Fulkerson v. calPERS et al

Filing 10

ORDER - The Report and Recommendation of U.S. Magistrate Judge Carla L. Baldwin (ECF No. 5 ) is accepted and adopted in full. Plaintiff's Objection to the Report and Recommendation (ECF No. 7 ) is overruled. Plaintiff's IFP Application (ECF No. 1 ) is granted. Plaintiff's Motion to Submit an Amended Complaint (ECF No. 4 ) is granted. Clerk is directed to file Plaintiff's Amended Complaint (ECF No. 4 -1). The Amended Complaint (ECF No. 4 -1) i s dismissed in its entirety, without prejudice. Plaintiff's Request to Submit a Motion Regarding Service (ECF No. 9 ) is denied as moot. Clerk is directed to enter judgment accordingly and close this case. Signed by Chief Judge Miranda M. Du on 10/14/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:20-cv-00251-MMD-CLB Document 10 Filed 10/14/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HEATH VINCENT FULKERSON,
Plaintiff,

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Case No. 3:20-cv-00251-MMD-CLB
ORDER

v.
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CALPERS, et al.,
Defendants.

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I.

SUMMARY

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Pro se Plaintiff Heath Vincent Fulkerson sued Defendants calPERS, California

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Correctional Peace Officers Association, and California Government Operations Agency

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in an apparent attempt to collect on his late father’s retirement and life insurance benefits.

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(ECF No. 4-1.) Before the Court is a Report and Recommendation (“R&R”) of United

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States Magistrate Carla L. Baldwin (ECF No. 5), recommending the Court grant Plaintiff’s

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application to proceed in forma pauperis (ECF No. 1) (“IFP Application”),1 along with his

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motion to submit an amended complaint (ECF No. 4), but dismiss his amended complaint

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(ECF No. 4-1) (“FAC”) without prejudice for improper venue. Also before the Court are two

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motions subsequently filed by Plaintiff. (ECF Nos. 7, 9.) The Court construes the earlier-

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filed motion (ECF No. 7) as an objection to Judge Baldwin’s R&R (“Objection”). Because

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the Court agrees with Judge Baldwin that venue is improper in this district, and otherwise

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agrees with her recommendations in the R&R—and as further explained below—the Court

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1The

Court agrees with Judge Baldwin that Plaintiff does not appear able to pay the
filing fee (ECF No. 5 at 2), and will therefore accept her recommendation to grant his IFP
Application (ECF No. 1).

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will accept and adopt the R&R in full, deny Plaintiff’s subsequently-filed motions, and

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dismiss this case.

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II.

BACKGROUND

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Plaintiff alleges his father died on September 24, 2019. (ECF No. 4-1 at 2.) Plaintiff

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also alleges he properly followed the procedures to report his father’s death, but has never

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received any survivor benefits or insurance payments from Defendants. (Id. at 2.)

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Defendants are all incorporated in, and have their principal places of business in,

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California. (Id. at 1.) According to Plaintiff’s initial complaint, which lists the same three

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Defendants as his FAC, all three Defendants are located in Sacramento, California. (ECF

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No. 1-1 at 2.)

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the Court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. The Court’s review is thus de novo

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because Plaintiff filed his Objection. (ECF No. 7.)

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IV.

DISCUSSION

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The Court will accept and adopt the R&R in full and dismiss this case because the

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Court agrees with Judge Baldwin that, accepting Plaintiff’s allegations in his FAC as true,

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venue is improper in this district. (ECF No. 5 at 4.) As mentioned, while Plaintiff alleges he

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resides in Nevada, all Defendants reside in Sacramento, California.2 (ECF No. 1-1 at 2.)

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As to Plaintiff’s Objection, Plaintiff appears to have confused the concept of

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diversity jurisdiction with that of venue. (ECF No. 7 at 1 (referring exclusively to diversity

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2This

suggests that the Eastern District of California, Sacramento Division, is the
appropriate venue for this case. See Eastern District of California Local Rules, Rule
120(d),
available
at
http://www.caed.uscourts.gov/caednew/assets/File/Local%20Rules%20Effective%202-12019(3).pdf.
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jurisdiction and not addressing venue).) ‘“Venue’ refers to ‘the geographic specification of

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the proper court or courts for the litigation of a civil action that is within the subject-matter

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jurisdiction of the district courts in general.”’ Judge Virginia A. Phillips, Judge Karen L.

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Stevenson, Chapter 4, Venue, Section A. General Considerations, Rutter Group Prac.

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Guide Fed. Civ. Pro. Before Trial Ch. 4-A (Updated April 2020) (quoting 28 USC §

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1390(a)). As Judge Baldwin noted, the Court may dismiss a case for improper venue.

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(ECF No. 5 at 4 (citing 28 U.S.C. § 1406(a)). The Court chooses to do so here. Plaintiff’s

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Objection is overruled.

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Plaintiff’s other pending motion filed after Judge Baldwin entered the R&R (ECF

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No. 9) requests submission of his motion filed that same day (ECF No. 9-1), which

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requests the Court dismiss Defendant California Government Operations Agency and

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“move forward to process service of complaint” on the remaining two Defendants (id.). The

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Court denies this motion as moot because, as stated above, the Court is dismissing this

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entire case for improper venue. See 28 U.S.C. § 1406(a).

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V.

CONCLUSION

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The Court notes that Plaintiff made several arguments not discussed above. The

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Court has reviewed these arguments, and determines they do not warrant discussion as

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they do not affect the outcome of the issues before the Court.

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It is therefore ordered that the Report and Recommendation of U.S. Magistrate
Judge Carla L. Baldwin (ECF No. 5) is accepted and adopted in full.

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It is further ordered that Plaintiff’s Objection to the R&R (ECF No. 7) is overruled.

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It is further ordered that Plaintiff’s IFP Application (ECF No. 1) is granted.

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It is further ordered that Plaintiff’s motion to submit an amended complaint (ECF

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No. 4) is granted.

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The Clerk of Court is directed to file Plaintiff’s amended complaint (ECF No. 4-1).

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It is further ordered that Plaintiff’s amended complaint (ECF No. 4-1) is dismissed

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in its entirety, without prejudice.
It is further ordered that Plaintiff’s request to submit a motion regarding service
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(ECF No. 9) is denied as moot.
The Clerk of Court is further directed to enter judgment accordingly and close this

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case.
DATED THIS 14th Day of October 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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