Pettis v. Augustine et al.

Filing 33

REPORT AND RECOMMENDATION re 31 MOTION to Transfer Case to Middle District Florida filed by PAIGE AUGUSTINE - It is recommended that the motion be granted and the case be transferred to Middle District of Florida - R&R flag set - signed by MAGISTRATE JUDGE ALLAN KORNBLUM on 2/3/10 - Internal deadline for referral to district judge if objections are not filed earlier: 3/3/2010. (tss) [Transferred from flnd on 3/9/2010.]

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

SHERRY DIANE PETTIS, Plaintiff, vs. WARDEN PAIGE AUGUSTINE, et al, Defendants. / REPORT AND RECOMMENDATION Defendant Augustine has moved to transfer this cause to the Middle District of Florida, asserting that upon her recent dismissal (see Doc. 32), the remaining defendants, who are in the process of being served, are all employed at Coleman Federal Correctional Complex, which is located in the Middle District. (Doc. 31). Consequently, the proper forum for this action pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 89(b) is in the United States District Court for the Middle District of Florida, Ocala Division. 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." A court may raise the issue of defective venue sua sponte, but should not dismiss an improperly filed case for lack of venue without giving the parties an opportunity to respond. Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988). The Lipofsky court did not place the same limitations on the court's ability to transfer a case CASE NO. 4:09CV18-RH/AK

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to the appropriate forum pursuant to 28 U.S.C. § 1404(a). See Lipofsky, 861 F.2d at 1259, n. 2. Thus, it is recommended that the case be transferred rather than dismissed. There is no need for a hearing on this transfer. Cf. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) with Starnes v. McGuire, 512 F.2d 918, 934 (D.C. Cir. 1974). In light of the foregoing, and pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), the undersigned respectfully RECOMMENDS that Defendant's Motion to Transfer 9doc. 31) be GRANTED, and that this case be transferred to the United States District Court for the Middle District of Florida, Ocala Division, for all further proceedings. IN CHAMBERS at Gainesville, Florida, this 3rd day of February, 2010.

s/ A. KORNBLUM ALLAN KORNBLUM UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.

No. 4:09CV18-MP/AK