Kampwerth v. Southwest Airlines Co. et al

Filing 31

ORDER denying 24 Motion to dismiss; denying [24, 27] Motions to transfer case. Signed by Judge Elizabeth A. Kovachevich on 11/17/2011. (JM)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DARYL KAMPWERTH,
Plaintiff,
v.

CASE NO. 8:10-CV-2929-T-17EAJ

SOUTHWEST AIRLINES CO.,
etal.,
Defendants.

ORDER
This cause is before the Court on:

Dkt. 24

Motion to Dismiss or Transfer Venue

Dkt. 27

Motion to Transfer to Northern District of Texas

Dkt. 30

Response

The Amended Complaint (Dkt. 9) includes Count I, Breach of Duty of Fair

Representation, as to Defendant Southwest Airlines Pilots' Association ("SWAPA"), and
Count II, Breach of Collective Bargaining Agreement, as to Defendant Southwest
Airlines Co. ("SW Airlines"). The basis of jurisdiction is federal question jurisdiction.
This case is brought to remedy violations of the Railway Labor Act, 45 U.S.C. Sec. 151,
et sea,. Plaintiff seeks the award of damages, apportioned between Defendants, in the
form of lost wages for back pay and if not reinstated, for front pay, the value of lost

benefits, prejudgment interest, reasonable attorney's fees, costs, and all other
appropriate relief.

This case involves a hybrid Sec. 301/fair representation claim. The suit against
Defendant SW Airlines rests on Sec. 301, since Plaintiff is alleging a breach of the

collective bargaining agreement. The suit against Defendant SWAPA is one for breach

Case No. 8:10-CV-2929-T-17EAJ

of the union's duty of fair representation, which is implied under the scheme of the
National Labor Relations Act. The two claims are inextricably interdependent. "To

prevail against either the company of the Union, ...[Plaintiff] must not only show that
[his] discharge was contrary to the contract but must also carry the burden of
demonstrating a breach of duty by the Union.'" See Delcostello v. International
Brotherhood of Teamsters. 462 U.S. 151, 164-165 (1983).

Defendant SWAPA moves to dismiss for lack of venue pursuant to 28 U.S.C.
Sec. 1391 (b)(2), or, in the alternative, to transfer venue pursuant to 28 U.S.C. Sec.
1404. Defendant SW Airlines moves to transfer venue pursuant to 28 U.S.C. Sec.
1404.

I. Venue - 28 U.S.C. Sec. 1391(b)

In the Amended Complaint, Plaintiff alleges:

3. Venue is proper in this judicial district because Kampwerth resides in
the Middle District of Florida, the Defendants do business in the Middle
District of Florida, and a substantial number of the acts complained of
occurred within the Middle District of Florida.

28 U.S.C. Sec. 1391(b) provides:

(b) A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside
in the same State, (2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a substantial part
of property that is the subject of the action is situated, or (3) a judicial
district in which any defendant may be found, if there is no district in which
the action may otherwise be brought.

Case No. 8:10-CV-2929-T-17EAJ

Defendant SWAPA argues that none of the acts of wrongdoing which constitute
Defendant's alleged breach of the duty of fair representation occurred in the Middle
District of Florida. Defendant SWAPA argues that there is no nexus between "material

acts and omissions alleged as wrongdoing with the Middle District of Florida."
Defendant SWAPA relies on the detailed Declaration of Therese Curro (Dkt. 24-1).

Plaintiff responds that key material acts and omissions by both Defendants
occurred in the Middle District of Florida, where Plaintiff was employed as an airline

pilot for Defendant SW Airlines.

Plaintiff relies on events occurring prior to and during

three "fact-finding hearings" conducted by Defendant SW Airlines in Florida, alleged
breaches of duty by Defendant SWAPA during its participation in those hearings in
Florida, alleged improper conduct by Defendant SW Airlines and possibly Defendant

SWAPA in obtaining and using confidential, protected information relating to the
criminal investigation from the Pinellas County Sheriff's Office in violation of Florida law,
wrongfully terminating Plaintiff's employment at a meeting at took place at the office of
Defendant SW Airlines in Orlando, FL, and notifying Plaintiff that Defendants would not

permit Plaintiffs grievance to go forward, in a letter received in Florida by Plaintiff.
Plaintiff relies on the allegations of the Amended Complaint and Plaintiff's Declaration
(Dkt. 30-1).

At the outset, the Court notes that, based on the allegations of the Amended
Complaint, some significant acts and omissions took place in Florida, and some
significant acts and omissions took place in Texas.

Defendant SW Airlines is a corporation which was incorporated under the laws of
the State of Texas, and its corporate headquarters are located in Dallas, Texas.

It is

undisputed that Defendant SW Airlines continuously and systematically does business
in the Middle District of Florida.

Defendant SW Airlines has moved for transfer to the

Northern District of Texas; Defendant SW Airlines has not contested personal

Case No. 8:10-CV-2929-T-17EAJ

jurisdiction in the Middle District of Florida. Pursuant to 28 U.S.C. Sec. 1391(c), for
purposes of venue, Defendant SW Airlines is deemed to reside in the judicial district
where Defendant SW Airlines is subject to personal jurisdiction.

Defendant SWAPA is a labor organization which collectively represents the

interests of all members employed by SW Airlines. Pursuant to the policy of the
National Labor Relations Act, the individual members may not bargain individually or

select a minority union as their representative. Therefore, SWAPA must serve the
interests of all members without hostility and discrimination toward any, exercise its
discretion with complete good faith and honesty, and avoid arbitrary conduct. Vaca v.

Sipes, 386 U.S. 171, 177(1967). The duty of fair representation stands "as a bulwark
to prevent arbitrary union conduct against individuals stripped of traditional forms of

redress by the provisions of federal labor law. Vaca. 383 U.S. at 182. There is a
fiduciary relationship between the labor organization and its members.
Defendant SWAPA's sole office and principal place of business is in Dallas,
Texas.

Defendant SWAPA has a "domicile" in Orlando, "MCO", where a domicile

representative is available to serve as a member's union representative from the time
an incident giving rise to an investigation of a member occurs. According to Defendant
SWAPA, once discipline is imposed on a member by SW Airlines, the domicile

representative is no longer in the picture, and the issue becomes one for Defendant
SWAPA's Legal Department and Contract Administration Department, both of which
are located in Dallas, Texas. (Dkt. 24-1, p. 4).

Plaintiff refers to the Orlando domicile as a "regional office," and does not

dispute that Defendant SWAPA's principal place of business is in Dallas, Texas.
Other courts have liberally construed the reference to "corporations" in Sec.

1391 (c) to include unincorporated associations. See Denver v. R. G. W. R. V.

Case No. 8:10-CV-2929-T-17EAJ

Brotherhood of R. R. Trainmen. 387 U.S. 556 (1967); Kinqsepp v. Weslevan
University. 763 F.Supp. 22 (S.D.N.Y. 1991).

Defendant SWAPA does not dispute

that there is a "domicile" in Orlando which continuously and systematically does
business in the Middle District of Florida. Defendant SWAPA does not dispute that

Defendant is subject to personal jurisdiction in the Middle District of Florida.

After consideration, the Court finds that venue is proper in the Middle District of

Florida since, for the purposes of venue, both Defendants reside in the same district.
The Court therefore denies Defendant SWAPA's Motion to Dismiss for improper
venue.

II. Transfer - 28 U.S.C. Sec. 1404(a)

Defendant SWAPA and Defendant SW Airlines move for transfer to the Northern
District of Texas.

Plaintiff Kampwerth opposes Defendants' Motions to Transfer.

A. Defendant SWAPA

Defendant SWAPA argues that the convenience of the parties and witnesses if
trial is in the Northern District of Texas far outweighs that of a trial in the Middle District

of Florida. Defendant SWAPA argues that trial in the Northern District of Texas, Dallas
Division, is not inconvenient for Plaintiff.

Defendant SWAPA further argues that trial in

the Middle District of Florida would be exceedingly inconvenient for Defendant SWAPA
and its witnesses, and there is no risk that Plaintiff will not appear for trial in Dallas,
Texas. Defendant SWAPA has included detailed summaries of expected testimony of

principal material witnesses, how the trial of this case in the Middle District of Florida
would be very inconvenient, and "possibly unworkable." Defendant SWAPA further

Case No. 8:10-CV-2929-T-17EAJ

argues that the other factors under Sec. 1401(a) favor granting transfer or are neutral.

II. Defendant SW Airlines

Defendant SW Airlines argues that this action could have been brought in the
Northern District of Texas, that the balance of convenience strongly favors a transfer of
this action to the Northern District of Texas, and that the interests of justice strongly
favor the transfer of this action to the Northern District of Texas. Defendant SW Airlines

has identified key witnesses and provided a summary of the expected testimony of
material witnesses.

III. Plaintiff's Response

Plaintiff does not dispute that this case could have been brought in the Northern

District of Texas. Plaintiff argues that Defendants maintain offices and a domicile in the
State of Florida, that the convenience of the parties and witnesses weigh heavily on the
side of denying the request to transfer, and that the interests of justice weigh heavily
against the request to transfer. Plaintiff has identified key material witnesses and
provided a summary of the expected testimony of the material witnesses.

IV. Discussion

To determine whether venue should be transferred, the Court must consider: a)

whether the action [might] have been brought in the United States District Court for the
Northern District of Texas; b) whether transferring the action will be for the convenience

of the parties and witnesses; and c) whether the transfer will be in the interest of justice.
The Court is afforded wide discretion in resolving the issue of transfer to a more
convenient forum, and the decision as to transfer under Sec. 1404(a) is "'an

individualized case-by-case consideration of convenience and fairness.'" Stewart Org.,
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Case No. 8:10-CV-2929-T-17EAJ

Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).

A. Venue in the Northern District of Texas

Defendants have established, and Plaintiff concedes, that this case could have

been brought in the United States District Court for the Northern District of Texas.

B. Balance of Convenience

In determining the balance of convenience, the Court considers: 1) Plaintiff's
initial choice of forum; 2) convenience of the parties and witnesses; 3) relative ease of

access to sources of proof; 4) availability of compulsory process for witnesses; 5)
location of relevant documents; 6) financial ability to bear the cost of the change; 7) all

other practical problems that make trial of the case easy, expeditious and inexpensive.
Aalberqy. Plan 4 College. Inc.. 2009 WL 3698039, *2 (M.D. Fla. 11/4/2009). Transfer is

appropriate only when a defendant establishes that the balance weighs strongly in favor
of transfer.

1) Plaintiffs Choice of Forum

Plaintiff Kampwerth resides in the Middle District of Florida, and has chosen the
Middle District of Florida as the forum. Defendant SWAPA is a labor organization

whose office and principal place of business is in Dallas, Texas. Defendant SWAPA
has a domicile in the Middle District of Florida. Defendant SW Airlines is a corporation

incorporated under the laws of the State of Texas and Defendant's corporate
headquarters are located in Dallas, Texas. Defendant SW Airlines does business in the
Middle District of Florida.

Case No. 8:10-CV-2929-T-17EAJ

Defendant SWAPA contends that Plaintiff's choice of forum is entitled to less

weight where the operative facts underlying the cause of action did not occur within the
chosen forum.

In this case, based on allegations of the Amended Complaint, Plaintiffs

declaration, and Defendants' declarations, some significant acts and omissions took
place in Florida and some took place in Texas.

The Court accords considerable weight to Plaintiff's choice of forum. Unless

other factors strongly outweigh Plaintiffs choice of forum, the Court will not disturb
Plaintiffs choice of forum.

This factor weighs against transfer.

2) Convenience of Parties and Witnesses

The convenience of witnesses is an important factor. Defendant SWAPA argues

that the vast majority of Defendant SWAPA's witnesses will be non-party witnesses,
employed by Defendant AW Airlines and not under the control of Defendant SWAPA.
Defendant SW Airlines argues that the majority of Defendant's non-party witnesses are

employed in Dallas, Texas, SW Airlines' management witnesses are located in Dallas,
Texas, and Captain Ferguson and the majority of the members of Defendant SWAPA's
Board of Directors are located in Dallas, Texas. Defendant SW Airlines contends that

there would be significant financial costs of transporting and housing its key witnesses,
and the time away from job duties would be disruptive to Defendant's operations.
Defendant SW Airlines further argues that the management employees who will be
central witnesses do not have counterparts who perform their essential duties within the

Flight Operations department, and their absence from Dallas would impose a significant
hardship and a possible impediment to the proper management and oversight of

Defendant's 6,000+ pilots.

Case No. 8:10-CV-2929-T-17EAJ

Plaintiff has identified eight key witnesses, in addition to Plaintiff, who are located
in the Middle District of Florida, and three witnesses located in Texas. Plaintiff argues
that it would be more convenient for the eight Florida witnesses for this case to remain
in the Middle District. Plaintiff argues that Plaintiff could not compel these witnesses to

travel to Texas to testify, and Plaintiff does not have the financial means to pay for their
travel to Texas . Plaintiff argues that, as to employee witnesses of Defendant SW
Airlines, the witnesses would not be subjected to the same inconvenience to which

non-employee witnesses would be subject, based on Defendant SW Airlines' ability to

arrange cost-effective and efficient transportation of its employee-witnesses. Plaintiff
argues that Defendant SWAPA has identified thirty-three material witnesses; the
majority of these witnesses are located in Texas. Defendant SWAPA acknowledges
that it is likely that Defendant SW Airlines will cooperate in making the employeewitnesses available.

Plaintiff argues that the transfer to Texas would alleviate some inconvenience to
Defendants' witnesses located in Texas, but at the same time create a heavier burden
on Plaintiff and his witnesses located in Florida.

Where both Defendants have their headquarters in Dallas, Texas, it is more

convenient for Defendants if transfer to Texas is granted, and less convenient for the
individual Plaintiff, who resides in the Middle District of Florida, Plaintiff's chosen forum.

However, where a transfer merely shifts the burden of inconvenience from one party
and its witnesses to another party and its witnesses, courts will not disturb a plaintiffs
choice of forum.

This factor weighs against transfer.

Case No. 8:10-CV-2929-T-17EAJ

3) Relative East of Access to Sources of Proof

The location of relevant documentation and records concerning Plaintiff's claim
is an important consideration.

Because Defendant SW Airlines' corporate headquarters, key witnesses and key
documents are in Dallas, Texas, Defendant SW Airlines ease of access to sources of

proof is greater in Texas. Defendant SWAPA's principal office is in Dallas Texas, and

therefore Defendant SWAPA's ease of access to sources of proof is greater in Texas.

The Court notes that technology has eased the burdens associated with
discovery. As to documentary evidence, such evidence can be made available

electronically. Depositions can be taken by videoconference without great difficulty.

This factor is a neutral factor.

4) Availability of Compulsory Process for Witnesses

Defendant SWAPA contends that the denial of transfer would put Defendant

SWAPA in a compromised position where Defendant SWAPA cannot compel the
appearance of 12 of fifteen key witnesses in the Middle District of Florida.

Defendant SW Airlines argues that, to the extent that the non-party witnesses
must be compelled to testify, it would be more convenient for the Court and the parties
to compel the testimony in Texas, and the cost to obtain their presence in Florida is far
greater.

Plaintiff argues that Defendant SW Airlines can compel its employees to travel to
Tampa to testify. Plaintiff anticipates that Defendants will cooperate with each other in
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Case No. 8:10-CV-2929-T-17EAJ

making witnesses available, there are numerous issues common to Defendants'
defense, and many of the same witnesses are listed by both Defendants. Plaintiff
argues that regardless of the venue, Defendants will be able to have SW Airlines
employee witnesses in Texas and Florida to testify in person at trial, but if venue is
moved to Texas, Plaintiff will be forced to take the depositions of Plaintiff's Florida

witnesses and rely on deposition testimony at trial, without the opportunity for additional
questioning at trial.

Both Plaintiff and Defendants have key witnesses who are beyond the limit of
compulsory process. Where compulsory process is not available to a party to secure

the presence of a live witness at trial, depositions may be used to present testimony.

This factor is a neutral factor.

5) Location of Relevant Documents

The Court notes that Defendants' relevant documents are in Texas, and
Plaintiff's relevant documents are in Florida.

As the Court noted above, documents can be exchanged electronically.

This factor is a neutral factor.

6) Financial Ability to Bear Cost of the Change

Defendants contend that Plaintiff has the financial ability to appear in Dallas,

Texas for legal proceedings. Defendant SW Airlines argues that the relative bargaining
power and financial positions of the parties as a factor "alone cannot defeat transfer
where...the other factors clearly favor transfer." Moqhaddam v. Dunkin Donuts, Inc.,
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Case No. 8:10-CV-2929-T-17EAJ

2002 WL 1940724 (S.D. Fla. 8/13/2002).

Plaintiff argues that his financial resources now are not the same as when

Plaintiff offered to hire his own lawyer for an SBOA arbitration hearing and appear at
the SBOA hearing himself, rather than abandon his grievance. Plaintiff argues that, in
the event of transfer, it would be necessary for Plaintiff to secure representation in
Texas, and this would pose a significant financial hardship.

Litigation is expensive. Defendant SWAPA is a labor organization, and
Defendant SW Airlines is a corporation. Both Defendants have access to financial

resources that Plaintiff, an unemployed individual with limited financial resources, does
not have.

This factor weighs against transfer.

7) Familiarity with Governing Law

This case is based on federal question jurisdiction, so the transferee Court would

have the same familiarity with governing law that the transferor Court has. As to any
issue controlled by state law, the transferee Court would be required to apply the same
law that the transferor Court applies. The Court notes that this case will involve
interpretation of Ch. 934, Florida Statutes. It is not an unusual experience for a federal
court to consider issues which require the application of state law.

This factor is a neutral factor.

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Case No. 8:10-CV-2929-T-17EAJ

8) Trial Efficiency and the Interests of Justice, Based on
Totality of Circumstances

Defendant SWAPA argues that the public interest strongly favors trial at the
"home" of Defendants in Dallas, Texas.

Defendant SWAPA relies on Defendant's

duties with respect to all members, including the wise use of union resources, such as
time, personnel and money. Defendant SWAPA further argues that the Northern

District of Texas has experience with issue of the duty of fair representation specifically
as to Defendants SWAPA and SW Airlines, and that it makes sense for the federal

bench in Dallas, Texas to develop the jurisprudence and resolve issues between
Dallas-based Defendants.

Defendant SW Airlines argues that Defendant will be required to call numerous
employees as witnesses, the majority of whom reside in Dallas, Texas. The transfer of

this case would reduce the amount of time the witnesses spend away from their
families and jobs. Defendant SW Airlines further argues that Defendant will incur

significant expense in transporting witnesses to Florida for trial, in addition to disruption
of Defendant's business operations. Defendant SW Airlines argues that it would be
less burdensome, more expeditious and in the interest of justice to grant the transfer of
this case to Dallas, Texas.

Plaintiff Kampwerth argues that this Court has an equally compelling interest in
adjudicating the rights of Florida residents whose employment is in the State of Florida.

The issue of transfer cannot be determined solely by counting witnesses. With
proper planning, inconvenience and expense to parties and witnesses can be
minimized.

While it is clear that a transfer would alleviate inconvenience and costs to

Defendants and their witnesses, the transfer of this case would significantly impair
Plaintiff Kampwerth's ability to proceed with this case, in terms of obtaining
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Case No. 8:10-CV-2929-T-17EAJ

representation in Texas and the additional costs associated with litigation and trial in
Dallas, Texas rather than the Middle District of Florida.

After considering the above

factors, as well as the practical aspects of litigation and trial, and the interests of justice,
the Court concludes that Plaintiff's choice of forum should not be disturbed.

Accordingly, it is

ORDERED that Defendant SWAPA's Motion to Dismiss for lack of venue is

denied (Dkt. 24), and Defendants' Motions to Transfer are denied (Dkts. 24, 27).

NE and ORDERED in Chambers, in Tampa, Florida on this

ay"of November, 2011.

rttZ^BETH A. KOVACHEVICH
United States District Judge

Copies to:

All parties and counsel of record

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