     Case: 17-60249      Document: 00514247711        Page: 1     Date Filed: 11/22/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                   No. 17-60249
                                                                                 Fifth Circuit

                                                                               FILED
                                 Summary Calendar                      November 22, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk


THOMAS M. UTTERBACK,

                                                Plaintiff−Appellant,

versus

TRUSTMARK NATIONAL BANK; HAND ARENDALL, L.L.C.,

                                                Defendants−Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                No. 3:15-CV-163




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*

      Thomas Utterback sued Trustmark National Bank (“Trustmark”) and
Hand Arendall, L.L.C., in the court a quo, claiming that they had made tortious


      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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                                 No. 17-60249
statements against him in the course of earlier litigation. Nearly two years
after Utterback sued, the district court informed the parties that it would be
granting defendants’ motion to dismiss. Utterback responded quickly with a
motion to transfer to another district. The district court denied the motion and
dismissed all claims. On appeal, Utterback, appearing pro se, asserts only that
the court abused its discretion in denying transfer. We find no abuse and
affirm.

                                        I.
      Utterback, a citizen and resident of Missouri, was an attorney licensed
to practice there until 1998, when he pleaded guilty of money-laundering and
surrendered his license. He served twenty-five months of a three-year term.
In March 2003, after being discharged from supervised release, he moved to
Florida.

      The case before us arises out of litigation in the Florida state and federal
courts between BankTrust, a Mississippi bank and Trustmark’s predecessor in
interest, and CCB, LLC, the investment entity that employed Utterback as its
manager. Over the course of that litigation, which spanned from November
2011 to March 2013, attorneys from Hand Arendall, the Alabama law firm
representing BankTrust, consistently alleged, through motions and a formal
complaint to the Florida Bar, that Utterback was managing the litigation
without a license.

      In March 2015, Utterback sued Trustmark and Hand Arendall in the
Southern District of Mississippi, asserting defamation, invasion of privacy,
intentional infliction of emotional distress, tortious interference with business
relationships, and abuse of process, all on the basis of defendants’ accusations
that he had practiced law without a license. Defendants moved to dismiss on
the grounds that they were absolutely immune from liability under Florida’s
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litigation privilege and that all but one of Utterback’s claims were barred by
Mississippi’s one-year statute of limitations. In February 2017, after the dis-
trict court announced that it would be granting defendants’ motion but before
it issued a formal ruling, Utterback moved to transfer to the Northern District
of Florida. 1

       The district court denied transfer and granted defendants’ motions to
dismiss. 2 Sitting in diversity and tasked with the application of state law, the
court began by properly applying the forum’s choice-of-law rules. See Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941). Under Mississippi’s
“center of gravity” test, the substantive law of the state with the “most substan-
tial contact with the parties and the subject matter of the action” should con-
trol. Boardman v. United Servs. Auto. Ass’n, 470 So.2d 1024, 1031 (Miss.
1985). Florida’s substantive law applied because all of the allegedly tortious
conduct occurred there. But because Mississippi’s one-year statute of limita-
tions was deemed procedural in nature, 3 it foreclosed all but one of Utterback’s
claims. 4 His remaining claim for tortious interference was dismissed as both


       1The motion to transfer invoked an assortment of federal rules and statutes, including
Federal Rules of Civil Procedure 12(b)(2) (motion to dismiss for lack of personal jurisdiction)
and 12(b)(3) (motion to dismiss for improper venue) and removal statutes 28 U.S.C. §§ 1404
and § 1406.
       2The district court also denied Utterback’s motions to defer ruling on defendants’
motion to dismiss and to abate entry of judgment in favor of allowing Utterback to file an
amended complaint. Utterback challenges neither on appeal.
       3 Under Mississippi law, statutes of limitations are deemed procedural unless the lim-
itations period is intertwined with the cause of action such that “expiration of the limitations
period extinguishes the right.” Robinson v. Gen. Motors Corp., 150 F. Supp. 2d 930, 932 (S.D.
Miss. 2001) (quoting Siroonian v. Textron, Inc., 844 F.2d 289, 292 (5th Cir. 1988)). Because,
under Florida law, none of Utterback’s claims intertwines with a limitations period, Missis-
sippi’s one-year period applied.
       4 Mississippi’s statute reads, “All actions for assault, assault and battery, maiming,
false imprisonment, malicious arrest, or menace, and all actions for slanderous words con-
cerning the person or title, for failure to employ, and for libels, shall be commenced within
one (1) year next after the cause of such action accrued, and not after. MISS. CODE. ANN.
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deficient on its face and duplicative of his defamation claim.

      In addition, the district court held that Florida’s litigation privilege im-
munized the defendants for their allegedly tortious statements. Under Florida
law, “absolute immunity must be afforded to any act occurring during the
course of a judicial proceeding, regardless of whether the act involves a defam-
atory statement or other tortious behavior such as the alleged misconduct at
issue, so long as the act has some relation to the proceeding.” Levin, Middle-
brooks, Mamie, Thomas, May & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d
606, 608 (Fla. 1994). Because Hand Arendall had consistently argued that
CCB’s attorneys should be disqualified as counsel if they knew of Utterback’s
unlicensed practice, all of their allegations bore “some relation” to the under-
lying litigation.

                                           II.
      Utterback’s sole issue on appeal is whether the district court abused its
discretion in refusing to transfer. It did not. We review “all questions concern-
ing venue under the abuse of discretion standard. The trial court is entitled to
broad discretion in ruling on motions to transfer venue, and its decision will be
upheld absent abuse of discretion.” United States v. Asibor, 109 F.3d 1023,
1037 (5th Cir. 1997); see also Mills v. Beech Aircraft Corp., 886 F.2d 758, 761
(5th Cir. 1989).

      Utterback maintains that transfer was required because of improper




§ 15-1-35 (West). Mississippi state courts have extended this limitations period to cover
actions for invasion of privacy, see Young v. Jackson, 572 So. 2d 378, 382 (Miss. 1990),
intentional infliction of emotional distress, and abuse of process, see Maas v. Moran,
No. 1:11CV287-LG-RHW, 2013 WL 4456154, at *9 (S.D. Miss. Aug. 16, 2013) (discussing
relevant state court decisions).
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venue. 5 But the argument is not his to make. When a case is filed in the wrong
venue, 28 U.S.C. § 1406(a) instructs district courts either to dismiss or, “if it be
in the interest of justice,” to transfer to a district where venue is proper.
Section 1406(b) adds that “[n]othing in this chapter shall impair the jurisdic-
tion of a district court of any matter involving a party who does not interpose
timely and sufficient objection to venue.” Like personal jurisdiction, venue is
“designed to protect the defendant against the risk that a plaintiff will select
an unfair or inconvenient place of trial.” Leroy v. Great W. United Corp., 443
U.S. 173, 183–84 (1979); see also In re Volkswagen of Am., Inc., 545 F.3d 304,
313 (5th Cir. 2008) (en banc). Therefore, “a plaintiff, by bringing the suit in a
district other than that authorized by the statute, relinquishe[s] his right to
object to the venue.” Olberding v. Ill. Cent. Ry. Co., 346 U.S. 338, 340 (1953).
Where defendants waive their objection to venue, as they did in this case,
28 U.S.C. § 1406(a) affords plaintiffs no relief.

       Alternatively, Utterback suggests the district court abused its discretion
in misweighing the equities under § 1404(a), which authorizes transfer of “any
civil action to any other district or division where it might have been brought”
if it serves the “convenience of parties and witnesses” and “the interest of jus-
tice.” 28 U.S.C. § 1404(a). 6 Although he chose to sue in Mississippi and liti-




       5 Likewise, he claims transfer was necessary because the court lacked personal juris-
diction. But like improper venue, the personal jurisdiction claim is not his to raise. Defen-
dants settled the matter when they waived personal jurisdiction in their initial motions to
dismiss. FED. R. CIV. P. 12(h)(1).
       6 Factors relevant to the convenience inquiry include “(1) ‘the relative ease of access
to sources of proof’; (2) ‘the availability of compulsory process to secure the attendance of
witnesses’; (3) ‘the cost of attendance for willing witnesses’; (4) ‘all other practical problems
that make the trial of a case easy, expeditious and inexpensive’; (5) ‘the administrative diffi-
culties flowing from court congestion’; (6) ‘the local interest in having localized interests
decided at home’; (7) ‘the familiarity of the forum with the law that will govern the case’; and
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gated there for two years, Utterback now asserts that Florida is the more con-
venient forum because (a) the events occurred there and (b) witnesses reside
there. He adds that transfer is required as a matter of justice because it would
(c) avoid Mississippi’s one-year statute of limitations and allow for a fair reso-
lution of his claims on the merits and (d) permit a court in Florida to decide
the scope of that state’s litigation privilege. 7

       Unfortunately for Utterback, the first three of those theories come two
years too late, and the last is wholly baseless. Utterback selected Mississippi
as his forum, and the parties have since committed considerable time and
resources to litigating there. Given the timing of Utterback’s motion, it would
emphatically not serve the interest of justice to allow him to take a second
“bite[] at the apple” in Florida, just after learning that he would lose in
Mississippi. 8

       Utterback insists the timing of his motion is immaterial to the § 1404(a)
analysis. Our caselaw suggests the opposite. 9 On the question of convenience,
timing is obviously salient, and after almost two years of litigation in Missis-
sippi, Utterback has missed his window to litigate in Florida. 10



(8) the avoidance of unnecessary problem of conflict of laws.” In re Radmax, Ltd., 720 F.3d
285 (5th Cir. 2013) (quoting Volkswagen, 545 F.3d at 315).
        7 Utterback also raises arguments related to his status as an ex-felon, but those claims

lack merit.
       8 See Cohen v. Waxman, 421 F. App’x 801, 803 (10th Cir. 2010) (finding no abuse of
discretion in denial of transfer under similar facts).
       9  See Peteet v. Dow Chem. Co., 868 F.2d 1428 (5th Cir. 1989) (finding no abuse of dis-
cretion in denying defendant’s § 1404(a) motion filed eighteen months after the case was
remanded, because “[p]arties seeking a change of venue should act with ‘reasonable prompt-
ness.’”) (quoting 15 C. WRIGHT, A. MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 3844, at 335–37 (1986)).
       10Additionally, Utterback fails to identify with any specificity which witnesses and
what evidence would be inaccessible in Mississippi but readily available in Florida. Without
more, we cannot credit such vague and conclusional assertions.
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      Utterback’s final argument—that his cases raises a novel state-law issue
that ought to be decided in Florida—likewise is baseless. Although Florida
courts are best positioned to decide difficult questions of Florida law, Utter-
back’s case presents no such complexity. In dismissing his complaint, the
district court considered Debrincat v. Fischer, 217 So. 3d 68 (Fla. 2017), to
which Utterback repeatedly cites, and found it inapposite. Debrincat held that
malicious-prosecution claims are not necessarily barred by the litigation priv-
ilege because litigation is a necessary element of the claim. Id. at 70. In cases
like these, application of the litigation privilege would effectively “eviscerate[]”
the cause of action. Id. at 69. Because none of Utterback’s claims arises exclu-
sively in the context of litigation, the logic of Debrincat has no application to
his case. And even if it did, that interest would by no means counterbalance
the two years of delay weighing heavily against transfer.

      The judgment of dismissal is AFFIRMED.




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