(PS) Ajuluchuku v. Citibank, No. 2:2012cv02172 - Document 12 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/30/12 RECOMMENDING that this case be transferred to the District Court for the Central District of California and terminate all pending motions on this court's docket as no longer pending in this district. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)
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(PS) Ajuluchuku v. Citibank Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 AMANDA U. AJULUCHUKU, 11 12 13 Plaintiff, No. 2:12-cv-2172 GEB KJN PS Defendant. FINDINGS AND RECOMMENDATIONS vs. CITIBANK, 14 15 / 16 Plaintiff Amanda U. Ajuluchuku, proceeding without counsel in this action, has 17 requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Dkt. Nos. 2, 11.)1 18 Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it 19 determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails 20 to state a claim on which relief may be granted, or seeks monetary relief against an immune 21 defendant. 22 In her Second Amended Complaint, plaintiff alleges that around October of 2010, 23 she visited Citibank (“defendant”) to apply for a $100,000 business loan and that defendant’s 24 staff refused to give her the loan forms. (Second Am. Compl., Dkt. No. 7 at 2.) According to 25 1 26 This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 Dockets.Justia.com 1 plaintiff’s pleading, defendant is located at 787 W. 5th Street in Los Angeles, California, with its 2 corporate office located at 399 Park Avenue in New York. (Id. at 1.) 3 Plaintiff alleges that she made “more than three visits” before defendant gave her 4 the forms. (Id. at 2.) Plaintiff alleges suffering various forms of “discrimination” and that 5 defendant “would not give her an answer” and “dodged” her repeated phone calls, until a year 6 later when defendant informed plaintiff that her business loan had been denied. (Id.) Plaintiff 7 alleges that both “federal question” and “diversity” jurisdiction exist. (Id.) Plaintiff alleges she 8 has been damaged in the amount of $10,000,000. (Id.) She also alleges that defendant’s 9 “Corporate Office is in New York.” (Id.) 10 The federal venue statute requires that all civil actions filed in any district court be 11 brought in “(1) a judicial district where any defendant resides, if all defendants reside in the 12 same State, (2) a judicial district in which a substantial part of the events or omissions giving rise 13 to the claim occurred, or a substantial part of property that is the subject of the action is situated, 14 or (3) if there is no district in which an action may otherwise be brought as provided in this 15 section, any judicial district in which any defendant is subject to the court’s personal jurisdiction 16 with respect to such action.” 28 U.S.C. § 1391(b). 17 Plaintiff’s pleading makes clear that the Eastern District of California is not the 18 proper venue in which to bring this case. Both plaintiff and defendant reside in Los Angeles, 19 California and the alleged acts giving rise to the claim all occurred there. Plaintiff’s contention 20 that defendant’s “corporate office” is located in New York does nothing to confer proper venue 21 in this district. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (where all 22 defendants resided in Alaska and “virtually all of the activity providing the basis of the complaint 23 took place” there, district court properly concluded that it lacked venue). “The district court of a 24 district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it 25 be in the interest of justice, transfer such case to any district or division in which it could have 26 been brought.” 28 U.S.C. § 1406(a). This matter should have been brought in the Central 2 1 District of California, where all the parties reside and the allegations supporting the cause of 2 action occurred, and not the Eastern District of California. “Venue may be raised by the court sua sponte where the defendant has not filed a 3 4 responsive pleading and the time to do so has not run.” See Lawrie v. Cline, No. C 11-1235 5 SBA (PR), 2011 WL 7121807, at *2 (N.D. Cal. Nov. 4, 2011) (unpublished) (transferring case at 6 screening under 28 U.S.C. § 1915A(a)). Here, defendant has not filed a responsive pleading and 7 the time for doing so has not run; service of the pleading has not been ordered and no answer is 8 on file. “If a court transfers a case to another venue sua sponte, then the court must give the 9 parties an opportunity to oppose that transfer.” Payne v. City of Atascadero, No. C03–4892 SI, 10 2003 WL 22939227, at *1-2 (N.D. Cal. Nov. 18, 2003) (unpublished) (citing Costlow, 790 F.2d 11 at 1488). Because these proposed Findings and Recommendations include a 14-day objection 12 period, a 14-day response period, and review by the district judge assigned to this case, there is 13 sufficient opportunity to oppose the transfer. See Eastern District Local Rule 304. 14 Accordingly, in the interest of justice, IT IS HEREBY RECOMMENDED that: 15 1. The Clerk of the Court transfer this case to the District Court for the Central 16 District of California. 17 18 2. The Clerk of the Court terminate all pending motions on this court’s docket as no longer pending in this district. 19 These findings and recommendations are submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 21 (14) days after being served with these findings and recommendations, written objections may be 22 filed with the court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” The parties are advised that failure to file objections within 24 //// 25 //// 26 //// 3 1 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO RECOMMENDED. DATED: November 30, 2012 5 6 7 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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