United States District Court, D. Rhode Island
ELSON M. DEBARROS, Plaintiff,
FAMILY PRACTICE GROUP, P.C., SUSAN REDMOND M.D., JENNIFER HILLERY, and ARLINGTON FAMILY PRACTICE, Defendants.
MEMORANDUM AND ORDER TRANSFERRING VENUE
TO THE DISTRICT OF MASSACHUSETTS
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
pro se complaint prepared with assistance from an
attorney who is identified in the text, Plaintiff Elson M.
DeBarros has sued a Massachusetts physician practice (Family
Practice Group, P.C., and Arlington Family Practice), a
Massachusetts physician (Dr. Susan Redmond) and a
Massachusetts employee of one of the practices (Jennifer
Hillery) in the District of Rhode Island. His complaint
alleges that, in 2016, he sought medical treatment in
Massachusetts at the practices, following which he sent
flowers, a card and emails expressing love for Dr. Redmond.
Based on this conduct, he was charged by the Commonwealth of
Massachusetts with accosting and annoying a person of the
opposite sex; his Massachusetts jury trial ended in a
mistrial due to a hung jury. Plaintiff's pleading asserts
claims against Defendants for malicious prosecution,
defamation and disability discrimination pursuant to the
Americans with Disabilities Act of 1990 (42 U.S.C. §
12101, et seq.); he also seeks a declaration that
his right of privacy was breached. All of his allegations -
both his federal question claim and his state law claims -
pertain to events that occurred entirely in Massachusetts.
pending before the Court is Defendants' motion to dismiss
based on lack of personal jurisdiction over all of the
Massachusetts-based Defendants pursuant to Fed.R.Civ.P.
12(b)(2) and based on improper venue pursuant to Fed.R.Civ.P.
12(b)(3) and 28 U.S.C. § 1406(a) because all Defendants
and all operative events occurred completely in Massachusetts
contrary to 28 U.S.C. § 1391(b). ECF No. 13. Plaintiff
does not disagree; his response to Defendants' motion
concedes that “[i]t's hereby evident that the
matter cannot be heard or determined by the District Court of
Rhode Island because it does not have personal jurisdiction
over the defendants.” ECF No. 15 at 1. Instead of
opposing the motion, he filed a counter motion to transfer
pursuant to 28 U.S.C. § 1404(a). ECF No. 15. Facing
Plaintiff's convenience-based request for transfer,
Defendants have not objected; their time to reply has come
of Plaintiff's pro se status,  the Court has
carefully reviewed Defendants' motion and finds that it
is more than adequate to establish that none of the named
Defendants has sufficient contact with the District of Rhode
Island to permit this Court to exercise general personal
jurisdiction over them, as well as that the complaint's
allegations rule out specific personal jurisdiction.
Daimler AG v. Bauman, 571 U.S. 117, 126, 139 (2014)
(no general jurisdiction unless parties'
“affiliations with the State are so ‘continuous
and systematic' as to render [them] essentially at home
in the forum State”); id. at 126 (citing
“canonical opinion, ” Int'l Shoe Co. v.
Washington, 326 U.S. 310 (1945)); Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011) (error to exercise jurisdiction over defendants
lacking sufficient contacts for general jurisdiction based on
claims insufficient for specific jurisdiction, which
“is confined to adjudication of ‘issues deriving
from, or connected with, the very controversy that
establishes jurisdiction'”). Accordingly, this
Court lacks the jurisdiction to issue any orders as to these
Defendants and the case cannot proceed here. United
Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1099 (1st Cir. 1992) (where
“plaintiffs failed to establish that the court below
was entitled to exercise in personam jurisdiction[,
] . . . the district court's orders were coram non
judice and, therefore, no more than serial
nullities”). It is equally clear that venue is improper
in this District. 28 U.S.C. § 1391(b); see Benedict
v. Folsted, C.A. No. 18-242 WES, 2018 WL 3491697, at *3
(D.R.I. July 20, 2018) (when defendant is not resident of
Rhode Island and no facts are alleged that would support the
assertion of personal jurisdiction over defendant in Rhode
Island, venue does not lie in Rhode Island).
only question is whether the Court should dismiss as
Defendants urge or transfer as Plaintiff requests.
answer this question, federal law directs the Court to focus
on what is just. Specifically, 28 U.S.C § 1631 provides
that when a court “finds that there is a want of
jurisdiction, the court shall, if it is in the interest of
justice, transfer such action . . . to any other such court .
. . in which the action or appeal could have been brought at
the time it was filed or noticed.” Relatedly, the
statute invoked by Defendant, 28 U.S.C. § 1406(a),
permits transfer when venue is improper “in the
interest of justice.” The First Circuit has interpreted
§ 1631 to establish a presumption in favor of transfer,
rather than dismissal, when the forum court lacks personal
jurisdiction. TargetSmart Holdings, LLC v. GHP Advisors,
LLC, 366 F.Supp.3d 195, 213-14 (D. Mass. 2019) (citing
Federal Home Loan Bank of Boston v. Moody's
Corp., 821 F.3d 102, 119 (1st Cir. 2016), abrogated
on other grounds, Lightfoot v. Cendant Mortg.
Corp., 137 S.Ct. 553 (2017)). And although §
1406(a) does not explicitly mention jurisdiction, the Supreme
Court has interpreted its mandate to “authorize the
transfer of cases, however wrong the plaintiff may have been
in filing his case as to venue, whether the court in which it
was filed had personal jurisdiction over the defendants or
not.” Goldlawr, Inc. v. Heiman, 369 U.S. 463,
466 (1962). Consequently, it is clear that this Court may
transfer this case under either 28 U.S.C. § 1631 or
under 28 U.S.C. § 1406(a) if it is in the
“interest of justice, ” which depends in turn on
whether “the administration of justice would be better
served by dismissal.” Britell v. United
States, 318 F.3d 70, 74 (1st Cir. 2003).
record, particularly with the parties essentially in
agreement, there is no indication that dismissal, rather than
transfer, would facilitate the speedy and efficient
resolution of this case. Rather, it appears plain that all
Defendants are subject to personal jurisdiction in
Massachusetts, that the District of Massachusetts would have
subject matter jurisdiction based on Plaintiff's pleading
of a federal question and that venue would be proper there.
Nor is this a circumstance where the core of the claims is so
“fanciful or frivolous” such that “it is in
the interest of justice to dismiss [the entire case] rather
than keep it on life support (with the inevitable result that
the transferee court will pull the plug).”
TargetSmart Holdings, 366 F.Supp.3d at 214. Rather,
a transfer to the District of Massachusetts would allow the
claims to move forward in a location with proper jurisdiction
over all parties and the subject matter. Finding nothing on
the record to rebut the presumption in favor of transfer, I
hereby order the case is transferred to the District of
Massachusetts pursuant to both 28 U.S.C. § 1631 and 28
U.S.C. § 1406(a).
on the foregoing, Defendants' motion to dismiss (ECF No.
13) is granted in part to the extent they seek relief under
28 U.S.C. §§ 1631 and 1406(a) based on the lack of
personal jurisdiction over any of Defendants and the improper
venue in the District of Rhode Island. It is denied in part
insofar as they ask for the remedy of dismissal.
Plaintiff's motion to transfer (ECF No. 15) the case to
the District of Massachusetts is granted in part in that
transfer pursuant to 28 U.S.C. §§ 1631 and 1406(a)
is in the interest of justice. It is denied in part because
his request for transfer pursuant to 28 U.S.C. § 1404(a)
is moot. Pursuant to 28 U.S.C. §§ 1631 and 1406(a),
this case is transferred to the District of Massachusetts.
 A motion to transfer venue is properly
referred to a magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(A). McEvily v. Sunbeam-Oster Co., 878
F.Supp. 337, 340 (D.R.I. 1994) (motion to transfer venue is
nondispositive and magistrate judge should make
determination). While Defendants' original motion was to
dismiss (and therefore was referred for report and
recommendation), it relies on 28 U.S.C. § 1406(a), which
also contemplates transfer. Plaintiff's counter motion
asks only for transfer and Defendants did not object. Because
I find that transfer rather than dismissal is appropriate, I
have addressed the motions in this memorandum and order. To
the extent that Defendants wish to assert an objection to
transfer in lieu of dismissal, they may do so as if that
ruling were in a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B), mindful that any objection must
be both specific and timely (filed and served within fourteen
days of the receipt of this decision). See
 Plaintiff's motion has been read
with the leniency required for all filings of pro se
litigants. Diaz v. Wall, C.A. No. 17-94 WES, 2018 WL
1224457, at *3 (D.R.I. Mar. 8, 2018).
 With no personal jurisdiction over any
Defendant, I do not reach Plaintiff's request for
transfer based on convenience pursuant to 28 U.S.C. §
1404(a). Although the District of Massachusetts is a
“district . . . where [this case] might have been
brought, ” id., it would not be appropriate to
make findings about what is convenient for parties and
witnesses in a case where ...