Joyner v. Reno

MEMORANDUM OPINION

The plaintiff commenced this action alleging several violations of 42 U.S.C. § 1983 (2000), negligence, and intentional infliction of emotional distress against various federal and District of Columbia agencies and their officers. Amended Complaint (“Amend.Compl.”) ¶¶ 19, 25-28. Currently before the Court is the Federal Defendants’ Motion to Dismiss (“Def.’s Mot.”). 1 For the reasons set forth during the September 29, 2006, status conference, and as further discussed below, the Court will again transfer this case to the Middle District of Pennsylvania. 2

I. Background

This Court has previously set forth an extensive discussion of the facts of this *34 case in its earlier memorandum opinion. Joyner v. District of Columbia (“Joyner I”), 267 F.Supp.2d 15, 16-17 (D.D.C.2003). It is helpful, nonetheless, to briefly review the facts again here along with the procedural history of the case.

Frank Joyner was an inmate in the United States Prison in Lewisburg, Pennsylvania (“USP Lewisburg”), beginning in May 1986. Id. at 17. In August 1997, he was allegedly murdered by other inmates. Id. The plaintiff, Richard Joyner, as personal representative of the estate of decedent Frank Joyner, brought this action against the various defendants alleging failure to properly care for and protect the decedent while he was an inmate at USP Lewisburg. Amend. Compl. ¶ 20.

This case was originally filed in this Court on August 16, 2000. Docket Entry (“Dkt”) 1. The plaintiff originally asserted claims only against the District of Columbia and USP Lewisburg. PL’s Mem. at 2. In November 2001, both defendants moved for dismissal. Joyner I, 267 F.Supp.2d at 15. The motion of USP Lewisburg also contained an alternative motion to transfer the case to the Middle District of Pennsylvania. Pl.’s Mem. at 2-3. The plaintiff was then granted leave to file-an amended complaint, dkt. 36, and he subsequently filed claims against several additional defendants, including various District of Columbiá officials; former Attorneys General Janet Reno and John Ashcroft; Scott Dodrill, the warden at USP -Lewisburg; and several unnamed defendants who were employees at USP Lewisburg. Amend. Compl. at 2. These additional defendants were named as defendants in both their offieial and individual capacities. Id.

On June 2, 2003, this Court dismissed the District of Columbia -and the named District of Columbia officials as defendants because the District of Columbia retained no discretion over where its prisoners convicted of felonies are placed and owe no duty of care to prisoners placed in facilities that it does not operate. Joyner I, 267 F.Supp.2d at 18. With the District of Columbia and its officials no longer parties to this action, the Court determined that this matter should be transferred to the Middle District of Pennsylvania. Id. at 16. This Court reasoned that transfer to that district was proper under 28 U.S.C. § 1404(a) (2000), 3 because most, it not all of the witnesses are located there and the operative events occurred in Lewisburg, Pennsylvania, which is located in that district. Joyner I, 267 F.Supp.2d at 20-21. This Court concluded that transfer to that district was further warranted because it was likely that the unnamed guards were Pennsylvania residents, and the institutional records would be found in the Middle District of Pennsylvania. Id. at 21. Additionally, the prison where the decedent was allegedly murdered is in that district, and the suit no longer had any connection to the District of Columbia because the claims against the local government and its officers had been dismissed. Id. Therefore, this Court concluded that in the interest of justice and for the convenience of the parties, transfer of this case to the Middle District of Pennsylvania was proper. Id.

For the next two years, this action remained in the Middle District of Pennsylvania. Eventually, the District Judge presiding over this action in the Middle District of Pennsylvania issued an order, sua sponte, to show cause why the case should not be transferred back to this *35 Court. Joyner v. Federal Bureau of Prisons (“Joyner II”), No. 04CV489, 2005 WL 3088371, at *5 (M.D.Pa. Nov. 17, 2005). Unconvinced by the plaintiffs response that the case should remain in the Middle District of Pennsylvania, the District Judge, on December 13, 2005, transferred this action back to this Court. Order Transferring Venue, Dec. 13, 2005.

In his transfer order, the Judge in the Middle District of Pennsylvania concluded that before a judge may transfer a case under § 1404(a), the judge must first determine whether an applicable statute of limitations would require dismissal of the action in the potential transferee Court. This assessment, the Judge opined, is required by the text of § 1404(a), which provides that “a district court may transfer any civil action to any other district or division where it might have been brought.” Joyner II, 2005 WL 3088371, at *3. Although the Judge stated that it was unclear which state’s law (Pennsylvania or the District of Columbia) applies to this case because it is a federal question case, id. at *4, he concluded that if Pennsylvania’s two-year statute of limitations applied, the case would have to be dismissed as untimely filed, and thus under § 1404(a) it could not have been brought in the Middle District of Pennsylvania. Id. Based on this analysis, the Pennsylvania Judge transferred the case back to this Court. Id.

II. Discussion

The proceedings conducted in the Middle District of Pennsylvania, in addition to the transfer of this action back to this Court, also resulted in a narrowing of the contested issues because the plaintiff voluntarily dismissed his claims under the Federal Tort Claims Act while the case was in that district. Joyner II, 2005 WL 3088371, at *3 n. 1. Therefore, all that now remains in this action are the plaintiffs Bivens claims against defendants Reno, Ashcroft, Dodrill, and the several unnamed defendants. Fed. Def.’s Mot. at 3. In the motion currently pending before the Court, the federal defendants argue that dismissal of these remaining claims is proper because: (1) the plaintiff cannot pursue a Bivens action against the defendants in their official capacities due to sovereign immunity; (2) the individual defendants have not been properly served with process; (3) this Court lacks personal jurisdiction over all of the remaining defendants; (4) the doctrine of respondeat superior cannot serve as the basis for a Bivens claim; (5) all of the defendants are entitled to qualified immunity; and (6) venue is not proper in this Court. For the reasons set forth below, this Court will abstain from reaching the merits of this motion. Rather, in the interest of justice, this Court will again transfer this action to the Middle District of Pennsylvania. To explain its reasoning for again transferring this case to the Middle District of Pennsylvania, the Court will begin by analyzing the memorandum opinion and order returning the case here.

A. The Middle District of Pennsylvania Decision

As indicated, this case was originally transferred by this Court to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). Joyner I, 267 F.Supp.2d at 20-21. That Court, however, believing that the transfer was in error, sent the case back to this Court. In deciding to do so, the Pennsylvania Court first noted that “a threshold question to consider is whether the action ‘might have been brought’ in the proposed transferee district, the Middle District of Pennsylvania. If this limitation is met, the court must then weigh a list of factors.” Id. (internal citations omitted). The Pennsylvania Court then *36 suggested that “the learned District Judge [ (this Judge) ], likely through inadvertence, disregarded the above-referenced dictates of § 1404(a) in transferring this case.” Joyner II, 2005 WL 3088371, at *3. In applying what it deemed to be the proper test, the Pennsylvania Court first concluded that in the absence of a federal statute of limitations, a state’s statute of limitations controlled. Id. The Court then noted that while it was unclear which jurisdiction’s statute of limitations controlled— the District of Columbia or Pennsylvania' — • under the applicable Pennsylvania statute of limitations, the case would have been untimely filed. Id. (noting that Pennsylvania has a two-year statute of limitations). Therefore, the Court found that because this action was filed after the expiration of the applicable Pennsylvania statute of limitations period, the case could not have originally been brought in Pennsylvania and this Court therefore erred in transferring the case to that Court. Id. The reasoning of the Pennsylvania Court is flawed and contrary to clear case authority in three key respects.

First, the Pennsylvania Judge has interpreted § 1404(a) in a manner inconsistent with the statute and existing case law. Second, even if the Pennsylvania Court’s interpretation were correct, which this Court concludes it is not, the Judge failed to faithfully apply his own interpretation. And finally, the Pennsylvania Judge’s order transferring this case back to this Court appears to rely solely on his belief that this Court’s transfer order was in error and fails to identify another proper basis for the transfer. The Court will discuss each flaw of the Pennsylvania Judge’s decision in turn.

The Pennsylvania Judge first erred by construing the “might have been brought” language of § 1404(a) contrary to established law. 4 Specifically, this provision does not permit a Court to consider a statute of limitations defense when determining whether the transfer is appropriate as alleged by the Pennsylvania Judge. The Supreme Court has recognized that “the words ‘might have been brought’ must be construed with reference to the federal laws delimiting the districts in which such an action ‘may be brought’ and not with reference to laws of the transferee State.” Van Dusen v. Barrack, 376 U.S. 612, 624, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). As the Supreme Court made clear in Van Dusen:

We cannot agree that the final clause of § 1404(a) was intended to restrict the availability of convenient federal forums by referring to state-law rules, such as those concerning capacity to sue, which would have applied if the action had originally been instituted in the transferee federal court. Several considerations compel this conclusion. First, if the concluding clause is considered as an independent entity and perused for its plain meaning, it seems clear that the most obvious referents of the words are found in their immediate statutory context. Section 1404(a) was enacted as part of Chapter 87 of Part IV of the Judicial Code of 1948. That Chapter is designated “District Courts; Venue.” The chapter itself is in that Part of the Code dealing generally with “Jurisdiction and Venue.” In the immediate Chapter, which includes §§ 1391-1406, the phrase “may be brought” recurs at least 10 times and the phrase “may be prosecuted” at least 8 times. The statutory context is thus persuasive evidence that the “might-have-been-brought” lan *37 guage of § 1404(a) plainly refers to the similar wording in the related federal statutes and not directly to the laws of the State of the transferee forum.

Id. at 621-22, 84 S.Ct. 805. Although Van Dusen differs slightly from the case at bar, in that it involved a diversity case and an issue of representative capacity to sue, id. at 614-15, 84 S.Ct. 805, nothing in the opinion indicates that its holding should be limited to those specific circumstances.

Other federal courts have also applied this principle to exclude from consideration under § 1404(a) a state’s statute of limitations in the analysis of whether an action “might have been brought” in the potential transferee court. Packer v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 728 F.Supp. 8, 12 (D.D.C.1989) (holding that “Courts are in agreement that a district where plaintiffs action ‘might have been brought’ is one that has subject matter jurisdiction, as well as one in which venue is proper and defendants are amenable to service of process” and rejecting the position that the possibility of an expired statute of limitations was a proper factor to consider); Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079, 1084 (D.Kan.1978) (stating that “the ‘might have been brought’ language of § 1404(a), in the present context, refers chiefly to questions of venue and jurisdiction in the transferee court; it concerns a plaintiffs right to institute the action originally, and not possible defense[s] which may be interposed by a defendant, such as a statute of limitations.”), rev’d on other grounds, 611 F.2d 790 (10th Cir.1979); see also Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir.1970) (defining a forum where the action “might have been brought” for purposes of 28 U.S.C. § 1404(a) as one in which venue and personal jurisdiction are satisfied).- In fact, when a former member of this Court was presented with a virtually identical question — whether a Virginia statute of limitations was a bar to transfer to that state under § 1404(a) in a diversity case — the Court noted that:

[t]o bar transfer of a case to a district where venue and jurisdiction are proper, simply because the action is time-barred in that district, would merely encourage forum shopping. A plaintiff could then wait until the statute of limitations has run in the jurisdiction where the case should have been brought, and then file the action in the district the plaintiff prefers, despite that jurisdiction’s limited nexus to the case. Section 1404(a) was “intended in part to avoid forum shopping by plaintiffs,” and the Court will not permit this purpose to be thwarted by strategic filing.

Packer, 728 F.Supp. at 12 (quoting 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3845 (2d ed.1986)). This Court agrees with the reasoning in Packer. Accordingly, it is the District Judge in Pennsylvania who has misconstrued (or maybe inadvertently overlooked) the law governing interdistrict transfer, not this Court.

The Pennsylvania Judge’s second error was failing to faithfully apply his flawed interpretation of § 1404(a). In his analysis, the Pennsylvania Judge failed to determine which state’s statute of limitations applies in this case. Joyner II, 2005 WL 3088371, at *4. He simply determined that transfer to his Court would be improper if the Pennsylvania statute applies and identified a split in the case law as to which state’s law should govern in federal question cases. Id. Even under the Pennsylvania Court’s interpretation of § 1404(a), transfer back to this Court would only be appropriate if the Court determined that the Pennsylvania statute of limitations governs. Thus, the failure to actually de *38 termine which jurisdiction’s law controls prior to determining that the Pennsylvania statute of limitations was a bar to this case being brought in Pennsylvania omitted a necessary determination the Pennsylvania Judge’s own interpretation of § 1404(a) requires. Then, inexplicably, the Pennsylvania District Judge invoked his decision to transfer the case back to this Court as the justification for not addressing the choice of law question, stating, “[w]e need not reach this issue however, nor do we express any opinion as to the merits of Defendants’ Motion, because our intention under the circumstances of this case is to transfer it back to the United States District Court for the District of Columbia.” Id. It was fundamentally illogical to employ the ultimate transfer conclusion as the basis for failing to resolve a necessary intermediate component of the Judge’s own test before reaching the final conclusion.

Finally, the Pennsylvania District Judge failed to provide a proper basis for reviewing the merits of this Court’s decision and transferring the case back to this Court. Joyner II, 2005 WL 3088371. The Pennsylvania Court did not rule that personal jurisdiction or venue was improper there, id., and a district court may not directly review the merits of the transfer decision of another district court, Starnes v. McGuire, 512 F.2d 918, 924 (D.C.Cir. 1974) (en banc) (holding “it is well established that a transferee court cannot directly review the transfer order”) (citations omitted); see also 15 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3855 (2d ed.1986). Only the District of Columbia Circuit has jurisdiction to review, through mandamus, the merits of the transfer decision of this Court, provided that this Court, as the transferor court, had never lost jurisdiction due to the transfer to the Pennsylvania Court having been impermissible under § 1404(a), i.e., the transfer was made to “a forum where the action could not have been brought[ ],” Starnes, 512 F.2d at 924 n. 6. The Pennsylvania Judge could also have employed “informal procedures ... to return [the] case to [this court] for review of the order.” Id. at 924 (citations omitted). 5 What the Pennsylvania District Judge did, however, was transfer the case back to this Court, stating that “the learned District Judge [ (this Judge) ], likely through inadvertence, disregarded the ... dictates of § 1404(a)[ — that the case ‘might have been brought’ in the Middle District of Pennsylvania and ‘the transfer will serve the convenience of the parties and the witnesses, and the interest of society’ — ]in transferring this case to the Middle District of Pennsylvania.” Joyner II, 2005 WL 3088371, at *3. But this Court did consider these factors, Joyner I, 267 F.Supp.2d at 21 (“the Middle District of Pennsylvania is the forum where the prison of Frank Joyner’s murder is located, where the records and other physical evidence will be found, and where it is likely that most of the potential witnesses are located ... ”), and this Court is at a loss as to why the Pennsylvania District Judge concluded otherwise from what this Court stated. Obviously, the Pennsylvania Judge based his rejection of the transfer on his flawed reasoning that this case could not have been brought in his district because the applicable Pennsylvania statute of limitations would bar its prosecution there. Joyner II, 2005 WL 3088371, at *3 (“The transfer of this case to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a) effectively gave rise to a *39 potentially complete statute of limitations defense, which is exactly what the dictates and plain language of § 1404(a) were designed to prevent.”) (footnote omitted). Thus, without providing a proper basis for challenging this Court’s transfer order, the Pennsylvania District Judge has, in effect, attempted to exercise appellate review of the merits of this Court’s § 1404(a) transfer decision. It is amazing that the Pennsylvania District Judge felt he had the authority to review the decision of a coequal Court and disregard the organizational structure of the federal court system. This overreaching in the face of long-established precedent is troubling, to say the least. And this is particularly so when long-standing authority from the Pennsylvania Judge’s own circuit teaches that he acted without proper authority. Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 169 (3d Cir.1982) (“Adherence to law of the case principles is even more important in this context where the transferor judge and the transferee judge are not members of the same court. Here, the principles of comity among courts of the same level of the federal system provide a further reason why the transferee court should not independently re-examine an issue already decided by a court of equal authority.”) (citations and footnote omitted); 6 Abels v. State Farm Fire and Cas. Co., 694 F.Supp. 140, 142 (W.D.Pa. 1988) (“it is beyond our authority to review the decision of the California district court to transfer the case here*”) (citing Hayman, 669 F.2d at 162).

Moreover, the transfer back to this Court has created an insurmountable obstacle, which prevents this Court from adjudicating the merits of the plaintiffs remaining claims. The Supreme Court has instructed that before reaching the merits of a case, a federal court must first address whether it has jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); see also Nuclear Energy Inst. Inc., v. EPA 373 F.3d 1251, 1264 (D.C.Cir. 2004). Because personal jurisdiction in this district over most of the defendants is lacking, 7 the return of this case here by *40 the. Pennsylvania Court has placed the case back in the hands of a Court that has no power to address the merits of the plaintiffs complaint as to those defendants. Although this Court may have personal jurisdiction over defendants Reno and Ashcroft, because venue is not proper here for the reasons explained below, this Court also cannot reach the merits of the plaintiffs claims as to these two defendants based on 28 U.S.C. § 1406(a) (2000). This statute reads, “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” § 1406(a). This language makes clear that a court has no discretion to reach the merits of a case in which venue is improper and an objection to venue has been properly raised; the case must either be dismissed or transferred to a proper venue. See Smith v. U.S. Investigations Servs., No. 04-0711, 2004 WL 2663143 at *2 (D.D.C. Nov. 18, 2004) (holding that “[i]f the district in which the action is brought does not meet the requirements of section 1391(b), then that district court may either dismiss or ... transfer such case to any district or division in which it could have been brought.”) (citing § 1406(a)) (internal quotation marks omitted); cf. Glendora v. Anderson, 55 Fed.Appx. 470, 2003 WL 202108, at *1 (9th Cir.2003) (concluding that “[t]he district court properly declined to reach the merits of the dispute because the merits may only be decided by a court with jurisdiction and venue.”). Furthermore, even if venue were proper in this district, it would still be in the interest of justice to transfer the case back to the Pennsylvania Court in its entirety. See supra note 2.

Finally, even if this Court were to address the alternative bases for dismissal put forth by the federal defendants — that respondeat superior liability cannot form the basis of a Bivens claim, that the defendants are entitled to qualified immunity, and that service of process was insufficient — on appeal there is no guarantee that the District of Columbia Circuit would review these rulings because personal jurisdiction by this Court over most of the defendants is lacking. See United States v. Ferrara, 54 F.3d 825, 827-28 (D.C.Cir. 1995) (refusing to reach further issues raised by the parties on appeal because district court’s dismissal for lack of personal jurisdiction was proper). Thus, while there may be valid reasons for dismissal, this Court would do a disservice to the plaintiff by reviewing any of the defendants’ challenges as to any of the defendants.

B. Venue-

As previously discussed, this Court, just like the Pennsylvania District Court, lacks authority to transfer this action back to the Middle District of Penn *41 sylvania by attempting to assess the merits of the transfer decision. Rather, only the Third Circuit can review the Pennsylvania District Judge’s ruling. Starnes, 512 F.2d at 924. However, a transferee Court is not precluded from determining its own jurisdiction if the transfer order did not purport to make that determination. Hoffman v. Blaski, 363 U.S. 335, 342 n. 9, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Therefore, a transferee Court (assuming this Court is now in that status) “may remand [a] transferred case if it finds personal jurisdiction lacking or venue improper, and the transferor court has not determined the issue.” Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 28 n. 2 (3d Cir.1985) (citing Hoffman, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254). In this case, the Pennsylvania Court did not assess the venue question (nor the jurisdiction question), Joyner II, 2005 WL 3088371, at *4-5, and venue is now improper here for the reasons that follow, so retransfer to the Pennsylvania Court is legally permissible.

The threshold issue for the Court to address in determining the venue question, is which provision of 28 U.S.C. § 1391 (2000) governs in this case. While § 1391(e) applies to suits against government officials acting in their official capacities, 8 Stafford v. Briggs, 444 U.S. 527, 542, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980) (holding that § 1391(e) only applies to suits that are “in essence against the United States”), this suit is no longer an action of that nature. 9 Rather, the proper venue provision for this and other cases in which federal officials are sued in their individual capacities based on federal question jurisdiction is 28 U.S.C. § 1391(b) (2000). Meyer v. Reno, 911 F.Supp. 11, 14-15 (D.D.C.1996); see also Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C.Cir.1993) (determining venue for the plaintiffs Bivens claim under 28 U.S.C." § 1391(b)).

For the reasons that follow, venue is improper in this Court under § 1391(b). 10 Pursuant to this provision, “a *42 civil action in which jurisdiction is not founded solely on diversity of citizenship may be brought only in a judicial district ... where any defendant resides, if all defendants reside in the -same state.” § 1391(b)(1). Or, a claim may be brought “where a substantial part of the events giving rise to the claim occurred.” § 1391(b)(2). Here, subsection (b)(1) cannot provide the basis for this Court being a proper venue in this case because defendant Dodrill, the warden of USP Lewis-burg, and the unnamed defendants, who were employees at the facility, are not residents of the District of Columbia. Moreover, there is no reason to believe that either defendant Reno or Ashcroft are residents of Pennsylvania, so under no circumstances can § 1391(b)(1) provide the basis for determining the proper venue for the litigation of this case. Thus, 28 U.S.C. § 1391(b)(2) controls where venue lies in this case. And, under no scenario can it be said that “a substantial part of the events giving rise to the claim occurred” in the District of Columbia. § 1391(b)(2). Rather, the substantial part (in fact all) of the events giving rise to the claims occurred in Lewisburg, Pennsylvania, the site of Mr. Frank Joyner’s alleged murder. Joyner I, 267 F.Supp.2d at 20; Amend. Comp. ¶¶ 15-16. The claims now being made in this case arise out of allegations that the defendants failed to properly protect the decedent from physical and emotional abuse, and eventually, his death. Amend. Compl. ¶ 20. When these alleged events occurred, the decedent was an inmate in USP Lewisburg, located in the Middle District of Pennsylvania. Id. ¶ 15. Accordingly, the allegedly deficient supervision took place there as well. The defendants who had direct control over the decedent’s custody, and therefore direct responsibility for his safety, were employed at USP Lewisburg, and that employment forms the underlying basis for the claims against them. Id. ¶¶ 7-8. On the other hand, those defendants who might qualify as District of Columbia residents for the purposes of this litigation (Reno and Ashcroft) are being sued solely for the purported wrongful actions of their subordinates allegedly committed at USP Lewsburg. Id. ¶¶ 5-6. Thus, the putative District of Columbia residents’ purportedly responsibility for the decedent’s death and other injuries is minimal, at best; whereas, ground zero of the events giving rise to the plaintiffs Bivens claims that have been filed in this case took place in the Middle District of Pennsylvania. Venue is therefore only proper there. 11

III. Conclusion

The one matter on which this Judge can agree with his Pennsylvania colleague is that he has taken the “unorthodox step” of engaging in “judicial ‘ping-pong.’ ” Joyner II, 2005 WL 3088371, at *4. And it is unfortunate that he did not give greater thought to that decision before making the first volley. Having therefore placed this case in this unfortunate posture, this Court must now return the volley and transfer *43 this case back to the Middle District of Pennsylvania, for no reasons other than because the case was transferred back to this Court without proper legal authority and the case properly belongs there. Moreover, considering that this Court cannot exercise personal jurisdiction over those defendants who had direct responsibility for protecting the decedent from the harm that provides the basis for the filing of this action (whereas the Pennsylvania Court can), and venue cannot lie in this district, the only recourse for this Court is to decline to address the defendants’ dismissal motion and leave this matter for the Middle District of Pennsylvania to decide.

SO ORDERED this 7th day of December, 2006. 12