Abler v. Atkinson

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-25537-ELFENBEIN
STANLEY ABLER,
Plaintiffs,
v.
MEGAN ATKINSON,
Defendant.
_____________________________________/
ORDER TRANSFERRING CASE1
THIS CAUSE is before the Court on a sua sponte review of the record. On November 24,
2025, Plaintiff Stanley Abler filed this lawsuit against Defendant Megan Atkinson. See ECF No.
[1]. 	Plaintiff’s Complaint appears to assert claims under the Americans with Disabilities Act
(“ADA”), the federal statute criminalizing interstate stalking/cyberstalking, and state law. 	See
ECF No. [1] at 2. 	Plaintiff alleges that he is a citizen of Florida and, more specifically, that he
resides in Melbourne. See ECF No. [1] at 1. Plaintiff alleges Defendant is a citizen of California
and, more specifically, that she resides in Redding. See ECF No. [1] at 1.
Plaintiff asserts this Court has subject-matter jurisdiction under the federal question statute,
28 U.S.C. § 1331, because he asserts claims under the ADA and other federal law; the diversity
statute, 28 U.S.C. § 1332, because the parties are citizens of different states; and the supplemental
jurisdiction statute, 28 U.S.C. § 1367, because he brings claims under state law. See ECF No. [1]
1 “It is well established that the undersigned Magistrate Judge has the authority, under 28 U.S.C.
636(b)(1)(A), to dispose of motions to transfer venue, as such a ruling has a non-dispositive effect on the
litigation.” Zampa v. JUUL Labs, Inc., No. 18-CV-25005, 2019 WL 1777730, at *5 n.3 (S.D. Fla. Apr. 23,
2019) (citation omitted).
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at 2. And he asserts that “[v]enue is proper” in this District because Plaintiff “resides here.” See
ECF No. [1] at 2. As to Plaintiff’s assertion of venue, the Court disagrees.
The federal venue statute gives three instructions about where a party may bring a “civil
action.” 	See 28 U.S.C. § 1391(b). 	First, the party may file his lawsuit in “a judicial district in
which any defendant resides, if all defendants are residents of the State in which the district is
located.” See 28 U.S.C. § 1391(b)(1). Second, the party may file his lawsuit in “a judicial district
in which a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated.” See 28 U.S.C. § 1391(b)(2).
Third, “if there is no district in which an action may otherwise be brought,” the party may file his
lawsuit in “any judicial district in which any defendant is subject to the court’s personal jurisdiction
with respect to such action.” See 28 U.S.C. § 1391(b)(3). And for “all venue purposes,” a natural
person is “deemed to reside in the judicial district in which that person is domiciled.” 	See 28
U.S.C. § 1391(c)(1).
Improper venue is a “waivable defect[],” and a defendant waives her right to object to
improper venue if she “files a responsive pleading or” a Federal Rule of Civil Procedure 12 motion
“failing to assert” it. See Lipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257, 1258 (11th
Cir. 1988). “In the absence of a waiver,” however, “a district court may raise on its own motion
an issue of defective venue.” 	Id. 	And if the party files his lawsuit “in the wrong division or
district,” a court “shall dismiss” it or, “if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.” See 28 U.S.C. § 1406(a). There are, of
course, “some cases in which venue will be proper in two or more districts.” See Jenkins Brick
Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003). 	But when determining which district or
districts are proper for venue purposes, “[o]nly the events that directly give rise to a claim are
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relevant.” Id. “And of the places where the events have taken place, only those locations hosting
a ‘substantial part’ of the events are to be considered.” Id. (quoting 28 U.S.C. § 1391(a)(2)).
Although Plaintiff alleges venue is proper in this District because he “resides here,” see
ECF No. [1] at 2, he is mistaken. 	As his more specific allegations make clear, he resides in
Melbourne, see ECF No. [1] at 1, which is in Brevard County, see City of Melbourne, Fla., About
the 	City 	of 	Melbourne, 	https://www.melbourneflorida.org/Government/About-the-City 	(last
visited Dec. 3, 2025). And Brevard County is in the Middle District of Florida, not the Southern
District of Florida. See U.S. Dist. Ct. for the S. Dist. of Fla., Federal Judicial Districts of Florida,
https://www.flsd.uscourts.gov/federal-judicial-districts-florida (last visited Dec. 3, 2025); 28
U.S.C. § 89(b) (“The Middle District comprises the counties of . . . Brevard.”).
For those reasons, venue is not proper in this District unless a substantial part of the events
or omissions giving rise to Plaintiff’s claims occurred here or a substantial part of property that is
the subject of the action is situated here. 	See 28 U.S.C. § 1391(b)(2). 	Plaintiff has not alleged
anything in the Complaint that would allow the Court to conclude that Defendant’s conduct
occurred in this District or that property situated in this District is involved. See generally ECF
No. [1]; cf. Hemispherx Biopharma, Inc. v. MidSouth Cap., Inc., 669 F. Supp. 2d 1353, 1359 (S.D.
Fla. 2009) (“The focus of a venue inquiry is on the defendant and any actions taken by the
defendant.”). Accordingly, the Court finds that venue in this District is improper.
Because Plaintiff filed his lawsuit in the wrong District, the Court must decide whether to
dismiss it or, instead, to transfer it to an appropriate judicial district. See 28 U.S.C. § 1406(a). As
courts in this District have recognized, the “interests of justice generally favor transferring a case
to the appropriate judicial district rather than dismissing it.” Hemispherx, 669 F. Supp. 2d at 1359.
But a “transferee court must sit within a district in which the case originally could have been
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brought, both with respect to venue and personal jurisdiction.” Id. (quotation marks omitted).
From 	the 	allegations 	in 	the 	Complaint, 	particularly 	the 	assertion 	that 	Defendant
“manipulat[ed]” Plaintiff into “doing free work on her home” by promising to pay for his travel
and pay him for his work time, it appears venue is proper in the Eastern District of California
because that is where Defendant resides. 	See Cnty. of Shasta, Cal., About Shasta Cnty.,
https://www.shastacounty.gov/community/page/about-shasta-county (last visited Dec. 3, 2025)
(noting that Redding is in Shasta County); U.S. Dist. Ct. for the E. Dist. of Cal., Jurisdiction and
Venue, https://www.caed.uscourts.gov/caednew/index.cfm/cmecf-e-filing/jurisdiction-and-venue/
(last visited Dec. 3, 2025) (noting that Shasta County is in the Eastern District of California); 28
U.S.C. § 84(b) (“The Eastern District comprises the counties of . . . Shasta.”). It is also presumably
where her home is located, which makes it the place where a substantial part of the events or
omissions giving rise to Plaintiff’s claims occurred. See 28 U.S.C. § 1391(b)(2). It is also where
a federal district court would assuredly have personal jurisdiction over Defendant. 	See
Hemispherx, 669 F. Supp. 2d at 1359; Jud. Branch of Cal., Jurisdiction and Venue: Where to file
a case, https://selfhelp.courts.ca.gov/jurisdiction-and-venue-where-file-case (last visited Dec. 3,
2025) (“In general, all California superior courts have jurisdiction over a person that lives in
California or can be found in California.”); Cal. Civ. Proc. Code § 410.10 (“A court of this state
may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the
United States.”).
It also appears that venue is proper in the Middle District of Florida, as Plaintiff alleges
Defendant “contacted one of Plaintiff’s employer[s] and spread false accusations to damage his
professional reputation,” see ECF No. [1] at 3, and presumably Plaintiff’s employer is located in
the same District where Plaintiff resides. See 28 U.S.C. § 1391(b)(2) (noting venue is proper in
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the judicial district where a substantial part of the events or omissions giving rise to the claims
occurred). 	And Florida’s long-arm statute seems to reach far enough to embrace Defendant’s
alleged conduct. See Fla. Stat. § 48.193(1)(a)2 (“A person, whether or not a citizen or resident of
this state, who personally or through an agent does any of the acts enumerated in this subsection
thereby submits himself or herself and, if he or she is a natural person, his or her personal
representative to the jurisdiction of the courts of this state for any cause of action arising from . . .
[c]ommitting a tortious act within this state.”). 	This means a Florida federal court likely has
personal jurisdiction over Defendant.
Because it appears that venue is presumably proper in both the Eastern District of
California and the Middle District of Florida, the Court has authority to transfer the case to either
of those districts. See 28 U.S.C. § 1406(a); Hemispherx, 669 F. Supp. 2d at 1359. But considering
that, in the related context of a forum non conveniens analysis, a “plaintiff’s choice of forum is
entitled to deference, and there is a presumption in favor of a plaintiff’s choice of forum,” Wilson
v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009), the Court concludes that the
Middle District of Florida is the better option. Based on the venue allegations in the Complaint,
see ECF No. [1] at 2, it appears that Plaintiff intended to file his lawsuit in the district where he
resides, mistakenly filing it in the Southern District of Florida instead of the Middle District of
Florida.2
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	This case is TRANSFERRED to the United States District Court for the Middle
District of Florida. 	Whether Plaintiff may proceed without prepaying fees, see ECF
2 Of course, if the Middle District of Florida determines it does not have personal jurisdiction under Fla.
Stat. § 48.193(1)(a)2 or is not a proper venue under 28 U.S.C. § 1391(b)(2), it can transfer the case to the
Eastern District of California under 28 U.S.C. § 1406(a).
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No. [3], and whether the case may proceed further if granted in forma pauperis status
shall be determined by the receiving court.
2. 	The Clerk of Court is DIRECTED to CLOSE this case in the Southern District of
Florida.
3. 	The Clerk is DIRECTED to MAIL a copy of this Order to Plaintiff at the address
listed below and to enter a Notice of Compliance confirming it has done so.
DONE and ORDERED in Chambers in Miami, Florida on December 4, 2025.
_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE
cc: All Counsel of Record
Stanley Abler
13537 US HWY 1
#129
Melbourne, FL 32958
PRO SE
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