Opinion
CIVIL ACTION NO. 2:08cv173-MHT (WO).
March 31, 2009
OPINION AND ORDER
Plaintiff Jennifer P. Clark, an Alabama attorney, charges that two Georgia residents (defendant Jason J. Deal, a Superior Court Judge of Hall County, Georgia, and E. Paul Stanley, an attorney who also resides in Hall County, Georgia) published and distributed a court order that defamed her. Diversity-of-citizenship jurisdiction is proper pursuant to 28 U.S.C. § 1332.
Before the court are Judge Deal's and Attorney Stanley's motions to dismiss and alternative motions to transfer. This action will be transferred to the United States District Court for the Northern District of Georgia.
I.
This lawsuit arises from orders entered by Judge Deal in a state-court lawsuit, Clark v. City of Flowery Branch, No. 03cv1830 (Super.Ct. Of Hall County, Ga. filed Oct. 30, 2003). A chronology of events leading to this federal lawsuit is as follows:
October 30, 2003 — Lewis Clark filed a lawsuit in the Superior Court of Hall County against the City of Flowery Branch, Georgia and others.
November 12, 2003 — Judge Deal granted permission to Attorney Clark, a member of the Alabama bar, to represent Larry Clark pro hoc vice.
November 14, 2005 — Judge Deal issued an order requiring that Attorney Clark discontinue serving as counsel by November 15, 2005 "or as soon as practicable." He further permitted Attorney Stanley to become counsel for Lewis Clark. He also permitted Attorney Braxton Blake Lowe to represent Larry Clark pro hoc vice.
June 9, 2006 — Attorney Clark filed an application that she again be added as pro hoc vice counsel for Larry Clark.
July 14, 2006 — Citing his previous order "unequivocally revoking Ms. Clark's pro hac vice status," Judge Deal denied Attorney Clark's renewed application. He reasoned that, during the time Attorney Clark had previously served as pro hac vice, the proceedings had "been marked by combative behavior between the parties as well as repeated delay in the progression of discovery, scheduling of mediation and compliance with the Court's instructions."
July 20, 2006 — Attorney Clark wrote a letter to the court asking that it specify how she had acted combatively and what discovery deadlines she had failed to meet. She charged that the factual representations in the court's July 14 order were false. February 26, 2007 — Attorney Clark filed a complaint with the Judicial Qualifications Commission against Judge Deal. She alleged that the court's July 14 order contained false statements.
February 28, 2007 — In light the complaint filed with the Judicial Qualifications Commission, Judge Deal granted Attorney Clark's motion that he recuse himself; he transferred the case to the Chief Judge of the Hall County Superior Court so that the case could be reassigned to another judge.
March 21, 2007 — Attorney Clark wrote another letter, addressed to Judge Deal, asking that he correct his order accusing her of being combative and charging that she had regularly traversed court deadlines.
March 29, 2007 — Judge Deal issued an order stating that Attorney Clark had engaged in ex parte written communication with the court; he was presumably was referring to her March 21 letter. He asked that the written communication be made available to all parties in the case.
April 10, 2007 — Attorney Clark filed the March 21 letter that she wrote to Judge Deal.
January 4, 2008 — Attorney Stanley filed a complaint with the Alabama Bar Association against Attorney Clark based on her actions in the Georgia lawsuit.
February 11, 2008 — Attorney Clark wrote another letter to Judge Deal, asking him to retract the statements he had made in the orders of July 14, 2006, and March 29, 2007.
February 28, 2008 — Attorney Clark wrote a letter to Attorney Stanley requesting that he retract the statements he caused to be published by the Alabama Bar accusing her of unprofessional behavior. She stated that, if he did not retract these statements by March 7, 2008, she would file a lawsuit against him for defamation. March 12, 2008 — Attorney Clark filed this federal lawsuit, accusing both Judge Deal and Attorney Stanley of defaming her. She seeks ten million dollars in damages from each of them, as well as preliminary and permanent injunctive relief.
II. A. Judge Deal
Judge Deal contends that this federal court lacks personal jurisdiction over him. District courts are guided by a two-part analysis when determining whether to assert personal jurisdiction over a nonresident defendant. Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir. 1990);Alexander Proudfoot Co. World Headquarters v. Thayer, 877 F.2d 912, 919 (11th Cir. 1989). Courts look to whether the state's long-arm statute permits jurisdiction over the suit. Cable/Home Communication Corp., 902 F.2d at 855; Alexander Proudfoot Co., 877 F.2d at 919. Second, courts look to whether the nonresident defendant has had sufficient minimum contacts with the state to satisfy the Due Process Clause of the Fourteenth Amendment such that "maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); Cable/Home Communication Corp., 902 F.2d at 855;Alexander Proudfoot Co., 877 F.2d at 919. Both prongs of the analysis must be satisfied for federal or state courts to exercise personal jurisdiction over a nonresident defendant.
"Jurisdiction of the Alabama courts extends to the permissible limits of due process under [its] long-arm rule, Rule 4.2, Ala. R. Civ. P." Steel Processors, Inc. v. Sue's Pumps, Inc. Rentals, 622 So.2d 910, 911 (Ala. 1993); see also Ex parte Hospital Espanol de Auxilio Mutuo de Puerto Rico, Inc., 945 So.2d 437 (Ala. 2006) Thus, in this case, the two-part inquiry collapses into one determination: whether exercising personal jurisdiction over a non-defendant would offend due process.
Two types of personal jurisdiction exist: specific and general. Specific jurisdiction is based on the party's contacts with the forum state that are related to the cause of action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984). General personal jurisdiction arises from a party's contacts with the forum state that are unrelated to the litigation. Thomas v. Mitsubishi Motor North America, Inc., 436 F.Supp.2d 1250, 1253 (M.D.Ala. 2006) (Albritton, J.). There is no allegation here that Judge Deal has had general contacts with Alabama unrelated to this lawsuit.
Before this court may exercise `specific' personal jurisdiction over Judge Deal, due process requires that he have had "fair warning" that a particular activity may subject him to the jurisdiction of a foreign sovereign. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985);Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J. concurring in judgment). This warning requirement is satisfied when a defendant has "purposefully directed" his activities at the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and the litigation results from alleged injuries that "arise out of or relate to" those activities. Burger King, 471 U.S. at 472 (quoting Helicopteros Nacionales de Colombia, 466 U.S. at 414). A defendant's conduct and connection with the forum must be of a character that he should reasonably anticipate being haled into court there. Burger King, 471 U.S. at 474; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
In this case, Attorney Clark has failed to show that this court may exercise personal jurisdiction over Judge Deal. He is Georgia citizen who is being sued because of orders he wrote while serving as a judge in a Georgia state court. There is absolutely no evidence that, when he authored the state-court orders, he was purposely directing his activities to the State of Alabama. Simply put, no person would reasonably anticipate being haled into an Alabama court because of orders he wrote as a Georgia state judge.
It is not enough that a third party in Alabama used Judge Deal's orders as a basis to investigate a complaint against Attorney Clark. Hanson v. Denckla, 357 U.S. 235, 253 (1958) ("the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State"). Judge Deal wrote the two orders to resolve disputes arising in a Georgia lawsuit. Further, his orders focused entirely on Attorney Clark's activities in that Georgia suit.
While it may have been, at best, marginally foreseeable that some individuals in Alabama may read his orders concerning a member of the Alabama Bar, this kind of attenuated possibility is not sufficient to sustain personal jurisdiction over him. See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 112 (1987) (finding that the defendant's mere awareness that some of its products would eventually enter the forum state was not enough to support the exercise of personal jurisdiction; the Court instead required some purposeful act, directed at the forum state); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (holding that an Oklahoma court could not, consistent with the Due Process Clause, exercise jurisdiction over a New York automobile distributor and a Connecticut retail automobile dealer in a products liability action arising from an automobile accident that occurred in Oklahoma). Judge Deal may not be haled into this jurisdiction as a result of such random and attenuated contacts, see Burger King, 471 U.S. at 475, or because of the unilateral activity of a third person. See Burger King, 471 U.S. at 475; Helicopteros, 466 U.S. at 417.
The next question is, What should the court do since it has no personal jurisdiction over Judge Deal? Under 28 U.S.C. § 1406(a), "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." The Supreme Court has interpreted this provision to mean that a court may transfer a case when it lacks personal jurisdiction over a defendant. Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) (approving transfer under § 1406(a) even where both proper venue and personal jurisdiction were lacking because Congress enacted § 1406(a) to remove obstacles that impede expeditious and orderly adjudication.); see also Aguacate Consol. Mines, Inc. of Costa Rica v. Deeprock, Inc., 566 F.2d 523, 524 (5th Cir. 1978). Here, because Judge Deal authored allegedly defamatory orders in the Northern District of Georgia and because he is subject to personal jurisdiction in Georgia, this court will transfer the claims against him to the Northern District of Georgia pursuant to § 1406(a).
B. Attorney Stanley
The court will assume that it has personal jurisdiction over Attorney Stanley. The question, therefore, is whether this case should nonetheless be transferred. 28 U.S.C. § 1404(a) provides that, "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." The district court has "broad discretion in weighing the conflicting arguments as to venue," England v. ITT Thompson Industries, Inc., 856 F.2d 1518, 1520 (11th Cir. 1988), and a court faced with deciding whether to transfer a matter must engage in an "individualized, case-by-case consideration of convenience and fairness." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). A district court may properly transfer a case to "the forum in which judicial resources could most efficiently be utilized and the place in which the trial would be easiest, and most expeditious and inexpensive." C.M.B. Foods, Inc. v. Corral of Middle Ga., 396 F.Supp.2d 1283, 1286 (M.D. Ala. 2005) (Thompson, J.).
Resolution of a case under § 1404(a) requires a two-step process. First, the court must determine whether the action could "originally have been brought in the proposed transferee district court," Folkes v. Haley, 64 F.Supp.2d 1152, 1155 (M.D. Ala. 1999) (DeMent, J.); then, the court "must decide whether the balance of convenience favors transfer." Id. In this case, none of the parties resides in the Middle District of Alabama. More importantly, because the claims against Judge Deal are being transferred to the Northern District of Georgia and because Attorney Stanley allegedly defamed Attorney Clark by publishing the very orders Judge Deal authored, convenience and basic judicial economy demands that the claims against Attorney Stanley be handled in the Northern District of Georgia as well. The claims against Attorney Stanley will therefore be transferred to the Northern District of Georgia pursuant to § 1404(a).
***
Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court as follows:
(1) The defendants' alternative motions to transfer (Doc. Nos. 9 13) are granted.
(2) This case is transferred to the United States District Court for the Northern District of Georgia.
(3) Any other motions are left for disposition after transfer.
The clerk of the court is DIRECTED to take appropriate steps to effect the transfer.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).