IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

BEHAVIOR ANALYST CERTIFICATION 

BOARD, INC., 

 Plaintiff, 

v. 

MICHAEL MOATES, an individual; 

MISTY KIESCHNICK, an individual; and 

THE GLOBAL INSTITUTE OF BEHAVIORAL 

PRACTITIONERS AND EXAMINERS, 

 Defendants. 

)

)

)

)

)

)

)

)

)

)

)

) 

Civil Action No. 4:23-cv-00194-ALM 

RESPONSE TO MOTION TO DISMISS 

Plaintiff, Behavior Analyst Certification Board, Inc. (the “BACB”), by and through its 

attorneys, respectfully submits its Response to Motion to Dismiss and, as grounds therefor, states 

the following: 

BACKGROUND 

At the time Plaintiff filed this lawsuit, the last known address Plaintiff had for Defendants 

Michael Moates (hereinafter “Moates”) and the Global Institute for Behavior Practitioners and 

Examiners1 (hereinafter “GIBPE”), including all of its directors and officers, was 2700 Colorado 

Blvd., Apt. 1526, Denton, TX 76210, which is located in the Eastern District of Texas. As a result, 

Plaintiff asserted in its Complaint that “[v]enue is proper in [the Eastern District of Texas] pursuant 

to 28 U.S.C. § 1391(b) because Defendant Michael Moates resides in this District and all of the 

Defendants are residents of or are domiciled in Texas.” Plaintiff attempted service of process on 

1

 See Exhibit A – GIBPE’s entity information registered with the Texas Secretary of State. 

Case 4:23-cv-00194-ALM Document 27 Filed 06/09/23 Page 1 of 3 PageID #: 138 Case 4:23-cv-00194-ALM Document 29 Filed 06/09/23 Page 1 of 3 PageID #: 144
2 

Defendants Moates and GIBPE multiple times at the Denton address. See Exhibit B. After three 

failed service attempts, Plaintiff learned that Defendant Moates had moved to 4501 Nautilus 

Circle, Apt. 710, Fort Worth, TX 76106. After persistent resistance to service, Mr. Moates was 

eventually served at this address. 

ARGUMENT

Pursuant to 28 U.S.C. § 1406, a district court may transfer action brought in wrong division 

or district if it is in interest of justice to do so. General practice is to transfer, rather than dismiss, 

a case to a forum where venue is proper. See, e.g., United States v. Miller-Stauch Const. Co., 904 

F. Supp. 1209, 1214 (D. Kan. 1995) (“Transfer [of venue] should be the usual course rather than 

dismissal.”); Phillip Gall & Son v. Garcia Corp., 340 F. Supp. 1255, 1257 (E.D. Ky. 1972) 

(“Normally, if venue does not lay in the district court where an action is initiated, the court 

should... transfer it to the proper district or division.”). 

In this case, it is in the interest of justice to transfer venue to a forum where venue is proper, 

rather than to dismiss. Plaintiff, as demonstrated by its numerous good faith attempts to serve 

Defendant Moates at the Denton address, honestly believed venue was appropriate in this District 

and had no reason to believe otherwise. Plaintiff is not opposed to the Court transferring this case 

to the Northern District of Texas, where both Defendant Kieschnick and Defendant Moates reside. 

For these reasons, Plaintiff respectfully requests that Defendant Kieschnick’s Motion to 

Dismiss be denied. 

 

Case 4:23-cv-00194-ALM Document 27 Filed 06/09/23 Page 2 of 3 PageID #: 139 Case 4:23-cv-00194-ALM Document 29 Filed 06/09/23 Page 2 of 3 PageID #: 145
3 

Respectfully submitted this 9th day of June, 2023. 

HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. 

s/ Mark L. Sabey 

Mark L. Sabey, pro hac vice 

Lindsay K. McManus, pro hac vice

999 17th Street, Suite 800, Denver, CO 80202 

303-801-3538 / marksabey@hallrender.com 

303-802-1293 / lmcmanus@hallrender.com 

and 

Brandon S. Kulwicki 

HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. 

603 Munger Avenue, Suite 350, Dallas, TX 75202 

P: 214-615-2025 / F: 214-615-2001 

bkulwicki@hallrender.com 

ATTORNEYS FOR PLAINTIFF 

CERTIFICATE OF SERVICE 

 The undersigned certifies that on June 9, 2023, a true and correct copy of the foregoing 

was served upon the following: 

Misty Kieschnick

9448 Castlewood Dr. 

Fort Worth, TX 76131 

m.kieschnick@att.net 

Defendant – pro se 

Michael Moates 

4501 Nautilus Circle, Apt. 710 

Fort Worth, TX 76106 

mike@cpmht.com 

Defendant – pro se 

s/ Crystal J. Sebastiani 

Crystal J. Sebastiani, Paralegal 

4893-4389-4121v2 

Case 4:23-cv-00194-ALM Document 27 Filed 06/09/23 Page 3 of 3 PageID #: 140 Case 4:23-cv-00194-ALM Document 29 Filed 06/09/23 Page 3 of 3 PageID #: 146