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Heath v. Neal

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 26, 2008

JOHN HEATH, PLAINTIFF,
v.
ROBERT DAVID NEAL, DEFENDANT.

ORDER

Plaintiff, proceeding pro se, filed the above-entitled action concerning a contract dispute. The matter was referred to a United States Magistrate Judge pursuant to Local Rule 72-302(c)(21).

On August 5, 2008, the magistrate judge filed findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within ten days. Plaintiff has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Plaintiff asserts that the parties "have agreed to waive venue" and supports his assertion with a notice of waiver in which defendant states that he "accepts venue" in this court. (Pl.'s Objection, Doc. No. 9, at 1 & Attach.) However, plaintiff has also filed a waiver of service of summons in which the defendant states that he retains "all defenses or objections to this lawsuit or to jurisdiction or venue of the court except for any objections based on a defect in the summons or in the service of the summons." (Waiver of Service of Summons, Doc. No. 7, at 1.) A district court may dismiss a complaint sua sponte for improper venue where the defendant has not waived the issue by filing a responsive pleading and the time for doing so has not expired. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed August 5, 2008, are adopted in full;

2. This action is dismissed without prejudice because venue is not proper in the United States District Court for the Eastern District of California;

3. Defendant's August 15, 2008 motion for entry of judgment (Doc. No. 5) is denied; and

4. The Clerk of the Court is directed to close this case.

20080826

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