Newberry v. Service Experts Heating & Air Conditioning LLC et al
Filing
30
MEMORANDUM OPINION & ORDER: It is ordered that Pla's 26 MOTION to Transfer is DENIED and that his claims against Dft Freije Treatment Systems, Inc. are dismissed without prejudce. Signed by Judge Joseph M. Hood on 8/28/2018.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
PETER CANAVAN NEWBERRY,
)
)
Plaintiff,
)
)
v.
)
)
SERVICE EXPERTS HEATING & AIR )
CONDITIONING, LLC d/b/a
)
KNOCHELMANN PLUMBING, HEATING )
& AIR CONDITIONING d/b/a
)
KNOCKLEMANN SERVICE EXPERTS,
)
et al.,
)
)
Defendants.
)
Civil Case No. 17-cv-131JMH
MEMORANDUM OPINION & ORDER
***
In his Response [DE 25] to this Court’s June 6, 2018, Order
[DE
24]
Freije
requiring
Treatment
him
to
Systems,
show
cause
Inc.,
why
should
his
not
be
claims
against
dismissed
for
failure to prosecute, Plaintiff concedes that he has not served
this Defendant.
He argues, however, that this matter should not
be dismissed but should be transferred to the Eastern District
of Kentucky at Covington instead.
Notably, he argues for the
first time that transfer is appropriate and that all previous
orders in this case are null and void because this Court somehow
lacks subject matter and personal jurisdiction over this matter
in light of his participation as counsel for the plaintiff in
the
voluntary
Experts
dismissal
Heating
&
Air
of
a
prior
case,
Conditioning,
LLC,
Rorick
v.
Service
2:13-cv-81-WOB-CJS,
with the statement that “subsequent law suits must be re-filed
in the United States District Court for the Eastern District of
Kentucky, Covington Division” and that the parties agreed “not
to contest jurisdiction or venue in this Court.”
not
persuaded
that
relief
is
available
to
The Court is
Plaintiff
as
the
result of any agreement in a case to which he was not a party.
Further,
Plaintiff
Plaintiff
relies
for
28
his
U.S.C.
§
argument
1404(a),
that
the
upon
which
undersigned
is
“obligated” to transfer this matter to the Covington Division
[DE 26 at 4, Page ID#: 474] affords him no relief.
Section
1404(a) provides that a district court “may” transfer a civil
action “to any other district or division in which it might have
been brought or to any district or division to which all parties
have consented” when it is “for the convenience of the parties
and
witnesses”
and
“in
the
interest
of
justice.”
Section
1404(a) does not speak to jurisdiction in this matter, and, in
any event, the language is permissive and not mandatory.
Finally,
the
assignment
of
the
present
matter
to
a
particular jury division within the Eastern District of Kentucky
does
not
District
97(a),
implicate
of
jury
Kentucky
jurisdictional
is
divisions
a
and
issues.
creation
of
assignment
While
statute,
of
the
28
actions
Eastern
U.S.C.
to
§
jury
divisions in the Eastern District of Kentucky are governed by
local rules adopted by the judges of the district.
2
See LR 3.1
and 3.2.
The “Joint Local Rules for the United States District
Courts for the Eastern and Western Districts of Kentucky provide
standardized procedures for the convenience of the bench and
bar” and must be “construed to be consistent with the Federal
Rules of Civil Procedure and to secure the just, efficient and
economical determination of civil actions.” LR 1.1.
This case
was properly assigned by the Clerk to the Central Division at
Lexington by operation of the relevant Local Rule at filing.
See LR 3.1(a)(2)(B) and 3.2(a)(2)(A); see also Complaint [DE 1];
cf. United States v. Lewis, 504 F.2d 92, 97 (6th Cir. 1974)
(holding
that
Fed.
R.
Crim.
P.
18
was
not
violated
when
transferring criminal case from one place within district to
another where assignment of cases is within the exclusive domain
of local district judges).
While jury division assignments may be changed by rule or
by Court order, LR 3.1(c), the Court sees no reason to reassign
this matter to another division.
To request such relief is a
patently transparent effort at judge shopping in its rankest
form on the part of Plaintiff.
the
devil
he
did
not
know
Plaintiff may wish to replace
until
this
Court’s
rulings
(the
undersigned) with the devil that he does know (Judge Bertlesman)
or, for that matter, any devil he has not yet met (Judge Bunning
or any other judge of this district), but that would do nothing
to secure the “just, efficient and economical determination of
3
civil actions” as required by Joint Local Rule 1.1.
Further,
the Court rejects Plaintiff’s argument that this Court lacks
jurisdiction
or
that
its
prior
orders
are
somehow
invalid
because the parties agreed that this matter should proceed in
the Covington Division at some point in the past.
case
was
in
this
instance
properly
assigned
to
Indeed, the
the
Central
Division at Lexington because the operative facts all occurred
in Harrison County which is included in that Division.
In the absence of any other argument, Plaintiff has failed
to
show
Treatment
cause
why
Systems,
his
Complaint
Inc.,
should
prejudice for lack of prosecution.
Accordingly,
IT
IS
ORDERED
against
not
be
Defendant
dismissed
Freije
without
See Fed. R. Civ. P. 4(m).
that
Plaintiff’s
Motion
to
Transfer is DENIED and that his claims against Defendant Freije
Treatment Systems, Inc., are dismissed without prejudice.
This the 28th day of August, 2018.
4
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