Gwynn v. Transcor America, Inc.
| Decision Date | 21 October 1998 |
| Docket Number | No. Civ.A. 95-K-2886.,Civ.A. 95-K-2886. |
| Parties | Joann GWYNN, Plaintiff, v. TRANSCOR AMERICA, INC., a Tennessee corporation, Jack Ter Linden, Randy Goodman, Defendants. |
| Court | U.S. District Court — District of Colorado |
Todd A. Jansen, Cockrell, Quinn & Creighton, Denver, CO, for Plaintiff.
David R. Brougham, Hall & Evans, L.L.C., Denver, CO, Jonathan L. Sacks, White House, TN, James H. Drescher, Stokes & Bartholomew, P.A., Nashville, TN, for Defendants.
Joann Gwynn brings this action for damages under 42 U.S.C. § 1983, asserting violations of the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States, against TransCor America, Inc., a Tennessee corporation, and its former employees, Jack ter Linden and Randy Goodman. She also asserts state law claims for negligent supervision (against TransCor); sexual assault and battery (against TransCor and ter Linden); and outrageous conduct (against all Defendants). The claims arise out of alleged mistreatment of Gwynn by the Defendants between November 21, 1993 and November 27, 1993, when she was being transported by Goodman and ter Linden from Oregon to Colorado, pursuant to a contract TransCor had with the Colorado Department of Corrections. Defendants deny the allegations of the Amended Complaint. Original jurisdiction exists over the § 1983 claim under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).
Pending are Defendants' motions to dismiss. I deny TransCor's motion and grant in part and deny in part those of Goodman and ter Linden.
On July 30, 1998, I entered an order on Motion for Clarification. At that time, there were then three pending motions to dismiss: (1) Defendant Jack ter Linden's motion to dismiss filed July 31, 1996, (2) Defendant Randy Goodman's motion to dismiss filed October 11, 1996, and (3) Defendant TransCor America Inc.'s motion to dismiss filed May 31, 1996. On September 10, 1997, Magistrate Judge Schlatter issued a recommendation concerning all three motions. Plaintiff and Defendants ter Linden and Goodman filed objections to the recommendation. On October 8, 1997, I issued an Order of Recommission to Magistrate Judge requiring him to reconsider all three pending motions to dismiss in accordance with that order.
On June 8, 1998, Magistrate Judge Schlatter issued a further recommendation addressing only two of the three pending motions, those filed by Goodman and ter Linden, but making no reference to that filed by TransCor America, Inc. On June 25, 1998, noting that no objection had been filed to the recommendation, I accepted and adopted it as an order of this court. Also on June 25, 1998, Defendants Goodman and ter Linden filed objections to the June 8, 1998 recommendation.
On June 30, 1998, Plaintiff filed an objection to Defendants' objection to the June 8, 1998 recommendation, stating that it was untimely and that I had already adopted the recommendation as there had been no timely objection filed. On July 8, 1998, Defendants ter Linden and Goodman responded to Plaintiff's objection, asserting that their objections were timely under Fed.R.Civ.P. 72(b) and 6(a). In my June 30, 1998 Order on Motion for Clarification, computing the time for filing the objections under Rule 6(a), I concluded Defendants' objections had been timely filed. The order further stated I would determine Defendants' motions to dismiss de novo and would disregard all previously filed briefs and objections relating to the motions as well as all proceedings before, rulings and recommendations of the magistrate judge relating to the said motions.
I vacated the June 25, 1998 order adopting the June 8, 1998 recommendation of the magistrate judge, the hearing previously scheduled for August 7, 1998, and all previous briefing schedules. I denied the request to recommission the magistrate judge. I further ordered that, or before August 14, 1998, each Defendant could file a brief in support of its/his motion to dismiss; on or before August 28, 1998, Plaintiff could file a response to each such brief; and on or before September 4, 1998, each Defendant could file a reply brief.
On August 14, 1998, Defendants Randy Goodman and Jack ter Linen filed a brief in support of their motions to dismiss, attaching affidavits and other documents in support thereof. On August 28, 1998, Gwynn filed a response, attaching her affidavit and the contract between TransCor and the Colorado Department of Corrections. On September 4, 1998, Goodman and ter Linden filed a reply. Defendant TransCor has not filed any brief pursuant to the July 30, 1998 order.
The matter was originally set for oral argument which was later vacated. Thereafter, Defendants Goodman and ter Linden filed a supplemental brief to their Reply.
Under a contract for extradition transportation between TransCor and the Colorado Department of Corrections, ter Linden and Goodman, employees of TransCor, transported Gwynn from Oregon to Colorado in November 1993. The trip took 145 hours, and the route went through Oregon, California, Nevada, Utah, Wyoming, Idaho, and Colorado. Only about two hours of the trip were in Colorado. During the trip, Gwynn was under the custody and control of ter Linden and Goodman.
Gwynn asserts the van in which Defendants transported her was dangerous because ter Linden and Goodman drove with insufficient sleep and exceeded safe speeds, including on two specific occasions when they drove over 60 miles per hour over mountain passes in Oregon and California when the road was covered by black ice. She also claims she was provided with inadequate food during the trip.
In addition, Gwynn asserts ter Linden raped and sexually assaulted her repeatedly during the trip, and Goodman failed to report or prevent these assaults. Specific acts occurred in Caldwell, Idaho, Vale, Oregon, and at a rest stop in an unspecified state. Gwynn also states ter Linden fondled and assaulted her in every state through which he transported her.
At the end of the trip, ter Linden and Goodman delivered Gwynn to the custody of Jefferson County, Colorado. Gwynn spent approximately two years thereafter in Colorado. She currently lives in Oregon. Ter Linden, Goodman, and TransCor are all residents of Tennessee.
In her response to the August 14, 1998 motion of Goodman and ter Linden, Gwynn requested clarification as to whether TransCor's brief in support of its motion to dismiss, filed May 31, 1996 would be considered by the court. My July 30, 1998 Order On Motion for Clarification stated I would determine Defendants' motions to dismiss de novo and would ignore all previously filed briefs and objections as well as all proceedings before, rulings and recommendations of the magistrate judge relating to the said motions. The order thus stated my unequivocal intention to determine the motions to dismiss de novo and to disregard all previously filed briefs. Because TransCor has not, since that order, filed a brief in support of its May 31, 1996 motion to dismiss, that motion is unsupported and is dismissed. I nevertheless, sua sponte, consider the issue of personal jurisdiction with regard to TransCor and find that personal jurisdiction exists.1
Defendants Jack ter Linden and Randy seek dismissal, arguing that venue is improper in Colorado; personal jurisdiction over Defendants is lacking in Colorado; service of process is insufficient; and the federal claims pursuant to 42 U.S.C. § 1983 fail to state a claim upon which relief may be granted.
Ter Linden and Goodman argue venue is improper in Colorado. Plaintiff has the burden to establish venue is proper in this district. Ferrofluidics Corp. v. Advanced Vacuum Components, Inc., 789 F.Supp. 1201, 1206 (D.N.H.1992), aff'd, 968 F.2d 1463 (1st Cir.1992). Once venue is challenged, plaintiff must prove that it is proper by presenting specific facts to support the allegations. Banque de la Mediterranee-France v. Thergen, Inc., 780 F.Supp. 92, 94 (D.R.I.1992). Plaintiff has the burden of establishing that venue is proper as to each claim and as to each defendant. Jarrett v. North Carolina, 868 F.Supp. 155, 158 (D.S.C. 1994).
Because jurisdiction is not based solely upon diversity of citizenship, a civil action "may ... be brought ... in ... (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred...." 28 U.S.C. § 1391(b). Under this provision, several districts may qualify as the location of substantial events. "The fact that substantial activities took place in district B does not disqualify district A as proper venue as long as `substantial' activities took place in A, too." David D. Siegel, Changes in Federal Jurisdiction and Practice Under the New (Dec. 1, 1990) Judicial Improvements Act, 133 F.R.D. 61, 71 (1991). Even if a more substantial portion of the activities giving rise to the claim occurred in other districts, venue is proper if the district the plaintiff chose had a substantial connection to the claim. Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir.1994).
Ter Linden and Goodman claim the alleged acts of the Defendants must be considered separately, i.e. Gwynn's § 1983 claim must be considered as several separate claims. Applying the "substantial portion" test Defendants argue venue is not proper for each of these claims. They maintain insufficient events leading to Gwynn's claim occurred in Colorado to make this district the proper venue: less than two hours of the 145 hour trip occurred in Colorado; none of the five alleged acts relating to the reckless driving portion of Gwynn's claim occurred in Colorado;...
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