Kidwell et al v. Arison et al

Filing 6

ORDER re 5 Order dismissing case. The Clerk of the Court is directed to VACATE the Order Dismissing the Case [5)] REOPEN the case, and TRANSFER the case to the Southern District of Florida. Signed by Judge Sheri Polster Chappell on 7/24/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

BILLY RAY KIDWELL, TANA KIDWELL,
TOM HUBBERT and LINDA HUBBERT,
Plaintiffs,
v.

Case No: 2:13-cv-536-FtM-38DNF

MICKY ARISON and CARNIVAL
CORPORATION,
Defendants.
/
ORDER
This matter comes before the Court on review of the Court's Order Dismissing
and Closing the Case (Doc. #5) filed on July 22, 2013. In the Court’s Order, the Court
sua sponte dismissed the case because of improper venue. The acts that led to the
case being filed occurred in Miami, Florida, and all of the Defendants reside in Miami,
Florida, with the exception of the Center for Disease Control which resides in Atlanta
Georgia. Under Lipofsky v. New York State Workers Compensation Board, 861 F. 2d
1257, 1259 (11th Cir. 1988), a district court may not sua sponte dismiss a case for
improper venue. The Eleventh Circuit held that since venue can be waived a case may
not be dismissed without first giving the Parties an opportunity to be heard on the issue.
However, A federal district court has the authority under 28 U.S.C. § 1406(a) to
transfer a case to another district or division “in which it could have been brought.”
Letizia v. Osceola County Sheriff Dept., 2011 WL 825680 *1 (N.D. Fla. January 31,
2011). The Eleventh Circuit has recognized the court's ability to raise the issue of
defective venue sua sponte, but limited the court's ability to dismiss an improperly filed

case for lack of venue without giving the parties an opportunity to respond. Lipofsky,
861 F.2d at 1259 (stating “a district court may raise on its own motion an issue of
defective venue or lack of personal jurisdiction; but the court may not dismiss without
first giving the parties an opportunity to present their views on the issue.”) The Lipofsky
court did not place the same limitations on the court's ability to transfer a case to the
appropriate forum pursuant to 28 U.S.C. § 1404(a). Letizia, 2011 WL 825680 *1 (citing
Lipofsky, 861 F.2d at 1259, n. 2). Thus, the case should be transferred rather than
dismissed.
Accordingly, it is now
ORDERED:
The Clerk of the Court is directed to VACATE the Order Dismissing the Case
(Doc. # 5), REOPEN the case, and TRANSFER the case to the Southern District of
Florida.
DONE and ORDERED in Fort Myers, Florida this 23rd day of July, 2013.

Copies: All Parties of Record

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