Belmont v. Bower et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Judson Randolph Belmont
v. Civil No. 19-cv-01155-LM
Opinion No. 2020 DNH 040
Katie Love Bower, et al.
O R D E R
Plaintiff, Judson Belmont, proceeding pro se, brings this
suit against Katie Bower, M.D., Emily Renee Faulks, M.D., and
Carilion Clinic asserting claims of negligence and medical
malpractice. Belmont claims that defendants provided him
substandard medical treatment after he was bitten by a
rattlesnake while mountain-biking in Virginia. Defendants move
to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(2) based on lack of personal jurisdiction. Doc. no. 6.
Belmont objects and requests that this court transfer this suit
to the United States District Court for the Western District of
Virginia pursuant to 28 U.S.C. § 1404. Belmont also requests an
expedited hearing on his request for a transfer.
STANDARD OF REVIEW
When a defendant contests personal jurisdiction under Rule
12(b)(2), the plaintiff bears the burden of persuading the court
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 1 of 13

2
that jurisdiction exists. See Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). Where,
as here, the court considers a Rule 12(b)(2) motion without
holding an evidentiary hearing, the court applies the prima
facie standard. See Sawtelle v. Farrell, 70 F.3d 1381, 1386 n.1
(1st Cir. 1995). To make a prima facie showing of jurisdiction,
a plaintiff cannot rest on the pleadings, but must adduce
evidence of specific facts supporting jurisdiction. See Foster-
Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st
Cir. 1995).
The court “draws the facts from the pleadings and the
parties’ supplementary filings, including affidavits, taking
facts affirmatively alleged by the plaintiff as true and viewing
disputed facts in the light most favorable to plaintiff.”
Sawtelle, 70 F.3d at 1385. The court may also consider the
facts posited by defendant, to the extent they are
uncontradicted. See Mass. Sch. of Law, 142 F.3d at 34. But the
court need not “credit conclusory allegations or draw farfetched
inferences.” Id. (internal quotation marks omitted). In short,
the court does not sit as a fact-finder; it “ascertains only
whether the facts duly proffered, fully credited, support the
exercise of personal jurisdiction.“ Rodriguez v. Fullerton
Tires Corp., 115 F.3d 81, 84 (1st Cir. 1997).
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 2 of 13

3
BACKGROUND1
Belmont is a long-time resident of New Hampshire. In May
2018, he went on a mountain-biking trip in Virginia. During
that trip, a rattlesnake bit his leg. He received emergency
medical treatment for that bite, including surgery, at Carilion
Roanoke Memorial Hospital in Roanoke, Virginia. Drs. Bower and
Faulks treated Belmont and performed surgery on his leg. Both
Drs. Bower and Faulks are residents of Virginia. Carilion
Roanoke Memorial Hospital is a subsidiary of defendant Carilion
Clinic. Carilion Clinic is a not-for-profit corporation
incorporated in Virginia, with its principal place of business
in Roanoke, Virginia.
In November 2019, Belmont filed this suit, claiming that
Drs. Bower and Faulks negligently caused him to have permanently
impaired functionality in his left leg, chronic pain, and
reduced quality of life. Belmont asserts that Carilion Clinic
employs Drs. Bower and Faulks and is therefore liable to him for
their actions based on a theory of respondeat superior. Belmont
also appears to assert that Carilion Clinic is directly liable
for negligence for its failure to provide “adequate support” to
Dr. Bower. Doc. no. 1 at 13. Belmont seeks to recover his
1 The court draws the following facts from the complaint and
from defendants’ uncontested affidavits.
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 3 of 13

4
medical expenses, ongoing expenses related to his now-disabled
leg, and relief for pain and suffering.
In January 2020, defendants moved to dismiss for lack of
personal jurisdiction, arguing that all three defendants are
citizens of Virginia and have no contacts with New Hampshire.
Belmont filed two responses to defendants’ motion. Reading
those two pleadings together and construing them liberally, they
communicate two points: (1) Belmont is not contesting that this
court lacks personal jurisdiction over defendants; and (2)
Belmont requests this court to transfer this suit to the United
States District Court for the Western District of Virginia
pursuant to 28 U.S.C. § 1404. See Sergentakis v. Channell, 272
F. Supp. 3d 221, 224 (D. Mass. 2017) (“[P]ro se pleadings are
construed liberally, to avoid inappropriately stringent rules
and unnecessary dismissals.” (internal quotation marks
omitted)).
The court construes Belmont’s first response (doc. no. 10)
as an objection to defendants’ motion to dismiss and his second
response (doc. no. 11) as a motion for change of venue. Belmont
requests an “expedited hearing” on the motion for change of
venue. He argues that an expedited hearing is warranted so
that, if necessary, he has time to file suit in Virginia before
the running of Virginia’s two-year statute of limitations on
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 4 of 13

5
medical negligence claims. Defendants object to Belmont’s
motion for change of venue and request for an expedited hearing.2
DISCUSSION
I. Motion to Dismiss for Lack of Personal Jurisdiction
Defendants move to dismiss this suit for lack of personal
jurisdiction. As noted above, it is Belmont’s burden to
demonstrate that this court can exercise personal jurisdiction
over defendants. See Mass. Sch. of Law, 142 F.3d at 34.
Belmont has, in several pleadings, stated that he is choosing
“not to contest the lack of personal jurisdiction” over
defendants. Doc. nos. 10 at 3, 11 at 9.3 As such, he has
offered no specific facts supporting the exercise of this
court’s jurisdiction over defendants. By contrast, each
defendant has submitted an uncontested affidavit demonstrating
the lack of any connection or contact with New Hampshire. Doc.
2 Belmont also filed replies to defendants’ objections to
his motion for change of venue and motion for an expedited
hearing. Doc. nos. 16 & 17. To the extent Belmont requires
this court’s leave to file those replies under Local Rule
7.1(e), it is granted. The court considered Belmont’s replies
in deciding the pending motions.
3 Belmont’s reply affirms this point. His reply states that
his motion for change of venue “was in fact a counter motion
specifically stating that in lieu of contesting personal
jurisdiction issues, that the case be transferred to another
court where the substance and merits of the allegations could be
weighed and adjudicated.” Doc. no. 16 at 1 (emphasis added).
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 5 of 13

6
nos. 7-1, 7-2, & 7-3. Under these circumstances, the court
finds that Belmont has failed to carry his burden of showing
that this court can exercise personal jurisdiction over
defendants. This court therefore cannot hear this suit.
II. Motion for Change of Venue
Instead of disputing defendants’ contention that this court
lacks personal jurisdiction over them, Belmont asks the court to
transfer this case to the United States District Court for the
Western District of Virginia.4 In support, he relies on 28
U.S.C. § 1404. Where, as here, the court lacks personal
jurisdiction over defendants, transfer under § 1404(a) is
“clearly inappropriate.” Albion v. YMCA Camp Letts, 171 F.3d 1,
2 (1st Cir. 1999). The court therefore must deny Belmont’s
motion for a change of venue pursuant to 28 U.S.C. § 1404(a).
III. Transfer under 28 U.S.C. § 1631
A court that lacks personal jurisdiction over a suit may,
nevertheless, transfer the action under 28 U.S.C. § 1631. Fed.
Home Loan Bank of Bos. v. Moody’s Corp., 821 F.3d 102, 114-19
4 Belmont also requests an expedited hearing on that motion.
The reasons for his request have to do with a desire for
expedited treatment of his motion. Because a hearing is
unnecessary and would only add unnecessary delay, the court
denies Belmont’s motion for an expedited hearing (doc. no. 12).
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 6 of 13

7
(1st Cir. 2016), abrogated on other grounds by Lightfoot v.
Cendant Mortg. Corp., 137 S. Ct. 553 (2017). That statute
provides that:
[w]henever a civil action is filed in a court . . .
and that 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 court . . . in which the action . . . could have
been brought at the time it was filed . . . .
28 U.S.C. § 1631. In light of this authority, the court need
not necessarily dismiss a suit outright when it lacks
jurisdiction, see id., and a court’s finding that it lacks
personal jurisdiction does not necessarily moot all other
pending motions, see, e.g., DeBarros v. Family Practice Grp.,
P.C., No. CV 19-367WES, 2019 WL 4888638, at *2-3 (D.R.I. Oct. 3,
2019) (instead of dismissing suit outright for lack of personal
jurisdiction, court transferred suit under 28 U.S.C. § 1631);
Photographic Illustrators Corp. v. A.W. Graham Lumber, LLC, 196
F. Supp. 3d 123, 134 (D. Mass. 2016) (same).
28 U.S.C. § 1631 establishes a “rebuttable presumption in
favor of transfer” that is overcome only if the “inquiring court
determines that transfer is not in the interest of justice.”
Fed. Home Loan, 821 F.3d at 119 (internal quotation marks
omitted). In assessing whether transfer is in the interest of
justice, the court should consider the “totality of the
circumstances,” including the relative merits of the suit and
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 7 of 13

8
whether transfer would unfairly benefit the proponent, impose an
unwarranted hardship on an objector, or unduly burden the
judicial system. Britell v. United States, 318 F.3d 70, 74-75
(1st Cir. 2003).
A court may sua sponte order transfer under § 1631.
Photographic Illustrators Corp., 196 F. Supp. 3d at 133. Thus,
the court considers whether it should transfer this case
pursuant to its authority under 28 U.S.C. § 1631 by examining
whether this suit could have been brought in the Western
District of Virginia and whether transfer to that jurisdiction
would be in the interest of justice.5
A. Could Suit Have Been Brought in Western District of
Virginia
The court must first determine whether this suit “could
have been brought” in the Western District of Virginia. 28
U.S.C. § 1631. To find that a suit “could have been brought” in
another court, the following prerequisites must be met: the
other court would have subject matter jurisdiction; the other
court could exercise personal jurisdiction over defendants; and
5 Defendants argue that the court’s lack of personal
jurisdiction over them necessarily means that the suit must be
dismissed outright and, consequently, that all other pending
motions are rendered moot. Given this court’s authority to
transfer under § 1631, the court finds this argument
unpersuasive.
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 8 of 13

9
the other court would be a proper venue. See Colon Perez v.
Metan Marine, Inc., No. CV 17-2170CCC, 2018 WL 1664697, at *8
(D.P.R. Apr. 4, 2018); Cormier v. Fisher, 404 F. Supp. 2d 357,
365 (D. Me. 2005). The court will consider each of these three
prerequisites below.
First, the Western District of Virginia would have subject
matter jurisdiction over this action under 28 U.S.C. § 1332
based on the diversity of the parties’ citizenship and the
amount in controversy. A court may exercise diversity
jurisdiction if the parties are citizens of different states and
the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).
For the purposes of diversity jurisdiction, individuals are
citizens of the state in which they are domiciled. Aponte–
Dávila v. Municipality of Caguas, 828 F.3d 40, 46 (1st Cir.
2016). A corporation, such as Carilion Clinic, is a citizen of
both its state of incorporation and the state where its
principal place of business is located. Wachovia Bank v.
Schmidt, 546 U.S. 303, 306 (2006). Under these rules, Belmont
is a citizen of New Hampshire and all three defendants are
citizens of Virginia. The parties are therefore completely
diverse. And Belmont has alleged that the amount in controversy
is well over $75,000. See doc. no. 1 at 4. Thus, this suit
could have been brought in the Western District of Virginia
under 28 U.S.C. § 1332.
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 9 of 13

10
Second, the District Court in the Western District of
Virginia could exercise personal jurisdiction over all three
defendants. Carilion Clinic would plainly be subject to
personal jurisdiction in the Western District of Virginia, as it
is incorporated in Virginia and has its principal place of
business there. See Daimler AG v. Bauman, 571 U.S. 117, 137
(2014) (corporation subject to general personal jurisdiction in
place of incorporation and principal place of business). Drs.
Bower and Faulks would also be subject to personal jurisdiction
in Virginia as residents of that state. See Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (“For
an individual, the paradigm forum for the exercise of general
jurisdiction is the individuals’ domicile . . . .”).
Accordingly, this suit could have been brought in the Western
District of Virginia because that court, unlike this one, could
exercise personal jurisdiction over defendants.
Third, the Western District of Virginia is a proper venue
for this suit. Venue is proper in “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)(2). Here, Belmont’s
claimed injuries occurred while he was being treated by Drs.
Bower and Faulks at the Carilion Roanoke Memorial Hospital
located in Roanoke, Virginia. Roanoke is in the Western
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 10 of 13

11
District of Virginia, so this action could have been brought
there.
In sum, at the time this suit was filed, it could have been
brought in the United States District Court for the Western
District of Virginia because that court would have subject
matter jurisdiction, could exercise personal jurisdiction over
defendants, and would be a proper venue.
B. Interest of Justice
The court next considers whether transferring this case to
the Western District of Virginia, rather than dismissing it
outright, is in the interest of justice. The court discerns no
facts in the record that would overcome § 1631’s presumption in
favor of transfer. Transfer in this case would not unfairly
benefit Belmont. On one hand, it will benefit him by keeping
his case alive, but on the other, it will require him to
litigate in a distant forum. Transfer to Virginia will also not
impose an unwarranted hardship on defendants. On the contrary,
it will benefit defendants by moving the suit to a forum that is
more convenient for them. Further, the merits of the suit favor
transfer. Belmont’s claims do not appear frivolous. Indeed,
despite the early stage of these proceedings, Belmont submitted
several expert opinions in support of his claims.
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 11 of 13

12
Notably, a transfer to the Western District of Virginia is
in the interest of justice because it will provide Belmont the
opportunity to have his claims resolved on their merits. See
Britell, 318 F.3d at 74. This is especially true given
Belmont’s pro se status and his efforts to have this suit
transferred to a proper forum before the applicable statute of
limitations runs. See Skillo v. United States, 68 Fed. Cl. 734,
744 (Fed. Cl. 2005) (reasoning that plaintiffs’ pro se status
supported finding that transfer was in interest of justice and
collecting cases in support of that proposition). The court
will therefore transfer this action to the United States
District Court for the Western District of Virginia pursuant to
its authority under 28 U.S.C. § 1631.
CONCLUSION
For the foregoing reasons, the court lacks personal
jurisdiction over defendants and cannot hear this matter. The
court therefore grants defendants’ motion to dismiss for lack of
personal jurisdiction (doc. no. 6). Because the court lacks
jurisdiction, it must deny Belmont’s motion for change of venue
under 28 U.S.C. § 1404 (doc. no. 11). The court also denies
Belmont’s motion for an expedited hearing (doc. no. 12).
Instead of dismissing the case outright, however, the court will
transfer this case to another forum with jurisdiction pursuant
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 12 of 13

13
to its authority under 28 U.S.C. § 1631. The court directs the
Clerk’s Office to transfer this case to the United States
District Court for the Western District of Virginia.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 18, 2020
cc: Judson Randolph Belmont, pro se
Kip Joseph Adams, Esq.
Case 1:19-cv-01155-LM Document 18 Filed 03/18/20 Page 13 of 13