Smith v. State of California et al

Filing 10

ORDER GRANTING 9 MOTION TO RE-TRANSFER CASE to Northern District of California, signed by Magistrate Judge Michael J. Seng on 04/18/2011. CASE CLOSED(Martin, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT P. SMITH, III,

CASE NO.

1:11-cv-317-LJO-MJS (PC)

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Plaintiff,

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ORDER GRANTING MOTION TO RETRANSFER CASE TO THE NORTHERN
DISTRICT OF CALIFORNIA

v.

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STATE OF CALIFORNIA, et al.,

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Defendants.

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(ECF No. 9)
CLERK TO TRANSFER CASE TO THE
NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff Robert P. Smith (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action in the Northern District of California on July 6, 2010. (ECF No. 1.) On February 23,

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2011, the Northern District ordered that the case be transferred to this Court based on the

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fact that most of the events at issue in this case occurred in the Eastern District and most

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of the Defendants reside in the Eastern District. (ECF No. 3.) The Northern District’s

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Transfer Order states that transfer is pursuant to 28 U.S.C. § 1406(a). (Id.)

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“A prerequisite to invoking Section 1406(a) is that the venue chosen by the plaintiff

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must be improper.” 14D Charles Alan Wright, et al., Federal Practice and Procedure §

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3827 (3d ed. 2010); Bomanite Corp. v. Newlook Intern., Inc., 2008 WL 1767037, *5 (E.D.

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Cal. April 16, 2008) (“If the original forum was a proper venue, § 1406(a) cannot apply.”)

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When, as in this case, the action involves a federal claim, venue is proper in any district

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in which any defendant resides, if all of the defendants reside in the same state. 28 U.S.C.

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§ 1391(b) (emphasis added).

The Transfer Order acknowledges that at least one

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Defendant, Warden of Salinas Valley State Prison, resides in the Northern District.1 (ECF

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No. 3 at 2.) It appears that all the Defendants reside in California. (ECF No. 1.)

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Because all of the Defendants reside in California and at least one resides in the

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Northern District, venue is proper there and it was erroneous to order transfer pursuant to

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Section 1406(a).

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Accordingly, Plaintiff’s Ex Parte Motion asking the Court to retransfer this case to

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the Northern District of California is GRANTED. The Clerk shall transmit this case to the

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Northern District of California.

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IT IS SO ORDERED.

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Dated:
97k110

April 18, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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As Plaintiff points out in the instant Motion, at least four Defendants actually reside in the
Northern District. Additionally, a not insubstantial portion of the events occurred at Salinas Valley. (ECF
No. 9 at 3.)