1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONAT RICKETTS Case No.: 20cv1966-LAB (BGS)

12 Plaintiff,

ORDER DENYING MOTION TO

13 v. PROCEED IN FORMA

PAUPERIS; AND

14 UNITED STATES COPYRIGHT

OFFICES, et al. 15 ORDER OF DISMISSAL Defendants. 16

17 Plaintiff Donat Ricketts filed this action bringing claims for copyright 18 infringement, RICO, federal trademark infringement, and various state law causes 19 of action. He did not pay the filing fee, but filed a motion to proceed in forma 20 pauperis (“IFP”). 21 IFP Motion 22 Ricketts’ IFP motion provides only minimal information about his income and 23 expenses. In addition to social security benefits, Ricketts says he receives 24 unspecified income working for Posmates. He says he has no cash at all, and that 25 he spends his entire take-home income on rent, utilities, gasoline, and hygiene 26 products, without saying how much he spends on each, or how he obtains other 27 necessities such as food and clothing. He lists his sole asset as a car worth around 28 $6,000. He says he has no dependents, and has debts of $6,300. 1 A plaintiff seeking leave to proceed IFP must state the facts in his affidavit 2 “with some particularity, definiteness, and certainty.” United States v. McQuade, 3 647 F.2d 938, 940 (9th Cir. 1981). It is likely he could likely correct his motion to 4 provide enough detailed information to show that he is entitled to proceed IFP if 5 given the opportunity, but he has not done so yet. 6 Venue 7 As Plaintiff, the burden falls on Ricketts to show that venue is proper in this 8 District. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 9 (9th Cir. 1979). Although the complaint says Ricketts is raising claims under RICO, 10 the Lanham Act, and possibly some other federal law, the only federal claim he 11 has pled with any clarity and sought relief for is his claim for infringement of his 12 federal copyrights. All other claims either arise under state law or are non- 13 cognizable. 14 In federal copyright infringement suits, proper venue is not determined by the 15 general provision governing suits in the federal district courts, but rather by the 16 venue provision of the Copyright Act, 28 U.S.C. § 1400(a); Lumiere v. Mae Edna 17 Wilder, Inc., 261 U.S. 174, 176 (1923). Under § 1400(a), “[c]ivil actions, suits, or 18 proceedings arising under any Act of Congress relating to copyrights or exclusive 19 rights in mask works or designs may be instituted in the district in which the 20 defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). For venue 21 purposes, defendants are “found” in a district where, if the district were treated as 22 a separate state, they would be subject to personal jurisdiction. See Incredible 23 Features, Inc. v. BackChina, LLC, ___ F. Supp. 3d ___, 2020 WL 4727288 at *1 24 (C.D. Cal., Aug. 3, 2020). 25 Ricketts’ state law claims are subject to the ordinary venue provisions of 28 26 U.S.C. § 1391, however. See Allstar Marketing Group, LLC v. Your Store Online, 27 LLC, 666 F. Supp. 2d 1109, 1127—28 (C.D. Cal., 2009). 28 / / / 1 The complaint does not allege that any Defendant resides or can be found 2 this District. Rather, all Defendants are from either Los Angeles or other states. 3 || Nothing in the complaint suggests they directed their actions towards this District. 4 ||Rather, all the actions giving rise to Ricketts’ claims occurred in and around Los 5 || Angeles, in the Central District, or possibly in other districts wnere Defendants are 6 ||located. The only connection between Ricketts’ claims and this District seems to 7 ||be that Ricketts lives here. Venue is therefore not proper in this District under either 8 1400(a) or § 1391. 9 Provided improper venue has not been waived, the Court can raise the issue 10 ||and dismiss or transfer for improper venue sua sponte. See generally Costlow v. 11 || Weeks, 790 F.2d 1486 (9th Cir. 1986). Leave to proceed IFP has not been granted 12 ||and the mandatory screening required under 28 U.S.C. §§ 1915A and 1915(e)(2) 13 ||has not been done yet. Transferring a case where no filing fee has been paid and 14 || where IFP status has not been granted would run counter to the interests of justice. 15 || The Court therefore determines that dismissal without prejudice is appropriate. 16 || Conclusion and Order 17 The motion to proceed IFP is DENIED WITHOUT PREJUDICE. This action 18 DISMISSED WITHOUT PREJUDICE. Nothing in this order prevents Ricketts 19 ||from refiling this action in a court where venue is proper. 20 21 IT IS SO ORDERED. 22 ||Dated: October 26, 2020 23 ly ACB, WY 24 Honorable Larry Alan Burns 25 Chief United States District Judge 26 27 28