Flores v. United States

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUANA FLORES, Case No. 1:24-cv-01064-KES-CDB

12 Plaintiff, ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED 13 v. FOR IMPROPER VENUE

14 UNITED STATES OF AMERICA, et al., (Doc. 1)

15 Defendants. SEVEN-DAY DEADLINE 16 17 18 On September 5, 2024, Plaintiff Juana Flores (“Plaintiff”) initiated this action with the 19 filing of a complaint asserting claims pursuant to the Federal Torts Claim Act for personal 20 injuries against Defendants the United States of America, the United States Postal Service, 21 Jonathan Daniel Douglas Elysee, and unnamed Doe Defendants (hereinafter collectively 22 “Defendants”). (Doc. 1). Upon review of the complaint, the Court preliminary questions 23 whether this action was commenced in the appropriate venue. 24 In her complaint, Plaintiff pleads, “[v]enue is proper in the Central District of California 25 because the negligent acts giving rise to the Federal Tort Claim alleged herein occurred within 26 the Central District of California. All the Plaintiffs, Defendant [Jonathan Daniel Douglas 27 Elysee], medical providers, and witnesses reside within the Central District.” Id. at ¶ 4 1 specifically in the Eastern Division of this District because the negligent acts giving rise to the 2 Federal Tort Claim alleged herein occurred within the Division of the Eastern District of 3 California & all the Plaintiffs, Defendant [Jonathan Daniel Douglas Elysee], medical providers, 4 and witnesses reside within the Division of the Eastern District of California.” Id. at ¶ 5. Thus, 5 Plaintiff’s complaint is unclear whether she intended to file this action within the Eastern District 6 of California or the Eastern Division of the Central District of California. 7 The Court’s confusion about where the suit properly is prosecuted is magnified based on 8 other inconsistent factual allegations within the complaint. Plaintiff pleads that she was 9 operating a 1997 Toyota Camry, in Kern County. Id. at ¶ 19. However, Plaintiff pleads that 10 Defendant Elysee and Doe Defendants were operating a vehicle in Los Angeles County that 11 caused a collision with Plaintiff on July 14, 2023. Id. at ¶¶ 20-21. The Court can only speculate 12 how both allegations could be true. 13 The Court takes judicial notice that this is not the first instance Plaintiff and Plaintiff’s 14 Counsel Jonathan Bakhsheshian were advised of similar pleading defects. See Flores v. USA, et 15 al., No. 1:23-cv-01742-KES-CDB, Doc. 6.1 Despite the Court’s previous order to show cause, 16 it appears Plaintiff has filed a complaint with similar defects. Again, the Court notes the above- 17 identified defects could be remedied by amendment. See Fed. R. Civ. P. 15(a)(2) (“[t]he court 18 should freely give leave [to amend] when justice so requires.”); Lopez v. Smith, 203 F.3d 1122, 19 1130 (9th Cir. 2000). 20 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE in writing, no later than 21 October 10, 2024, why this action should not be transferred to a court in a proper venue.2 22

23 1 Courts may take judicial notice of facts related to the case before it. See Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361-62 (10th Cir. 2008) (district court was entitled to 24 take judicial notice of its memorandum of order and judgment from previous case involving same parties). Also, a court may judicially notice the records and filing of other court proceedings. 25 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, 26 Inc., 285 F.3d 801, 802 n. 2 (9th Cir. 2002).

27 2 The filing of a First Amended Complaint will not affect Plaintiff’s ability to later file an amended complaint as a matter of course pursuant to Rule 15(a) of the Federal Rules of Civil 1 In the alternative, Plaintiff may satisfy her requirement to respond to this show cause 2 | order by filing a first amended complaint (“FAC”) to remedy the deficiencies noted above no 3 | later than October 10, 2024, Any such FAC supersedes the original complaint and once filed, 4 | the original complaint no longer serves any function in the case. Local Rule 220 requires that 5 | an amended complaint be complete in itself without reference to any prior pleading. 6 In the alternative, Plaintiff may file a notice of voluntary dismissal without prejudice (see 7 | Fed. R. Civ. P. 41(a)(1)(A)G)) to permit the re-filing of her action in another District where she 8 | believes venue is proper. Plaintiff may comply with this Order by filing a notice of voluntary 9 | dismissal without prejudice no later than October 10, 2024. 10 Any failure by Plaintiff to timely respond to this order will result in the imposition 11 | of sanctions, up to and including a recommendation that the action be dismissed. 12 | IT IS SO ORDERED. 'S | Dated: _ October 3, 2024 | br 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28