Opinion
No. C 03-4892 SI
November 17, 2003
ORDER TRANSFERRING PLAINTIFFS' ACTION TO THE CENTRAL DISTRICT OF CALIFORNIA
Pursuant to 28 U.S.C. § 1406(a), this Court TRANSFERS plaintiffs' action to the Central District of California, effective on or after December 8, 2003. Plaintiffs' application to proceed in forma pauperis and "Magistrate Judge Request for Restraining Order/Temporary Restraining Order" are deferred for consideration by the transferee court.
BACKGROUND
Plaintiffs Daryl Payne and James J. Payne have filed this action against defendants the City of Atascadero, Wade McKinney, Paul Saldana, David Matthews, Phil Dunsmore, Atascadero Mutual Water Company, Pacific Gas and Electric Company, Southern California Gas Company, the County of San Luis Obispo, Courtis A. Batson, Jeff D. Poel, the State Department of Motor Vehicles, California Highway Patrol, Does 1 through 35 inclusive, Brian Dana, Roy Hanley, and Stephen Shea for alleged constitutional violations and other injuries, generally related to defendants' actions with respect to real property located on Via Avenue in the City of Atascadero, which plaintiffs had leased for eleven years. Pls.' Compl. at 2:3-7, 10:23-18:19. According to plaintiffs, this court's jurisdiction is based upon 42 U.S.C. § 1983. Id. at 2:3-8. Plaintiffs assert that all of the actions giving rise to their complaint occurred in the Central District of California, id. at 3:3-5, and it appears from the pleadings that most or all of the defendants reside or are found in the Central District of California.
With their complaint, plaintiffs also filed a "Magistrate Judge Request for Restraining Order/Temporary Restraining Order." In addition, plaintiffs have sought to proceed in this action in forma pauperis. Since the IFP application has not been ruled on, no defendant has yet been served or appeared.
LEGAL STANDARD
Since 42 U.S.C. § 1983 does not contain a specific venue provision, the general venue provision of 28 U.S.C. § 1391 controls for claims brought under § 1983. Jones v. Bales, 58 F.R.D. 453.458 (N.D. Ga. 1972): Brown v. Rochester Super 8 Hotel, 899 F. Supp. 151, 151 (S.D.N.Y. 1995). Venue is proper under § 1391 "only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b).
If defendant has not waived any challenge to venue, then the question of whether the current venue is proper can be considered sua sponte by a court under 28 U.S.C. § 1406(a). Jacobson v. Herman, No. C 02-3281 MMC, 2002 U.S. Dist. LEXIS 14623, at * 1 (N.D. Cal. Aug. 5, 2002); Chiu v. Mann, No. C 02-4590 VRW, 2003 U.S. Dist. LEXIS 2758, at * 5 (N.D. Cal. Feb. 24, 2003). If the court determines that the current venue is improper, then the court "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). However, if a court transfers a case to another venue sua sponte, then the court must give the parties an opportunity to oppose that transfer. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Further, the court must articulate its reasons for the transfer. In Re Scott, 709 F.2d 717, 718-19 (D.C. Cir. 1983). These articulated reasons ensure that the court is "act[ing] in response to considerations, apart from the court's own convenience, for rejecting a plaintiff's forum choice." Id. at 721.
DISCUSSION
Plaintiffs' complaint should be transferred to the Central District of California because all of the events giving rise to plaintiffs' complaint occurred in that district and at a time when at least one, or perhaps both, plaintiffs lived there. Plaintiffs acknowledge this in their complaint: "All the claims herein arose in the Central [D]istrict of California, specifically San Luis Obispo County, California." Pls.' Compl. at 3:3-5. Further, transfer is proper because the real property at the center of the dispute is located in the Central District, and most, if not all, defendants are residents of or found in the Central District of California. See e.g., id. at 22:3-25, 29:10-31:21, and 35:1-10. Thus, under 28 U.S.C. § 1391(b)(2), the proper venue for plaintiffs' complaint is the Central District.
CONCLUSION
For the foregoing reasons, this action is TRANSFERRED to the Central District of California, effective on or after December 8, 2003. If plaintiffs wish to oppose this transfer, they must submit a motion for reconsideration of this order no later than December 5, 2003. Plaintiffs' application to proceed in forma pauperis and "Magistrate Judge Request for Restraining Order/Temporary Restraining Order" is deferred for consideration by the transferee court.