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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

BETTY SHUMAKE,

Plaintiff,

vs. Case No. 4:11cv161-RH/WCS

ENHANCED RECOVERY COMPANY, LLC,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, has filed a complaint, doc. 1, and a motion

seeking leave to proceed in forma pauperis, doc. 3. Plaintiff's complaint is titled on the

top of the page for the Middle District of Florida, and the in forma pauperis motion is on

the form used by the Middle District of Florida. Thus, a review has been made of the

allegations of the complaint prior to ruling on the in forma pauperis motion. 

That review demonstrates that this case is not properly filed in this Court, nor

should it be filed in the Middle District of Florida. The complaint alleges that Plaintiff

resides in Millen, Georgia. Doc. 1, p. 1. Defendant conducts business in both Florida

and Georgia, and Plaintiff provides an address for the Defendant in Jacksonville,
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Florida, which is within the jurisdiction of the Middle District of Florida. Plaintiff also

indicates that the registered agent for the Defendant is located in Duluth, Georgia. Id. 

The complaint is brought pursuant to the jurisdiction provided to district courts

under 28 U.S.C. § 1331, and Plaintiff alleges a violation of the Fair Credit Reporting Act,

15 U.S.C. § 1681, et seq. Doc. 1, p. 1. The Fair Credit Reporting Act provides that an

action to seek liability under the Act "may be brought in any appropriate United States

district court," 15 U.S.C. § 1681p, but the Act does not specify where a case should be

filed. Thus, the general venue statute controls, 28 U.S.C. § 1391(b), which permits filing

a civil action either "where any defendant resides" or where "a substantial part of the

events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(b). Defendant

Enhanced Recovery allegedly conducts business in the states of both Florida and

Georgia. Plaintiff provides a "mailing address" in Jacksonville for the Defendant, but

does not clearly state that Florida is where the Defendant "resides" for venue purposes

under 28 U.S.C. § 1391(c). Several courts have concluded that the proper venue for a

claim brought under the Fair Credit Reporting Act is where the injury is felt. See Gordon

v. DTE Energy, 680 F.Supp.2d 1282, 1287 (W.D. Wash., 2010), relying on Myers v.

Bennett Law Offices, 238 F.3d 1068, 1075-76 (9th Cir. 2001) (concluding that the "locus

of the injury" is a relevant factor in determining venue). Because Plaintiff resides in

Georgia, she would have suffered harm in that State. Defendant is alleged to conduct

business in Georgia and, therefore, personal jurisdiction should exist. Thus, the proper

venue for this action is in the United States District Court for the Southern District of

Georgia. 28 U.S.C. § 90(c)(6).

Case No. 4:11cv161-RH/WCS
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A federal district court has the authority under 28 U.S.C. § 1406(a) to transfer a

case to another district or division "in which it could have been brought." The Court has

authority to raise the issue of defective venue sua sponte. See Lipofsky v. New York

State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988) (stating "a district court

may raise on its own motion an issue of defective venue or lack of personal jurisdiction;

but the court may not dismiss without first giving the parties an opportunity to present

their views on the issue."). Thus, it is recommended that the case be transferred rather

than dismissed.

In light of the foregoing, it is respectfully RECOMMENDED that this case and all

pending motions be TRANSFERRED to the United States District Court for the

Southern District of Georgia, Statesboro Division, pursuant to 28 U.S.C. §§ 1404(a) and

1406(a), for all further proceedings.

IN CHAMBERS at Tallahassee, Florida, on April 21, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:11cv161-RH/WCS