Kennedy (PS) v. Avanti Residential, LLC et al

Filing 7

ORDER. IT IS ORDERED that: The Report and Recommendation (ECF No. #6 ) is WITHDRAWN. The Clerk of Court shall transfer this matter to the District of Colorado and that this case be closed. Signed by Magistrate Judge Maximiliano D. Couvillier, III on 5/9/2024. (Copies have been distributed pursuant to the NEF - RJDG) [Transferred from Nevada on 5/9/2024.]

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Alea R. Kennedy,
Plaintiff(s),

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vs.

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Avanti Residential, LLC, et al.,

2:24-cv-00489-RFB-MDC
ORDER WITHDRAWING REPORT AND
RECOMMENDATION (ECF NO. 6) AND
TRANSFERING VENUE

Defendant(s).

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Pending before the Court is plaintiff’s Brief Showing Cause. ECF No. 5. The Court previously

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deferred addressing pro se plaintiff Alea R. Kennedy’s Application to Proceed In Forma Pauperis

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(“IFP”) and instead ordered plaintiff to file a brief showing cause why her Complaint should not be

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dismissed as duplicative and/or frivolous. ECF No. 4. The Court noted that plaintiff had filed numerous

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identical complaints in the District of Colorado. 1 Id. The Court ordered her to file her brief by May 1,

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2024. Id. The Court warned plaintiff that failing to timely comply with the Order may result in a

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recommendation that her case be dismissed. Id. Plaintiff did not comply with the Court’s Order (ECF

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No. 4) and respond by May 1, 2024. Plaintiff, however, untimely filed her Brief on May 3, 2024 (ECF

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No. 5), which was not uploaded until May 6, 2024, after the Court had drafted and uploaded its Report

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and Recommendation (ECF No. 6). The Court has considered plaintiff’s response (ECF No. 5) and

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therefore withdraws its Report and Recommendation (ECF No. 6). The Court discusses its findings

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below and transfers the action to the District of Colorado.

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//

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1 Kennedy (PS) v. Modivcare Solutions, LLC, Case No. 1:23-cv-03327-SBP; Kennedy (PS) v. Greystar Real Estate Partners
LLC et al, Case No. 1:23-cv-03328-SBP; Kennedy (PS) v. Priderock Capital Partners, LLC; Case No. 1:23-cv-03331-SBP;
Kennedy (PS) v. Transcat, Inc., Case No. 1:23-cv-03332-SBP; Kennedy (PS) v. American Lighting Inc, Case No. 1:23-cv03334-SBP; Kennedy (PS) v. Greystar Real Estate Partners, LLC et al, Case No. 1:23-cv-03426-SBP; Kennedy (PS) v.
Apartment Investment Management Co., Case No. 1:24-cv-00696-SBP; Kennedy (PS) v. Greystar Real Estate Partners et al,
Case No. 1:24-cv-00702-SBP; Kennedy (PS) v. Cushman Wakefield, Inc. et al, Case No. 1:24-cv-00703-SBP

DISCUSSION

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Upon review of plaintiff’s Brief (ECF No. 5), the Court notes that plaintiff alleges that “the filing

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of this Complaint was sabotaged; and the Complaint directed to the incorrect jurisdiction.” ECF No. 5 at

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2. “Plaintiff prays leave from this Court to rectify the filing and move the Honorable Court for Removal

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of this action to the appropriate jurisdiction.” The Court construes plaintiff to brief as a Motion to

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Transfer Venue. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)

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("A document filed pro se is 'to be liberally construed.'").

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I.

BACKGROUND
Plaintiff brings this case against Avanti Residential, LLC, a Delaware Corporation, and Avanti

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Residential – Fitzsimmons, LLC, which is located in Colorado. ECF No. 1-1 at 1. Plaintiff alleges in her

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Complaint (ECF No. 1-1) that defendants: (1) discriminated against her in violation of federal and state

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anti-discrimination statutes; (2) assumed plaintiff was disabled where no disability was present; (3)

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subjected plaintiff to medical treatment by unlicensed practitioners; (4) compromised the leasing

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contract; (5) retaliation; and (6) committed gene theft. Plaintiff alleges defendants’ conduct occurred

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while she was residing in Forum Fitzsimmons, located in Aurora, Colorado. Id.
The Court noted that plaintiff’s Complaint was near identical to numerous complaints she had

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filed in the District of Colorado. ECF No. 4. The Court also noted that plaintiff’s complaint seemed to

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contain frivolous allegations. Id. The Court ordered plaintiff to file a brief showing cause why her action

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shouldn’t be dismissed as duplicative and/or frivolous. Id. Plaintiff filed a brief which primarily

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requested that her case be transferred to the appropriate jurisdiction, which she suggests is the District of

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Colorado. ECF No. 5.

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II.

LEGAL STANDARD
Federal Courts are courts of limited jurisdiction and possess only that power authorized by the

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Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489, 124 S. Ct. 2686, 159 L. Ed. 2d 548

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(2004). Under 28 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions arising

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under the Constitution, laws, or treaties of the United States.” This is referred to as federal-question

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jurisdiction. Under 28 U.S.C. § 1332(a), federal district courts have original jurisdiction over civil

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actions in diversity cases where the matter in controversy (1) exceeds the sum or value of $75,000 and

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(2) is between citizens of different states.
Under 28 U.S.C. § 1391, a civil action may be brought in (1) a judicial district in which any

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defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial

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district in which a substantial part of the events or omissions giving rise to the claim occurred, or a

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substantial part of property that is the subject of the action is situated; or (3) if there is no district in

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which an action may otherwise be brought as provided in this section, any judicial district in which any

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defendant is subject to the court’s personal jurisdiction with respect to such action. 28 U.S.C. § 1391(b).

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Pursuant to 28 U.S.C. § 1406, the if venue is improper, the district court of that venue must either

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dismiss the case or, if it in the interest of justice, transfer the case to any district or division in which the

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case could have been brought. 28 U.S.C. § 1406(a). The district court has discretion to “adjudicate

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motion for transfer according to an individualized, case-by-case consideration of convenience and

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fairness.” Jones v. GNC Franchising, Inc., 211 F.3d495, at 498 (9th Cir. 2000); see also 28 U.S.C. §

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1404(a). The district may also transfer venue “upon motion, consent, or stipulation of all parties.” 28

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U.S.C. § 1404(b).

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III.

ANALYSIS
The Court considers plaintiff’s Brief (ECF No. 5). The Court construes plaintiff to brief as a

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Motion to Transfer Venue. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081

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(2007) ("A document filed pro se is 'to be liberally construed.'"). The Court also considers whether

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Nevada is a proper venue for this action. The Court finds, that regardless of plaintiff’s Motion to

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Transfer (Brief, ECF No. 5), there is sufficient cause to transfer the case to the District of Colorado.

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First, defendants do not reside in Nevada. Second, the Complaint (ECF No. 1-1) provides no connection

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to this District with respect to the events alleged. Instead, the allegations are centered in the District of

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Colorado. Plaintiff alleges all events occurred while she was residing at Forum Fitzsimmons, which is in

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Aurora, Colorado. ECF No. 1-1. Because the District of Colorado is an appropriate venue, the Court

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does not turn to the third venue factor. Therefore, none of the statutory provisions renders the District of

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Nevada a proper venue for this case. The Court will transfer the case to the District of Colorado. See in

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re U.S. Dept. of Ed., 25 F.4th 692, 698-99 (9th Cir. 2022) (an order transferring a case to another federal

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venue is a non-dispositive matter that is within the province of a magistrate judge's authority under 28

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U.S.C. § 636(b)(1)(A)).

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ACCORDINGLY,

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IT IS ORDERED that:

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1. The Report and Recommendation (ECF No. 6) is WITHDRAWN.

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2. The Clerk of Court shall transfer this matter to the District of Colorado and that this case be

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closed.

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NOTICE
Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985).

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This circuit has also held that (1) failure to file objections within the specified time and (2)

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failure to properly address and brief the objectionable issues waives the right to appeal the District

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Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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Pursuant to LR IA 3-1, the plaintiff must immediately file a written notification with the court of any

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change of address. The notification must include proof of service upon each opposing party’s attorney,

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or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may

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result in dismissal of the action.

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DATED this 9th day of May 2024.

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IT IS SO ORDERED.

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_________________________
Hon. Maximiliano D. Couvillier III
United States Magistrate Judge