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Cioffi v. Gilbert Enterprises, Inc.

United States Court of Appeals, First Circuit

October 8, 2014

ALISON CIOFFI, Plaintiff, Appellant,
v.
GILBERT ENTERPRISES, INC. d/b/a CLUB FANTASIES, Defendant, Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. John J. McConnell, Jr., U.S. District Judge.

Neil E. Roberts and Law Office of Neil E. Roberts on brief for appellant.

Timothy J. Duggan, Jodi E. Barrett, and Duggan, Gianacoplos & Mahoney, LLC on brief for appellee.

Before Torruella, Selya and Thompson, Circuit Judges.

OPINION

Page 91

SELYA, Circuit Judge.

This is a case where the plaintiff attempts, in effect, to appeal from an order that the district court never made. Not surprisingly, her appeal goes nowhere.

We start by rehearsing the bare facts and travel of the case. Plaintiff-appellant Alison Cioffi is an exotic dancer who resides in Woburn, Massachusetts. She applied for and accepted employment with Club Fantasies (the Club), an adult entertainment venue (dysphemistically called a " strip club" ) operated in Providence, Rhode Island, by defendant-appellee Gilbert Enterprises, Inc. She performed at the Club without apparent incident until mid-April, 2009. She alleges that, on a date that is in dispute,[1] a fellow dancer assaulted her and inflicted severe injuries.

On April 19, 2012, the plaintiff sued the Club in a Massachusetts state court.[2] She alleged that her injuries resulted from the Club's failure to furnish her with a safe and secure workplace.

The Club is owned and operated by a Rhode Island corporation. Alleging diversity of citizenship and the existence of a controversy in the requisite amount, the Club removed the action to the United

Page 92

States District Court for the District of Massachusetts. See 28 U.S.C. § § 1332(a), 1441. In due course, the Club moved to dismiss the action for, inter alia, improper venue and want of in personam jurisdiction. See Fed.R.Civ.P. 12(b)(2)-(3). The plaintiff opposed the motion. After briefing and argument, the district court (Saylor, J.) concluded that the Club had insufficient contacts with Massachusetts to warrant the exercise of personal jurisdiction. See Cioffi v. Gilbert Enters., Inc., 971 F.Supp.2d 129, 138 (D. Mass. 2012) (order on motion to dismiss). Instead of dismissing the case Judge Saylor asked the parties to brief the question of whether dismissal or transfer of venue would be the more condign remedy. See id.

The plaintiff filed a motion for reconsideration, beseeching the district court to rethink its conclusion on personal jurisdiction or, in the alternative, to transfer the case. For its part, the Club exhorted the district court to dismiss the suit outright. After mulling these importunings, Judge Saylor invoked 28 U.S.C. § 1406(a) and transferred the case to the District of Rhode Island -- a district in which the suit unarguably could have been brought.[3]

At this point, the plaintiff improvidently attempted to appeal. Her notice of appeal, plainly interlocutory, was dismissed for want of diligent prosecution after the plaintiff's counsel failed to respond to our show-cause order questioning appellate jurisdiction. See Cioffi v. Gilbert Enters., Inc., No. ...


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