Wade v. Chao et al

Filing 29

ORDER signed by Magistrate Judge Deborah Barnes on 6/6/17: Within fourteen days of the date of this order any party may file objections to the transfer of this action to the United States District Court for the Northern District of California. HEARING as to 17 MOTION to DISMISS is continued to 7/28/2017 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah Barnes. 18 Motion for Extension of time is granted. (Kaminski, H)

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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 E. K. WADE, 12 Plaintiff, 13 14 15 No. 2:17-cv-0004 TLN DB PS v. ORDER ELAINE CHAO, Former Secretary of Labor, 16 Defendants. 17 Plaintiff, E. K. Wade, is proceeding in this action pro se. This matter was referred to the 18 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Noticed for 20 hearing before the undersigned on June 9, 2017, is defendants’ April 27, 2017 motion to dismiss.1 21 (ECF No. 17.) However, defendants’ motion to dismiss asserts that plaintiff has “filed numerous 22 lawsuits in the Northern District against the DOL and its employees,” and may have filed this 23 action in this district “to circumvent the filing restrictions he was under in the Northern District of 24 California.” (ECF No. 17-1 at 11.) Moreover, it appears from the allegations found in plaintiff’s 25 fourth amended complaint that the acts at issue in this action occurred within the boundaries of 26 the United States District Court for the Northern District of California. 27 28 1 Also pending before the court is plaintiff’s May 2, 2017 motion for a 15-day extension of time to complete service. (ECF No. 18.) That motion will be granted. 1 1 Venue in a civil action is generally proper in (1) a judicial district where any defendant 2 resides, if all defendants reside in the same State in which the district is located, (2) a judicial 3 district in which a substantial part of the events or omissions giving rise to the claim occurred or 4 (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the 5 action is commenced, if there is no district in which the action may otherwise be brought. 28 6 U.S.C. § 1391(b). However, a Federal Tort Claims Act cause of action against the United States 7 may only be brought in the district in which plaintiff resides or wherein the alleged act or 8 omission occurred. 28 U.S.C. § 1402(b). Nonetheless, “[f]or the convenience of parties and 9 witnesses, in the interest of justice, a district court may transfer any civil action to any other 10 district or division where it might have been brought or to any district or division to which all 11 parties have consented.” 28 U.S.C. § 1404(a). 12 Here, given the amended complaint’s allegations, plaintiff’s litigation history, and the 13 possibility that plaintiff commenced this action in this district to circumvent filing restrictions, it 14 appears to the undersigned that this action should be transferred to the United States District 15 Court for the Northern District of California. The parties, however, will first be given an 16 opportunity to address this issue. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Within fourteen days of the date of this order any party may file objections to the 19 20 transfer of this action to the United States District Court for the Northern District of California; 2. The June 9, 2017 hearing of defendants’ motion to dismiss (ECF No. 17) is continued 21 to Friday, July 28, 2017, at 10:00 a.m., at the United States District Court, 501 I Street, 22 Sacramento, California, in Courtroom No. 27, before the undersigned; 23 24 3. Plaintiff’s May 2, 2017 motion for a 15-day extension of time (ECF No. 18) is granted. Dated: June 6, 2017 25 26 27 DLB:6 DB/orders/orders.pro se/wade2354.cont.hrg.transfer 28 2 1 2 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 3

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