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Kinney v. Chomsky

United States District Court, N.D. California, San Francisco Division

July 25, 2014

CHARLES KINNEY, Plaintiff,
v.
ERIC CHOMSKY, et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO TRANSFER

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

On May 12, 2014, Plaintiff Charles Kinney filed a complaint against three Defendants: Eric Chomsky, David Marcus, and Peter Langsfeld. Complaint, ECF No. 1.[1] One week later, he filed a First Amended Complaint naming those same three Defendants. First Amended Complaint ("FAC"), ECF No. 6. Mr. Langsfeld has moved, pursuant to 28 U.S.C. § 1404(a), to transfer this action to the United States District Court for the Central District of California, and Mr. Chomsky and Mr. Marcus have joined his motion. Motion to Transfer, ECF No. 8; Joinder, ECF No. 25. Defendants also have moved to dismiss Mr. Kinney's claims against them. Langsfeld Motion to Dismiss, ECF No. 14; Chomsky and Marcus Motion to Dismiss, ECF No. 21. All parties have consented to the undersigned's jurisdiction. Langsfeld Consent, ECF No. 9; Kinney Consent, ECF No. 12; Chomsky and Marcus Consent, ECF No. 23. Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument and vacates the August 7, 2014 hearing. Upon consideration of the moving papers and the applicable authority, the court GRANTS Defendants' motion, TRANSFERS this action to the United States District Court for the Central District of California, and declines to rule on Defendants' motions to dismiss.

STATEMENT

Mr. Kinney, who is an attorney, owns real property in four California counties: Los Angeles County and Orange County (which are located in the Central District of California), as well as Contra Costa County and Alameda County (which are located in the Northern District of California). FAC, ECF No. 6, ¶ 7. He resides in both Alameda County and Orange County, and the mailing address for his law office is in Alameda County. Id. ¶¶ 5, 7. In October 2005, Mr. Kinney and a now-deceased woman named Kimberly Kempton purchased real property at 3525 Fernwood Avenue in Los Angeles, California (the "Property"). Id. ¶¶ 7, 15. The seller of the Property was a woman named Michele Clark. Id. Carolyn Cooper lives at the adjacent real property to the west, and Jeff and Judy Harris live at the adjacent real property to the north, of the Property. Id. ¶ 16.

Since 2006, all of these individuals, and others, have been embroiled in numerous civil actions (mostly in state court) relating to those individuals' rights with respect to their properties and public rights of way. See id. ¶¶ 18-20; see also In re Kinney, 201 Cal.App.4th 951 (Cal.Ct.App. 2011) (summarizing some of the litigation history among these individuals). Mr. Langsfeld is the Deputy City Attorney for the City of Los Angeles who has represented the City of Los Angeles, and Mr. Chomsky and Mr. Marcus are the attorneys who have represented Ms. Clark, in those actions. See id. ¶¶ 8-10. Mr. Langsfeld, Mr. Chomsky, and Mr. Marcus all reside in Los Angeles County. See id. ; see also Langsfeld Decl., ECF No. 8 at 13.

In the instant federal action, Mr. Kinney brings three claims against Mr. Langsfeld, Mr. Chomsky, and Mr. Marcus: one under 42 U.S.C. § 1983 for violating of his First, Fifth, and Fourteenth Amendment rights; a second under 42 U.S.C. § 1985 for conspiring to violate his First, Fifth, and Fourteenth Amendment rights; and a third under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968. See id. ¶¶ 35-58. Mr. Kinney alleges that Defendants each "participated in the denial of [his] rights... for [their] own personal gain and benefit." Id. ¶¶ 8-10. The gist of his allegations is that Mr. Langsfeld, Mr. Chomsky, and Mr. Marcus have retaliated against him for trying to vindicate his rights through the California court system. See generally id. As for Mr. Langsfeld, Mr. Kinney alleges that Mr. Langsfeld filed a misleading and deceptive declaration in one of the state court actions, intimidated and threatened him, and acted contrary to California law. See id. ¶¶ 11(f)-11(h). As for Mr. Chomsky and Mr. Marcus, Mr. Kinney alleges that they improperly filed more than two motions in an effort to add him as a party to a fraud action in state court and to subject him to attorney's fees and costs, improperly filed and recorded liens or abstracts of judgments or both against his real and personal property located in Alameda County in an attempt to collect on those attorney's fees and costs, and improperly prevented further proceedings against Ms. Clark. See id. ¶¶ 11(a)-11(e). He alleges that all three Defendants acted both in concert and alone to "adversely impact" his real and personal property located in Alameda County, his real property located in Los Angeles County, and his law practice. See id. ¶ 11(j).

All three Defendants have moved to dismiss Mr. Kinney's First Amended Complaint, and Mr. Chomsky and Mr. Marcus have joined Mr. Langsfeld's motion to transfer the action to the United States District Court for the Central District of California. Motion to Transfer, ECF No. 8; Langsfeld Motion to Dismiss, ECF No. 14; Chomsky and Marcus Motion to Dismiss, ECF No. 21; Joinder, ECF No. 25. Mr. Kinney has opposed Defendants' motion to transfer and Mr. Langsfeld's motion to dismiss, Opposition to Motion to Transfer, ECF No. 13; Opposition to Langsfeld Motion to Dismiss, ECF No. 19, and the time for him to oppose Mr. Chomsky and Mr. Marcus's motion to dismiss has not yet passed. Mr. Langsfeld filed a reply in support of the motion to transfer, Reply in Support of Motion to Transfer, ECF No. 16, and in support of his motion to dismiss, Reply in Support of Langsfeld Motion to Dismiss, ECF No. 20.

ANALYSIS

I. LEGAL STANDARD

A party may challenge venue in district court under two statutes: 28 U.S.C. § 1406(a) for improper venue, and 28 U.S.C. § 1404(a) for the convenience of parties and witnesses and in the interest of justice.

A. 28 U.S.C. § 1406(a)

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss a case for improper venue. If venue is improper, the court may either dismiss the case without prejudice, or, if it is in the "interest of justice, " may transfer the case "to any district or division in which it could have been brought." 28 U.S.C. § 1406(a); In re Hall, Bayoutree Assoc., Ltd., 939 F.2d 802, 804 (9th Cir. 1991) (if a court decides to dismiss a case for improper venue, dismissal must be without prejudice). Ordinarily, the interest of justice requires transferring the case to the proper venue rather than dismissing the case. See Baeta v. Sonchik, 273 F.3d 1261, 1264-65 (9th Cir. 2001) (quotations and citations omitted).

After a defendant challenges the venue, it is the plaintiff's burden to show that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). In the context of a motion under Rule 12(b)(3), the court need not accept as true all allegations in the complaint, but may consider facts outside the pleadings. See Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004) (citations omitted). However, the court "is obligated to draw all reasonable ...


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