Greene v. Logisticare Solutions, LLC

Filing 17

ORDER Adopting 4 Report and Recommendation. IT IS FURTHER ORDERED that Plaintiff's Complaint 5 is DISMISSED without prejudice. Plaintiff, Greene, shall have until 8/7/15 to file an Amended Complaint. IT IS FURTHER ORDERED that 6 Motion to Dismiss filed by Logisticare Solutions, LLC is DENIED without prejudice. Signed by Judge Richard F. Boulware, II on 7/8/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Cedric Greene,

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Plaintiff,

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Case No. 2:15-cv-00523-RFB-NJK
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Logisticare Solutions, LLC,

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Defendant.

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Before this Court are a Report and Recommendation, ECF No. 4, and a Motion to Dismiss,

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ECF No. 6. As discussed below, the Report and Recommendation is adopted and the Motion to

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Dismiss is denied as moot.

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I.

Background

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On March 23, 2015, Plaintiff Cedric Greene filed an Application for Leave to Proceed in

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Forma Pauperis. ECF No. 1. Magistrate Judge Koppe denied the Application without prejudice.

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ECF No 2. On April 8, Greene filed a second Application. ECF No. 3.

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On April 10, 2015, Judge Koppe granted the second Application and screened

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Complaint, pursuant to 28 U.S.C. 1915(e). ECF No. 4. Upon screening the complaint, Judge

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Koppe recommended this Court dismiss the action without prejudice because of improper venue.

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Id. at 3:16, 4:5 7. On April 23, Greene objected. ECF No. 9.

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On April 14, 2015, Defendant Logisticare Solutions, LLC
dismiss

Court fail to
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to Strike and ordered Greene file a response by May 21, 2015. No response was filed.
On May 18, 2015, Greene filed a Motion for Disclosure of Discovery, which Judge Koppe

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denied. ECF Nos. 15, 16.

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II.

Report and Recommendation
A.

Legal Standard
rt, the findings or

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written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. §

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636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is

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see also Local

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Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct

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de novo or otherwise, of the report and recommendations of a magistrate judge.

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Thomas v. Arn, 474 U.S. 140, 149 (1985).

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B.

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Here, Greene timely objected to the Report and Recommendation. Accordingly, the Court

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Discussion

reviews the de novo the portions to which Greene has objected.

Greene objects to the

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28 U.S.C. § 1391(b) establishes by statute three general situations in which venue is

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appropriate. First, if all defendants are residents of the state in which the district is located, venue

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is proper in a district in which any defendant resides. 28 U.S.C. § 1391(b)(1). Alternatively, venue

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is proper in a district in wh

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claim occurred, or in which

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situated. 28 U.S.C. § 1391(b)(2). Finally, if there is no district in which venue proper based on

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residence or location of events or omissions, venue is proper where any defendant is subject to the

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filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of

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U.S.C. § 1406(a). A district court has authority to raise the issue of defective venue sua sponte.

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Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
in providing care. Compl.

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1:26

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appointments. Id. at 2:10 12. While the Complaint does not allege where this transport occurred,

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s Angeles, California. Id. at 1:2.

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Because the medical transport issues involve the services of cab companies, id. at 2:19 28, it

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appears from the Complaint that the transportation at issue is local in nature. Based on Complaint,

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it thus appears that bo

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outside Nevada. Accordingly, based on the Complaint, venue is not proper under 28 U.S.C. §

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1391(b)(2).

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Furthermore, the Complaint includes no allegations whatsoever regarding

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residence and thus fails to establish venue under 28 U.S.C. § 1391(b)(1). Therefore, the Complaint

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fails to establish that venue is proper.

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In his Objection, Greene does not appear to dispute that impropriety of venue. Obj. 2:11,
ECF No. 9

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Id. at 2:14 15. This the Court cannot do.

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Greene cites no authority, and the Court is aware of no authority, supporting the proposition that

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this Court can disregard 28 U.S.C. § 1406(a), which states the district court shall dismiss or transfer

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a case brought in an improper venue. But cf. Au-Yang v. Citibank, N.A., 872 F.2d 426 (9th Cir.

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1989) (holding that the selection between options of dismissal and transfer for improper venue is

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a matter of discretion).

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2, ECF No. 9. Greene further disputes the validity of his

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courts, id. at 2:27 3:4, which is a matter raised in the Report and Recommendation, 2:7 22, ECF

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No. 4. While the Court understands Greene may face challenges in other courts, such challenges

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venue is proper here. As required by federal statute, for purposes of venue this Court must

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determine whether this case is related to Nevada in certain specific ways. See 28 U.S.C. § 1391(b).

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Here, for the reasons already described, the Court concludes that the Complaint fails to establish

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that venue is appropriate in the District of Nevada.

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is dismissed, without prejudice. Greene shall have thirty days to file an amended complaint that

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properly establishes venue in the District of Nevada.

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III.

Motion to Dismiss

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Dismiss is denied as moot. Logisticare may re-raise appropriate arguments in response to a future

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amended complaint.

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IV.

Conclusion
For the reasons discussed above, IT IS ORDERED that Report and Recommendation, ECF

No. 4, is ADOPTED.
IT IS FURTHER ORDERED that Complaint, ECF No. 5, is DISMISSED without
prejudice. Greene shall have until August 7, 2015 to file an amended complaint.
IT IS FURTHER ORDERED that Motion to Dismiss, ECF No. 6, is DENIED without
prejudice.
Dated: July 8, 2015.

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Richard F. Boulware II
United States District Court

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