Keifer v. Paschall Truck Lines, Inc. et al

Filing 11

ORDER TRANSFERRING VENUE granting 8 Motion to Transfer Case to Eastern District of Kentucky.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2) [Transferred from txsd on 4/24/2015.]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GARY KEIFER,
Plaintiff,
VS.
PASCHALL TRUCK LINES, INC., et al,
Defendants.

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§ CIVIL ACTION NO. 2:15-CV-123
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ORDER TRANSFERRING VENUE
Plaintiff Gary Kiefer (Kiefer), a long-haul truck driver, sued Darrius Barlow
(Barlow), also a truck driver, and Barlow’s employer, Paschall Truck Lines, Inc.
(Paschall), for injuries sustained in an automotive collision in a Flying J parking lot.
Kiefer filed the suit in the 36th Judicial District Court of San Patricio County, Texas.
Defendants removed the case to this Court on March 13, 2015, on the basis of diversity
jurisdiction. On the same day, Defendants filed their “Motion to Transfer Venue to the
Eastern District of Kentucky” (D.E. 8). Defendants seek the transfer of this case to the
court that has geographic jurisdiction that includes the site where the collision occurred.
For the reasons set out below, the Court GRANTS the motion.
STANDARD OF REVIEW
A district court may transfer any civil action for the convenience of parties and
witnesses, in the interest of justice, to any other district or division where it might have
been brought. 28 U.S.C. § 1404(a). The goal of this provision is to “prevent the waste of
time, energy[,] and money and to protect litigants and witnesses, and the public against
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unnecessary inconvenience and expense.” Shoemaker v. Union Pacific R.R. Co., 233 F.
Supp. 2d 828, 829 (E.D. Tex. 2002) (citing Van Dusen v. Barrack, 376 U.S. 612, 616
(1964)). “Thus, while a plaintiff has the privilege of filing his claims in any judicial
division appropriate under the general venue statute, § 1404(a) tempers the effects of the
exercise of this privilege.” In re Volkswagon of America, Inc., 545 F.3d 304, 313 (5th
Cir. 2008).
The threshold determination under § 1404(a) is whether the action originally
might have been brought in the proposed destination venue. In re Volkswagon AG, 371
F.3d 201, 203 (5th Cir. 2004). If the Court determines that the action could have
originally been brought in the proposed destination venue, then it must consider certain
private and public interest factors to determine whether a motion to transfer venue should
be granted. Id. The private interest factors are: (1) the relative ease of access to sources
of proof; (2) the availability of compulsory process to secure the attendance of witnesses;
(3) the cost of attendance for willing witnesses; and (4) all other practical problems that
make trial of a case easy, expeditious, and inexpensive. Id. The public interest factors
are: (1) the administrative difficulties flowing from court congestion; (2) the local interest
in having localized interests decided at home; (3) the familiarity of the forum with the
law that will govern the case; and (4) the avoidance of unnecessary problems of conflict
of laws or in the application of foreign law. Id.
As a preliminary matter, the Court notes that Plaintiff has not filed a response to
the motion. Pursuant to Local Rule 7.3, opposed motions will be submitted to the Judge
21 days from filing. The motion was filed on March 13, 2015, and its submission date
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was April 3, 2015. Despite actual knowledge of the deadline and representations of an
intention to file a response to the motion, Plaintiff has not done so. Pursuant to Local
Rule 7.4, failure to respond is taken as a representation of no opposition to the relief
sought. While not taken as dispositive, the Court includes the failure to respond as a
factor in its analysis.
DISCUSSION
A. Venue is proper in the Eastern District of Kentucky.
The collision occurred in Shelby County, Kentucky. D.E. 8-1. Shelby County is
within the Eastern District of Kentucky. 28 U.S.C. § 97. Therefore, Plaintiff’s claims
could have originally been filed in the Eastern District of Kentucky. 28 U.S.C. § 1391.
That is the “judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred . . . .” § 1391(b)(2). Because the venue to which Defendants
seek transfer is a proper venue, the Court now weighs the private and public interest
factors.
B. Private Interest Factors
1. Relative ease of access to sources of proof
Because the incident took place in Shelby County and was investigated by the
Shelby County Sheriff Department and there is no evidence of any events, records, or
witnesses located in the Southern District of Texas, the Court finds that the relevant
sources of proof are in the Eastern District of Kentucky. It can be argued that “unless the
documents are so voluminous that their transport is a major undertaking, the locations of
books and records is given little weight.” Sarmiento v. Producer's Gin of Waterproof,
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Inc., 439 F. Supp. 2d 725, 732 (S.D. Tex. 2006). Assuming without deciding that the
location of records in Kentucky should be given little weight because they are not
voluminous, Plaintiff by his default has failed to identify any documents available in the
Corpus Christi area that would undercut even the little weight in favor of transfer that
Defendants would be entitled to on this factor.
2. The availability of compulsory process
to secure the attendance of witnesses
The Fifth Circuit has adopted a “100 mile” rule, which provides “when the
distance between an existing venue for trial of a matter and a proposed venue under
§ 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in
direct relationship to the additional distance to be traveled.”

In re Volkswagen of

America, Inc., 545 F.3d at 317 (citing In re Volkswagen I, 371 F.3d 201, 204–205 (5th
Cir. 2004)). “Additional distance means additional travel time; additional travel time
increases the probability for meal and lodging expenses; and additional travel time with
overnight stays increases the time which fact witnesses must be away from their regular
employment.” Id. The Fifth Circuit also recognizes that witnesses may suffer personal
costs associated with being away from family and community. Id.
Neither party has identified any specific witnesses that will need to be called.
However, it is clear that the investigative body resides in Kentucky and witnesses of the
incident in a Kentucky Flying J parking lot are more likely to reside in Kentucky than in
Texas. Defendants state that Kentucky paramedics were involved in the treatment of the
parties at the scene. Defendants further intimate that its corporate witnesses, likely to be
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called, are located in Kentucky where its corporate office is located. Thus the Kentucky
court would more likely have subpoena power to compel attendance of such witnesses.
The Court treats this factor as weighing in favor of transfer.
3. The cost of attendance for willing witnesses
As noted above, the likely investigative and corporate witnesses are located in
Kentucky. Thus this factor weighs in favor of transfer.
4. All other practical problems that
make trial of a case easy, expeditious,
and inexpensive
This case is still in the earliest stages and transfer at this time does not present a
significant loss of effort litigating here. Further, as currently postured, Corpus Christi
lacks any significant connection to the underlying dispute. However, a case should not
be transferred simply to shift the burden of inconvenience from a defendant to a plaintiff.
Salinas v. O'Reilly Automotive, 358 F.Supp.2d 569, 571–72 (N.D. Tex. 2005). Plaintiff
here, by his default, has not offered evidence of any particular burden he would suffer.
Accordingly, this factor is neutral.
C. Public Interest Factors
1. The administrative difficulties flowing
from court congestion
This Court is responsible for almost all of the civil cases filed in the Corpus
Christi Division due to a judicial vacancy which has remained open since 2011. The
Southern District of Texas has three vacancies and two that are considered judicial
emergencies. In contrast, the Eastern District of Kentucky has only one vacancy, the
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vacancy has existed only since 2013, and it has no judicial emergencies.
http://judicialnominations.org/judicial-vacancies. This factor weighs in favor of transfer.
2. The local interest in having localized
interests decided at home
The Southern District of Texas has no meaningful relationship to this case other
than the Plaintiff residing within its geographic boundaries. In contrast, Kentucky has an
interest in conduct on its roadways and the use of its resources to investigate such
incidences. Jury duty is burdensome and should not be imposed on those in a community
without a connection to the litigation. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09
(1947).

Accordingly, this factor weighs heavily in favor of transfer. In re Volkswagen

AG, 371 F.3d 201, 206 (5th Cir. 2004).
3. The familiarity of the forum with the
law that will govern the case
A court in the Eastern District of Kentucky would be just as competent to hear this
type of personal injury claim as a court in the Southern District of Texas. This factor is
neutral.
4. The avoidance of unnecessary problems of
conflict of laws or in the application of foreign law
There is no evidence that this case presents any conflicts of laws or foreign law
issues. Thus this factor is neutral.
CONCLUSION
As a whole, the factors to be considered in determining whether a transfer of
venue is proper weigh in favor of transfer. For the reasons set out above, Defendants’
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Motion to Transfer Venue is GRANTED. The Court ORDERS this case transferred to
the Eastern District of Kentucky.

ORDERED this 24th day of April, 2015.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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