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Peterson v. Paddy

United States District Court, W.D. Virginia, Charlottesville Division

June 19, 2017

NANCY PETERSON, CONSERVATOR FOR MADAYLYN PETERSON, Plaintiff,
v.
KEVIN LEONARD PADDY, Defendant.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         Plaintiff Nancy Peterson, as conservator for Madalyn Peterson ("Madalyn"), filed this diversity action again Kevin Leonard Paddy, Madalyn's biological father, asserting claims of assault and battery and intentional infliction of emotional distress. Unbeknownst to the plaintiff, Paddy moved from Gordonsville, Virginia to Suwanee, Georgia several months before the action was filed. Peterson has now moved to transfer venue under 28 U.S.C. § 1406(a). The motion has been fully briefed and is ripe for disposition. For the reasons set forth below, the court will grant the motion and transfer the case to the United States District Court for the Northern District of Georgia, Atlanta Division.

         Background

         Madalyn was born to Peterson and Paddy in August of 1994. At that time, Peterson and Paddy resided in Twentynine Palms, California, where Paddy was serving as a lance corporal in the United States Marine Corps. In September of 1994, Madalyn suffered multiple injuries, including skull fractures, while in Paddy's care. In January of 1995, a general court-martial convicted Paddy of assaulting Madalyn. As a result, Paddy was sentenced to 18 months' imprisonment, had his military rank reduced, and was dishonorably discharged from the Marines.

         Peterson claims that Madalyn is permanently disabled as a result of the injuries that she sustained as an infant, and that she is incapable of caring for her property or transacting business. In September of 2012, Peterson was appointed as Madalyn's conservator by a probate court in the State of Connecticut, where Peterson now resides. The conservatorship has been renewed by the probate court on multiple occasions, most recently on April 19, 2017.

         Peterson filed the instant action against Paddy on April 12, 2016. At that time, Peterson believed that Paddy was still residing in Gordonsville, Virginia. Peterson alleged in the complaint that Paddy "is an individual and resident of Louisa County, Virginia, residing at 9 Laurel Oak Ct, Gordonsville, VA 22942." Compl. ¶ 8, Docket No. 1. Peterson further alleged that "[v]enue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1), " since "the Defendant resides in Louisa County, Virginia, which falls within the jurisdiction of this court." Id. at ¶ 10.

         Peterson's efforts to serve Paddy at the address in Gordonsville were unsuccessful. The address is in a gated community. On May 21, 2016, the process server "spoke with security, " and was advised that Paddy "works out of town." Affid. of Due Diligence, Docket No. 7. The process server was further advised that "at one point the house was for sale" but Paddy "is still the owner." Id. On May 23, 2016, a man who answered the door to the house in Gordonsville advised the process server that he was renting the house from Paddy, and that Paddy may be in Georgia.

         Peterson subsequently subpoenaed payroll records from Peterson's employer. The payroll records list Paddy's address as 1270 Water View Lane, Suwanee, Georgia 30024. The records also indicate that Paddy's filing status for state income tax purposes is "GA, Single, 1, " and that Georgia income taxes have been withheld from Paddy's paychecks. Personal and Check Information, Docket No. 7.

         Peterson subsequently served Paddy at the address in Georgia. On September 27, 2016, Paddy filed an answer to the complaint. In his answer, Paddy denied that he is a resident of Louisa County, Virginia. See Answer ¶ 7 ("In response to the allegations set forth in paragraph 8, the allegations are denied and strict proof is demanded thereof."). He also denied that venue is proper in this district. Id. at ¶ 8 ("In response to the allegations set forth in paragraphs 9 and 10, the allegations are denied and strict proof is demanded thereof."). However, he never filed a motion to dismiss or transfer on that basis.

         On April 17, 2017, Paddy moved for summary judgment on the ground that Virginia's statutes of limitations govern and bar the plaintiffs claims. In his brief in support of the motion, Paddy confirmed that he "now resides in Georgia." Br. in Supp. of Mot. to Dismiss and for Summ. J. 1, Docket No. 17.

         In response, Peterson argued that the court should employ the statutes of limitations of California, where the alleged wrong occurred, or Georgia, where Peterson now resides, and that her claims would be deemed timely under the applicable statutes in either state. In the alternative, Peterson requested that the court transfer the case to California or Georgia.

         Thereafter, Peterson filed the instant motion to transfer venue under 28 U.S.C. § 1406(a). Peterson argues that venue is improper in this district, since Paddy does not reside in Virginia and the acts complained of did not occur in this state.

         On May 25, 2017, Paddy filed a brief in opposition to the motion. Contrary to his answer, in which he affirmatively denied that venue is proper in this district, Paddy now maintains that he is still a domiciliary of Virginia, and that "venue ... properly lies in the Western District of Virginia." Def.'s Br. in Opp'n 3, Docket No. 26. In an accompanying affidavit, Paddy states that he "believe[s] it likely that [he] will return to Virginia in approximately 3-4 years, " after his girlfriend's youngest child graduates from high school. Paddy Affid. ¶ 9, Docket No. 26. Paddy also indicates that he still owns the residence in Louisa County, Virginia that is currently being rented, that he owns no real property in Georgia, that he returns to Virginia once a month for work obligations and frequently for social gatherings, and that he considers Virginia to be his home state.

         On June 2, 2017, Peterson filed a reply brief, along with additional evidence in support of the pending motion to transfer. The additional evidence includes voter records from the State of Georgia, which indicate that Paddy registered to vote in that ...


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