Page

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

SHONTE D. PAGE,

Plaintiff,

v. Case No: 5:25-cv-742-PRL

UNIVERSITY OF CENTRAL

FLORIDA BOARD OF TRUSTEES,

et al.,

Defendants.

ORDER

This matter is before the Court on Defendant University of Central Florida

Board of Trustees’ (“UCFBOT”) motion to dismiss, or in the alternative, motion to

remand (Doc. 21), and Plaintiff’s motion to transfer venue to the Orlando Division.

(Doc. 24). Both motions are fully briefed and ripe for consideration.

I. Background

This is an action for medical negligence brought by Plaintiff against Defendants

alleging that they failed to timely diagnose and treat her breast cancer. UCFBOT is

named as a Defendant because two of its residents, Manal El-Hag, M.D. and Hira

Hussain, M.D., were residents in the UCF Ocala Family Medicine Residency

Program working at Defendant Heart of Florida Health Center, Inc. (“HFHC”) during

the time Plaintiff sought care at HFHC. Defendants Jennifer K. Abernathy, D.O. and

Elvira S. Mercado, M.D., were both family medicine physicians employed by Heart

of Florida.

Plaintiff initiated this action in the Circuit Court of the Ninth Judicial Circuit,

in and for Orange County, Florida. On November 5, 2025, Defendants, Heart of

Florida Health Center, Inc., Jennifer Abernathy, D.O., and Elvira S. Mercado, M.D.

(collectively “Federal Defendants”) removed the state action to the U.S. District Court

for the Middle District of Florida, Orlando Division. (Doc. 1). On November 6, 2025,

United States District Judge Anne C. Conway entered an order noting that aside from

defendants residing in Orange County, Florida, most of the events giving rise to the

lawsuit occurred in Marion County, Florida and directing defendants to show cause

why this case should not be transferred to the Ocala Division. (Doc. 5). No party filed

a response to the order to show cause. Accordingly, on November 20, 2025, Judge

Conway transferred the case to the Ocala Division finding that pursuant to Local Rules

1.04(a) and (b), this action is properly brought in the Ocala Division, because it is

“most directly connected” with the action and where it “is most conveniently

advanced.” (Doc. 12).

On December 4, 2025, UCFBOT filed its motion to dismiss, or in the

alternative, motion to remand, arguing that the Court lacks subject matter jurisdiction

over UCFBOT, as it is a state entity entitled to Eleventh Amendment immunity. On

December 11, 2025, Plaintiff filed her motion to transfer venue back to the Orlando

Division.

II. Discussion

A. UCFBOT’s Motion to Dismiss

UCFBOT has moved to dismiss Plaintiff’s claims against it for lack of subject

matter jurisdiction, claiming that UCFBOT is entitled to Eleventh Amendment

immunity.

The Eleventh Amendment of the United States Constitution “bars federal

courts from entertaining suits against states” and arms of the state. See Abusaid v.

Hilllsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1302 (11th Cir. 2005). However,

“[t]he Eleventh Amendment bar to suit is not absolute,” and “[s]tates may consent to

suit in federal court . . . and, in certain cases, Congress may abrogate the States’

sovereign immunity.” Brown v. Florida Gulf Coast Univ. Bd. of Trustees, No. 2:18-cv-157-

FtM-29MRM, 2018 WL 5971661, at * 4 (M.D. Fla. November 14, 2018) (quoting Port

Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). Where Eleventh

Amendment immunity exists, a federal court lacks subject matter jurisdiction over

claims against the immune entity.

It is well-settled that the boards of trustees of Florida’s state universities are

“arms” of the state for purposes of Eleventh Amendment immunity. See Univ. of S. Fla.

Bd. of Trs. v. CoMentis, Inc., 861 F.3d 1234, 1237 (11th Cir. 2017); Paylan v. Teitelbaum,

No. 2017 WL 2294084, at * (N.D. Fla. May 23, 2017) (holding that UFBOT is state

agency entitled to Eleventh Amendment immunity and collecting cases making

similar findings). As such, absent waiver or abrogation by Congress, UCFBOT is

entitled to Eleventh Amendment immunity.

Here, Plaintiff solely has alleged state law medical negligence claims. While a

state may consent to suit against it in federal court, that consent must be

“unequivocally expressed.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99

(1984). As an initial matter, Florida’s waiver of immunity for tort actions brought in

state court in Fla. Stat. § 768.28, does not waive its Eleventh Amendment immunity

from suit in federal court. See Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990).

Nevertheless, Plaintiff argues that UCFBOT waived its immunity by “its active

litigation conduct” following removal. (Doc. 29 at 4-5). Specifically, Plaintiff contends

that UCFBOT voluntarily submitted to federal jurisdiction by filing its Notice of

Pendency of Other Actions and Rule 7.1 Disclosure Statements and by counsel

confirming their attendance at the December 19, 2025, Rule 26(f) conference. In

support of this argument, Plaintiff cites Lapides v. Board of Regents of Univ. Sys. of Ga.,

535 U.S. 613 (2002), in which the Supreme Court held that the state waived its

Eleventh Amendment immunity when it removed a case from state court to federal

court. That case is certainly distinguishable from the instant case, where UCFBOT did

not choose the federal forum.

Moreover, the actions that Plaintiff contends show that UCFBOT voluntarily

submitted to federal jurisdiction were all taken at the direction of the Court and fail to

show that UCFBOT was consenting to being sued in federal court. Upon removal, the

Court entered its standard Initial Case Order in which it directed counsel within

fourteen days to file and serve its Disclosure Statement and Notice of Pendency of

Other Actions. (Doc. 4). The Order advised that failure to file the Disclosure Statement

may result in sanctions and that any motion, memorandum, response, or other paper

may be denied or stricken unless the party has previously filed and served a Disclosure

Statement. (Doc. 4 at 2 & n.1). Consistent with these directives, UCFBOT filed its

Disclosure Statement (Doc. 20) and its Notice of Pendency of Other Actions (Doc.

19). These court-mandated administrative filings do not constitute a waiver of

UCFBOT’s Eleventh Amendment immunity.

Likewise, UCFBOT’s counsel’s agreement to attend the Rule 26(f)

conference—which was directed by the Court’s Initial Case Order (Doc. 4) and Local

Rule 3.02—did not constitute a waiver. In fact, the e-mail correspondence attached to

Plaintiff’s response in which counsel agreed to participate (Doc. 29-1), post-dated

UCFBOT’s filing of its motion to dismiss asserting its Eleventh Amendment

immunity. (Doc. 21).

Because UCFBOT has not unequivocally expressed its consent to be sued in

federal court, Plaintiff’s claims against UCFBOT are barred by Eleventh Amendment

immunity here. UCFBOT requests that the Court either dismiss the claims for lack of

subject matter jurisdiction or remand the claims against UCFBOT to the state court.

Plaintiff requests that the Court remand the action back to the state court from which

it was removed for cost and efficiency purposes.

Upon due consideration, UCFBOT’s motion to dismiss, or in the alternative,

motion to remand (Doc. 21) is granted to the extent that Plaintiff’s claim in Count IV

of the Complaint against University of Central Florida Board of Trustees d/b/a/

College of Medicine Graduate Medical Education Program and The UCF Ocala

Family Medicine Residency Program is remanded to the Circuit Court of the Ninth

Judicial Circuit, in and for Orange County, Florida. Plaintiff’s claims against

Defendants Jennifer K. Abernathy, D.O., Elvira S. Mercado, M.D., and Heart of

Florida Health Center, Inc. remain pending in this Court.1

B. Plaintiff’s Motion to Transfer

Plaintiff requests that the court transfer this action back to the Orlando Division

pursuant to 28 U.S.C. § 1404(a). Section § 1404(a) provides that a district court may

transfer any civil action to any district or division where it could have been brought

for: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the

interests of justice. District courts have substantial discretion to adjudicate motions to

transfer consistent with an “individualized, case-by-case consideration of convenience

and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v.

Barrack, 376 U.S. 612, 622 (1964). The burden is on the movant to show that this action

should be transferred to the suggested forum in the interests of convenience and justice.

National Trust Insur. Co. v. Pennsylvania National Mutual Casualty Insur. Co., 223

F.Supp.3d 1236, 1242 (M.D. Fla. 2016).

1 These Defendants have filed a motion to substitute the United States of America as the sole

federal defendant in their place. (Doc. 44).

Plaintiff’s motion for transfer relies heavily on the fact that she initially filed this

action in the state court in Orlando, Florida. However, once this case was removed

from state court, Judge Conway properly considered whether it was correctly filed in

the Orlando Division. See M.D. Fla. Local Rule 1.04. After affording the parties an

opportunity to be heard,2 Judge Conway transferred this action finding that the Ocala

Division is “most directly connected” with the action and is the Division where the

action “is most conveniently advanced.” (Doc. 12). Judge Conway explained that

“aside from some defendants residing in Orange County, Florida, most of the events

giving rise to the lawsuit occurred in Marion County, Florida.” (Doc. 5). There is no

dispute that the discretionary transfer to the Ocala Division was proper under Local

Rule 1.04.3

Nevertheless, Plaintiff now contends that this action should be transferred back

to the Orlando Division in the interests of convenience and justice—effectively

overriding the district judge’s prior determination. Plaintiff, however, has failed to

offer any compelling arguments to support this request.

At the most fundamental level, the medical treatment giving rise to this medical

negligence action occurred entirely in Marion County, Florida. While the Complaint

includes the conclusory allegation that “some of the events” took place in Orange

2 While the order to show cause was directed to Defendants, there was nothing preventing

Plaintiff from filing a response. (Doc. 5).

3 The Federal Defendants concede that the case should have been removed to the Ocala

Division from the outset. (Doc. 28 at 2 & n.1).

County, Florida, the Complaint is devoid of any such facts. (Doc. 1-1 at ¶ 14). Indeed,

Plaintiff alleges that she was treated at Heart of Florida in Ocala, Florida by UCFBOT

residents Manal El-Hag, M.D. and Hira Hussain, M.D. and supervising physicians

Dr. Jennifer Abernathy and Dr. Elvira S. Mercado. She also alleges that she had a

mammogram and related procedure at Radiology Associates of Ocala Women’s

Imaging Center. Moreover, Plaintiff and Defendants—Heart of Florida Health Center,

Inc.; Dr. Jennifer K. Abernathy; Dr. Elvira S. Mercado—are located in Marion

County, Florida. Indeed, the only party located outside of Marion County is

UCFBOT, which, as discussed above, has been dismissed from this federal action.

As for witnesses, Plaintiff asserts that even though Plaintiff’s treatment was

provided in Ocala, Florida, several of the treating witnesses, like those in the UCF

residency program, no longer reside in Ocala, Florida. Plaintiff, however, does not

contend that they reside in Orange County, Florida but rather that “almost all

depositions are conducted via zoom for convenience of the parties in multiple

locations.” (Doc. 24 at 10). The fact that some treating witnesses might live elsewhere

–but will be deposed via zoom—fails to support transfer. Also unpersuasive is

Plaintiff’s claim that Orlando is more convenient for unspecified witnesses because it

is a large transportation hub.

Plaintiff also contends that keeping this federal case in the Ocala Division while

a state case proceeds against UCFBOT in Orange County “creates significant

inefficiency and risks inconsistent rulings.” As discussed above, Plaintiff’s claims

against UCFBOT are barred in federal court and can only be pursued in state court.

And even if simultaneously conducting the state and federal cases in different

geographical locations might lead to some inconvenience and inefficiencies, if fails to

overcome the venue factors which weigh in favor of the Ocala Division.* Indeed, as

Judge Conway already found, the Ocala Division is the “most directly connected”

with the action and where the case “is most conveniently advanced.”

For the reasons stated above, Plaintiff's motion to transfer venue to the Orlando

Division (Doc. 24) is denied.

DONE and ORDERED in Ocala, Florida on March 26, 2026.

PHILIP R. LAMMENS

United States Magistrate Judge

Copies furnished to:

Counsel of Record

“ Of course, to the extent Plaintiff believes that the state and federal cases being

conducted in the same geographic location will be more convenient and efficient, she can re-

file her claim against UCFBOT in state court in Marion County, Florida.

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