Ortkiese v. Schaerer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
JOSEPH HOWARD ORTKIESE 	)
)
v. 	) 	Case No. 3:25-cv-00984
)
CHARLIE SCHAERER et al. 	)
TO: 	Honorable William L. Campbell, Jr., Chief District Judge
R E P O R T 	A N D 	R E C O M M E N D A T I O N
By Order entered February 3, 2026 (Docket Entry No. 25), the Court referred this pro se
action to the Magistrate Judge for consideration of all pretrial matters under 28 U.S.C. §§
636(b)(1)(A) and (B) and Rule 72 of the Federal Rules of Civil Procedure.
Presently pending is the motion to dismiss (Docket Entry No. 14) filed by Defendant Mark
Raines, individually and in his capacity as the attorney for the Town of Jasper, Tennessee.
Plaintiff has responded in opposition to the motion. 1 	For the reasons set out below, the
undersigned respectfully recommends that the motion be GRANTED to the extent that it raises
an improper venue defense but that this action be transferred to the Eastern District of Tennessee
in lieu of dismissal.
I. 	BACKGROUND
Joseph Howard Ortkiese (“Plaintiff”) filed this pro se lawsuit on August 29, 2025, and later
amended his complaint. 	See Complaint (Docket Entry No. 1) and Amended Complaint (Docket
1 Defendant Raines filed a motion to dismiss (Docket Entry No. 12), which omitted
Plaintiff from the certificate of service for the motion, and then filed an amended motion to dismiss
(Docket Entry No. 14) to correct the omission. 	Accordingly, the Court views the most recent
version as the actual pending motion.
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Entry No. 7). 	Although Plaintiff filed an application to proceed in forma pauperis, the Court
denied the application. 	See December 15, 2025, Order (Docket Entry No. 21). 	Plaintiff
subsequently paid the filing fee.
Plaintiff alleges that he has a legal interest in a parcel of land located in Guild, Tennessee,
and that “Defendant(s) named within this cause have, since September 2001, sought to illegally
deprive Plaintiff of his property, a 5-acre parcel of land located on Hales Bar Rd, Guild, TN
described within the Deed of Trust last recorded Volume 288, page 443, Register's Office of
Marion County, TN.” 	See Amended Complaint at 3. 	Asserting various wrongdoings, Plaintiff
alleges that his federal, civil rights have been violated and seeks relief under 42 U.S.C. § 1983.
Named as defendants are: the City of Jasper, Tennessee; Marion County, Tennessee; Mark Raines,
the city attorney for Jasper, Tennessee; the county attorney, county clerk, county clerk & master,
assessor of property, and trustee for Marion County, Tennessee; a husband and wife living in
Guild, Tennessee; a husband and wife living in Valley Head, Alabama; and a marina located in
Guild, Tennessee. 	Although summons have not yet been issued in the case, Defendant Raines
has filed the pending motion to dismiss and a notice of appearance has been filed on behalf of
Defendant Marion County. 	See Docket Entry No 24.
By his motion to dismiss, Defendant Raines seeks dismissal under Rules 12(b)(3) and (6)
of the Federal Rules of Civil Procedure. 	He argues that the Middle District of Tennessee does
not have venue over the lawsuit because the case involves claims related to property in Marion
County, Tennessee, which is in the Eastern District of Tennessee. 	He further argues that
dismissal of the claims against him is warranted under Rule 12(b)(6) because Plaintiff’s allegation
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fail to support claims upon which relief can be granted against him. 	Finally, he raises a qualified
immunity defense. 	See Memorandum in Support (Docket Entry No. 15).
In response to the motion, Plaintiff asserts that venue in the Middle District is proper
because the Middle District is where he resides, because “the money exchanged to purchase the
investment property was generated” within the Middle District, and because a bank located and
operated in the Middle District is a “secondary victim.” 	See Response at 2. 	He further argues
that Defendant Raines has misrepresented his claims and that his “allegation of felonious fraud,
public corruption, and various prosecutable crimes should not be dismissed.” 	Id. at 1.
Defendant Raines replies that Plaintiff has waived opposition to many of the dismissal
arguments set out in the motion because he has not addressed those arguments and that nothing set
out in Plaintiff’s response rebuts the improper venue argument. 	See Reply (Docket Entry No.
19).
II. 	ANALYSIS AND CONCLUSION
Venue generally refers to the location of the proper district court for the litigation of a civil
action over which the court has subject matter jurisdiction. 	See 28 U.S.C. § 1390(a). 	Under 28
U.S.C. § 1391(b), a federal civil action may be brought in (1) a judicial district in which any
defendant resides if all the defendants reside in the State where the district is located; (2) a judicial
district in which a substantial part of the events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the action is situated; or, (3) if there is no district
in which an action may otherwise be brought as provided in this section, any judicial district in
which any defendant is subject to the court's personal jurisdiction with respect to such action. 	A
court considering the issue of venue must initially determine whether the case falls within one of
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these three categories. 	Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S.
49, 56 (2013).
Rule 12(b)(3) allows a defendant to move to dismiss the complaint for improper venue.
Canal Ins. Co. v. Schaefer, No. 3:23-CV-01059, 2024 WL 666490, at *2 (M.D.Tenn. Feb. 16,
2024) (internal citation omitted). 	After a defendant challenges venue, “it is the plaintiff's burden
to show that venue is proper.” 	Ingram Barge Co., LLC v. Bunge N. Am., Inc., 455 F.Supp.3d
558, 569 (M.D.Tenn. 2020) (internal citation omitted). 	When considering a Rule 12(b)(3) motion
to dismiss for improper venue, “the court may examine facts outside of the complaint but ‘must
draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff.’” 	Receiver
of assets of Mid-Am. Energy, Inc. v. Coffman, 719 F. Supp. 2d 884, 891 (M.D. Tenn. 2010)
(internal citation omitted).
After reviewing the pertinent filings, the Court finds that Plaintiff has not satisfied his
burden of showing that the Middle District of Tennessee has venue over his lawsuit. 	The only
assertion made by Plaintiff in his pleadings for why venue is proper in the Middle District is that
he resides within the Middle District of Tennessee. 	See Amended Complaint at 3, ¶ 5.
However, a plaintiff’s residency is not determinative of venue under Section 1391(b). 	See Lea v.
United States Dep't of Agric., No. 23-5169, 2024 WL 841436 at *3 (6th Cir. Feb. 28, 2024) (“the
venue statute makes the residency of the defendants (not the plaintiffs) matter. . . . So [the
plaintiff’s] current domicile is beside the point.”). 	Further, Plaintiff has not argued, let alone
shown, that any of the venue factors set out in Section 1391(b) create venue in the Middle District.
Finally, the factual allegations of the complaint fail to set out any events occurring in the Middel
District and it is clearly apparent that the crux of this lawsuit involves property located in Marion
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County, Tennessee, and involves events that occurred in Marion County, which is located within
the Eastern District of Tennessee. 	See 	28 U.S.C. § 123(a).
28 U.S.C. § 1406(a) provides that “[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.” 	The decision
under Section 1406(a) of whether to dismiss a case for improper venue or to transfer the case lies
within the discretion of the Court. 	See First of Michigan Corp. v. Bramlet, 141 F.3d 260, 262
(6th Cir. 1998); Receiver of assets of Mid-Am. Energy, Inc. v. Coffman, 719 F.Supp.2d 884, 891
(M.D.Tenn. 2010) (internal citation omitted).
Although Defendant Raines requests the dismissal of the case because of improper venue,
the Court finds that, given Plaintiff’s pro se status and the context of the case, it is in the interest
of justice to transfer the case to the Eastern District of Tennessee, where it could have and should
have been brought in the first instance
R E C O M E N D A T I O N
For the reasons set out above, the undersigned respectfully RECOMMENDS that
Defendant Raines’ motion to dismiss (Docket Entry No. 14) be GRANTED in part to the extent
that the motion raises the issue of improper. 	However, the Court finds that dismissal of the
lawsuit is not warranted and that the lawsuit should instead be TRANSFERRED to the Eastern
District of Tennessee.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen
(14) days of service of this Report and Recommendation and must state with particularity the
specific portions of this Report and Recommendation to which objection is made. 	See Rule
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72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.02(a). 	Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District
Court's Order regarding the Report and Recommendation. 	See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 	Any response to the objections
must be filed within fourteen (14) days after service of objections. 	See Federal Rule 72(b)(2).
Signed By:
J. Gregory Wehrman
United States Magistrate Judge
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