Opinion
CASE NO. 1:08CV133-SPM/AK.
July 7, 2008
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, has filed a complaint alleging civil rights violations under 42 U.S.C. § 1983 against defendants residing in Ann Arbor and Lansing, Michigan. Pursuant to 28 U.S.C. § 1391, venue is proper in the district court "where any defendant resides, if all defendants reside in the same State." Because the defendants reside in Washtenaw County, Michigan, the United States District Court for the Eastern District of Michigan, Southern Division, is the proper venue for this cause of action.
A federal district court has the authority under 28 U.S.C. § 1406 to transfer or dismiss a case filed in the wrong division or district. A court may raise the issue of defective venue sua sponte, but should not dismiss an improperly filed case for lack of venue without giving the parties an opportunity to respond.Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988). The Lipofsky court did not place the same limitations on the court's ability to transfer a case to the appropriate forum pursuant to 28 U.S.C. § 1404(a). See Lipofsky, 861 F.2d at 1259, n. 2. Thus, it is recommended that the case be transferred rather than dismissed. There is no need for a hearing on this transfer. Cf. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) with Starnes v. McGuire, 512 F.2d 918, 934 (D.C. Cir. 1974). It is also recommended that the motion for leave to proceed in forma pauperis be transferred without action since the district court in Michigan may have a particular form for this process.
In light of the foregoing, and pursuant to 28 U.S.C. §§ 1404 and 1406, the undersigned respectfully RECOMMENDS transfer of this action to the United States District Court for the Eastern District of Michigan, Southern Division, for all further proceedings.
IN CHAMBERS at Gainesville, Florida.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.