Allum v. State of Nevada et al, No. 2:2010cv00016 - Document 24 (D. Mont. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. Defendant's Motion to Dismiss (Doc. 7) is GRANTED.. Signed by Judge Richard F. Cebull on 12/6/2010. (CRM, ) Modified on 12/6/2010 to indicate copy mailed to Robert Allum (CRM, ).

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Allum v. State of Nevada et al Doc. 24 IN THE UNITED STATES DISTRICT COURT Ef l FOR THE DISTRICT OF MONTANA 'Vi riLED t, ,', . 6 rn]C CO BUTTE DIVISION ROBERT L. ALLUM, ) Plaintiff, BY ) Cause No. CV-IO-16-BJiltF .. ) ) v. ) STATE OF NEVADA, COUNTY OF WASHOE, MEALS-ONWHEELS, GALLAGHER BASSETT SERVICES, INC., and DOES I-X, inclusive. ) ) ) ) ) ) Defendant. ) ) ORDER ADOPTING FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE -------------------) United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (Doc. 15) with respect to the Motion to Dismiss filcd by Defendants Washoe County and Meals-on-Wheels. (Doc. 7). Upon service of a magistrate judge's findings and recommendation, a party has 14 days to file written objections. 28 U.S.c. § 636(bXl). Plaintitlhas filed timely objections. (Doc. 18.) Accordingly, the Court must make ade novo detcnnination ofthose portions of the Findings and Recommendations to which objection is made. 28 U.8.c. § 636(b)(1). For the following reasons, Plaintiffs Dockets.Justia.com objections are overruled. After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and HEREBY ORDERS they be adopted in their entirety. Venue in Montana is improper. First, no named Defendant "resides" in Montana. See 28 U.S.C. § 1391 (b)(l). Plaintiff even alleges in his Complaint that all named Defendants are in Nevada. (Doc. 1 at 2-3.) Second, "a substantial part of the events or omissions giving rise" to Plaintiff's claims did not occur in Montana. See 28 U.S.c. § 1391 (b)(2). The vehicle accident that precipitated this action occurred in Reno, Washoe County, Nevada and Washoe County engaged the services of Gallagher Bassett in Nevada to administer Plaintiff's claims. The fact that Plaintiff received medical treatment in Montana does not make venue in Montana proper. See Jorgens v. P& V, Inc., 2007 WL 840309 at *2 (E.D. Cal. 2007); Wisland v. Admiral Beverage Corp., 119 F.3d 733, 736 (8th Cir. 1997). Third, if there were not a district in which this action otherwise could be brought, any district in which any defendant "may be found" would be a proper venue under 28 U.S.C. § 1391(b)(3). In this case, Plaintiff could bring this action 2 only in the District of Nevada because all named defendants are there and because a substantial part ofthe events or omissions giving rise to Plaintiffs claims occurred there. When venue is improper, this Court has discretion to dismiss the case or transfer it. See 28 U.S.C. § 1406(a). Because Plaintiff has not advanced any argument on the issue and because the interests ofjustice do not mandate transfer, dismissal is appropriate. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Doc. 7) is GRANTED and this case is DISMISSED, WITHOUT PREJUDICE. The Clerk of Court shall notifY the parties of the making ofthis Order, enter • judgment of DATED this thi, ".". ) day ofDecember, 2010. RICHARD F. CE ULL UNITED STATES DISTRICT JUDGE 3

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