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Yates v. Overholt

United States District Court, D. South Carolina

January 9, 2019

Jesse Graves Yates, III, Plaintiff,
v.
Scott Overholt; Michael Davenport; The Overholt Law Firm; and Davenport Law, Defendants.

          REPORT AND RECOMMENDATION

          Kaymani D West, United States Magistrate Judge.

         This is a civil action filed by a pro se litigant who paid the full filing fee. Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.

         I. Factual & Procedural Background

         Jesse Graves Yates, III (“Plaintiff”) filed his Complaint on January 23, 2018, alleging legal malpractice against the Defendants-all residents of Wilmington, North Carolina-arising from their representation of Plaintiff in a civil action that was tried in the United States District Court for the Eastern District of North Carolina in Greenville, North Carolina. ECF No. 1; Yates v. State Farm, No. 7:13-cv-00233-KS (E.D. N.C. ).[1] Plaintiff seeks $4 million in damages and injunctive relief. In his Complaint and corresponding paperwork, Plaintiff listed his address as Graham, North Carolina. See ECF No. 1 at 1.

         Because the parties apparently lacked the complete diversity required by 28 U.S.C. § 1332, on February 21, 2018, the undersigned recommended dismissing this action without service for lack of jurisdiction and notified Plaintiff of his right to file objections. ECF No. 8. On March 6, 2018, Plaintiff objected to the Report and Recommendation and informed the court that he resides in Myrtle Beach, South Carolina. See ECF No. 15 at 2-3. Plaintiff also submitted a notice of change of address. ECF No. 16. On June 26, 2018, the assigned District Judge ordered Plaintiff to provide a jurisdictional statement regarding his domicile at the time he filed his Complaint. ECF No. 23. Plaintiff timely complied and stated that he moved to Myrtle Beach, South Carolina on January 1, 2018, several weeks before the Complaint in this action was filed. See ECF No. 26. As a result of this clarification, the assigned District Judge declined to adopt the original Report and Recommendation and recommitted this matter to the undersigned for further consideration. ECF No. 32.

         II. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint in this case. This court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 9 (1980). 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 the plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff's legal arguments for him or her, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that 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. App'x 405, 406 (4th Cir. 2012) (per curiam). Following review, the pro se Complaint in this case should be transferred to a different court. See Yates v. State Farm Casualty and Fire, C/A 4:18-cv-00179-DCC (venue transferred to E.D. N.C. in fee-paid civil action); Harmon v. Sussex Cnty., C/A No. 4:17-2931-RBH-TER, 2017 WL 6506396, at *2 (D.S.C. Nov. 13, 2017) (recommending transfer of venue at initial-review stage of fee-paid civil action), report and recommendation adopted, 2017 WL 6498165 (Dec. 19, 2017).

         III. Discussion

         Plaintiff, a South Carolina resident, see ECF No. 26, has sued residents of North Carolina, seeking $4 million in damages, ECF No. 1 at 1. Federal 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 undersigned is of the opinion that venue is improper in this district. The court has the power to consider sua sponte whether venue is proper. See Jensen v. Klayman, 115 Fed. App'x 634, 635-36 (4th Cir. 2004) (per curiam). The general venue statute provides as follows:

(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 the 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 ...

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