Fairchild v. Extra space storage, inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ALISON HELEN FAIRCHILD, Case No.: 21-CV-393 JLS (DEB) 12 Plaintiff, ORDER (1) DENYING WITHOUT 13 v. PREJUDICE APPLICATION FOR PERMISSION FOR ELECTRONIC 14 EXTRA SPACE STORAGE INC.; FILING AND (2) ORDERING SMARTSTOP SELF-STORAGE REIT, 15 PLAINTIFF TO SHOW CAUSE INC.; COUNTY OF SAN BERNADINO; WHY VENUE IS PROPER 16 JOHN STROKIS; MICHAEL CREAR; KIMBERLY STROUD; and DOES 1–10, 17 (ECF No. 2) Defendants. [18] 19 Presently before the Court is Plaintiff Alison Helen Fairchild’s Application for 20 Permission for Electronic Filing (“Mot.,” ECF No. 2). 21 Generally, “[e]xcept as prescribed by local rule, order, or other procedure, the Court 22 has designated all cases to be assigned to the Electronic Filing System.” S.D. Cal. CivLR 23 5.4(a). With respect to pro se litigants, however, “[u]nless otherwise authorized by the 24 court, all documents submitted for filing to the Clerk’s Office . . . must be in legible, paper 25 form.” Office of the Clerk, United States District Court for the Southern District of 26 California, Electronic Case Filing Administrative Policies and Procedures Manual, § 2(b) 27 (Mar. 3, 2021) [hereinafter, “ECF Manual”], available at 28 https://www.casd.uscourts.gov/_assets/pdf/cmecf/Electronic%20Case%20Filing%20Proc 1 edures%20Manual.pdf. “A pro se party seeking leave to electronically file documents must 2 file a motion and demonstrate the means to do so properly by stating their equipment and 3 software capabilities in addition to agreeing to follow all rules and policies in the CM/ECF 4 Administrative Policies and Procedures Manual.” Id. The manual refers to the Court’s 5 official web site for CM/ECF technical specifications, id. at § 1(i), which include a 6 “[c]omputer running on Windows or Macintosh”; “[s]oftware to convert documents from 7 a word processor format to portable document format (PDF),” such as “Adobe Acrobat 8 Reader 7.0 or higher”; “[i]nternet access supporting a transfer rate of 56kb or higher”; a 9 compatible browser, such as “Firefox 15, Internet Explorer 9, and Safari 5.1/6 or later 10 version”; a “[s]canner to image non-computerized documents 400 pixels per inch (ppi)”; 11 and a PACER account. United States District Court, Southern District of California, 12 CM/ECF Information: General Info, https://www.casd.uscourts.gov/ 13 cmecf.aspx#undefined1 (last visited Mar. 5, 2021) [hereinafter, “CM/ECF: General Info”]. 14 Plaintiff indicates that she “ha[s] regular access to the technical requirements 15 necessary to e-file successfully.” Mot. at 2. However, Plaintiff’s Verified Complaint 16 indicates that, “[a]t the present time of the filing of this civil rights complaint Plaintiff 17 Fairchild was a homeless individual living on the streets and in motels within the city of 18 San Diego.” ECF No. 1 (“Compl.”) ¶ 10. The Court accordingly has concerns as to 19 Plaintiff’s continuing access to the necessary technical resources given that she is 20 homeless, although the Court recognizes that Plaintiff’s homelessness presents its own 21 challenges when it comes to paper filing. Nonetheless, paper filing is the default for pro 22 se litigants, see ECF Manual § 2(b), and it is incumbent on Plaintiff to demonstrate that 23 access to CM/ECF is warranted, see id. As Plaintiff has not done so, the Court DENIES 24 WITHOUT PREJUDICE Plaintiff’s Motion. 25 Separately, the Court has concerns about whether venue is proper in this district. 26 “Venue may be raised by the court sua sponte where the defendant has not filed a 27 responsive pleading and the time for doing so has not run.” Polk v. Mackenzie, No. C 0828 2344 MMC, 2008 WL 3876161 , at *2 (N.D. Cal. Aug. 19, 2008) (citing Costlow v. Weeks, [1] 790 F.2d 1486, 1488 (9th Cir. 1986)); accord Lawrie v. Cline, No. C 11-1235 SBA PR, [2] 2011 WL 7121807 , at *2 (N.D. Cal. Nov. 4, 2011); see also Pavao v. Unifund CCR 3 Partners, 934 F. Supp. 2d 1238, 1245 (S.D. Cal. 2013) (following order to show cause why 4 case should not be transferred for reason of venue, transferring case to Northern District of 5 California). 6 Generally speaking, venue is proper in “a judicial district in which any defendant 7 resides, if all defendants are residents of the State in which the district is located,” 28 U.S.C. 8 § 1391(b)(1); “a judicial district in which a substantial part of the events or omissions 9 giving rise to the claim occurred,” id. § 1391(b)(2); or, “if there is no district in which an 10 action may otherwise be brought as provided in this section, any judicial district in which 11 any defendant is subject to the court’s personal jurisdiction with respect to such action,” 12 id. § 1391(b)(3). For purposes of venue, an individual “shall be deemed to reside in the 13 judicial district in which that person is domiciled,” id. § 1391(c)(1), and a business entity 14 “shall be deemed to reside, if a defendant, in any judicial district in which such defendant 15 is subject to the court’s personal jurisdiction with respect to the civil action in question,” 16 id. § 1391(c)(2). If venue is improper, a district court “shall dismiss, or if it be in the 17 interest of justice, transfer such case to any district or division in which it could have been 18 brought.” Id. § 1406(a). 19 Based on the allegations in Plaintiff’s Verified Complaint, it does not appear that 20 venue is proper in the Southern District of California. Indeed, Plaintiff baldly states that 21 “all the Defendants except for Defendant Extra, stated above are residents or business 22 entities of the state California.” Compl. ¶ 34 (emphasis added). Plaintiff states that 23 “Defendant Extra’s jurisdiction lies within the state of Utah . . . [b]ecause Defendant Extra 24 is headquartered and incorporated in the state of Utah.” Id. ¶ 12. In light of these 25 representations, on the face of the Complaint, venue is not proper under section 1391(b)(1), 26 as all defendants are not residents of the State of California. Nor would venue seem to be 27 proper under section 1391(b)(2), as there is no indication that “a substantial part of the 28 events or omissions giving rise to the claim occurred” in the Southern District of California, 1 || which comprises the counties of Imperial and San Diego. 28 U.S.C. § 1391 (b)(2). Indeed, 2 ||it does not appear that any, much less a substantial part, of the events giving rise to this 3 || litigation took place in the counties of either Imperial or San Diego. Rather, the facts 4 ||alleged suggest that venue is proper in the Central District of California, as the relevant 5 ||events all appear to have happened in San Bernadino County, California. See Compl. 6 || 39-108. And, because venue appears to be proper in the Central District of California, 7 || section 1391(b)(3) is inapplicable. 8 In light of the foregoing, the Court ORDERS Plaintiff to show cause as to why 9 || venue is proper in the Southern District of California. Plaintiff SHALL FILE a response 10 || to this Order, not to exceed ten (10) pages, within fourteen (14) days of the date on which 11 Order is electronically docketed. Any Defendant MAY FILE a response, also not to 12 |}exceed ten (10) pages, within twenty-eight (28) days of the date on which this Order is 13 || electronically docketed. Should Plaintiff fail to comply with this Order, the Court may 14 || either transfer this action to the Central District of California or dismiss the action without 15 || prejudice to Plaintiff re-filing the action in a district where venue is proper. 16 IT IS SO ORDERED. 17 ||Dated: March 8, 2021 (een 18 on. Janis L. Sammartino United States District Judge