Finley v. Kelly

• Decision Date: 14 June 2019
• Docket Number: No. 3:19-cv-00129,3:19-cv-00129
• Citation: 384 F.Supp.3d 898
• Parties: Roger FINLEY and Kerry Finley, Plaintiffs, v. Robyn Barone KELLY and Does 1 to 10, Inclusive, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

384 F.Supp.3d 898

Roger FINLEY and Kerry Finley, Plaintiffs,

v.Robyn Barone KELLY and Does 1 to 10, Inclusive, Defendants.

No. 3:19-cv-00129

United States District Court, M.D. Tennessee, Nashville Division.

Filed June 14, 2019

Jennifer McGrath, Theodora Oringher, PC, Los Angeles, CA, William V. Parsons, III, Shackelford Bowen McKinley Norton, LLP, Nashville, TN, for Plaintiffs.

Abraham H. Fine, Elliot Peters, Keker & Van Nest, LLP, San Francisco, CA, Caroline D. Spore, Robert S. Patterson, Thor Y. Urness, Bradley Arant Boult Cummings LLP, Nashville, TN, for Defendants.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

In this diversity action brought by Roger and Kerry Finley, Robyn Kelly¹ has filed a Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. No. 18). That Motion has been fully briefed by the parties (Doc. Nos. 19, 22 & 23), and, for the following reasons, will be granted in part and denied in part. Also pending is a Motion to Dismiss for improper venue or alternatively to transfer (Doc. No. 5). That motion, too, has been fully briefed by the parties (Doc. Nos. 6, 8, 12, 14-1) and will be denied.

I. Background

Eliminating some of the legal conclusions (of which there are many), and toning down the hyperbole a tad, the Amended Complaint alleges the following relevant facts:

Robyn and Roger dated in high school and had a brief romantic relationship. Decades later, they reconnected on Facebook and arranged a meeting in Las Vegas. Robyn and her husband Padiac Kelly met Roger there in January 2013. The trio met again in Las Vegas in January 2014.

After the January 2014 meeting, Robyn and Roger never met again. They did, however, correspond for several months in 2014, and discussed rekindling their decades-old high school relationship. By September 2014, however, Roger decided that it was wrong for him to engage in such communications, and he informed Robyn that he did not wish to communicate with her further. This did not go over well.

In December of 2014, Robyn, utilizing a fake Facebook account, began sharing personal messages with Kerry that she had received from Roger. This prompted Kerry to block Robyn on Facebook. Thwarted, Robyn changed tactics by "leaving lengthy voicemails and sending literally hundreds of emails to Roger," that included "threats of public disclosure of private facts" and "contained vitriolic attacks on Roger and vicious and frightening attacks on his wife, Kerry." (Doc. No. 9, Am. Cmpt. ¶ 15)

Roger, too, was forced to shut down his personal Facebook account, but could not change his work email. He tried to block messages from Robyn, but she would circumvent this by creating a "myriad [of] new email accounts," through which she sent "messages several times per week to his work email system from late 2014 into the late spring or 2018." (Id. ¶ 17). Some emails threatened to get Roger fired from his job, while others referred to him by "a string of defamatory invective[s] such as, ‘sociopath,’ ‘abuser,’ ‘monster’ and (in just one notable email) as ‘a lunatic, psycho, loser, creep.’ " (Id. ¶ 19). Some emails suggested that Roger was physically and/or emotionally abusive towards Robyn and other women, that he had mental health problems, and problems with alcohol abuse. Other emails attacked Kerry, suggesting that she, too, was abusive, and was "evil," even though Robyn had never met Kerry. (Id. ¶ 20).

Robyn routinely threatened to " ‘expose" Roger to a ‘larger audience’ and made other clear threats that she would inform third parties of her ‘beliefs’ about Roger – i.e. , the ... false assertions that Roger is an abusive romantic partner and a belligerent alcoholic, and his wife Kerry has physically threatened her – and provide those individuals with copies of the messages sent privately by Roger to Robyn." (Id.). Robyn made good on those threats when, utilizing the "handle Grace Squad," she created a Facebook account and uploaded a 79-page "Document" that included private exchanges and photos between her and Roger. The Document was prefaced with an introductory 15-page, single spaced narrative that contained many of the same "salacious" claims, "accusations," and "vitriolic attacks" she had unleashed before in her private communications with Roger and Kerry. (Id. ¶¶22-24). The Document was sent to at least 18 individuals, some of whom were Plaintiffs' family members and personal friends.

In addition to repeating a lot of what had been said earlier, the narrative portion of the Document "describes Roger as ‘a psycho and pathological liar," "obsessive," "an abuser," and "a "stalker" who purportedly "mistreated" and "threatened Robyn." (Id. ¶ 24). The Document also states that Roger was "a drunk," "mentally unhealthy," and that a psychologist friend of Robyn's indicated that Roger's behavior "fit every definition and description of a sociopath." (Id. ¶ 25). The Document also attacks Kerry, claiming that the Finley's had "an abusive relationship," and that Kerry was belligerent, threatening and "abus[ive] to Roger." (Id. ¶ 28). The Document continues in the same vein, but this is more than enough to describe its essence and place the parties' arguments in context.

II. Motion to Dismiss For Improper Venue or Alternatively to Transfer

In response to the initial Complaint, Robyn filed a combined Motion to Dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and a Motion to Dismiss for lack of jurisdiction under Rule 12(b), or alternatively transfer venue pursuant to 28 U.S.C. § 1404(a). (Doc. No. 5). In response to the Amended Complaint, however, Robyn filed only a Rule 12(b)(6) motion, but stated in a footnote in her accompanying Memorandum that "she maintains her arguments that venue is improper that were raised in her first motion and developed in subsequent filings." (Doc. No. 19 at 1, n.1). The record would have been less confusing if Robyn had simply renewed her venue/transfer motion in response to the Amended Complaint. Regardless, to the extent Robyn is still pursing this motion, it will be denied.

Relying on 28 U.S.C. § 1391, Robyn asserts that venue is improper in this Court because none of the provisions of subsection (b) of that statute apply. She is, after all, a resident of California, not Tennessee, a substantial part of the events did not occur in this state, and the action could have been brought in the Northern District of California. All of this may be true, but this action was removed from state court and "venue in removed actions is governed solely by § 1441(a)." Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 534 (6th Cir. 2002) (citing Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665, 73 S.Ct. 900, 97 L.Ed. 1331 (1953) ). In other words, "[t]here is only one federal venue into which a state court action may be removed, and that is in the statutorily dictated ‘district court ... for the district and division embracing the place where [the state court] action [was] pending.’ 28 U.S.C. § 1441(a)" Id. Venue is proper here because this Court (and in particular the Nashville Division) embraces Williamson County from which this case was removed.

Turning to the request to transfer, § 1404 provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought[.]" 28 U.S.C. § 1404(a). As that permissible language suggests, "district courts have broad discretion to determine when convenience or the interests of justice make a transfer appropriate." Doe v. United States, No. 3:16-CV-0856, 2017 WL 4864850, at *2 (M.D. Tenn. Oct. 26, 2017) (citing Reese v. CNH America LLC, 574 F.3d 315, 320 (6th Cir. 2009) ). "The burden of proving that transfer is warranted is on the moving party[.]" Id. The burden is "a substantial one" and "requires a clear and convincing showing that the balance of convenience strongly favors the alternate forum." Id. ; see, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ("[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."); W. Am. Ins. Co. v. Potts, 908 F.2d 974 (6th Cir. 1990) (A motion for change of venue is properly granted when the balance weighs ‘strongly in favor of transfer.’ ")

"To resolve a motion to transfer venue, a court considers: the plaintiff's choice of forum, the convenience of the witnesses and the residence of the parties, the location of sources of proof, including the availability of compulsory process to insure witness attendance, the location of the events giving rise to the dispute, any obstacles to a fair trial, the advantage of having the dispute adjudicated by a local court, and all other considerations of a practical nature that make a trial easy, expeditious, and economical." Maples v. United States, No. 3:17-CV-00912, 2018 WL 943213, at *1–2 (M.D. Tenn. Feb. 16, 2018) (citing LP Envtl., LLC v. Delfasco, LLC, 2015 WL 13145788, at *2 (M.D. Tenn. Feb. 25, 2015) ; Nollner v. S. Baptist Convention, Inc., 2014 WL 3749522, at *7 (M.D. Tenn. July 30, 2014) ). Robyn did not address those factors in her opening brief, but in her reply she insists that "[t]hree of the six factors support transferring this action to the Northern District of California, two are neutral, and additional practical considerations support transfer as well." (Doc. No. 12 at 4). The Court disagrees.

"Generally, one of the most significant factors in considering whether venue should be transferred is the plaintiff's choice of forum," and, therefore, " ‘plaintiff's choice of forum is usually entitled to ‘substantial consideration’ in balancing the § 1404(a) factors." Smith v. Kyphon, Inc., 578 F. Supp. 2d 954, 962 (M.D. Tenn. 2008). While Robyn cites a couple of district court cases for the proposition that " ‘[a] plaintiff's choice of forum is entitled to...