Cormier v. Blue Marlin Support Services, LLC et al

Filing 27

ORDER & REASONS: ORDERED that Defendants' Motion to Transfer Venue (Rec. Doc. 18 ) is hereby GRANTED. Case transferred to the Western District of Louisiana for further disposition. Signed by Judge Carl Barbier on 7/23/12.(sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM L. CORMIER

CIVIL ACTION

VERSUS

NO: 11-3170

BLUE MARLIN SUPPORT SERVICES,
LLC, ET AL.

SECTION: J(3)

ORDER AND REASONS
This matter is before the Court on a Motion to Transfer
Venue (Rec. Doc. 18) filed by Defendants Cal Dive Offshore
Contractors, Inc., and Cal Dive HR Services, LLC.

Plaintiff

William Cormier has filed a Memorandum in Opposition to the
motion (Rec. Doc. 20), to which Defendants have replied (Rec.
Doc. 26).

Having considered the parties’ arguments, the record,

and the applicable law, the Court hereby GRANTS the motion, for
the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This motion arises out of a personal injury lawsuit filed
under the Jones Act and general maritime law by Plaintiff William
Cormier.

Plaintiff alleges that he sustained injuries when he

slipped and fell while working as a cook on board a vessel, the
M/V BRAVE, while it was docked in Port Arthur, Texas on April 26,
2011.

Named as Defendants in his complaint are Blue Marlin
1

Services of Acadiana, LLC (“Blue Marlin”), Cal Dive
International, Inc., and three of Cal Dive’s apparent
subsidiaries – Cal Dive HR Services, LLC and Cal Dive Offshore
Contractors, Inc., and CDI Vessel Holdings LLC (collectively,
“Cal Dive”) – each of which are alleged to be Plaintiff’s Jones
Act employer and the owner, owner pro hac vice, and/or the
operator of the M/V BRAVE.1

After answering Plaintiff’s second

amended complaint, Cal Dive now moves to transfer venue pursuant
to 28 U.S.C. § 1404.
LEGAL STANDARD
A district court may transfer an action to any other
district where the plaintiff could have originally filed suit
“for the convenience of the parties and the witnesses” when such
a transfer is “in the interest of justice.”

28 U.S.C. § 1404(a).

Although a plaintiff’s choice of forum is clearly important, that
choice is “neither conclusive nor determinative.”

In re

Horseshoe Entm’t, 337 F.3d 429, 434-35 (5th Cir. 2003).

A

defendant seeking a transfer of venue must demonstrate that the
plaintiff could have originally brought the action in the
transferee court.

In re Volkswagen AG, 371 F.3d 201, 203 (5th

Cir. 2004) (“Volkswagen I”) (“In applying the provisions of §

1

Another company, Helix Energy Solutions Group, Inc., was
also named as a defendant in Plaintiff’s original complaint but
was subsequently voluntarily dismissed from this action. Rec.
Doc. 16.
2

1404(a), we have suggested that the first determination to be
made is whether the judicial district to which transfer is sought
would have been a district in which the claim could have been
filed.”).

After this initial showing has been made, the

defendant must then demonstrate “good cause” why the case should
be transferred.

See In re Volkswagen of Am., Inc., 545 F.3d 304,

315 (5th Cir. 2008) (“Volkswagen II”).

A defendant can carry

this burden by showing, through the private and public interest
factors enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 505,
508 (1947), that the transferee district is a more convenient
venue.

Volkswagen II, 545 F.3d at 315.

The private interest factors a court should consider
include:

(1) “the relative ease of access to sources of proof;”

(2) availability of witnesses; (3) possibility of view of
premises, if view would be appropriate to the action;” and (4)
“all other practical problems that make trial of a case easy,
expeditious and inexpensive.”

Volkswagen I, 371 F.3d at 203

(citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981).
The relevant public interest factors are:

(1) the administrative

difficulties created by court congestion; (2) the interest in
having localized controversies decided at home; (3) the interest
in having the trial of a diversity case in a forum that is at
home with the state law that must govern the case; (4) the
unfairness of burdening citizens in an unrelated forum with jury

3

duty; and (5) the interest in avoiding unnecessary problems in
conflict of laws, or in the application of foreign law.

Id.

The

above-listed factors are not necessarily exhaustive or exclusive,
and none should be given dispositive weight. Volkswagen II, 545
F.3d at 315 (citing Action Indus., Inc. v. U.S. Fid. & Guar.
Corp., 358 F.3d 337, 340 (5th Cir. 2004)).

Furthermore, unless

the balance of factors strongly favors the moving party, the
plaintiff’s choice of forum should not be disturbed.

Peteet v.

Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989).
DISCUSSION
A.

Could Plaintiff Have Brought This Action in the Western
District of Louisiana?

As a preliminary matter, the Court must first determine
whether Plaintiff could have originally brought this action in
the United States District Court for the Western District of
Louisiana.

Although Plaintiff is suing under the Jones Act, 46

U.S.C. § 688, he does not invoke federal question jurisdiction.
Instead, he has designated this matter as falling exclusively
within the admiralty and maritime jurisdiction of this Court
pursuant to Supplemental Rule 9(h) of the Federal Rules of Civil
Procedure.2

As a result, the venue provisions of the Jones Act

do not apply, and the Court must look instead to the law
governing venue in admiralty cases.

2

See Shull v. United Barge

See Amended Complaint, Rec. Doc. 4, p. 1.
4

Lines, No. 09-5515, 2010 WL 745006, at *5 (E.D. La. Feb. 26,
2010); Richoux v. R & G Shrimp Co., 126 F. Supp. 2d 1007, 1009
n.1 (S.D. Tex. 2000) (“The venue provisions of the Jones Act . .
. do not apply to cases brought on the admiralty side of federal
court.”).3
In an admiralty case, venue is proper in any court with
personal jurisdiction over the defendant.

See In re

McDonnell-Douglas Corp., 647 F.2d 515, 516 (5th Cir. 1981)
(“[T]he general admiralty practice prevails, in which venue and
personal jurisdiction analyses merge.”) (citation and quotation
omitted).

For an in personam action, venue is proper anywhere

valid service could have been made on the defendant.

Id.

(“Hence, a court sitting in admiralty has personal jurisdiction
over any defendant sued in personam whom the court can reach with
process.”) (quoting H & F Barge, Inc. v. Garber Bros., Inc., 65
F.R.D. 399, 404 (E.D. La. 1974)).

Here, it appears that this

suit could have been filed in the Western District of Louisiana,
as the Cal Dive seemingly concedes that it is subject to personal
jurisdiction in the Western District of Louisiana, and Defendant
Blue Marlin is similarly organized under Louisiana law and based
in Lafayette, Louisiana.4

Accordingly, the Court now turns to

3

Under the Jones Act, venue is proper “in the district in
which the defendant employer resides or in which his principal
office is located.” 46 U.S.C. § 688.
4

See Rec. Doc. 18-2, p. 6; Rec. Doc. 18-3; Rec. Doc. 18-4.
5

the second step of the § 1404(a) analysis, as guided by the
Gilbert factors.
B.

Application of the Gilbert Factors

Applying the Gilbert factors to the facts of the instant
case, the Court is persuaded that transfer of this matter to the
Western District of Louisiana is warranted, for the reasons
stated below.
1.

The Private Interest Factors:

(a) Situs of Material Events
The accident giving rise to this case occurred on board a
vessel stationed at Port Arthur, Texas, which is within the
Eastern District of Texas.

Although the situs of the alleged

wrong is not within the Western District, it is nonetheless
geographically closer to the Western District of Louisiana than
the Eastern District.
transfer.

The Court finds this factor supports

See Campbell v. Dynamic Cranes, L.L.C., No. 05-241,

2005 WL 2562091, at *3 (S.D. Tex. Oct. 6, 2005) (noting that
although the plaintiff was not actually injured in the Western
District of Louisiana, he was injured “closer to the Western
District of Louisiana,” than to the Southern District of Texas,
and thus finding this factor to weigh in favor of transfer to the
Western District of Louisiana).
(b) Convenience of Witnesses
The convenience of the venue for non-party witnesses is one
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of the most important factors in the § 1404(a) calculus.

See

R.T. Casey, Inc. v. Cordova Tel. Coop., Inc., No. 11-2794, 2012
WL 1188796, at *4 (E.D. La. Apr. 9, 2012).

Here, significantly,

the majority of the non-party fact witnesses appear to reside
within the Western District, rather than the Eastern District.
Cal Dive has specifically produced the names and addresses of
approximately 20 of the individuals present on the M/V BRAVE on
the date of Plaintiff’s alleged accident.

Each of these

potential witnesses reside in or near the Western District of
Louisiana.5

Similarly, the majority of the medical professionals

who treated Plaintiff following his accident reside in the
Western District.6

See Marquette Transp. Co. v. Trinity Marine

Prods., Inc., No. 06-0826, 2006 WL 2349461, at *6 (E.D. La. Aug.
11, 2006) (granting motion to transfer venue where the transferee
district was closer “for a number of potential witnesses”);
Roulston v. Yazoo River Towing, Inc., No. 03-2791, 2004 WL
1687232, at *3 (E.D. La. July 26, 2004) (convenience of witness
factor weighed in favor of transfer where most of the crew
members who may have witnessed accident were domiciled in

5

However, the Court gives the convenience of these
witnesses slightly less weight than it otherwise would on account
of their status as Cal Dive employees. See Gregoire v. Delmar
Sys., Inc., No. 05-2812, 2005 WL 3541051, at *2 (E.D. La. Dec. 5,
2005).
6

See Rec. Doc. 18-7, pp. 2-3 (listing names and addresses
of physicians providing treatment following accident).
7

proposed transferee district); Roadway Exp., Inc. v. Nat’l
Freight, Inc., No. 99-450, 1999 WL 350100, at *2 (E.D. La. May
27, 1999) (finding that transfer was warranted where the
witnesses to the accident were located closer to transferee
district).

The costs of obtaining the attendance of these

witnesses for trial can be alleviated if this matter is litigated
in the Western District, and thus this factor militates in favor
of transfer.7
(c) Convenience of the Parties
In evaluating whether a transfer of venue is warranted, a
district court should also consider the convenience to the
litigants themselves.

See Preis, Kraft & Roy v. Dallas Fire Ins.

Co., No. 05-00953, 2006 WL 1793649, at *9 (W.D. La. June 15,

7

It is true, as Plaintiff points out, that a few other
witnesses – including his treating physician, expert economist,
and vocational rehabilitation expert – reside in the Eastern
District of Louisiana. Even so, the number of witnesses residing
in the Western District far outnumber the few residing here. See
Wireless Recognition Techs. LLC v. A9.com, Inc., No. 10-364, 2012
WL 506669, at *5 (E.D. Tex. Feb. 15, 2012) (convenience of
witness factor weighed in favor of transfer where “the number of
witnesses residing in Texas, and any relevant information which
they may provide, pale[d] in comparison to the number of party
and non-party witnesses with relevant information residing in
[the proposed transferee district]”). Furthermore, there is at
least some authority suggesting that the “witness convenience
factor” should only be applied to fact witnesses, and not expert
witnesses. See McDonough Marine Serv. v. Royal Ins. Co., No. 003134, 2001 WL 576190, at *5 (E.D. La. May 25, 2001); Trestman v.
Microstrategy, Inc., No. 01-0685, 2001 WL 1471707, at *6 (E.D.
La. Nov. 15, 2001); Promuto v. Waste Mgmt., Inc., 44 F. Supp. 2d
628, 639-40 (S.D.N.Y. 1999) (noting that “the convenience of
expert witnesses is entitled to little weight, if any”).
8

2006) (noting that convenience of the parties is one of the most
important factors in the § 1404(a) analysis).

Here, each of the

parties to this action are residents of the Western District of
Louisiana, rather than the Eastern District:

Plaintiff is a

resident of Iberia Parish,8 which is located within the Western
District, and both Cal Dive International, Inc., and Blue Marlin
similarly maintain their principal business offices in the state
of Louisiana within the Western District.9

Litigating this

matter in the Western District would thus appear to be easily
more convenient for each of the litigants.
(d) Relative Ease of Access to Sources of Proof
Because Defendants’ primary business establishment within
the state are located in the Western District, the majority of
the relevant business or employment records related to
Plaintiff’s accident can be more readily accessed with fewer
costs and less business interruption if this matter proceeds in
the Western District of Louisiana.

The Court therefore finds

that this factor also weighs in favor of transfer.

See

Volkswagen II, 545 F.3d at 316 (location of documents and

8

Complaint, Rec. Doc. 1.

9

Blue Marlin is a Louisiana limited liability company
based in Lafayette, Louisiana. Rec. Doc. 18-3. Cal Dive,
International, Inc. is a Delaware corporation with its principal
business establishment in Louisiana in New Iberia. Rec. Doc. 184; see also Louisiana Secretary of State Corporations Database,
available at http://www.sos.la.gov/tabid/819/default.aspx (last
visited July 17, 2012).
9

physical evidence relating to an accident weigh in favor of
transferring venue); see also BLB Aviation S.C. LLC v. Jet Linx
Aviation Corp., No. 09-66, 2010 WL 370342, at *4 (M.D. La. Jan.
29, 2010) (noting that where one party “is in possession of more
of the information relevant to the issues” in the case, the ease
of access to sources of proof factor favors transfer to the
location of that party).
(e) Delay or Prejudice
When “the action is still in the early stages of litigation,
any delay resulting in the transfer to the proper forum should
not prejudice either party.”

Peters v. Milton Hall Surgical

Assocs., No. 03-1254, 2003 WL 22174274, at * 2 (E.D. La. Sept.11,
2003).

Here, this case is only in the preliminary stages of the

litigation, and no trial date has been set or scheduling order
entered. Accordingly, there is little chance of delay or
prejudice to either party if this matter is transferred, and this
factor carries essentially no weight in the Court’s analysis.
(f) Plaintiff’s Choice of Forum
Finally, the Court gives some consideration to the fact that
the Eastern District of Louisiana is Plaintiff’s chosen forum.
However, the Court gives this choice substantially less weight in
this case, in light of the clear showing by Cal Dive that the
Western District is a more convenient forum for this matter to be
litigated.

Furthermore, courts afford less deference to the
10

presumption favoring the plaintiff’s choice of forum if the
plaintiff is not a resident of the district in which he filed
suit and where the forum district has no particular connection to
the underlying cause of action.

Roulston, 2004 WL 1687232, at

*2; Allen v. Ergon Marine & Indus. Supply, Inc., No. 08-4184,
2008 WL 4809476, at *4 (E.D. La. Oct. 31, 2008).

Here, aside

from the fact that suit was filed here, the Eastern District has
little connection to the facts of this case.

Accordingly, this

factor leans only marginally in favor of retaining venue in the
Eastern District.
2.

The Public Interest Factors:

(a) Administrative Difficulties Due to Court Congestion
Although Court congestion may be a relevant consideration in
deciding a motion to transfer, neither party has indicated that
this factor bears any significance under the facts of this case.
Accordingly, the Court gives it little consideration here.
(b) The Relationship of the Controversy to the Forum
Courts have recognized that “the local interest in deciding
local issues at home favors transfer to a venue that will
vindicate such an interest.”
n.6.

Piper Aircraft, 454 U.S. at 241

Here, Plaintiff’s accident is alleged to have occurred in

Port Arthur, Texas, within the Eastern District of Texas.

This

would seem to suggest that neither the Eastern nor the Western
District of Louisiana has a strong local interest in the
11

resolution of this controversy.

However, as previously

mentioned, Defendants’ principal business operations in this
state are based in the Western District, where Plaintiff is
domiciled.

Comparatively speaking, the Western District has a

stronger interest in the resolution of disputes between its
residents than this Court does.

See Miller v. JanTran, Inc., No.

11-2544, 2012 WL 2088650, at *5 (E.D. La. June 8, 2012) (local
interest factor strongly favored transfer to Northern District of
Mississippi where none of the parties resided within the Eastern
District and defendant company had its principal place of
business within transferee district).

Accordingly, this factor

militates in favor of transfer.
(c) Choice of Law Issues
As previously noted, Plaintiff’s claims arise under the
Jones Act and maritime law.

As a result, the same law applies

regardless of which district court applies it.

Because the

Western District of Louisiana is equally competent to evaluate
the merits of Plaintiff’s claims as this or any other federal
district court, this factor is neutral.
CONCLUSION
In sum, the Court finds that the majority of the private
interest factors – access to sources of proof, the convenience of
witnesses and the parties, and other issues that would make trial
of this matter easy, expeditious, and inexpensive – all point to
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the Western District as the better venue choice.

The public

interest factors are either neutral or weigh similarly in favor
of transfer.

Accordingly, for these reasons, IT IS ORDERED that

Defendants’ Motion to Transfer Venue (Rec. Doc. 18) is hereby
GRANTED, and this matter is transferred to the Western District
of Louisiana for further disposition.
New Orleans, Louisiana this 23rd day of July, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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