UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOSEPH LAMAR ANGLIN,

Plaintiff,

v. Case No. 3:20cv2695-TKW-EMT 

EDWIN LEAVITT-GRUBERGER,

Defendants.

/

OR D E R

This case is before the Court based on the magistrate judge’s Report and 

Recommendation (Doc. 12) and Plaintiff’s objections (Doc. 13).

1

 Based on my de 

novo review of the issues raised in the objections, I agree with the magistrate judge 

that this case is due to be transferred to the United States District Court for the 

District of New Jersey. 

The Court has not overlooked Plaintiff’s argument based on the factors in 28 

U.S.C. §1404(a). However, that statute only applies when a case is initially filed in 

a proper venue and the Court is deciding whether another venue would be a more 

convenient forum. Here, as explained in the Report and Recommendation, venue is 

1

 The objections were in the form of a letter directed to Magistrate Judge Timothy, but 

because her involvement in the case ended when she issued her Report and Recommendation, the 

letter was referred to the Court for action and is being treated as an objection under Fed. R. Civ. 

P. 72(b)(2).

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improper in this Court. Thus, the transfer of this case is governed by 28 U.S.C. 

§1406(a),

2 not §1404(a). See Maid to Perfection Glob., Inc. v. Miller, 2018 WL 

8244570, at *6 (M.D. Fla. Aug. 22, 2018) (“Whereas 28 U.S.C. §1404(a) authorizes 

transfer of a case where venue is proper but an alternative venue would be more 

convenient, 28 U.S.C. §1406 authorizes transfer for a case, like the present case, 

where venue is improper.”).

Under §1406(a), transfer is generally preferred over dismissal, particularly if 

dismissal would result in the suit being time-barred when it is refiled in the proper

forum and the defendant would not be prejudiced by the transfer. See Goldlawr, Inc. 

v. Heiman, 369 U.S. 463, 466-67 (1962). However, dismissal is warranted if the 

plaintiff filed the suit in an improper venue in bad faith or to harass a defendant. See

Palmer v. Dau, 2010 WL 2740075, at *2 (M.D. Fla. July 12, 2010) (citing Wright, 

Miller & Kane, Fed. Practice & Procedure: Jurisdiction 2d § 3827 at 262 (1998 & 

2005 Supp.)). 

Here, although it does not appear that Plaintiff’s suit would be time-barred if 

it was dismissed (and despite the fact that the suit could be viewed as an effort to 

circumvent the New Jersey District Court’s stay of a related case), the Court elects 

to transfer the case rather than dismiss it because Plaintiff is pro se and unfamiliar 

2

 This statute provides: “The district court of a district in which is filed a case laying venue 

in the wrong . . . district shall dismiss, or if it be in the interest of justice, transfer such case to any

district . . . in which it could have been brought.”

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with the nuances of federal court venue. That said, because this is the second case

involving the same general subject matter that this Court has transferred to New 

Jersey based on improper venue, Plaintiff is cautioned that any future cases filed in 

this Court involving this same general subject matter will be subject to dismissal

instead of transfer.

Accordingly, it is ORDERED that:

1. The magistrate judge’s Report and Recommendation is adopted by the 

Court and incorporated into this Order.

2. This case is TRANSFERRED to the United States District Court for the 

District of New Jersey, and the Clerk shall close the file in this Court.

DONE and ORDERED this 22nd day of June, 2020.

T. Kent Wetherell, II 

T. KENT WETHERELL, II

UNITED STATES DISTRICT JUDGE

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