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Edmund M. Abordo, #A0080735 v. Shari Kimoto

December 13, 2012


The opinion of the court was delivered by: J. Michael Seabright United States District Judge


Plaintiff Edmund M. Abordo is a Hawaii prisoner incarcerated at the Saguaro Correctional Center ("SCC"), located in Eloy, Arizona. On December 5, 2012, Defendants removed Abordo's state court action to this court pursuant to 28 U.S.C. § 1441(c).*fn1 ECF No. 1. For the following reasons, the court TRANSFERS this action to the United States District Court for the District of Arizona pursuant to 28 U.S.C. § 1404(a).


Abordo commenced this action in the First Circuit Court, State of Hawaii, as a post-conviction petition titled, "HRPP Rule 40(2)(3) Form and Content; (2) Nonconforming Petition; (3) Separate Cause of Action." Compl., ECF No. 1-1. On November 13, 2012, because he did not claim illegality of judgment or custody, the state circuit court deemed his Nonconforming Petition as a civil action improperly brought under Hawaii Rule of Penal Procedure 40.*fn2 On December 5, 2012, Defendants timely removed it from state court pursuant to 28 U.S.C. § 1446(b). See ECF No. 1.

Abordo alleges that Defendants conspired to deny him access to the courts by failing to update the SCC library and provide new Hawaii Rules of Court and caselaw from circuits outside of the Ninth Circuit Court of Appeals. Abordo claims that this violated the First Amendment and Article I, section 4 of the Hawaii State Constitution. Abordo seeks injunctive relief and damages.


A. Removal Was Proper And Timely

A defendant may remove any civil action brought in state court over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). That is, a civil action that could have originally been brought in federal court may be removed from state to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Further, a federal court may exercise supplemental jurisdiction over closely related state law claims. See 28 U.S.C. § 1367(c).

Abordo alleges federal constitutional violations, thus, subject matter jurisdiction is proper in federal court. See 28 U.S.C. §§ 1441, 1442. Defendants timely removed the action from state court within thirty days of receiving notice of the filing of this action. 28 U.S.C. § 1446(b). Removal was proper.

B. Sua Sponte Transfer Under 28 U.S.C. § 1404(a)

"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). The purpose of § 1404(a) is to "prevent the waste of time, energy, and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citations and quotation omitted); Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209, 1213 (D. Haw. 2002). A decision to transfer lies within the broad discretion of the district court, and must be determined on an individualized basis. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). A court therefore has power to order transfer under § 1404(a) sua sponte. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (holding that a district court may sua sponte transfer a civil action to any other district where it might have been brought if doing so will be convenient for the parties and witnesses and serve the interest of justice); see also Panchias v. Bullock, 2012 WL 5425393, at *3 (E.D. Cal. Nov. 5, 2012) (sua sponte transfer of removed action); Hurt v. Unit 32, 2012 WL 5269910, at *1 (N.D. Cal. Oct. 24, 2012) (transferring sua sponte pursuant to § 1404(a)). The fact that a case has been removed to the federal district court has no bearing on the change of venue provisions of § 1404, and removed actions may be transferred pursuant to that statute as though they had been brought in the federal court originally. Heft v. AAI Corp., 355 F. Supp. 2d 757, 772-73 (M.D. Pa. 2005).

1. 28 U.S.C. § 1404(a) Factors

The court should weigh relevant public and private factors to determine whether to transfer a case pursuant to § 1404(a), including:

(1) plaintiff's choice of forum; (2) contacts between the chosen forum and plaintiff's cause of action and the feasibility of consolidation with other claims; (3) convenience of the parties and witnesses; (4) ease of access to the evidence; (5) differences in the costs of litigation in the two forums; (6) local interest in the controversy; (7) familiarity of each forum with the applicable law; and (8) relative court congestion and time to trial in each forum. See Williams v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 2001); see also Jones, 211 F.3d ...

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