Jonathan E. Perlman, Esq. v. Dorothy Delisfort-Theodule

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15548 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 9, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:09-cv-80480-DTKH
JONATHAN E. PERLMAN, ESQ.,
as court appointed Receiver of Creative Capital Consortium, LLC,
Plaintiff-Appellee,
versus
DOROTHY DELISFORT-THEODULE,
an individual,
Defendant-Appellant,
WEALTH BUILDERS CIRCLE, LLC.,
a Georgia limited liability company, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 9, 2012)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Dorothy Delisfort-Theodule, proceeding pro se, appeals the district court’s
judgment against her in an action to recover funds fraudulently transferred to her.
She contends the court lacked personal jurisdiction over her and that the court
abused its discretion when it denied her motions to transfer venue and for a
continuance.
I.
The Securities and Exchange Commission brought an action against
Delisfort-Theodule’s husband for violating federal securities laws, alleging he
engaged in a Ponzi scheme. The district court appointed a Receiver and ordered
him to take action to protect the investors and to reclaim fraudulently transferred
funds. The Receiver filed this action in March 2009 to recover the funds
fraudulently transferred to Delisfort-Theodule by her husband, naming her as a
participant in the Ponzi scheme and noting two transfers to be set aside.
The district court extended Delisfort-Theodule’s time to answer the
complaint until August 2009, but the deadline passed without a response. The
court scheduled trial for April 2010. In February 2010, she finally filed her
answer to the complaint, which raised no affirmative defenses. Trial was reset for
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the March 25, 2010 calendar call.
In March, roughly one year after the action was filed, Delisfort-Theodule
filed a motion for change of venue, arguing that Georgia—her state of
residence—was the proper venue because proceeding in Florida would be
inconvenient both for her and for her witnesses, and because she could not afford
to defend herself in Florida. The Receiver objected, arguing that because
Delisfort-Theodule had waited so long to file, granting the motion would not
promote judicial economy and he would be prejudiced. Further, the Receiver
argued that Delisfort-Theodule would only have to make one more trip to Florida
and that she had not explained why it would be less expensive to retain counsel in
Georgia. The court agreed with the Receiver, noted that the transfer would delay
trial and impede efforts to recover fraudulently transferred funds, and denied
Delisfort-Theodule’s motion.
In April 2010, the Receiver moved to continue the trial because the parties
were discussing settlement, and the court granted that motion. Trial was set for
October 25, 2010. On October 1, 2010 Allen Alberga, a Georgia attorney, filed a
motion to appear pro hac vice on Delisfort-Theodule’s behalf, which the court
granted on October 5. On October 23, the Saturday before trial, Alberga filed a
motion to continue the trial. He claimed he was unable to attend due to personal
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family issues, that he had four other cases for which he had to appear the same
week, and that he had not had enough time to confer with Delisfort-Theodule. The
Receiver opposed any continuance, arguing that, because of trial preparation and
arranging for witnesses to be available, he would be prejudiced by any delay. The
district court denied the motion to continue.
After a bench trial, at which neither Delisfort-Theodule nor her counsel
appeared, the court concluded that Delisfort-Theodule had received $3,000,200 in
fraudulent transfers that were avoidable under Fla. Stat. § 726.105.1 It entered
judgment against her in that amount. This is her appeal.
II.
“[T]he issue of whether personal jurisdiction is present is a question of law
and subject to de novo review.” Diamond Crystal Brands, Inc. v. Food Movers
Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010). “[L]ack of personal jurisdiction
is a waivable defect, and . . . a defendant waives any objection to the district
court’s jurisdiction over [her] person by not objecting to it in a responsive
pleading or a Fed. R. Civ. P. 12 motion.” Palmer v. Braun, 376 F.3d 1254, 1259
(11th Cir. 2004); see also Fed. R. Civ. P. 12(b)(2), (h). “A party that fails to raise
1
The Receiver filed a motion for summary judgment as to all of the relevant transfers,
which the district court granted in part in the amount of $545,200. The $3,000,200 total includes
that amount.
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a defense of lack of personal jurisdiction at the appropriate time is deemed to have
conferred personal jurisdiction on the court by consent.” Pardazi v. Cullman Med.
Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). Because Delisfort-Theodule did not
object to the court’s personal jurisdiction over her in a motion to dismiss or in her
answer, she has waived that affirmative defense.
III.
We review for abuse of discretion a district court’s denial of a motion to
change venue. See Palmer, 376 F.3d at 1257. A district court may transfer a civil
action to any other district or division where it may have been brought “[f]or the
convenience of the parties and witnesses, and in the interest of justice.” Robinson
v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (citing 28 U.S.C.
§ 1404(a)). However “[t]he plaintiff’s choice of forum should not be disturbed
unless it is clearly outweighed by other considerations.” Id. It is the movant’s
burden to persuade the court that a transfer should be granted. See In re Ricoh
Corp., 870 F.2d 570, 573 (11th Cir. 1989); Time, Inc. v. Manning, 366 F.2d 690,
698 (5th Cir. 1966)2.
The district court found that because Delisfort-Theodule had waited roughly
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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one year to request change of venue, transfering the case would have resulted in
unnecessary delay and might have prejudiced the Receiver’s ability to recover and
avoid fraudulent transfers. It also concluded that Delisfort-Theodule had not
carried her burden to show how transferring the venue would have reduced her
costs. Nor did she identify any witnesses who could not or would not testify
unless the case was transferred. On these grounds, the court therefore concluded
that any additional costs or inconvenience to Delisfort-Theodule was insufficient
to disturb the Receiver’s forum choice. We see no abuse of discretion in that
decision.
IV.
We also review for abuse of discretion a district court’s denial of a motion
to continue, reversing only if the denial was arbitrary or unreasonable.3 See
Romero v. Drummond Co., Inc., 552 F.3d 1303, 1314 (11th Cir. 2008); Quiet
Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1350–51 (11th Cir.
2003). To determine whether the district court abused its discretion we consider
in part: (1) “the extent of [Delisfort-Theodule’s] diligence in her efforts to ready
her defense prior to the date set for” trial; (2) “the extent to which granting the
3
Although Delisfort-Theodule did not clearly articulate this argument in her brief to this
Court, we construe pro se briefs liberally. See Harris v. United Auto. Ins. Grp. Inc., 579 F.3d
1227, 1231 (11th Cir. 2009).
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continuance would have inconvenienced the court and the [Receiver], including its
witnesses”; and (3) “the extent to which [Delisfort-Theodule] might have suffered
harm as a result of the district courtss denial.” See Quiet Tech., 326 F.3d at 1351(alterations omitted).
The district court denied Delisfort-Theodule’s motion for a continuance,
which was “filed just two days before trial was scheduled to commence and after
[the Receiver] spent considerable time preparing for trial and arranging for out-of-
state witnesses to be present for trial.” Because of the motion’s “eleventh-hour
nature,” that decision was not an abuse of discretion.
AFFIRMED.
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