United States District Court, M.D. Tennessee, Nashville Division
RICHARD J. SIMPKINS
TERRI SIMPKINS WRIGHT
REPORT AND RECOMMENDATION
Barbara D. Holmes, United States Magistrate Judge.
Honorable Eli Richardson, District Judge.
Order entered January 4, 2019 (Docket Entry No. 5), this
action was referred to the Magistrate Judge for pretrial
proceedings under 28 U.S.C. § § 636 (b)(1)(A) &
(B), Rule 72(b), and the Local Rules of Court.
pending before the Court is Defendant's motion to dismiss
(Docket Entry No. 8), to which Plaintiff has filed a
response, which the Court has construed as a motion to
transfer. See Docket Entry No. 15. For the reasons
set out below, the undersigned respectfully recommends that
the motion to dismiss be denied without prejudice and the
motion to transfer be granted.
J. Simpkins (“Plaintiff”) is a resident of
Davidson County, Tennessee. On December 21, 2018, he filed
this pro se lawsuit against Terri Simpkins Wright
(“Defendant”), who he alleges is his
“paternal half aunt.” See Complaint
(Docket Entry No. 1). Plaintiff sets out allegations of
wrongdoing against Defendant related to her role in the
settlement of the intestate estate of Plaintiff's father,
who is alleged to have died in 2015. Id. Plaintiff
contends Defendant breached fiduciary duties and that
Defendant's “denial of his inheritance monies
denies and breaches his 14th Amendment rights against loss or
denial of said properties, monies, and inheritance.”
Id. at 10. The crux of Plaintiff's complaint
involves a dispute over approximately $80, 000.00 that was in
his father's bank account in Florida and over which
Plaintiff alleges that Defendant has wrongfully taken
control. Id. at 5-7. Although Plaintiff does not
assert the basis for federal jurisdiction, he alleges that
Defendant lives in Utah and the Court has liberally construed
the complaint as alleging diversity jurisdiction under 28
U.S.C. § 1332(a). See Docket Entry No. 5 at 1.
of an answer, Defendant has filed the pending motion to
dismiss. Defendant seeks dismissal under Rule 12(b)(2) of the
Federal Rules of Civil Procedure, asserting that she has no
contact with Tennessee that supports the assertion of
personal jurisdiction over her by this Court. See
Memorandum of Law in Support (Docket Entry No. 9) at 3-4.
Alternatively, the Defendant asserts that: (1) the Court
lacks jurisdiction to hear Plaintiff's claims to the
extent that Plaintiff is essentially asking the Court to
exercise jurisdiction over a probate matter; and, (2)
Plaintiff's allegations fail to state a claim upon which
relief can be granted. Id. at 5-8. Finally,
Defendant contends that Plaintiff is a vexatious litigant and
the Court should enter an order prohibiting him from filing
further complaints against Defendant without first obtaining
court permission. Id. at 8-9.
response, Plaintiff has filed (1) a motion for leave to amend
his complaint, see Docket Entry No. 14, and (2) a
memorandum in opposition to the motion to dismiss.
See Docket Entry No. 15. By his motion to amend,
Plaintiff revises and adds to his factual allegations,
deletes his assertion of a Fourteenth Amendment violation,
and asserts the claim that Defendant “wantonly,
maliciously, [and] recklessly” engaged in
“tortuous interference with expected
inheritance.” See Proposed Amended Complaint
(Docket Entry No. 14-1). In his response to the motion to
dismiss, Plaintiff offers no objection to Defendant's
lack of personal jurisdiction argument other than to assert
that, in retrospect, he should have filed this lawsuit in
either the United States District Court for the Middle
District of Florida or for the District Court of Utah.
See Memorandum in Opposition (Docket Entry No. 15)
at 8-9. Plaintiff further offers arguments against the
substantive dismissal of his claims and in support of his
claims and allegations. Id. at 4-8 and 9-21.
reply, Defendant argues that Plaintiff's allegations fail
to support plausible claims upon which relief can be granted
and that Plaintiff has not shown why the federal probate
exception to jurisdiction does not apply. See Reply
(Docket Entry No. 16) at 1-2 and 4. Defendant further argues
that Plaintiff essentially admits that this Court lacks
personal jurisdiction over her, id. at 3, and argues
that dismissal of the lawsuit, not transfer to another
federal venue, is the appropriate course of action given the
substantive deficiencies in Plaintiff's lawsuit.
Id. Although Defendant contests that transfer of
venue is appropriate, she does not dispute that she is a
resident of Utah.
Process requires that a defendant be subject to the personal
jurisdiction of the court. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291 (1980). As the party bringing
the lawsuit, Plaintiff must establish that this Court has
personal jurisdiction over Defendant. See Neogen Corp. v.
Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.
2002); Nationwide Mut'l Ins. Co. v. Tryg Int'l
Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir. 1996). There
must be a showing that Defendant has “certain minimum
contacts with [the forum] such that the maintenance of the
suit does not offend ‘traditional notions of fair play
and substantial justice.'” International Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
has not argued, let alone shown, that this Court has personal
jurisdiction over Defendant, and he actually concedes in his
response to the motion to dismiss that his lawsuit should not
have been filed in this Court. See Docket Entry No.
15 at 9. Accordingly, Defendant's contention that this
Court lacks personal jurisdiction over her has merit.
Whether to dismiss or ...