Portnov v. United States Department of Justice et al

Filing 32

ORDER Overruling Objection and Dismissing the Case Without Prejudice: Portnov's Objection to Judge Warner's Report and Recommendation is OVERRULED. The action is dismissed without prejudice, and Portnov's pending motions are MOOT. Case Closed. Magistrate Judge Paul M. Warner no longer assigned to case. Signed by Judge Robert J. Shelby on 9/3/19. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

ABRAHAM PORTNOV,
Plaintiff,

ORDER OVERRULING OBJECTION
AND DIMISSING THE CASE
WITHOUT PREJUDICE

v.

Case No. 2:18-cv-303

UNITED STATES DEPARTMENT OF
JUSTICE, et al.,

Chief Judge Robert J. Shelby
Chief Magistrate Judge Paul M. Warner

Defendants.

Proceeding in forma pauperis,1 Plaintiff Abraham Portnov initiated this action on April
17, 2018.2 The undersigned referred this case to Chief Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).3 On August 9, 2019, Judge Warner issued a Report and
Recommendation.4 Judge Warner recommends dismissing the action without prejudice for
improper venue.5 Portnov timely objected to Judge Warner’s Report and Recommendation,6 so

1

Dkt. 2.

2

Dkt. 3.

3

Dkt. 7.

4

Dkt. 30.

5

Id. at 3–6.

6

Dkt. 31.

1

the court reviews Judge Warner’s Report and Recommendation de novo.7 For the reasons
explained below, Portnov’s Objection8 is OVERRULED.
Portnov raises three objections to Judge Warner’s Report and Recommendation.9 First,
Portnov claims venue is proper in Utah.10 Portnov’s Complaint names as Defendants the United
States Department of Justice and several of its employees.11 Venue is improper in the District of
Utah because the named defendants do not reside here, none of the defendants are subject to this
court’s personal jurisdiction, and Portnov does not allege any actions or omissions in Utah.12
And even though this case does not involve real property, Portnov does not reside here.13 Venue
is therefore improper.
Second, Portnov argues this court has subject-matter jurisdiction, and should not dismiss
the action for improper venue.14 Pursuant to 28 U.S.C. § 1915(a), Portnov is proceeding in
forma pauperis.15 “[U]nder § 1915, the district court may consider personal jurisdiction and
venue sua sponte only when the defense is obvious from the face of the complaint and no further

Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.”); Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“De novo
review is statutorily and constitutionally required when written objections to a magistrate's report are timely filed
with the district court.”) (citation omitted).
7

8

Dkt. 31.

Portnov raises several objections to Judge Warner’s statement of facts. See Dkt. 31 at 1–6. None of these
objections bear on Judge Warner’s recommendation that this court dismiss the action. Because those objections
have no bearing on the disposition of this case, the court does not address those objections here.
9

10

Dkt. 31 at 7.

Dkt. 3 at 1, 5 (“My Complaint is not for review of the former court’s decision. It is only against the DOJ and the
DOJ’s Team.”).
11

12

See 28 U.S.C. §§ 1391(b), (e)(1).

See 28 U.S.C. § 1391(e)(1)(C) (“A civil action in which a defendant is an officer or employee of the United States
or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United
States, or the United States, may . . . be brought in any judicial district in which . . . the plaintiff resides if no real
property is involved in the action.”).
13

14

Dkt. 31 at 7.

15

See Dkt. 2.

2

factual record is required to be developed.”16 As explained above, venue is improper.17
Furthermore, no allegation in the Complaint would support venue in the District of Utah, and
Portnov makes no effort to suggest that he could establish venue here. It is therefore appropriate
for this court to dismiss Portnov’s action for improper venue.18
Finally, Portnov asserts his claims have merit.19 Under 28 U.S.C. § 1915(e)(2)(B)(ii),
this court “shall dismiss the case at any time if the court determines that . . . the action . . . fails to
state a claim on which relief may be granted.” After carefully reviewing Portnov’s Complaint,
the court concludes Portnov has failed to adequately allege “sufficient factual matter . . . to state
a claim to relief that is plausible on its face.”20 Portnov’s conclusory allegations will not do.21
Dismissal is therefore appropriate.22
CONCLUSION
For the foregoing reasons, Portnov’s Objection23 to Judge Warner’s Report and
Recommendation24 is OVERRULED. The action is dismissed without prejudice, and Portnov’s
pending motions are MOOT.25 The Clerk of Court is directed to close the case.

Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quotation and citation omitted) (emphasis in original);
Johnson v. Christopher, 233 F. App'x 852, 854 n.3 (10th Cir. 2007) (“Even though improper venue is an affirmative
defense that may be waived, we have looked to the purposes of Section 1915(e) and determined that it is
nevertheless proper for a district court to dismiss a case where the claim’s factual backdrop clearly beckons the
defense.”) (quotation and citations omitted).
16

See Johnson, 233 F. App'x at 854 (“Venue is clearly inappropriate in the Eastern District because no defendant
resides in the Eastern District and no events were alleged to have taken place in the Eastern District.”).
17

Id. at 853 (explaining that district courts have the “authority under 28 U.S.C. § 1915(e) to dismiss sua sponte
cases not merely on their merits but also based upon improper venue.”).
18

19

Dkt. 31 at 7.

20

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

21

Id.

22

See 28 U.S.C. § 1915(e)(2)(B)(ii).

23

Dkt. 31.

24

Dkt. 30.

25

Dkts. 8, 15, 18, 19, 20, 23.

3

SO ORDERED this 3rd day of September, 2019.
BY THE COURT:

________________________________________
ROBERT J. SHELBY
United States Chief District Judge

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