Rosiere v. United States of America

Filing 33

ORDER TRANSFERRING CASE TO DISTRICT OF NEVADA. Signed by Magistrate Judge Laurel Beeler on 9/27/2016. (lsS, COURT STAFF) (Filed on 9/27/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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SHAUN ROSIERE,

Case No. 16-cv-02765-LB

Plaintiff,

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ORDER TRANSFERRING CASE TO
DISTRICT OF NEVADA

v.

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UNITED STATES OF AMERICA,

Re: ECF No. 12

Defendant.

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INTRODUCTION AND BACKGROUND

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This is a Freedom of Information Act (―FOIA‖) case.1 Shaun Rosiere, proceeding pro se and

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in forma pauperis, requested Department of Justice records relating to two criminal cases and one

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civil case (case numbers 1:08-cr-00629, 1:09-00720, and 1:05-cv-02589).2 The documents are

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located in Trenton, New Jersey, and Denver, Colorado.3 Although Mr. Rosiere submitted his

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FOIA requests between March 24 and April 6, 2016, the government has not responded.4 Mr.

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Rosiere therefore initiated this suit.5

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Compl. — ECF No. 1. Record citations refer to material in the Electronic Case File (―ECF‖);
pinpoint citations are to the ECF-generated page numbers at the top of documents.
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Id. ¶ 1, Exs. 1–6.
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Id. Exs. 1–6.
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Id. ¶ 2–3, Exs. 1–6.
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See generally id.

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The United States moves to dismiss for improper venue, or alternatively, transfer the case to a

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proper venue.6 The court can decide the matter without oral argument, see N.D. Cal. Civ. L.R. 7-

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1(b); and although Mr. Rosiere declined magistrate jurisdiction, a motion to transfer is non-

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dispositive and thus this court can decide the issue. See Pavao v. Unifund CCR Partners, 934 F.

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Supp. 2d 1238, 1241 n.1 (S.D. Cal. 2013) (collecting cases). The court transfers the case to the

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District of Nevada, where Mr. Rosiere resides.

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GOVERNING LAW

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Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss a case for
improper venue. If venue is improper, the court may either dismiss the case without prejudice, or,

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United States District Court
Northern District of California

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if it is in the ―interest of justice,‖ may transfer the case ―to any district or division in which it could

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have been brought.‖ 28 U.S.C. § 1406(a); In re Hall, Bayoutree Assoc., Ltd., 939 F.2d 802, 804

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(9th Cir. 1991) (any dismissal for improper venue must be without prejudice). Ordinarily, the

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interest of justice requires transfer to the proper venue rather than dismissal. See Baeta v. Sonchik,

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273 F.3d 1261, 1264–65 (9th Cir. 2001).

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After a defendant challenges venue, the plaintiff has the burden to show that venue is proper.

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See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); Munson v.

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California, No. C 08-5053 SBA, 2009 WL 264838, *1 (N.D. Cal. Feb. 4, 2009). When

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considering a Rule 12(b)(3) motion, the court need not accept as true all allegations in the

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complaint and may consider facts outside the pleadings. See Murphy v. Schneider Nat’l, Inc., 362

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F.3d 1133, 1137 (9th Cir. 2004). Still, the court ―is obligated to draw all reasonable inferences in

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favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party.‖

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Id. at 1138.

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Motion to Dismiss or Transfer — ECF No. 12.
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ANALYSIS

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Venue is generally governed by 28 U.S.C. § 1391, but FOIA has its own venue provision and

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thus § 1391 does not apply. See Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586,

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587-88 (9th Cir. 1991) (applying Title VII venue provision instead of section 1391); Keen v.

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Federal Bureau of Investigation, No. C 97-2657 TEH, 1997 WL 671711, *1 (N.D. Cal. Oct. 17,

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1991). In FOIA cases, then, venue is proper in: (1) the district where the plaintiff resides or has his

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principal place of business; (2) the district where the records at issue are located; or (3) the District

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of Columbia. See 5 U.S.C. § 552(a)(4)(B).
Here, venue is not proper in the Northern District of California. Mr. Rosiere appears to reside

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in Las Vegas, Nevada: he provides a Las Vegas mailing address on his court filings.7 The

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United States District Court
Northern District of California

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government argues that the Northern District is not Mr. Rosiere’s business’s principal place of

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business, and he does not provide any information to believe otherwise.8 By Mr. Rosiere’s own

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complaint, the records he seeks are located in Colorado and New Jersey, and thus not in the

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Northern District (or the District of Columbia).9 Mr. Rosiere requests leave to amend his

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complaint in response to the government’s motion.10 He does not, however, provide any indication

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that he could amend his complaint — which seeks documents only in New Jersey and Colorado —

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to make venue proper in this district.11
In the interest of justice, instead of dismissing the case, the court transfers it to the District of

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Nevada, where Mr. Rosiere resides.
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See Compl. at 3; Notice — ECF No. 21 at 1, 2; Notice — ECF No. 24 at 1; Declination — ECF
No. 31 at 2.
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Motion to Dismiss or Transfer at 5–6; Motion to Amend Compl. — ECF No. 28.
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Compl., Exs. 1–6.
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Motion to Amend Compl. — ECF No. 28.
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See id.
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CONCLUSION

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The court transfers the case to the District of Nevada.

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IT IS SO ORDERED.

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Dated: September 27, 2016

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______________________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHAUN ROSIERE,

Case No. 3:16-cv-02765-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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UNITED STATES OF AMERICA,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on September 27, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Shaun Rosiere
7380 S. Eastern Ave.
Ste #124265
Las Vegas, NV 89123

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Dated: September 27, 2016
Susan Y. Soong
Clerk, United States District Court
By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER

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