Minichino v. Sutidze et al

Filing 22

ORDER re 21 Order Transferring Case. Signed by Judge ARMSTRONG on 2/21/12. (lrc, COURT STAFF) (Filed on 2/22/2012)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 OAKLAND DIVISION 7 8 MARIE MINICHINO, AND AS TRUSTEE Case No: C 11-02484 SBA 9 OF GAETANO TRUST, ORDER TRANSFERRING VENUE Plaintiff, 10 11 vs. 12 MANANA SUTIDZE, DAVID SUTIDZE, WILLIAM AND JOANN CATERINA, 13 SHAKA PIZZA, COLDWELL BANKER, PREVIEWS INT., SHORE TO SHORE 14 REALTY, AND INC., WELLS FARGO BANK, N.A., PETER STONE, 15 CARMALITA OMLI, AKA TAGORDA, AKA MARTINEZ, AL IMAMURA, 16 PRESIDENT AND PRINCIPLE BROKER, SHORE TO SHORE REALTY, ROBERT 17 CELLA, BROKER, COLDWELL BANKER, FIRST AMERICAN TITLE, ISLAND 18 TITLE, YVIENNE PETERSON, WINDEMERE REAL ESTATE, CO., 19 YURIKO SUGIMURA, 20 Defendants. 21 22 Pro se Plaintiff Marie Minichino (“Plaintiff”) brings the instant action against 23 various defendants allegedly involved in efforts by Wells Fargo Bank (“Wells Fargo”) to 24 foreclose on two of her properties located in Kihei, Hawaii. For the reasons that follow, the 25 Court, in the interests of justice, sua sponte transfers the action to the District of Hawaii, 26 pursuant to 28 U.S.C. § 1406, or alternatively, 28 U.S.C. § 1404(a). 27 28 1 2 I. BACKGROUND On May 17, 2011, Plaintiff filed a ninety-page Complaint in this Court along with a 3 request to proceed in forma pauperis. Dkt. 1. On June 10, 2011, Plaintiff filed an 4 Amended Verified Complaint against the following Defendants: (1) Manana Sutidze; 5 (2) David Sutidze; (3) William Caterina; (4) Johann Caterina; (5) Shaka Pizza; (6) Coldwell 6 Banker; (7) Previews Int.; (8) Shore to Shore Realty; (9) Wells Fargo; (10) Peter Stone; 7 (11) Carmalita Omli; (12) Al Imamura; (13) Robert Cella; (14) First American Title; 8 (15) Island Title; (16) Yvienne Peterson; (17) Windemere Real Estate Co.; and (18) Yuriko 9 Sugimura (“Sugimura”).1 10 Although the pleadings are not a model of clarity, Plaintiff’s claims appear to arise 11 from the allegedly “illegal sale” of her home located at 3531 Lanihou Place, Kihei, Hawaii 12 (“3531 Lanihou”), as well as another property located at 214 Luakaha Circle, Kihei, Hawaii 13 (“214 Luakaha”). Am. Compl., Dkt. 7 at 3. Plaintiff avers that she is the trustee of the 14 Gaetano Trust and is the owner of the aforementioned properties. 15 In March 2009, Manana and David Sutidze allegedly transferred 3531 Lanihou and 16 214 Luakaha from the Gaetano Trust to Manana Sutidze without payment of consideration. 17 Id. at 4-5. 18 In October 2010, Defendant Wells Fargo commenced a foreclosure action against 19 Plaintiff, apparently involving both of her properties. Id. at 7. In the course of that process, 20 Wells Fargo sought to have Plaintiff evicted from her home at 3531 Lanihou and destroyed 21 all of her furniture. Id. at 8. Plaintiff alleges that she informed Well Fargo and its attorneys 22 that there was no “valid loan” on her property, and that the foreclosure action was 23 improper. Id. Nevertheless, she asserts that Wells Fargo proceeded with the sale of both 24 properties. Id. According to the Amended Complaint, the remaining Defendants—realtors, 25 1 Plaintiff appears to reside in and be a citizen of the State of Hawaii. Although her Complaint and Amended Complaint indicate a Post Office Box in Sausalito, California, as her return address, her most recent submission indicates an address in Kihei, Hawaii. Dkt. 27 7. In addition, the Chapter 13 bankruptcy petition filed by Plaintiff in the United States Bankruptcy Court for the District of Hawaii (Case No. 11-01628) indicates that Plaintiff 28 currently resides in Hawaii. 26 -2- 1 brokers, attorneys and title companies, among others—were involved in the allegedly 2 illegal foreclosure. 3 The Amended Complaint alleges claims for: (1) mail and wire fraud, 18 U.S.C. 4 §§ 1341, 1343; (2) fraud; (3) breach of fiduciary duty; (4) “neglect and misrepresentation”’ 5 (5) undue influence; and (6) theft of property and conspiracy to defraud. Plaintiff, 6 however, has requested the Court to stay the action on the ground that she currently has a 7 bankruptcy action pending in the United States Bankruptcy Court for the District of Hawaii. 8 See In re Marie N. Minichino, U.S. Bankruptcy Court, Dist. of Haw., No. 11-01628. 9 II. 10 11 DISCUSSION A. REQUEST TO STAY Title 11, United States Code, section 362(a)(1) prohibits the “commencement or 12 continuation, including the issuance or employment of process, of a judicial, administrative, 13 or other action or proceeding against the debtor that was or could have been commenced 14 before the commencement of the case under this title. . . .” (emphasis added). The Ninth 15 Circuit has clarified that “the automatic stay is applicable only to proceedings against the 16 debtor.” In re Miller, 397 F.3d 726, 729 (9th Cir. 2005) (emphasis added). Here, the 17 instant action was commenced by Plaintiff and is not “against the debtor.” Thus, the Court 18 denies Plaintiff’s request for a stay. 19 B. VENUE 20 In federal question cases, venue is proper in the following districts: (1) if all 21 Defendants reside in the same state, a district where any defendant resides; (2) a district in 22 which a substantial part of the events or omissions on which the claim is based occurred; or 23 (3) if there is no district in which the action may otherwise be brought, the district in which 24 any defendant may be found. 28 U.S.C. § 1391(b). If venue is improper, a district court, in 25 its discretion, may dismiss or transfer the action under 28 U.S.C. § 1406(a). See King v. 26 Russell, 963 F.2d 1301, 1304 (9th Cir. 1992). Venue may be raised sua sponte where, as 27 here, the defendants have not yet filed a responsive pleading and the time for doing so has 28 not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). -3- 1 Even where venue is proper under § 1391, a district court may transfer the case to 2 another district for the convenience of the parties and witnesses. See 28 U.S.C. § 1404(a). 3 Section 1404(a) states: “For the convenience of parties and witnesses, in the interest of 4 justice, a district court may transfer any civil action to any other district or division where it 5 might have been brought.” 28 U.S.C. § 1404(a). The Court may sua sponte transfer an 6 action under § 1404(a). See Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 966 (9th Cir. 7 1993). 8 9 The Northern District of California is the wrong venue for this action. The properties that form the basis of this action are located in Hawaii. Though residence of 10 each of the Defendants is not expressly alleged in the Amended Complaint, it is clear from 11 the pleadings that the alleged conduct of these parties transpired in Hawaii as well. Thus, 12 under § 1391(b)(2), venue is proper in the District of Hawaii. Alternatively, even if venue 13 were proper in this District, it is readily apparent that the District of Hawaii is a more 14 convenient forum for the parties and witnesses in light of the fact that all of the operative 15 events allegedly occurred there. 16 III. CONCLUSION 17 For the reasons set forth above, 18 IT IS HEREBY ORDERED THAT the instant action is TRANSFERRED to the 19 20 District of Hawaii. The Clerk shall close the file. IT IS SO ORDERED. 21 22 23 24 25 26 27 28 -4- 1 Dated: February 21, 2012 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 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 -5- 1 2 3 4 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 MARIE MINICHINO, Plaintiff, 7 8 9 10 v. MANANA SUTIDZE et al, Defendant. / 11 12 Case Number: CV11-02484 SBA 13 CERTIFICATE OF SERVICE 14 15 16 17 18 19 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 21, 2012, 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. 20 21 22 23 Marie Minichino P.O. Box 639 Sausalito, CA 94965 24 25 Dated: February 21, 2012 Richard W. Wieking, Clerk 26 By: Lisa Clark, Deputy Clerk 27 28 -6-

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