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Kinser v. Salt Bar LLC

United States District Court, D. South Carolina, Charleston Division

August 2, 2018

Benjamin Kinser, Plaintiff,
v.
Salt Bar LLC, Sean Carey, James Kupra, Dustin Powers, Derek Gonzales, Larry Watson, Defendants.

          ORDER

          Richard Mark Gergel United States District Court Judge

         Before the Court is the report and recommendation ("R & R") of the Magistrate Judge recommending that this case be transferred to the Eastern District of North Carolina as proper venue. (Dkt. No. 11.) For the reasons set forth below, the Court adopts the R & R as the order of the Court and transfers this case to the United States District Court for the Eastern District of North Carolina.

         I. Background

         In July 2018, Plaintiff filed a pro se suit in the District of South Carolina against Defendants for personal injuries he suffered from an alleged assault at the Salt Bar Ultra Lounge in North Carolina. (Dkt. No. 1.) Plaintiff received medical treatment at two hospitals in North Carolina, and thereafter at two medical facilities in Charleston, South Carolina. (Id. ¶ 26.) Plaintiff alleges that he is a resident of South Carolina and Defendants are residents of North Carolina. (Id. ¶ 1, 3, 6-11.) Plaintiff also alleges, "Venue is proper in [the District of South Carolina] under 28 U.S.C. § 1391." (Id. ¶ 13.) The Magistrate Judge undertook a pre-service review of the action and recommended that the Court sua sponte transfer the case in the interest of justice to the Eastern District of North Carolina. (Dkt. No. 11.) Plaintiff objected to the findings in the R & R. (Dkt. No. 13.)

         II. Legal Standard

         A. Review of R&R

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight and the responsibility to make a final determination remains with the Court. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where the Plaintiff objects to the R&R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.

         B. Transfer for Improper Venue

         "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). A civil action may be brought:

(1) in 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 any 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 Court may undertake sua sponte transfer of venue when the parties had "an opportunity to be heard before a decision is rendered." Feller v. Brock, 802 F.2d 722, 729 n.7 (4th Cir. 1986). Such opportunity to be heard may be in the form of written notice to file timely objections to the Magistrate Judge's R & R. See, e.g., Harmon v. Sussex Cnty, No. 4:17-2931-RBH-TER, 2017 WL 6506396, at n.l (D.S.C. Nov. 13, 2017).

         III. ...


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