Kelemete et al v. Haaland

Filing 31

ORDER DISMISSING CASE WITHOUT PREJUDICE FOR IMPROPER VENUE re 29 - Signed by JUDGE DERRICK K. WATSON on 5/10/2022. Accordingly, for the reasons set forth herein, pursuant to Section 1406(a), this action is DISMISSED WITHOUT PREJUDICE to re-filing in an appropriate forum. See In re Hall, 939 F.2d 802, 804 (9th Cir. 1991) (explaining that dismissal for improper venue should be without prejudice). The joint motion, Dkt. No. 29, is, therefore, MOOT. The Clerk is instructed to CLOSE this case. (eta)

Case 1:21-cv-00306-DKW-KJM Document 31 Filed 05/10/22 Page 1 of 3

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
SEFULU KELEMETE, et al.,
Plaintiffs,
v.
DEB HAALAND, in her official
capacity as U.S. Secretary of the
Interior,

Case No. 21-cv-00306-DKW-KJM
ORDER DISMISSING CASE
WITHOUT PREJUDICE FOR
IMPROPER VENUE

Defendant.
Jointly, the parties move for transfer of this action to the U.S. Court of
Federal Claims (“the joint motion”). Dkt. No. 29. Although the joint motion is
far from a model of clarity, it appears that the parties so move pursuant to 28
U.S.C. Section 1406(a). See id. at 3. 1 Having reviewed the joint motion, the
representations therein, and relevant legal authority, the Court finds that venue is
improper in this District and DISMISSES this action WITHOUT PREJUDICE to
re-filing in an appropriate forum.
Specifically, the Court finds that venue is improper here under 28 U.S.C.
Section 1391(e)(1), which provides that, in a civil action, such as this one, where a

1

This is because Section 1406(a) is the only transfer provision even mentioned in the joint
motion.

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defendant is an officer of the United States acting in his or her official capacity, the
action may be brought in any judicial district in which (1) a defendant resides, (2) a
substantial part of the events giving rise to the action occurred, or (3) a plaintiff
resides if real property is not involved in the action. Here, the parties represent
that (1) the sole defendant resides in the District of Columbia, (2) the events giving
rise to this action took place in American Samoa, and (3) all plaintiffs reside in
American Samoa. Dkt. No. 29 at 2-3. In other words, Hawai‘i is the answer to
none of the three questions posed by Section 1391(e)(1). Furthermore, neither
American Samoa nor the Court of Federal Claims are judicial “districts” for
purposes of Title 28 and/or Section 1406(a). See United States v. Lee, 472 F.3d
638, 644 (9th Cir. 2006) (“American Samoa is not enumerated as a judicial
‘district’ among those listed in Title 28.”); Fisherman’s Harvest, Inc. v. PBS & J,
490 F.3d 1371, 1378 (Fed. Cir. 2007) (holding that, for purposes of Section
1404(a), the Court of Federal Claims is not a “district or division” to which a
district court can transfer a case); Topsnik v. United States, 554 F. App’x 630, 631
(9th Cir. Feb. 10, 2014) (same). Therefore, dismissal is appropriate. See Atl.
Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., 571 U.S. 49,
56 (2013) (explaining that, for purposes of Section 1391(b), if a case falls out of

2

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one of the three venue categories, venue is improper and the action must be
dismissed or transferred under Section 1406(a)).
Accordingly, for the reasons set forth herein, pursuant to Section 1406(a),
this action is DISMISSED WITHOUT PREJUDICE to re-filing in an appropriate
forum. See In re Hall, 939 F.2d 802, 804 (9th Cir. 1991) (explaining that
dismissal for improper venue should be without prejudice). The joint motion,
Dkt. No. 29, is, therefore, MOOT.
The Clerk is instructed to CLOSE this case.
IT IS SO ORDERED.
Dated: May 10, 2022 at Honolulu, Hawai‘i.

--..
De~
United States District Judge

Sefulu Kelemete, et al v. Deb Haaland; Civil No. 21-00306 DKW-KJM; ORDER
DISMISSING CASE WITHOUT PREJUDICE FOR IMPROPER VENUE

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