Opinion
Case No. 17-cv-00742-JCS
03-09-2017
KRISTIAN M. GERMANI, et al., Plaintiffs, v. SAFEWAY GROCERY, et al., Defendants.
REPORT AND RECOMMENDATION REGARDING SUA SPONTE DISMISSAL OR TRANSFER
Plaintiffs Kristian Germani and Donald Collier, pro se, filed a single application to proceed in forma pauperis in this action, signed only by Germani. Dkt. 3. Because the application was not sufficient to show that Collier qualified to proceed in forma pauperis, the undersigned magistrate judge issued an order to show cause why the action should not be dismissed for failure to pay the filing fee, explaining that the order would be discharged if Plaintiffs filed a sufficient application signed by Collier. Dkt. 5. For the reasons discussed below, the undersigned now recommends that the case be DISMISSED, or, if the failure to pay the filing fee or adequately demonstrate indigence is cured, that the case be TRANSFERRED to the United States District Court for the Eastern District of California.
In response to the order to show cause, Plaintiffs filed a document captioned "Motion to decline Judge Spero + reimbursement of filing fees[;] Motion to transfer to Oakland due to a Conflict of Interest." Dkt. 6. To the extent that this document is intelligible, it generally contends that the undersigned is biased against Plaintiffs and should be disqualified for purported awareness of purported misconduct by the Honorable Elizabeth Laporte in a separate case. See id. The undersigned finds no evidence of bias, no evidence of misconduct or error by Judge Laporte, and no basis for recusal. Nevertheless, Plaintiffs have the right to decline the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c) and request reassignment to a United States district judge. The undersigned construes Plaintiffs' recent filing as a declination under that statute. This case will therefore be reassigned to a district judge for all further proceedings, including action on the recommendations herein.
Plaintiffs have presented no adequate basis for limiting reassignment to a judge of this Court's Oakland Division. Civil cases filed in either San Francisco or Oakland are assigned to any judge in either San Francisco or Oakland. --------
Plaintiffs have not cured the error identified in the order to show cause by filing an application to proceed in forma pauperis signed by Collier. Plaintiffs suggest that the Court should allow them both to proceed in forma pauperis because they have been allowed to do so in the past, see dkt. 6 at 4, but financial circumstances can change over time, and Plaintiffs must file applications for each action they seek to bring in forma pauperis. The undersigned therefore recommends that this action be DISMISSED without prejudice for failure to pay the filing fee unless Plaintiffs cure that defect within the time allowed to file objections to this report.
If Plaintiffs cure that defect, either by paying the filing fee or by satisfying the Court that both of them are eligible to proceed in forma pauperis, the undersigned recommends that the case be TRANSFERRED sua sponte to the United States District Court for the Eastern District of California to cure improper venue. The federal venue statute provides that a civil action generally must be filed either in the judicial district in which a defendant resides or in the district in which the events at issue occurred. 28 U.S.C. § 1391(b). Plaintiffs' complaint asserts that their claims arise from incidents at a Safeway supermarket in Vallejo, California. See generally Compl. (dkt. 1). Vallejo is in Solano County, and is therefore within the Eastern District of California. There is no indication that any defendant resides within the Northern District of California. The undersigned therefore finds that venue is improper in this Court.
"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." 28 U.S.C. § 1406(a). A district court may raise the issue of venue on its own motion. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (affirming sua sponte dismissal for improper venue). Given that plaintiffs are unrepresented and claim to be indigent, the undersigned finds that dismissing this action for improper venue and requiring them to refile their claim in the appropriate court would cause an undue burden and would not serve the interest of justice. The undersigned therefore recommends that, if Plaintiffs cure their defective application to proceed in forma pauperis, this case be TRANSFERRED to the United States District Court for the Eastern District of California.
Any party may file objections to the recommendations herein within fourteen days of being served with a copy of this report. Plaintiffs, who are not represented by counsel, are encouraged to consult with the Federal Pro Bono Project's Legal Help Center in either of the Oakland or San Francisco federal courthouses for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be made by calling (415) 782-8982 or signing up in the appointment book located outside either office. Lawyers at the Legal Help Center can provide basic assistance to parties representing themselves but cannot provide legal representation. Dated: March 9, 2017
/s/_________
JOSEPH C. SPERO
Chief Magistrate Judge