Summary
adopting report and recommendation dismissing claim as filed in the wrong venue
Summary of this case from Morton v. CVS Corp.Opinion
Case No. 2:15-cv-00523-RFB-NJK
07-08-2015
Cedric Greene, Plaintiff, v. Logisticare Solutions, LLC, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
Before this Court are a Report and Recommendation, ECF No. 4, and a Motion to Dismiss, ECF No. 6. As discussed below, the Report and Recommendation is adopted and the Motion to Dismiss is denied as moot.
I. Background
On March 23, 2015, Plaintiff Cedric Greene filed an Application for Leave to Proceed in Forma Pauperis. ECF No. 1. Magistrate Judge Koppe denied the Application without prejudice. ECF No 2. On April 8, Greene filed a second Application. ECF No. 3.
On April 10, 2015, Judge Koppe granted the second Application and screened Greene's Complaint, pursuant to 28 U.S.C. 1915(e). ECF No. 4. Upon screening the complaint, Judge Koppe recommended this Court dismiss the action without prejudice because of improper venue. Id. at 3:16, 4:5-7. On April 23, Greene objected. ECF No. 9.
On April 14, 2015, Defendant Logisticare Solutions, LLC ("Logisticare") moved to dismiss for failure to state a claim upon which relief can be granted, "should the Court fail to dismiss Plaintiff's motion on the grounds of improper venue." Mot. to Dismiss 5:14-19, ECF No. 6. Greene moved to strike the motion to dismiss. ECF No. 10. The Court denied Greene's Motion to Strike and ordered Greene file a response by May 21, 2015. No response was filed.
On May 18, 2015, Greene filed a Motion for Disclosure of Discovery, which Judge Koppe denied. ECF Nos. 15, 16.
II. Report and Recommendation
A. Legal Standard
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). A party may file specific written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Local Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct "any review," de novo or otherwise, of the report and recommendations of a magistrate judge. Thomas v. Arn, 474 U.S. 140, 149 (1985).
B. Discussion
Here, Greene timely objected to the Report and Recommendation. Accordingly, the Court reviews the de novo the portions to which Greene has objected. Greene objects to the Recommendation's finding that venue is improper.
28 U.S.C. § 1391(b) establishes by statute three general situations in which venue is appropriate. First, if all defendants are residents of the state in which the district is located, venue is proper in a district in which any defendant resides. 28 U.S.C. § 1391(b)(1). Alternatively, venue is proper in a district in which a "substantial part of the events or omissions" giving rise to the claim occurred, or in which a "substantial part of property" that is the subject of the action is situated. 28 U.S.C. § 1391(b)(2). Finally, if there is no district in which venue proper based on residence or location of events or omissions, venue is proper where any defendant is subject to the court's personal jurisdiction. 28 U.S.C. § 1391(b)(3). "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 has authority to raise the issue of defective venue sua sponte. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
Here, Greene's Complaint alleges that Logisticare was negligent in providing care. Compl. 1:26-2:2. The allegedly negligent care involves transport from Greene's home for doctor appointments. Id. at 2:10-12. While the Complaint does not allege where this transport occurred, Greene's address at the top of the Complaint indicates he is in Los Angeles, California. Id. at 1:2. Because the medical transport issues involve the services of cab companies, id. at 2:19-28, it appears from the Complaint that the transportation at issue is local in nature. Based on Complaint, it thus appears that both the plaintiff and the "events or omissions" giving rise to the claim occurred outside Nevada. Accordingly, based on the Complaint, venue is not proper under 28 U.S.C. § 1391(b)(2).
Furthermore, the Complaint includes no allegations whatsoever regarding Logisticare's residence and thus fails to establish venue under 28 U.S.C. § 1391(b)(1). Therefore, the Complaint fails to establish that venue is proper.
In his Objection, Greene does not appear to dispute that impropriety of venue. Obj. 2:11, ECF No. 9. Rather, Greene requests "that this Court grant him the permission to litigate this case in its current venue as a 'special circumstance matter.'" Id. at 2:14-15. This the Court cannot do. Greene cites no authority, and the Court is aware of no authority, supporting the proposition that this Court can disregard 28 U.S.C. § 1406(a), which states the district court shall dismiss or transfer a case brought in an improper venue. But cf. Au-Yang v. Citibank, N.A., 872 F.2d 426 (9th Cir. 1989) (holding that the selection between options of dismissal and transfer for improper venue is a matter of discretion).
Greene's Objection describes the difficulty he has in filing in California courts. Objection 2, ECF No. 9. Greene further disputes the validity of his "vexatious" label in certain California courts, id. at 2:27-3:4, which is a matter raised in the Report and Recommendation, 2:7-22, ECF No. 4. While the Court understands Greene may face challenges in other courts, such challenges and labels as "vexatious" in California are simply not relevant to this Court's evaluation of whether venue is proper here. As required by federal statute, for purposes of venue this Court must determine whether this case is related to Nevada in certain specific ways. See 28 U.S.C. § 1391(b). Here, for the reasons already described, the Court concludes that the Complaint fails to establish that venue is appropriate in the District of Nevada.
Accordingly, the Court adopts the Report and Recommendation and Greene's Complaint is dismissed, without prejudice. Greene shall have thirty days to file an amended complaint that properly establishes venue in the District of Nevada.
III. Motion to Dismiss
Because the Court has adopted the Report and Recommendation, Logisticare's Motion to Dismiss is denied as moot. Logisticare may re-raise appropriate arguments in response to a future amended complaint.
IV. Conclusion
For the reasons discussed above, IT IS ORDERED that Report and Recommendation, ECF No. 4, is ADOPTED.
IT IS FURTHER ORDERED that Complaint, ECF No. 5, is DISMISSED without prejudice. Greene shall have until August 7, 2015 to file an amended complaint.
IT IS FURTHER ORDERED that Motion to Dismiss, ECF No. 6, is DENIED without prejudice.
Dated: July 8, 2015.
/s/_________
Richard F. Boulware II
United States District Court