Thomas Utterback v. Trustmark National Bank
17-60249
| 5th Cir. | Nov 22, 2017Background
- Utterback, a Missouri resident and former attorney, sued Trustmark National Bank and Hand Arendall, L.L.C. in the Southern District of Mississippi alleging defamation, invasion of privacy, IIED, tortious interference, and abuse of process based on Florida-related accusations that he practiced law without a license.
- Defendants moved to dismiss, arguing Florida’s litigation privilege immunized their statements and that Mississippi’s one-year statute of limitations barred most claims.
- After nearly two years of litigation in Mississippi, the district court announced it would grant defendants’ motion, and before entry of final judgment Utterback moved to transfer the case to the Northern District of Florida; the court denied transfer and dismissed the complaint.
- The district court applied Mississippi choice-of-law rules, concluded Florida substantive law applied, but held Mississippi’s one-year limitations (procedural under lex loci forum) barred all but one claim; the remaining tortious-interference claim was dismissed as deficient and duplicative of defamation.
- The court also concluded Florida’s absolute litigation privilege covered the defendants’ statements because they bore some relation to underlying litigation.
- Utterback appealed pro se, raising only that the district court abused its discretion in denying his transfer motion; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law / statute of limitations | Mississippi’s one-year limitation should not bar his claims; venue/transfer would allow Florida law to apply | Mississippi procedural law governs and its one-year limit applies to bar most claims | Court applied Mississippi choice rules, found Florida substantive law but Mississippi’s one-year procedural limitation barred all but one claim |
| Applicability of Florida litigation privilege | Privilege should not immunize his claims; Debrincat exception for litigation-embedded claims applies | Florida law gives absolute immunity for acts with some relation to litigation | Court held Florida’s litigation privilege barred the claims because allegations related to litigation; Debrincat inapplicable |
| Transfer under 28 U.S.C. § 1406 (improper venue/personal jurisdiction) | Transfer required because Mississippi venue/personal jurisdiction improper (and statutes of limitation favor Florida) | Defendants waived venue/personal-jurisdiction objections; waiver forecloses relief under § 1406 | Court: Defendants waived venue/pj objections, so Utterback cannot invoke § 1406 to obtain transfer |
| Transfer under 28 U.S.C. § 1404(a) (convenience and justice) | Florida is more convenient: events/witnesses there; avoids Mississippi limitations and allows Florida to rule on privilege | Plaintiff chose Mississippi and litigated two years; late motion is untimely and unfair; plaintiff gave no specific witness/evidence showing inconvenience | Court: No abuse of discretion in denying transfer — plaintiff’s delay and lack of specificity weigh against transfer; § 1404(a) relief denied |
Key Cases Cited
- Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (choice-of-law forum rule)
- Levin, Middlebrooks, Mamie, Thomas, May & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) (Florida absolute litigation privilege)
- Debrincat v. Fischer, 217 So. 3d 68 (Fla. 2017) (malicious-prosecution exception to litigation privilege discussed)
- Olberding v. Illinois Central R. Co., 346 U.S. 338 (venue waiver effect when plaintiff chooses forum)
- Leroy v. Great Western United Corp., 443 U.S. 173 (venue/forum protections for defendants)
- In re Volkswagen of America, Inc., 545 F.3d 304 (en banc) (§ 1404(a) convenience factors)