1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAMANTHA RAJAPAKSE, Case No.: 21-cv-0801-GPC-MDD

12 Plaintiff,

ORDER DISMISSING CASE

13 v. WITHOUT PREJUDICE FOR

IMPROPER VENUE

14 ESCROW.COM et al,

15 Defendants. [ECF Nos. 2, 3, 6, 8] 16 17 The Court issued an Order to Show Cause (“OSC”) as to whether the U.S. District 18 Court for the Southern District of California is the proper venue for this lawsuit. ECF 19 No. 6. Specifically, the Court raised concerns that Plaintiff’s Complaint has not satisfied 20 the venue requirements provided in 28 U.S.C. § 1391(b), by showing this district is where 21 the Defendants reside, or where a substantial part of the events giving rise to the claim 22 occurred. See id. at 1–2. 23 Plaintiff’s Response to the OSC (“Response”) confirms the Court’s initial concerns 24 that the venue in the Southern District of California is improper. Indeed, the locations 25 primarily implicated by the lawsuit are: (1) Virginia, see Resp. 3, ECF No. 8; (2) 26 Tennessee, see id. at 3, 5; and (3) San Francisco, California, see id. at 6–7, 9–10. 27 1 The only passage in Plaintiff’s Response that references the Southern District of 2 California is the following: 3 Plaintiff, Samantha Rajapakse believed without doubt Ebay Motors located 4 in San Diego, California would honor their website of Buyer Protection Program seeking reimbursement after documentation presented to Ebay the 5 seller had committed fraud by failing to disclose the true condition of the 6 vehicle under Tennessee and Virginia laws by refusing to investigate and taking reasonable cause and action to protect her from fraudulent and risk 7 transaction as stated on their website. 8 9 Id. at 7. Plaintiff’s “belief” that Ebay Motors is “located in San Diego, California” is not 10 alleged in the Complaint or supported by any additional fact or evidence. Indeed, the 11 statement above is contradicted by a representation contained in the Complaint, see ECF 12 No. 1 at 2 (“Ebay and Ebay Motors, is a business where it [sic] operation is located at 13 Hamilton in San Jose, California.”), and it appears that this representation made in the 14 Complaint is true. See eBay Motors, LinkedIn (accessed June 16, 2021, 5:13 PM), 15 https://www.linkedin.com/company/ebaymotors/about/.1 16 It also appears that Plaintiff, in establishing venue, primarily relies on the fact that 17 this Court has personal jurisdiction over the Defendants. See Resp. 10–13, ECF No. 8. It 18 is true that venue may exist due to the Court having personal jurisdiction over 19 Defendants. See 28 U.S.C. § 1391(b)(3). However, Section 1391(b)(3) is explicit on 20

21 22 1 The Court, on its own, may take judicial notice of information on an official website as long as it is “not subject to reasonable dispute because it . . . can be accurately and readily 23 determined from sources whose accuracy cannot reasonably be questioned.” See Fed. R. 24 Evid. 201; Ayala v. Cnty. of Imperial, No. 15CV397-LAB (NLS), 2017 WL 469016, at *2 (S.D. Cal. Feb. 3, 2017) (citing Matthews v. Nat’l Football League Mgmt. Council, 25 688 F.3d 1107, 1113 (9th Cir. 2012)); see also Threshold Enterprises Ltd. v. Pressed 26 Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020) (“In general, websites and their contents may be judicially noticed.”). 27 1 when a litigant can invoke this provision for venue purposes. A civil action may be 2 initiated in: “if there is no district in which an action may otherwise be brought as 3 provided in this section, any judicial district in which any defendant is subject to the 4 court’s personal jurisdiction with respect to such action.” Id. (emphases added). In other 5 words, (b)(3) is a “fall-back venue statute,” which only applies if venue cannot be 6 established by (b)(1) (residency of defendants) or (b)(2) (location of the events giving 7 rise to the claim). See, e.g., Couser v. Pre-Paid Legal Servs., Inc., No. 12-CV-2575- 8 LAB-WVG, 2013 WL 12116602, at *1 (S.D. Cal. Dec. 20, 2013) (citations omitted); 9 Color Me Mine Enterprises Inc. v. S. States Mktg. Inc., No. CV1200860RGKJCX, 2013 10 WL 12130004, at *2 (C.D. Cal. Jan. 4, 2013). Since Plaintiff could file her lawsuit in 11 other districts under Section 1391(b)(1) or (b)(2), Section 1391(b)(3) is inapplicable in 12 the instant lawsuit, and personal jurisdiction does not establish venue here. 13 Having established that venue is improper in the Southern District of California, 14 the Court must decide whether to transfer the case, or dismiss the case without prejudice. 15 See 28 U.S.C. § 1406(a). The problem with a transfer on the Court’s own initiative is 16 that there are several districts that may qualify as an appropriate place to initiate this 17 lawsuit. See Compl. 2–3, 20, ECF No. 1 (discussing Virginia law and witness, and how 18 the Parties reside in: Chattanooga, Tennessee; San Francisco, California; San Jose, 19 California; and Lorton, Virginia). Depending on the applicable case law, local rules, 20 available witnesses, accessibility to the courthouse, and even the residing judges, certain 21 districts may be more advantageous for Plaintiff to litigate over others. It would be 22 arbitrary for this Court to dictate such important strategic matters without giving Plaintiff 23 the opportunity to decide on her own. Therefore, the Court concludes that dismissal 24 without prejudice—i.e., without any consequences relating to preclusion, and permitting 25 Plaintiff to re-file the lawsuit in a different district—is the most prudent course of action, 26 so that Plaintiff may maximize her ability to prosecute this case. 27 1 For the reasons discussed above, the Court DISMISSES without prejudice the 2 entire action. Plaintiff is encouraged to re-file the lawsuit at a different federal court, 3 || specifically in the location that is related to what is alleged in the Complaint.” 4 IT IS SO ORDERED. 5 6 ||Dated: June 17, 2021 <=

8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 || ————_ 25 Since the Court dismisses the entire case for improper venue, the Court declines to rule 26 Plaintiff's Motion for Leave to Proceed Jn Forma Pauperis and Motion to Appoint Counsel, ECF Nos. 2, 3. 28 21-cv-0801-GPC-MDD