United States District Court, E.D. North Carolina, Western Division
ANDREA C. WEATHERS, Plaintiff,
THE UNIVERSITY OF NORTH CAROLINA at CHAPEL HILL, et al., Defendants.
C. DEVER III Chief United States District Judge.
August 16, 2016, Dr. Andrea C. Weathers ("Weathers"
or "plaintiff'), proceeding pro se, filed a
complaint against the University of North Carolina at Chapel
Hill (the "University"), four current or former
University employees, Herbert B. Peterson, Jonathan Kotch,
Barbara K. Rimer, and Sandra L. Martin (collectively, the
"University defendants"), and two attorneys,
Gregory Connor and Thomas Ziko (collectively,
"defendants") in Wake County Superior Court [D.E. 1
-1 ]. Weathers asserts claims for relief relating to her past
employment with the University and prior litigation involving
all parties to this action. On August 29, 2016, all
defendants except Connor timely removed the action to this
court [D.E. 1].
defendants now move to transfer the case to the United States
District Court for the Middle District of North Carolina
[D.E. 12, 28]. Weathers opposes any transfer of venue [D.E.
23, 30]. On October 11, 2016, all defendants except Connor
moved to dismiss the complaint under Federal Rules of Civil
Procedure 12(b)(1) and (6) [D.E. 31]. Plaintiff seeks
permission to file electronically [D.E. 17] and "a
complete copy of Plaintiff s record on file in the Wake
County Superior Court" [D.E. 21]. As discussed below,
the court grants defendants' motions to transfer venue to
the Middle District of North Carolina.
was employed by the University as "an Assistant
Professor in the MCH Department in the UNC Gillings School of
Global Public Health." Compl. [D.E. 1-1] ¶ 1.
In 2010, Weathers ... brought various racial discrimination
claims against the University [and University defendants] for
denying her reappointment and tenure. Weathers was
represented by attorney Gregory S. Connor. Her claims were
dismissed at summary judgment. Weathers v. Univ. of N.C.
at Chapel Hill (Weathers D. No. 1:08CV847,
2010WL4791809, at*l (M.D. N.C. Nov. 18, 2010). She appealed,
and the Fourth Circuit affirmed the dismissal in an
unpublished, per curiam opinion. 447 F.App'x 508 (4th
In 2013, Weathers filed a pro se complaint against the
University, Peterson, Kotch, Rimer, and Martin. The action
brought seven claims, including a request to set aside the
Weathers I judgment for alleged fraud on the court
under Federal Rule of Civil Procedure 60(b) and an
independent action in equity. Weathers also brought various
State law tort claims, as well as claims for constitutional
violations. Defendants moved under Federal Rule of Civil
Procedure 12(b)(6) to dismiss all the claims. Weathers then
retained her attorney from Weathers I. Connor, to
oppose the motion. Ultimately, the district court found no
fraud on the court and dismissed all claims. Weathers v.
Univ. of N.C. at Chapel Hill Weathers ID. No.
1:12CV1059, 2013 WL 5462300, at *8 (M.D. N.C. Sept. 30,
2013). Weathers then moved the court to reconsider its
Judgment pursuant to Federal Rule of Civil Procedure 59. That
motion was denied by the court. Weathers v. Univ. of N.C.
at Chapel Hill. No. 1:12CV1059, 2014WL 198216 (M.D. N.C.
Jan. 15, 2014). Weathers appealed these rulings pro se, and
the Fourth Circuit again affirmed by an unpublished, per
curiam opinion. 578 F.App'x 300 (4th Cir. 2014).
Weathers v. Ziko. 113 F.Supp.3d 830, 831-32 (M.D.
N.C. 2015) ("Weathers TV"), affd, 648
F.App'x 350 (4th Cir. 2016) (per curiam) (unpublished);
see Compl. ¶¶ 9-15.
2014, proceeding pro se, Weathers filed a fourth complaint
which "provided the District Court with evidence of the
involvement of Attorney-Defendants Ziko and Connor in the
fraud, as well as evidence of their misconduct in an effort
to conceal their involvement in the fraud from both the Court
and Plaintiff (by Mr. Connor)" in the prior lawsuits.
Compl. ¶ 15; see Weathers IV, 113 F.Supp.3d at 832. On
June 25, 2015, the court dismissed the action. See Compl.
¶ 21; Weathers IV, 113 F.Supp.3d at 833. On May 16,
2016, the United States Court of Appeals for the Fourth
Circuit affirmed. See Compl. ¶ 22; Weathers v.
Ziko. 648 F.App'x 350 (4th Cir. 2016) (per curiam)
action, Weathers alleges claims of wrongful discharge related
to her 2007 "participation in the application process
for tenure" and further alleges "that during
Weathers I and n, Defendants Ziko and Connor intentionally
suborned perjury and concealed material evidence"
relating to her employment-discrimination claims. Compl.
ask this court to transfer the action to the United States
District Court for the Middle District of North Carolina.
"When an action is removed to federal court, the removal
statute (28 U.S.C. § 1441), rather than general venue
statute (28 U.S.C. § 1391), governs the issue of
venue." Jenkins v. Albuquerque Lonestar
Freiehtliner. LLC. 464 F.Supp.2d 491, 493 (E.D. N.C.
2006); see Polizzi v. Cowles Magazines. Inc.. 345
U.S. 663, 665 (1953); see Am. Ins. Mkte. Corp. v. 5 Star
Life Ins. Co.. 958 F.Supp.2d 609, 613 (D. Md. 2013).
Under 28 U.S.C. § 1441, "the only question that
must be answered to determine the propriety of venue is
whether removal was effectuated to the district court
'for the district and division embracing the place'
where the suit was filed originally." Am. Ins. Mktg.
Corp.. 958 F.Supp.2d at 613. "Thus, when the action was
properly removed to this court, venue was proper in this
court." Jenkins. 464 F.Supp.2d at 493.
"[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought." 28 U.S.C. § 1404(a): see
Trustees of the Plumbers & Pipefitters Nat'l Pension
Fund v. Plumbing Servs.. Inc.. 791 F.3d 436, 444 (4th
Cir. 2015). "[T]he question of transfer under section
1404(a) is committed to the sound discretion of the district
court." Jenkins. 464 F.Supp.2d at 493. Additionally,
"the Fourth Circuit has held that transfers can be made
under section 1406(a) even if venue (as here) is proper in
the transferor court." Id. at 494; see
Porter v. Groat 840 F.2d 255, 258 (4th Cir. 1988).
court has considered the motions to transfer under the
governing standard. See, e.g.. Plumbing Servs.. Inc.. 791
F.3d at 444-45; Porter. 840 F.2d at 258; Szulik v. TAG
V.I.. Inc..858 F.Supp.2d 532, 547-48 (E.D. N.C. 2012);
Jenkins. 464 F.Supp.2d at 493-94. First, personal
jurisdiction and venue would have been proper in the Middle
District of North Carolina; therefore, plaintiff could have
sued all defendants in that court. Next, the court has
considered the record and the relevant factors, including
"(1) the weight accorded to plaintiffs choice of venue;
(2) witness convenience and access; (3) convenience of the
parties; and (4) the interest of justice." Plumbing
Servs.. Inc.. 791 F.3d at ...