014) (citing Thomas v. Arn, 474 U.S. 140, 149
(1985)).
B. FINDINGS OF FACT
The R&R’s Findings of Fact are an accurate representation of the facts and are hereby
ADOPTED. These findings are summarized in relevant part below. Neither party objects to the
Findings of Fact.

Drake filed his initial Complaint on October 7, 2021. (ECF No. 1.) On December 5, 2022,
the Court entered an Order Adopting, Modifying, and Rejecting in Part a prior R&R (“the Prior
Order”) that addressed multiple motions, including a Motion to Dismiss the Amended
Complaint (See ECF No. 51 (ruling on ECF No. 40).) In the Prior Order, the Court recounted the
facts of this case which remain the same as of the date of this Order’s entry:
Drake’s complaints stem from an interaction he had with Cole Brewster, who
Drake asserts was delivering packages for FedEx on December 16, 2020, in
Dallas, Texas. Drake alleges he arrived at a UPS store to retrieve a package that
was to be delivered there by FedEx, and that he approached Brewster, who was
driving a FedEx branded truck, to see if the package was in the truck. After some
initial dismissiveness, Drake followed Brewster into the store and picked up a
package, although not the one he had been expecting. Upon exiting the store,
Brewster became belligerent, calling Drake “nigger” and “crusty old nigger” and
threatening him physically while assuming a “fighting stance.” Drake eventually
walked away, put the package in his vehicle, and went back to collect the license
plate information from the truck, at which point Brewster continued to harass
Drake with racist language and threats. Drake reported the incident at a FedEx
location in Mesquite, Texas, and sent an email to [then] Defendant Frederick
Smith about the incident, but never received a response. Drake asserts that he is
owed . . . damages because of the incident, due to his contract with FedEx to
deliver a package to him and because he paid FedEx to deliver his package and
the services thereof, but FedEx violated that contract.
(Id. at 7 (citations omitted).) At the time of the Prior Order, and as alleged from the Second
through the proposed Fourth Amended Complaint, the events giving rise to this suit occurred in
Texas. (Id. at 18.) Brewster was presumably a resident of Texas, and Drake is allegedly a
Georgia resident who uses a P.O. Box in Texas as his mailing address. (Id.) It is not clear where
the alleged contract to deliver the package was made, but it was likely also in Texas because the
package was to be delivered there, and Drake was present to receive it. (Id.) The Court therefore
found that Texas law governed Drake’s state law claims in the Prior Order because it was the
state with the most significant relationship to the events at issue. (Id at 18-19.)
C. FINDINGS OF LAW
As stated above, a district judge should adopt the findings and rulings of the magistrate judge

to which no specific objection under Fed. R. Civ. P. 72(b) is filed. Brown, 47 F. Supp. 3d at 674.
Drake does not specifically object to the Magistrate Judge’s legal finding that this case should be
transferred to the U.S. District Court for the Northern District of Texas. In fact, he concedes this
in his first filing in response to the R&R, claiming that “the [Magistrate Judge] should have
possibly transferred to the Court in that jurisdiction.” (ECF No. 79, 2.) Nevertheless, the Court
considers the legal findings and Drake’s objections below.
FedEx Ground seeks to have this case transferred to the Northern District of Texas pursuant
to 28 U.S.C § 1404(a). (ECF No. 68.) The Magistrate Judge found that even if the Court were
able to exercise general or specific personal jurisdiction over FedEx Ground and venue were
proper, transfer to the Northern District of Texas would still be warranted under 28 U.S.C §

1404(a). (ECF No. 78, 4-5.) 28 U.S.C § 1404(a) permits a district court to transfer a civil action
to any other district where it might have been brought “for the convenience of parties and
witnesses” and “in the interests of justice.” A district court has broad discretion in deciding
whether to transfer venue, and the party seeking a transfer under § 1404(a) “bears the burden of
demonstrating by a preponderance of the evidence that transfer to another district is warranted.”
Goode v. City of Southaven, No. 2:16-cv-02029-SHM, 2017 WL 11316500, at *7 (W.D. Tenn.
Mar. 30, 2017) (quoting United States v. Gonzales & Gonzalez Bonds & Ins. Agency, Inc., 677 F.
Supp. 2d 987, 991 (W.D. Tenn. 2010)). “Under the preponderance standard, ‘the movant must
show that the forum to which he desires to transfer the litigation is the more convenient one vis a
vis the plaintiff’s initial choice.’” Id. (quoting Roberts Metals, Inc. v. Fla. Props. Mktg. Grp.,
Inc., 138 F.R.D. 89, 93 (N.D. Ohio 1991)). “The plaintiff’s choice of forum will be given
deference unless the defendant makes an appropriate showing.” Id. (citation omitted).
i. Personal Jurisdiction and Venue in the Transferee District

“In determining whether to transfer a case under § 1404(a), the court must first determine
whether the claim could have been brought in the transferee district.” Id. (quoting B.E. Tech.,
LLC v. Facebook, Inc., 957 F. Supp. 2d 926, 929 (W.D. Tenn. 2013)). “This generally means
that the plaintiff has to have had the right to bring its case in the transferee district, which would
require proper venue and personal jurisdiction over the defendants in the transferee district.” Id.
(quoting Gonzales, 677 F. Supp. 2d at 992 (quotation marks omitted)).
The Magistrate Judge found that the Northern District of Texas could exercise specific
personal jurisdiction over FedEx Ground given that it had purposely availed itself of doing
business in Texas, the events giving rise to this suit occurred there, and the exercise of
jurisdiction would be fair and reasonable. (ECF No. 78, 6-7.) The Magistrate Judge also points

out that FedEx Ground conceded to personal jurisdiction and venue in the Northern District of
Texas by requesting transfer to that district. (Id. at 7 (quoting 28 U.S.C. § 1391(c)(2)) (“an entity
‘shall be 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 . . . .’”).)
Hence, the Magistrate Judge found that the case could have been brought in the Northern District
of Texas because that court can exercise personal jurisdiction over FedEx Ground, and venue is
proper.
Neither party objected to the above finding. The Court therefore ADOPTS it.
ii. Balancing Private and Public Interest Factors under § 1404(a)
Upon determining that the Northern District of Texas would have personal jurisdiction
over FedEx Ground and that venue would be proper there, the Magistrate Judge turned to the
next step of the 28 U.S.C § 1404(a) inquiry which entails a consideration of “whether party and

witness ‘convenience’ and ‘the interest of justice’ favor transfer to the proposed transferee
district.” Goode, 2017 WL 11316500, at *7. “A district court should consider the private
interests of the parties, including their convenience and the convenience of potential witnesses,
as well as other public-interest concerns, such as systemic integrity and fairness, which come
under the rubric of ‘interests of justice.’” Id. (quoting Moses v. Bus. Card Express, Inc., 929 F.
2d 1131, 1137 (6th Cir. 1991)). Private-interest factors include:
(1) the convenience to the parties; (2) the convenience of witnesses; (3) the relative ease
of access to sources of proof; (4) the availability of process to compel attendance of
unwilling witnesses; (5) the cost of obtaining willing witnesses; and (6) the practical
problems indicating where the case can be tried more expeditiously and inexpensively.
Id. (quoting Smith v. Kyphon, Inc., 578 F. Supp. 2d 954, 962 (M.D. Tenn. 2008)). Factors
relevant to public-interest concerns include: “(1) the enforceability of the judgment; (2) practical
considerations affecting trial management; (3) docket congestion; (4) the local interest in
deciding local controversies at home; (5) the public policies of the fora; and (6) the familiarity of
the trial judge with the applicable state law.” Id. (quoting Smith, 578 F. Supp. 2d at 962). “A
court ‘may consider any factor that may make any eventual trial easy, expeditious, and
inexpensive.’” Id. (Nisby v. Barden Miss. Gaming, LLC, No. 2:06-cv-02799-SHM, 2007 WL
6892326, at *5 (W.D. Tenn. Sept. 24, 2007)). However, “[t]he convenience of the parties and
witnesses is widely viewed as the most important factor.” St. Jude Hosp. v. Trs. of Univ. of Pa.,
No. 2:12-cv-02579, 2012 WL 13028121, at *3 (citation omitted).
The Magistrate Judge found that this case had no connection to the Western District of
Tennessee. (ECF No. 78, 9.) By contrast, she concluded that the case had a significant
connection to the Northern District of Texas. (Id.) More specifically, she found that the package
was to be delivered in Dallas, Texas, Drake was physically present to receive it, and any

potential witnesses or evidence would likely also be in Dallas, Texas, because all events giving
rise to this suit occurred there. (Id.) The Magistrate Judge found that the only public interest
factor that was applicable, the local interest in deciding local controversies at home, favored the
transfer of this case to the Northern District of Texas because all the events occurred there. (Id. at
10.)
Last, the Magistrate Judge considered whether Plaintiff was entitled to deference on his
choice of forum. (Id. at 11.) “[T]he plaintiff’s choice of forum is entitled to significantly less
weight where the forum has little connection with the matter in controversy.” St. Jude, 2012 WL
13028121. She found that Drake’s selection of forum is entitled to significantly less weight
because he has not alleged any facts related to his pending § 1981 claim that took place in this

district. (Id.) The Magistrate Judge indicated that Drake faces filing restrictions in every federal
and state district court in Texas, and considered that this may have informed his decision to file
the case here. (Id.) If this is true, then the Court would be even less deferential to his choice of
forum. See, e.g., Marks v. Torres, 576 F. Supp. 2d 107, 112 (D.D.C. 2008) (collecting cases
holding that a plaintiff may not use their venue choice as a “safe haven” from filing restriction
orders issued by another district court and that, in such a case, the plaintiff’s venue selection is
entitled to little or no weight). Finding no other reason for Drake’s decision to bring his case in
this District Court, the Magistrate Judge determined that he was not entitled to deference on his
choice of forum.
Consistent with the above, the Magistrate Judge concluded that the private and public
interest factors under § 1404(a) favored transferring this case to the Northern District of Texas.
She therefore recommends that the case be transferred, and that Drake’s Motion for Leave to
Amend be denied without prejudice.

iii. Drake’s February 13, 2024 Objections
In his first responsive filing entitled “Plaintiff’s Response to the Magistrate Report,”
Drake states that he never consented to submit to the Magistrate Judge and alleges that
Magistrate Judge Christoff conspired with FedEx Ground to protect them from suit. (ECF No.
79, 1-2.) He then threatens to sue Magistrate Judge Christoff if the case is transferred. (Id. at 2.)
Last, he demands that the Court hold an evidentiary hearing on his Texas filing restrictions. (Id.)
The Court will not be holding an evidentiary hearing on the propriety of a filing
restriction that a different district court in a different circuit imposed. To the extent that anything
in this filing constitutes an objection to Magistrate Judge Christoff’s R&R, it is OVERRULED.
The Court only requires the Parties’ consent to refer the case to a Magistrate Judge “to conduct
all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c).”1

Here, the Court referred the two pending Motions to the assigned Magistrate Judge for Report
and Recommendation in accordance with 28 U.S.C. § 636. (ECF No. 77, 1.) The Court may refer
motions for Report and Recommendation under 28 U.S.C. § 636 regardless of the Parties’
consent. What remains of this filing are conspiratorial allegations that the Court is not inclined to
entertain.

1NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
https://www.tnwd.uscourts.gov/sites/tnwd/files/AO_085.pdf (last visited February 27, 2024).
iv. Drake’s February 23, 2024 Objections
In his second filing, Drake suggests that Magistrate Judge Christoff was somehow
responsible for the September 11 attacks, that she has involved herself in a Ku Klux Klan-esque
conspiracy to restrict African Americans’ access to the courts, and demands that the undersigned,

as an African American Judge, protect him from this conspiracy. (ECF No. 81, 2 & 16.)
Specifically, he requests that the undersigned do the following:
(1) retaining the case on his docket;
(2) ordering discovery regarding jurisdiction and venue; such discovery include both written
and oral depositions of any FedEx employees;
(3) agree to remove Magistrate Judge Christoff from the above cause and that all future
hearings, rulings, and trials will come before the district judge only;
(4) conduct an evidentiary hearing on the subject of the alleged prefiling restriction that
Christoff referred to in her report;
(5) order the case to mediation after reasonable discovery has been taken to establish that the
evidence of the videos and audiotapes are genuine; and
(6) if mediation is not successful, try the case on the merits.
(Id. at 19.) Drake then requests that if this case is transferred, it should be transferred to the
Western District of Pennsylvania, where FedEx is headquartered. (Id. at 4.) Still, he contends
that there are “too many questions in regards to jurisdiction that can be answered by discovery
before the Court ships the above cause to its death and dismissal in the Northern District of
Texas.” (Id. at 12.) He then includes a screenshot of the Northern District of Texas pre-filing
restriction that reads in pertinent part:
ORDER that plaintiffs cause of action is DISMISSED WITHOUT PREJUDICE and
FURTHER ORDERED that Eric Drake is PROHIB[ited from proceeding in] forma
pauperis with any civil action in this court – whether he filed it in this court or another
court and it was removed, or he filed in a . . . transferred to this court UNLESS he first
obtains from a district judge of this court leave to proceed in forma pauperis by
requesting leave.
(Id. at 22.)
The Court again declines to entertain Drake’s suggestions that Magistrate Judge Christoff
is involved in a terrorist or racist conspiracy. The only salvageable objection Drake raises in this
filing relates to his claim that this case should be transferred to the Western District of
Pennsylvania. Drake did not raise this forum as a possibility previously. Although this alternative
forum might satisfy the venue and personal jurisdiction requirements for the purposes of transfer
under § 1404(a), the Court acknowledges that transfer to that district court—just like the filing of

this case in this Court—is nothing more than an attempt to circumvent the Northern District of
Texas filing restriction. At the outset, it is readily apparent that Drake knows that this case
should have been brought in the Northern District of Texas, the district in which all the events
giving rise to this suit occurred. The crux of this dispute is whether this Court is obligated to
open its doors to Drake and his case despite having no connection to the underlying dispute, just
because the proper forum has determined that Drake has repeatedly burdened the courts with
frivolous filings,2 and now requires that he seek leave of court before commencing suits. (Id.)
The Court is under no such obligation and declines to help Drake game his way out of seemingly
proper filing restrictions.
Accordingly, Drake’s objections to the R&R are OVERRULED and the R&R is

ADOPTED in full.
II. Motion to Recuse
The Court next turns to Drake’s Motion to Recuse Magistrate Judge Annie Christoff, filed on
February 22, 2024. (ECF No. 80.) A judge is presumed impartial, and the party seeking
disqualification “bears the substantial burden of proving otherwise.” Scott v. Metropolitan

2 See, e.g., Drake v. Travelers Commercial Ins. Co., CV4:20-099, doc. 5 (S.D. Ga. May 8, 2020) (collecting several
of Drake’s frivolous suits); see also Drake v. Travelers Indem. Co., No. 20-40492, 2022 WL 4138355, at *1 (5th
Cir. Apr. 28, 2022) (collecting cases and documenting Drake’s history of filing “frivolous, vexatious, harassing, or
repetitive litigation”); Drake v. 7-Eleven Inc., CV419-208 (S.D. Ga. Jun. 26, 2020) (noting that Drake had filed
more than 100 cases in federal courts over the last two decades and in the last two years, Drake has claimed to be
domiciled in Charleston, West Virginia, Saint Simmons, Georgia, Grand Prairie, Texas, Baltimore, Maryland, and
Savannah, Georgia); Drake v. Trump, No. 19-CV-9335 (CM), 2019 WL 5551879, at *2 (S.D.N.Y. Oct. 28, 2019)
(dismissing Drake’s claim against then President Trump as frivolous).
Health Corp., 234 F. App’x 341, 352 (6th Cir. 2007) (quoting United States v. Denton, 434 F.3d
1104, 1111 (8th Cir. 2006)). 28 U.S.C. § 144, entitled Bias or prejudice of judge, provides that:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient
affidavit that the judge before whom the matter is pending has a personal bias or prejudice
either against him or in favor of any other adverse part, such judge shall proceed no further
therein…. The affidavit shall state the facts and reasons for the belief that the bias or
prejudice exists, and shall be filed not less than ten days before the beginning of the term at
which the proceeding is to be heard, or good cause shall be shown for failure to file within
such time. A party may file only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 144. Under 28 U.S.C. § 455, any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned. That statute discusses additional circumstances in which recusal is warranted, which
largely pertain to situations where the judge is related to a lawyer or party in a proceeding. See
28 U.S.C. § 455(b).
Drake’s 25-page Motion is devoid of factual allegations that would convince a reasonable
person that Magistrate Judge Christoff is biased or prejudiced against him, or that there is an
appearance of bias, prejudice, or impropriety in this Court. In short, Drake claims that Magistrate
Judge Christoff is referred many cases involving FedEx, and her rulings in those cases are
favorable to FedEx. (ECF No. 80, 6-7.) The Court cannot conclude from this that FedEx has “a
magistrate in its pocket” as Drake contends. (Id. at 7.) Furthermore, Drake neglects a simpler and
more plausible explanation for this observed phenomenon. FedEx is the largest employer in
Memphis, Tennessee, and as such, appears as a party in a substantial number of cases on every
judge’s docket, including that of the undersigned. The Court draws no inferences about
Magistrate Judge Christoff’s dispositions on those cases because Drake has given no reason for it
to doubt the propriety of those rulings.
For the reasons stated above, Drake’s Motion to Recuse Magistrate Judge Christoff is
DENIED.
III. CONCLUSION
Consistent with the foregoing the R&R is ADOPTED and the Motion to Dismiss is

GRANTED IN PART, the Motion for Leave to Amend is DENIED WITHOUT PREJUDICE
and the Motion to Recuse is DENIED. This matter is TRANSFERRED to the United States
District Court for the Northern District of Texas.
IT IS SO ORDERED this 5th day of March, 2024.
s/John T. Fowlkes, Jr._
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10441852. Public record. Not legal advice.