Larson v. Ching

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 4 Findings and Recommendations - case is transferred to the US District Court, District of Hawaii. Signed by Judge Donald W. Molloy on 11/25/2008. (CDH, ) Modified on 11/26/2008 to reflect hard copy of Order and Transfer Letter to District of Hawaii (CDH, ). Modified on 12/1/2008 mailed to Larson (MCN, ).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION LONNIE E. LARSON, Plaintiff,
VS .

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CV 08-150-M-DWM

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ORDER

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DARWIN CHING, Director, Department of Labor, State of Hawaii, Defendant.
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United States Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendation in this matter on November 3, 2008. Judge Lynch recommended transferring this case to the United States District Court for the District of Hawaii. timely objected on November 14, 2008. Plaintiff

Plaintiff therefore is

entitled to de novo review of those portions of the Findings and Recommendation to which he objected. 28 U.S.C. 5 636(b) (1). The

portions of the Findings and Recommendation not specifically objected to will be reviewed for clear error. McDonnell Douslas

Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

Plaintiff, Lonnie Larson, has moved to proceed in forma p a u p e r i s and has lodged a complaint with the Court. It asserts

the Defendant improperly denied Larson full worker's compensation benefits and asserts claims for relief under the Americans with Disabilities Act, 42 U.S.C.
§

12101, et seq.

Larson objects to Judge Lynch's Finding that venue is improper in The District of Montana. He argues that the Court

should permit the case to proceed in Montana because he has health and financial restrictions that prevent him from maintaining the case in Hawaii. A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C.
§

1391(b).

As Judge Lynch correctly found, venue is

not proper in this Court under any of the provisions of 28 U.S.C.
§

1391(b).

The Defendant, Director of Hawaii's Department of

Labor, does not reside in Montana, and Larson's complaint states that the events giving rise to the claims occurred in Hawaii. Therefore, venue is not proper under 28 U.S.C. Venue is also not proper under 28 U.S.C.
§ §

1391(b) (11, (2).

1391(b) (3) because

there is another district in which the action may be brought.

Judge Lynch a l s o found t h a t t h e c a s e s h o u l d be t r a n s f e r r e d t o t h e United S t a t e s D i s t r i c t Court f o r t h e D i s t r i c t of Hawaii "The d i s t r i c t c o u r t of a d i s t r i c t i n which is f i l e d a c a s e l a y i n g venue i n t h e wrong d i v i s i o n o r d i s t r i c t s h a l l d i s m i s s , o r i f i t be i n t h e i n t e r e s t of j u s t i c e , t r a n s f e r such c a s e t o any d i s t r i c t o r d i v i s i o n i n which i t c o u l d have been b r o u g h t . " 1406(a). 28 U.S.C.
§

The Court a g r e e s w i t h Judge Lynch t h a t t h e c a s e s h o u l d

be t r a n s f e r r e d , r a t h e r t h a n d i s m i s s e d , i n t h e i n t e r e s t of justice.
I f i n d no c l e a r e r r o r i n Judge Lynch's remaining f i n d i n g s

and recommendations.

Accordingly,

I T I S HEREBY ORDERED t h a t Judge Lynch's F i n d i n g s and

Recommendation ( d k t # 4 ) a r e adopted i n f u l l . The c l e r k is d i r e c t e d t o t r a n s f e r t h i s c a s e t o t h e United S t a t e s D i s t r i c t Court f o r t h e D i s t r i c t of Hawaii The C l e r k of Court i s f u r t h e r d i r e c t e d t o c l o s e t h i s c a s e .

-F

Dated t h i s

day of November, 2008.

D i s t r i c t Judge Court