Cox v. Carr et al

Filing 8

Partially VACATED per #9 ORDER (MMM) ORDER that re #1 Application to Proceed in Forma Pauperis is DENIED without prejudice. FURTHER ORDERED that #3 Motion to File Electronically is GRANTED. FURTHER ORDERED that #7 Motion to Move Case Back to New York is DENIED. Signed by Magistrate Judge George Foley, Jr on 12/6/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CRYSTAL L. COX,

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Plaintiff,
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vs.
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DAVID CARR, et al.,
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Defendants.
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__________________________________________)

Case No. 2:13-cv-00938-APG-GWF
ORDER
Petition to Proceed in Forma
Pauperis (#1); Motion to File
Electronically (#3); Motion to
Transfer (#7)

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This matter comes before the Court on Plaintiff Crystal L. Cox’s (“Plaintiff”) Application to

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Proceed in Forma Pauperis (#1), filed on May 14, 2013. This matter also comes before the Court

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on Plaintiff’s Motion to File Electronically (#3), filed on May 14, 2013, and Motion to Move Case

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Back to New York (#7), filed on June 3, 2013.

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BACKGROUND

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Plaintiff initiated this action in the Southern District of New York (“SDNY”) against

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various defendants, including media outlets, District Judge Gloria Navarro, and adversaries in

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previous litigations. Plaintiff’s Complaint (#2) alleges nearly a dozen claims, including

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defamation, copyright infringement, civil conspiracy, negligence, and violation of antitrust laws.

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SDNY transferred this case to this District on May 17, 2013, finding that SDNY was not the proper

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venue. See Transfer Order, Doc. #5. In the Transfer Order, SDNY ruled that whether Plaintiff

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“should be permitted to proceed further without payment of fees is a determination to be made” by

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this Court. Id. at 5.

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DISCUSSION

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I.

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Title 28 of the United States Code section 1915(a) provides that a Court may authorize the

Application to Proceed In Forma Pauperis

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commencement of an action without prepayment of fees if a plaintiff “submits an affidavit that

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includes a statement of all assets such [plaintiff] possesses” and shows plaintiff “is unable to pay

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such fees or give security therefor.” Local Rule of Special Proceedings 1-1 requires that the

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application to proceed in forma pauperis be made “on the form provided by the Court.” Here,

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Plaintiff initiated this action in SDNY and thus did not use the District of Nevada’s required form.

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Further, Plaintiff failed to sign the affidavit attached to the Application under penalty of perjury.

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See Baltierra v. U.S. Dep’t of Educ., No. 99CV768 JM(POR), 2001 WL 1480297 (S.D. Cal. Oct. 1,

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2001) (denying the plaintiffs’ applications to proceed in forma pauperis because they failed to

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comply with the requirements of 28 U.S.C. § 1915 by not signing under penalty of perjury). The

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Court is therefore unable to determine whether Plaintiff is eligible to proceed in forma paueris, and

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will deny her Application without prejudice.

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II.

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Plaintiff seeks leave to file documents electronically in this case. The Court will allow

Motion for Electronic Filing

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Plaintiff to file future documents electronically only after Plaintiff has demonstrated a basic

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understanding and familiarity with the CM/ECF filing system as set forth below.

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III.

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“For the convenience of parties and witnesses, in the interest of justice, a district court may

Motion to Transfer

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transfer any civil action to any other district or division where it might have been brought.” 28

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U.S.C. § 1404(a). In order that the case “might have been brought” in the proposed transferee

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district, the court there must have subject matter jurisdiction and proper venue, and the defendant

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must be amenable to service of process issued by that court. Horowitz v. Southwest Forest Indus.,

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Inc., 612 F.Supp. 179, 181 (D.Nev.1985). The burden of establishing that an action should be

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transferred is on the moving party. Cambridge Filter Corp. v. International Filter Co., 548 F.Supp.

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1308, 1310 (D.Nev.1982). The convenience of and accessibility of witnesses is of considerable

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importance. Horowitz, 612 F.Supp. at 182. Consideration must be given to both the defendant’s
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and the plaintiff's contacts with the chosen forum, especially those relating to the cause of action.

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Pacific Car and Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir.1968).

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SDNY transferred the case to this District because a substantial part of Plaintiff’s claims

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arose here and the Rendazza Defendants reside here. Plaintiff seeks to transfer the case back to

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SDNY, claiming that certain key Defendants are New York residents. Although SDNY arguably

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has subject matter jurisdiction and proper venue, the Court is persuaded that a significant portion of

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the occurrences giving rise to Plaintiff’s claims were in Nevada. Therefore, the Court finds Nevada

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is the proper venue and will decline to transfer the case back to SDNY. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in Forma Pauperis

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(#1) is denied without prejudice. Plaintiff either shall pay the $400.00 filing fee or file a proper

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Application within 30 days of the date of this Order.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to File Electronically (#3) is
granted. Plaintiff must comply with the following procedures to activate her CM/ECF account:
a.

On or before January 6, 2014, Plaintiff must provide certification that she has

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completed the CM/ECF tutorial and is familiar with Electronic Filing Procedures,

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Best Practices, and the Civil & Criminal Events Menu that are accessible on this

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Court’s website, www.nvd.uscourts.gov.

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b.

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the Court within the time frame specified.
c.

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Plaintiff is not authorized to file electronically until said certification is filed with

Upon timely filing of the certification, Plaintiff shall contact Robert Johnson at the
CM/ECF Help Desk at [phone] to set up a CM/ECF account.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Move Case Back to New York
(#7) is denied.
DATED this 6th day of December, 2013.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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