Opinion
2:22-cv-04709-SB-AS
07-27-2022
Scott Brandsrud v. Dawn Hedlund-Dolan et al.
CIVIL MINUTES - GENERAL
PROCEEDINGS: [IN CHAMBERS] ORDER TO SHOW CAUSE
STANLEY BLUMENFELD, JR., DISTRICT JUDGE
On July 11, 2022, Plaintiff Scott Brandsrud filed a complaint against Defendants Dawn Hedlund-Dolan and Donald LeRoy Hedlund, both of whom reside in Minnesota, alleging a claim for fraud in a probate proceeding under § 524.1-106 of the Minnesota Uniform Probate Code. Complaint (Compl.), Dkt. No. 1. Plaintiff alleges that Dawn submitted a fraudulent petition to obtain an appointment as the personal representative of the decedent Meloy Lee Brandsrud and that Donald served as an accessory to Dawn's fraud. Id. ¶¶ 5-6, 50.
Plaintiff filed an in forma pauperis (IFP) application under 28 U.S.C. § 1915 to proceed without prepaying fees and costs. Dkt. No. 3. It appears from the complaint that this district, the Central District of California, may not be the proper venue for this case.
A federal civil action may be brought in: (1) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; (2) a judicial district in which a substantial part of the events giving rise to the claim occurred; or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b) . None of the three venue prongs seems to be satisfied here. Both Defendants reside in Minnesota; it appears that the events giving rise to Plaintiff's claim occurred in Minnesota; and this action could have been brought in the District of Minnesota.
Defects in venue may be raised by the court on its own where, as here, a defendant has not yet responded to the complaint and the time for doing so has not expired. SeeCostlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986); see also Emrit v. Horus Music Video Distrib., No. 20-00007 JMS-RT, 2020 WL 1822597, at *3 (D. Haw. Apr. 10, 2020) (“A district court may raise the issue of defective venue on its own motion, provided it first issues an order to show cause why the case should not be transferred or dismissed.” (citations omitted)); Zhu v. Whinery, 109 Fed.Appx. 137, 138 (9th Cir. 2004) (affirming dismissal of case based on improper venue following an order to show cause). Plaintiff bears the burden of demonstrating that venue is proper. SeePiedmont Label Co. v. Sun GardenPacking Co., 598 F.2d 491, 496 (9th Cir. 1979).
The Court therefore orders Plaintiff to show cause (OSC) in writing why this action should not be dismissed without prejudice for improper venue or transferred to the District of Minnesota. See 28 U.S.C. § 1406(a) (“The 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.”). Plaintiff's response shall be filed not later than August 3, 2022 and should explain why venue is proper in the Central District of California. Plaintiff is expressly cautioned that failure to file a timely response to this OSC will result in a denial of his IFP application and a dismissal of this action for improper venue.
IT IS SO ORDERED.