United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge
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,
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.
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.
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.
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
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.
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.
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.
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
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.
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
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