Caldwell v. Chipotle Mexican Grill, Inc. et al

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 12/23/2016 ORDERING that the action, including plaintiff's pending 2 motion to proceed in forma pauperis, is TRANSFERRED to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1406(a), or alternatively, pursuant to 28 U.S.C. § 1404(a); the Clerk of Court shall close this case. CASE CLOSED. (Jackson, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEAH CALDWELL, 12 Plaintiff, 13 14 15 No. 2:16-cv-2966-MCE-KJN PS v. ORDER CHIPOTLE MEXICAN GRILL, INC.; STEVE ELLS; STEVE ADAMS, 16 Defendants. 17 Plaintiff Leah Caldwell, who proceeds in this action without counsel,1 has requested leave 18 19 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) After carefully 20 reviewing plaintiff’s complaint, the court concludes that the action should be transferred to the 21 United States District Court for the District of Colorado. The federal venue statute provides that a civil action “may be brought in (1) a judicial 22 23 district in which any defendant resides, if all defendants are residents of the State in which the 24 district is located; (2) a judicial district in which a substantial part of the events or omissions 25 giving rise to the claim occurred, or a substantial part of property that is the subject of the action 26 is situated; or (3) if there is no district in which an action may otherwise be brought as provided in 27 1 This case proceeds before the undersigned pursuant to Local Rule 302(c)(21). 28 1 1 this section, any judicial district in which any defendant is subject to the court’s personal 2 jurisdiction with respect to such action.” 28 U.S.C. § 1391(b). 3 In this case, plaintiff alleges that, in the late Summer to early Fall of 2006, defendant 4 Steve Adams took unauthorized photographs of plaintiff as she was sitting in a Chipotle 5 restaurant near the University of Denver in Colorado. After she exited the restaurant, defendant 6 Adams apparently asked plaintiff to sign a release of rights, but plaintiff refused. Years later, in 7 December 2014, plaintiff saw her photograph (with some editing) in a Chipotle restaurant in 8 Orlando, Florida. Subsequently, in March 2015, plaintiff again saw that photograph in Chipotle 9 restaurants in Sacramento, California, and Roseville, California. Accordingly to plaintiff, 10 defendant Adams sold the rights to the unauthorized photograph to defendants Chipotle Mexican 11 Grill, Inc. and Steve Ells (the CEO of Chipotle Mexican Grill, Inc.) to use for Chipotle 12 promotional purposes, and that Chipotle improperly failed to verify the existence or authenticity 13 of a release for the photograph. Plaintiff asserts claims for commercial appropriation of the 14 photograph and constructive invasion of privacy against defendants. (See generally ECF No. 1.) 15 In light of the foregoing, this district is not the proper venue for this action. For purposes 16 of 28 U.S.C. § 1391(b)(1), none of the defendants reside in this district. By plaintiff’s own 17 allegations, defendant Chipotle Mexican Grill, Inc. is incorporated in Colorado with its principal 18 place of business in Colorado, and defendants Ells and Adams are citizens of Colorado. 19 Additionally, for purposes of 28 U.S.C. § 1391(b)(2), this district is not a district in which a 20 substantial part of the events or omissions giving rise to the claims occurred. The photograph at 21 issue was allegedly taken in Colorado by a Colorado photographer, and thereafter allegedly sold 22 to a Colorado corporation for its promotional purposes. Although plaintiff saw the photograph in 23 Chipotle restaurants in California, she first saw the image, which appears to have been distributed 24 nationwide, in Florida. Thus, California and this district have at best only a tangential connection 25 to the events giving rise to plaintiff’s claims. Furthermore, 28 U.S.C. § 1391(b)(3) does not apply 26 in this case, because there is another district in which this action may be brought—the District of 27 Colorado. 28 //// 2 “The district court of a district in which is filed a case laying venue in the wrong division 1 2 or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or 3 division in which it could have been brought.” 28 U.S.C. § 1406(a). Here, filing in this district 4 appears to have been an inadvertent error by a pro se plaintiff unfamiliar with the procedural rules 5 of venue. As such, the court finds that transfer in lieu of dismissal is appropriate. 6 Finally, the court notes that even if venue were not strictly improper under 28 U.S.C. § 7 1406(a), a transfer of venue pursuant to 28 U.S.C. § 1404(a) would nonetheless be warranted. 28 8 U.S.C. § 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of 9 justice, a district court may transfer any civil action to any other district or division where it might 10 have been brought or to any district or division to which all parties have consented.” Here, while 11 litigating the case in the District of Colorado may be less convenient for plaintiff, and litigating 12 this case in the Eastern District of California may be less convenient for defendants, most of the 13 witnesses and evidence concerning plaintiff’s claims would be located in the District of Colorado 14 where the photo was allegedly taken and sold for promotional purposes. Therefore, on balance, 15 the interest of justice militates in favor of venue in the District of Colorado. 16 Therefore, the court transfers this action to the District of Colorado. In light of the 17 transfer, the court declines to rule on plaintiff’s pending motion to proceed in forma pauperis, 18 which will be resolved by the district court in Colorado. In transferring this action, this court also 19 expresses no opinion regarding the merits of plaintiff’s claims. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The action, including plaintiff’s pending motion to proceed in forma pauperis, is 22 TRANSFERRED to the United States District Court for the District of Colorado 23 pursuant to 28 U.S.C. § 1406(a), or alternatively, pursuant to 28 U.S.C. § 1404(a). 2. The Clerk of Court shall close this case.2 24 25 2 26 27 28 Plaintiff is instructed to direct any filings or inquiries related to this case to the United States District Court for the District of Colorado. Further information regarding that court’s Local Rules and procedures can be obtained on the court’s website at or by telephone at (303) 844-3433. Plaintiff is cautioned that further filings in the Eastern District of California related to this case will be disregarded. 3 1 2 IT IS SO ORDERED. Dated: December 23, 2016 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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