Tognaci v. Ameris Bank
| Decision Date | 04 January 2023 |
| Docket Number | Civil Action 22-00473-KD-B |
| Parties | MICHAEL ANTHONY TOGNACI, Plaintiff, v. AMERIS BANK, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
REPORT AND RECOMMENDATION
Plaintiff Michael Anthony Tognaci filed a pro se complaint and request for injunction, along with a motion to proceed without prepayment of fees. (Docs. 1, 2). This case was referred to the undersigned Magistrate Judge for appropriate action pursuant to 28 U.S.C. § 636(b)(1) and S.D. Ala GenLR 72(a)(2)(S). After careful review, it is recommended that this action be TRANSFERRED to the Southern Division of the United States District Court for the Middle District of Alabama.
In this action, Plaintiff Michael Anthony Tognaci (“Tognaci”)[1]alleges that the Defendants are “perpetrating Fraud”[2] by foreclosing on his business properties “without cause.” (See Doc. 1 at 5). Tognaci's complaint[3] names as Defendants Ameris Bank; James Owler, a loan officer at Ameris Bank; and Phillip Buffington, Jr., an attorney for Ameris Bank. (Id. at 2). The complaint alleges that this Court has jurisdiction based on diversity of citizenship because Tognaci is a citizen of Alabama, Defendants are citizens of Georgia, and the amount in controversy exceeds $75,000. (Id. at 3-4).
The complaint alleges that “[t]he Defendants are perpetrating Fraud by foreclosing on [Tognaci's] business property that [was] in good standing until a payment [he] made was mistaken for fraud and returned without notifying [him].” (Id. at 5). The complaint states that Defendant Owler contacted Tognaci and notified him “of the default months later.” (Id.). The complaint alleges that Tognaci “immediately” sent a check to Defendant Owler “for full amount which he said he did not get,” and that Tognaci subsequently sent a number of other checks to Owler and/or Ameris Bank, none of which “made it to the loans payments.” (Id.). Tognaci then “sent Mr Owler an email expressing [his] displeasure in him and the bank.” (Id.).
The complaint asserts that Defendant Owler took Tognaci's email “personal and cominced to attack [Tognaci] financially by foreclosing on [his] loans with Ameris bank without cause.” (Id.). The complaint further alleges that Tognaci “wrote a letter to [Defendant Owler's] attorney explaining the fraud and how he was a p[a]rt of it and [Tognaci] had evidence but he continued any way without seeking the information [Tognaci] had.” (Id.). Because of this, Tognaci contends that the attorney “would be considered an accompli[ce] of Fraud.” (Id.). Tognaci states that the events giving rise to his claims occurred on July 8, 2022, in Dothan, Alabama. (Id. at 4).
For relief, Tognaci requests that the Court “please stop the Foreclosing and sale of [his] properties” located in Niceville, Florida, and Dothan, Alabama. (Id. at 6).
Upon review of Tognaci's complaint, the undersigned found that it lacks any factual basis suggesting that venue is proper in the Southern District of Alabama. (Doc. 3 at 4). Specifically, the undersigned noted that the Defendants are alleged in the complaint to be citizens of Georgia; that the events giving rise to the claims are alleged to have occurred in Dothan, Alabama, which is located in the Middle District of Alabama; and that the properties in question are located in Dothan, Alabama, and Niceville, Florida, which respectively lie in the Middle District of Alabama and the Northern District of Florida. (Id.). Accordingly, the undersigned entered an order directing Tognaci to show cause why this action should not be dismissed or transferred for improper venue. (Id. at 5).
Tognaci responded to the Court's order, in relevant part, as follows:
(Doc. 6 at 1).
Under 28 U.S.C. § 1391(b), which applies to diversity actions, a civil action may be brought in:
28 U.S.C. § 1391(b).
“The statute's language is instructive: venue [under § 1391(b)(2)] is proper in ‘a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.'” Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003) (emphasis in original). Id. Moreover, when determining whether venue is proper, courts must focus on the relevant activities of the defendants rather than the plaintiff. Id. at 1371-72.
A district court may raise the issue of whether venue is appropriate sua sponte, although a court may not dismiss without giving the parties an opportunity to present their views on the issue. Lipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257, 1258 (11th Cir. 1988). When venue is not proper in the district of filing, the district court must dismiss, or if it is in the interest of justice, transfer the action to any district in which it could have been brought. 28 U.S.C. § 1406(a).
As an initial matter, the Court reiterates that venue in the Southern District of Alabama is clearly not proper under § 1391(b)(1), since none of the Defendants are alleged to reside in Alabama. Likewise, there is no indication that 28 U.S.C. § 1391(b)(3), which applies only “if there is no district in which an action may otherwise be brought as provided in this section,” is applicable.
Instead, Tognaci appears to suggest that venue in this district is proper under § 1391(b)(2) (). Tognaci notes in his response to the Court's show cause order that he resides in Foley, Alabama, and he states that “[t]he judicial district in which a substantial part of the events or omissions giving rise to the facts that the claim occurred, or a substantial part of the property that is subject to this action is in the great state of Alabama located in Foley Alabama.” (Doc. 6 at 1).
Tognaci's reference to a “judicial district . . . in the great state of Alabama located in Foley Alabama” is nonsensical. The state of Alabama is divided into three federal judicial districts: the Northern, Middle, and Southern Districts of Alabama. See 28 U.S.C. § 81. Foley is located in the Southern District of Alabama, but Tognaci's complaint and show cause response provide no factual basis for venue in this district. On the contrary, the complaint specifically alleges that the events giving rise to his claims occurred in Dothan, Alabama, which is located in the Middle District of Alabama. (Doc. 1 at 4); see 28 U.S.C. § 81(b)(2). The “Foreclosed properties” at issue in this litigation are located in Dothan, Alabama, and Niceville, Florida, which respectively lie in the Middle District of Alabama and the Northern District of Florida. (Doc. 1 at 6; Doc. 6 at 1); see 28 U.S.C. §§ 81(b)(2) & 89(a). Tognaci identifies the “location in which [he] received the loan Mortgages” as an address in Dothan, Alabama. (Doc. 6 at 1). And, the Defendants appear to be located in Georgia and Mississippi. (See id.).
In sum although Tognaci resides in the Southern District of Alabama, he has not identified a single relevant event or omission that occurred in this district, nor has he alleged that any of the property at issue in this action is located here. Thus, venue in this district is improper. See Robey v. JPMorgan Chase Bank, N.A., 343 F.Supp.3d 1304, 1316 (S.D. Fla. 2018) ( ) (internal citations omitted); Lea v. Farmers Nat'l Bank, 2016 U.S. Dist. LEXIS 22362, at *6, 2016 WL 742549, at *2 (M.D. Tenn. Jan. 6, 2016) ( that the Middle District of Tennessee was an improper venue for an action stemming from the foreclosure of current Tennessee resident's property in Kentucky when plaintiff failed to allege facts showing that a substantial part of the events or omissions giving rise to his claims occurred in the Middle District of Tennessee), report and recommendation adopted, 2016 U.S. Dist. LEXIS 22363, ...
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