United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
a civil action filed by a pro se litigant. Pursuant
to 28 U.S.C. § 636(b)(1), and District of South Carolina
Local Civil Rule 73.02(B)(2)(e), the undersigned is
authorized to review all pretrial matters in such pro
se cases and to submit findings and recommendations to
the district court.
established local procedure in this judicial district, a
careful review has been made of Plaintiff's pro
se complaint filed in this case. This court is required
to liberally construe pro se complaints.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such
pro se complaints are held to a less stringent
standard than those drafted by attorneys. Id.;
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). The mandated liberal construction afforded to pro
se pleadings means that if the court can reasonably read
the pleadings to state a valid claim on which plaintiff could
prevail, it should do so, but a district court may not
rewrite a complaint to include claims that were never
presented, construct the plaintiff's legal arguments for
him, or conjure up questions never squarely presented to the
court. Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d
411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d
1128 (10th Cir. 1999).
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleading to allege
facts which set forth a claim currently cognizable in a
federal district court. Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The
“special judicial solicitude” with which a
[court] should view such pro se complaints does not transform
the court into an advocate.). Moreover, even when the filing
fee is paid, the court possesses the inherent authority to
ensure that a plaintiff has standing, that federal
jurisdiction exists, and that a case is not frivolous.
Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir.
district courts are vested with the inherent power to control
and protect the administration of court proceedings.
White v. Raymark Indus., Inc., 783 F.2d 1175, 1177
(4th Cir. 1986). The court has the power to consider sua
sponte whether venue is proper. See Jensen v.
Klayman, 115 Fed.Appx. 634, 635-36 (4th Cir. 2004)(per
curiam). The statute, 28 U.S.C. § 1391(b), governs where
the instant action may be brought:
(b) Venue in general.--A civil action may be brought in--
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b). The District of South Carolina does
not satisfy any of these subsections insofar as
Plaintiff's Complaint under review is concerned. In
absence of venue, the court has authority sua
sponte to transfer under either 28 U.S.C. §
1404(a) or § 1406(a), or both. See Jensen, 115
Fed.Appx. at 635-36; In re Carefirst of Md., Inc.,
305 F.3d 253, 255-56 (4th Cir. 2002). The statute, 28 U.S.C.
§ 1406(a) provides: “The district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” 28
U.S.C. § 1406(a).
the District of South Carolina is the wrong district for
venue under 28 U.S.C. § 1391, as Plaintiff's
Complaint alleges that all Defendants are residents of
Delaware, that the property involved is located in Delaware,
and “the events that gave rise to this action occurred
in the District of Delaware.” (ECF 1 at 1). Because
venue is improper by statute, Plaintiff's choice of venue
is almost immaterial to the analysis, and under 28 U.S.C.
§ 1406(a), if Plaintiff desires to maintain her action,
transfer is virtually mandated. See Blevins v. Pension
Plan, 6:10-CV-03261-JMC, 2011 WL 2670590, at *7 (D.S.C.
July 8, 2011). The interests of justice weigh heavily in
favor of transferring this action. Furthermore, transferring
the case is in keeping with the ultimate goal of allowing
cases to be decided on their substantive merits, as opposed
to being decided on procedural grounds. See Goldlawr v.
Heiman, 369 U.S. 463, 466-67 (1962); Dubin v.
U.S., 380 F.2d 813, 815 (5th Cir. 1967).
undersigned recommends that the District of Delaware is the
proper forum in which to adjudicate the claims raised in this
Complaint, regarding property located in Delaware, activities
that occurred in Delaware, and ...