Broussard v. First Tower Loan, LLC

Filing 77

ORDER & REASONS: denying 52 Motion to Dismiss or, Alternatively, to Transfer Venue; denying as moot 75 Motion for Leave to File Reply Memorandum. Signed by Judge Carl Barbier on 10/1/15. (Reference: all cases)(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TRISTAN BROUSSARD

CIVIL ACTION

VERSUS

NO: 15-1161

FIRST TOWER LOAN, LLC

SECTION: “J” (4)

ORDER AND REASONS
Before the Court is a Motion to Dismiss for Improper Venue
or, Alternatively, to Transfer Venue (Rec. Doc. 52) filed by
Defendant, First Tower Loan, LLC (“Tower”) and two oppositions
thereto (Rec. Doc. 67; Rec. Doc. 74) filed by Plaintiff, Tristan
Broussard

(“Broussard”),

Opportunity

Commission

and

Intervenor,

(“EEOC”).

Having

the

Equal

considered

Employment
the

motion

and legal memoranda, the record, and the applicable law, the
Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This

litigation

derives

from

Broussard’s

employment

with

Tower and subsequent termination. Broussard is twenty-one years
old and a resident of Lake Charles, Louisiana. (Rec. Doc. 1 at
2.) In February 2013, Tower offered Broussard a job as a Manager
Trainee in its Lake Charles office. Id. at 1. Broussard is a
transgender man, meaning that he outwardly appears to be male
and his gender identity is male. Id. at 4. However, his birth

1

sex is female. Id. at 4. As Broussard completed paperwork for
his employment with Tower, his supervisor, Leah Sparks, noticed
that his driver’s license listed his sex as female. Id. at 5.
On March 11, 2013, Tower Loan Vice President David Morgan
visited the Lake Charles office. Id. at 6. Morgan gave Broussard
a copy of the company’s female dress code and informed Broussard
that he must dress as a female because he was born female. Id.
Morgan also presented Broussard with a written statement and
told him that he must sign the statement or lose his job. Id. at
7. The statement said that Broussard’s “preference to act and
dress

as

personnel

male”

was

not

policies.”

Id.

“in

compliance

Broussard

with

refused

Tower
to

Loan’s

sign

the

agreement, and Tower subsequently terminated his employment. Id.
Broussard filed a discrimination claim with the EEOC on
August 27, 2013. Id. at 8. The EEOC determined that Broussard’s
claim was meritorious and issued a Notice of Right to Sue on
January 20, 2015. Id. at 8-9. Broussard filed the instant action
on April 13, 2015. Meanwhile, Tower filed suit against Broussard
in Mississippi state court. Broussard removed Tower’s suit to
the United States District Court for the Southern District of
Mississippi.

Upon

Broussard’s

motion,

the

federal

court

transferred Tower’s suit to this Court, which consolidated it
with Broussard’s case. (Rec. Doc. 36.)

2

The EEOC filed a Notice of Intent to Intervene on September
1, 2015. (Rec. Doc. 51.) The next day, Tower Loan filed the
instant Motion to Dismiss for Improper Venue or Alternatively,
to Transfer Venue. (Rec. Doc. 52.) Broussard filed opposition to
this motion on September 15. (Rec. Doc. 67.) This Court granted
the EEOC’s Motion to Intervene on September 16, and the EEOC
filed opposition to Tower’s motion on September 29. (Rec. Docs.
70, 79). Subsequently, Tower filed a Motion for Leave to File
Reply Memorandum. (Rec. Doc. 75.)
PARTIES’ ARGUMENTS
Tower challenges venue in this Court on two bases. First,
Tower

argues

claimant

to

that

Title

bring

suit

VII’s
in

the

venue

provisions

district

where

require
the

the

unlawful

employment action occurred. Second, even if venue is proper in
the Eastern District under Title VII, Tower argues that this
Court

should

transfer

the

case

to

the

Western

District

of

Louisiana, which encompasses Lake Charles, because it is a more
appropriate venue.
Broussard first argues that the statutory language of Title
VII

clearly

district

in

provides
the

that

state

a

where

claimant
the

can

unlawful

bring

suit

employment

in

any

action

occurred. Second, he argues that Tower failed to demonstrate
that

transfer

is

warranted

and

3

that

the

multi-factor

test

articulated by the Fifth Circuit supports the maintenance of his
suit in this Court.
In its opposition, the EEOC joins and adopts Broussard’s
opposition. Further, it argues that the plain language of Title
VII provides for venue in the Eastern District in this case. The
EEOC

also

asserts

demonstrating

that

that
a

Tower

transfer

has
is

not

met

warranted.

its
As

burden

part

of

of
this

argument, the EEOC emphasizes the importance of the plaintiff’s
venue selection in Title VII cases. Like Broussard, the EEOC
also

asserts

that

the

multi-factor

test

does

not

support

transfer to the Western District.
LEGAL STANDARD
Congress has adopted special venue provisions for Title VII
cases. In re Horseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003)
(“Horseshoe II”).

Specifically,

[A Title VII action] may be brought [1] in any
judicial district in the State in which the unlawful
employment practice is alleged to have been committed,
[2] in the judicial district in which the employment
records
relevant to such practice are maintained and
administered, or [3] in the judicial district in which
the aggrieved person would have worked but for the
alleged unlawful employment practice, but [4] if the
respondent is not found within any such district, such
an action may be brought within the judicial district
in which the respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3) (bracketed numbers added). When venue
is challenged, the plaintiff has the burden of proving that the

4

chosen

venue

was

proper.

Smith

v.

Fortenberry,

903

F.

Supp.

1018, 1020 (E.D. La. 1995).
Even when the plaintiff files suit in a proper venue, the
district court may transfer a civil action to any other district
where

it

might

have

been

brought

“[f]or

the

convenience

of

parties and witnesses, in the interest of justice.” 28 U.S.C. §
1404(a).

The

movant

has

the

burden

of

showing

that

an

alternative forum is more appropriate for the action. See In re
Volkswagen

of

Am.,

Inc.,

545

F.3d

304,

315

(5th

Cir.

2008)

(“Volkswagen II”). “The plaintiff's privilege to choose, or not
to

be

ousted

from,

his

chosen

forum

is

highly

esteemed.”

Carpenter v. Parker Drilling Offshore USA, Inc., No. 05-265,
2005 WL 1432373, at *1 (E.D. La. June 16, 2005). Therefore, to
overcome the plaintiff’s choice of venue, the movant must show
“good cause” for the transfer. Volkswagen II, 545 F.3d at 315.
Good cause for the transfer exists when the transferee venue is
clearly more convenient than the plaintiff’s chosen venue. Id.
In such a case, the court should grant the motion to transfer.
Id.
When

deciding

a

motion

to

transfer,

the

Fifth

Circuit

considers private and public interest factors first articulated
by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501
(1947). Id. The private interest factors are: “(1) the relative
ease of access to sources of proof; (2) the availability of
5

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. (quoting In re Volkswagen AG, 371 F.3d
201, 203 (5th Cir. 2004) (“Volkswagen I”)). 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. (brackets in original). None of the factors
are entitled to dispositive weight. Id.
DISCUSSION
A. Whether Plaintiff Filed Suit in a Proper Venue
This Court finds that the Eastern District of Louisiana is a
proper

venue

for

Broussard’s

considerations:

(1)

provision,

congressional

(2)

the

plain

action

language
intent,

of

and

based

on

three

Title

VII’s

venue

(3)

precedent

from

other district courts in the Fifth Circuit.
First, Title VII clearly states that venue is proper in any
district

in

the

state

where

the

alleged

unlawful

employment

actions occurred. 42 U.S.C. § 2000e-5(f)(3). When interpreting a
statute, courts will primarily consider the plain meaning of the
words used. Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54
6

(1992). When the words are unambiguous, the court must apply the
statute as written. Id. at 255. Courts should give words their
ordinary, plain meaning and should not construe a statute to
render

any

clause,

insignificant.

sentence,

Corley

v.

or

United

word

superfluous,

States,

556

U.S.

void,
303,

or
314

(2009).
Here,

Title

VII

unambiguously

provides

for

venue

in

any

district court in Louisiana. The alleged discrimination based on
sex took place in Tower’s Lake Charles office. (Rec. Doc. 1 at
6-7.)

Thus,

by

the

plain

language

of

the

statute,

venue

is

proper in any district court in Louisiana, including this Court.
To decide otherwise would be to read out the words “any” and “in
the State” from the statute.
Second, legislative history sheds light on Congress’s intent
to allow venue anywhere in the state where the unlawful acts
occurred. The original version of the bill introduced in the
House provided for venue in “the judicial district in which the
unlawful employment practice is alleged to have been committed”
or “in the judicial district in which the respondent has his
principal

office.”

110

Cong.

Rec.

2511

(1964).

The

Senate

altered this language to provide for venue in “any district in
the State where the practice occurred.” 110 Cong. Rec. 12,723
(1964). This change reflects a deliberate choice by the Senate
to expand the plaintiff’s venue options.
7

Third,

the

majority

of

the

district

courts

in

the

Fifth

Circuit have held that venue is proper in any district in the
state where the unlawful employment actions occurred. See, e.g.,
Wallace v. Bd. of Supervisors for the Univ. of La. Sys., No. 14657, 2015 WL 1970514, at *2 (M.D. La. Apr. 30, 2015); Coleman v.
Trican Well Serv., L.P., 2015 WL 865153, at *2 (W.D. Tex. Feb.
27, 2015); Davidson v. Weyerhaeuser Corp., No. 11-0636, 2011 WL
5402362,

at

*2-3

(W.D.

La.

Oct.

4,

2011);

Equal

Emp’t

Opportunity Comm’n v. Parish Water Work’s Co., 415 F. Supp. 124,
125 (E.D. La. 1976).
The Fifth Circuit has yet to decide the scope of Title VII’s
venue provision. See Horseshoe II, 337 F.3d at 430 (withdrawing
previous decision, which held that venue in Title VII cases was
proper

only

occurred,

in

Circuit

not
and

the

district

anywhere
Ninth

in

Circuit

where

the

the

state).

have

employment
However,

supported

a

practices

the

more

Eleventh
expansive

reading of the statute, in line with the district court cases
cited above. Passantino v. Johnson & Johnson Consumer Prods.,
Inc.,

212

Cellulose

F.3d

493,

504

(9th

Cir.

Corp.,

980

F.2d

648,

654

2000);
n.

11

Ross
(11th

v.
Cir.

Buckeye
1993);

Richardson v. Ala. State Bd. of Ed., 935 F.2d 1240, 1248 (11th
Cir. 1991). In lieu of binding Fifth Circuit precedent, this
Court finds the decisions of these Circuit Courts persuasive.

8

Thus, the Eastern District of Louisiana is a proper venue for
Broussard’s

suit.

Tower’s

arguments

for

dismissal

are

unavailing. 1
B. Whether the Court Should Transfer to a More Appropriate Venue
Even when the plaintiff files suit in a proper venue, the
court

may

exercise

its

discretion

to

transfer

the

case

to

another district or division where the action might have been
brought “[f]or the convenience of the parties and witnesses, in
the interest of justice.” 28 U.S.C. § 1404(a); Norman v. H&E
Equip. Servs., Inc., 2015 WL 1281989, at *5 (M.D. La. Mar. 20,
2015).

As

mentioned

demonstrating

that

above,
the

the

movant

transferee

has

venue

is

the

burden

clearly

of
more

convenient than the venue chosen by the plaintiff. Volkswagen
II, 545 F.3d at 315. In determining whether to transfer the
case, the court will consider a number of private and public
interest factors.
A. District Where the Action Might Have Been Brought
As a threshold question, the Court must determine whether the
Western District of Louisiana is a district “where the action
might have been brought.” Title VII clearly provides for venue
in the Western District because (1) it is a judicial district in
1

To the extent that the Court’s decision is inconsistent with EEOC v. Noble

Drilling, No. 04-1683, 2004 WL 2700289 (E.D. La. Nov. 19, 2004), that case is
disavowed.

9

the state where the unlawful employment practices are alleged to
have been committed and (2) it is a judicial district in which
Broussard would have worked but for the unlawful practices. See
42

U.S.C.

§

2000e-5(f)(3).

Because

Broussard

could

have

originally filed suit in the Western District, the preliminary
inquiry is satisfied.
B. Private Interest Factors
As mentioned above, 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.” Volkswagen II, 545 F.3d at 315.
Each will be discussed in turn.
(1)

Access to Proof

When analyzing the first factor, courts consider the distance
between

the

current

location

of

the

evidence

and

the

trial

venue. MTG Gaming, Inc. v. WMS Gaming, Inc., 978 F. Supp. 2d
647, 668 (S.D. Miss. 2013). This analysis turns on “which party
will most probably have the greater volume of documents relevant
to the litigation and their presumed location in relation to the
transferee

and

transferor

venues.”

Id.

Typically,

documents

concerning corporate parties are located at the corporation’s

10

headquarters. Id. at 669 (citing In re Acer Am. Corp., 626 F.3d
1252, 1256 (Fed. Cir. 2010)).
In

this

case,

possession.

In

the

relevant

its

motion,

documents
Tower

are

mentioned

in

Tower’s

Broussard’s

employment file as a piece of relevant documentary evidence.
(Rec.

Doc.

52-1

headquarters

in

at

6.)

The

Flowood,

file

is

located

Mississippi.

(Rec.

at

Tower’s

Doc.

52-3.)

According to Google Maps, the Flowood headquarters is 189 miles
from

the

Eastern

District,

while

it

is

278

miles

from

the

Western District. (Rec. Docs. 67-3, 67-4.) Tower failed to show
the

existence

of

any

documentary

evidence

located

in

Lake

Charles. Thus, it cannot show that venue in the Western District
would

facilitate

the

access

to

proof.

This

factor

supports

maintaining suit in the Eastern District.
(2)

Compulsory Process

The second factor favors a transfer when the transferee venue
would have “absolute subpoena power,” or subpoena power for both
depositions

and

trial.

MGT

Gaming,

978

F.

Supp.

2d

at

671.

However, subpoena power is not an important consideration when
the

only

witnesses

are

party

witnesses.

Tegrity

Contractors,

Inc. v. Spectra Grp., Inc., No. 12-2555, 2013 WL 654924, at *5
(E.D.

La.

Feb.

21,

2013).

Under

the

Federal

Rules

of

Civil

Procedure, a subpoena may command a person to attend a trial or
deposition

within

100

miles

of
11

where

the

person

resides,

is

employed, or regularly transacts business in person. Fed. R.
Civ.

P.

45(c)(1)(A).

A

party

or

a

party’s

officer

can

be

compelled to attend a trial or deposition anywhere in the state
where he resides, is employed, or regularly transacts business
in person. Fed. R. Civ. P. 45(c)(1)(B)(i). Thus, a corporate
party’s employees can be compelled to testify at a trial or
deposition anywhere in the state. Tegrity Contractors, 2013 WL
654924, at *5.
Here, Tower has not identified any nonparty witnesses. Its
motion mentions as potential witnesses Broussard’s supervisor,
Leah Sparks, and Broussard’s co-workers, all of whom are Tower
employees who work at the Lake Charles office. This Court has
absolute subpoena power over these employees because they are
party officers who are employed within the state of Louisiana.
The motion generally states that most witnesses are located in
Lake Charles, but it does not identify any witnesses who are not
employees

of

a

party.

Thus,

the

availability

of

compulsory

process is not an important factor in the transfer of venue
analysis.
(3)

Cost of Attendance

The cost of attendance for willing witnesses is an important
factor

in

Recycling
1303136,

determining
Servs.,
*6

(E.D.

whether

Inc.
La.

v.

to

transfer

Dunavant,

March

31,
12

No.

2011).

venue.

Modern

10-3153;
While

the

Am.

2011

WL

cost

of

attendance for party witnesses can be considered, the cost of
attendance for nonparty witnesses is entitled to greater weight.
MGT Gaming, 978 F. Supp. 2d at 671; Remmers v. United States,
No. 09-345, 2009 WL 3617597, at *5 (E.D. Tex. Oct. 28, 2009);
Minka Lighting, Inc. v. Trans Globe Imports, Inc., No. 02-2538,
2003 WL 21251684, *2 (N.D. Tex. May 23, 2003). When the distance
between the existing venue and proposed transferee venue is more
than 100 miles, the inconvenience to the witnesses increases in
direct proportion to the additional distance to be traveled.
Volkswagen II, 545 F.3d at 317.
The moving party must “specifically identify the key witnesses
and

outline

the

substance

of

their

testimony.”

Tegrity

Contractors, 2013 WL 654924, at *4; Modern Am. Recycling, 2011
WL 1303136, *6; Cypress Drilling, Inc. v. Griffin, No. 06-0556,
2006 WL 2177992, at *2 (W.D. La. July 31, 2006); Caraljo Music,
Inc. v. Malaco, Inc., No. 87-3599, 1988 WL 32943, at *2 (E.D.
La.

Apr.

Corp.,

5,

520

1988);

F.

Supp.

Southern
212,

Inv’rs

218

(M.D.

II
La.

v.

Commuter

1981);

see

Aircraft
also

15

Wright, Miller & Cooper § 3851, at 425. When the movant fails to
make this showing, the court should deny the motion to transfer.
Caraljo Music, Inc., 1988 WL 32943, at *2 (“Witnesses have not
been identified; their location is unknown; and the areas of
testimony are not provided. Thus, [the movant] has failed to
carry its burden.”); 15 Wright, Miller & Cooper § 3851, at 425.
13

As

discussed

above,

Tower

failed

to

identify

any

nonparty

witnesses who would be inconvenienced by trial in the Eastern
District. In addition, Tower failed to list the key witnesses
and

the

substance

generally

that

of

“[t]he

their
costs

testimony.
for

willing

Instead,

it

stated

witnesses

from

Lake

Charles to attend proceedings in Lake Charles would be minimal,
but costs for their travel 205 miles to New Orleans would be
significant.”
sufficient

(Rec.

Doc.

meet

the

to

52-1

at

movant’s

6.)

This

burden.

allegation
Thus,

is

this

not

factor

supports maintaining venue in the Eastern District.
(4)

Practical Problems

In this case, the fourth factor is not important. The case is
still “still in its infancy stage.” See Tegrity Contractors,
2013 WL 654924, at *6. The parties have not begun conducting
discovery, and the pre-trial conference and trial dates have not
been set. Thus, neither party would be prejudiced by a transfer
to

the

Western

transfer
offer

would

any

District.
delay

proof.

Broussard

adjudication

Tower

Loan

has

of
the

alleges
his

generally

claim

burden

of

but

does

showing

that
not
that

transfer would result in a more efficient trial, but it failed
to

allege

that

transfer

would

affect

Thus, this factor is neutral.

14

the

litigation

at

all.

C. Public Interest Factors
The

public

difficulties

interest

flowing

factors

from

court

are:

“(1)

the

congestion;

administrative
(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.” Volkswagen II, 545
F.3d at 315 (brackets in original). In this case, the parties
have not raised issues of conflict of laws or familiarity of the
courts with the relevant law. Thus, the only relevant factors
are congestion and local interest.
(1)

Congestion

As part of the transfer analysis, courts will consider the
time between the filing of a suit and trial. In re Genentech,
566 F.3d 1338, 1347 (Fed. Cir. 2009). However, this factor is
not entitled to much weight because it is the most speculative,
and this factor alone should not outweigh other factors. Id.;
Versata Software, Inc. v. Internet Brands, Inc., No. 08-313,
2009 WL 3161370 at *4 (E.D. Tex. Sept. 30, 2009).
Tower did not allege that the Western District would provide a
faster route to trial. However, Broussard cited statistics from
the federal district courts showing that the Western District
may be more congested than the Eastern District. (Rec. Doc. 67,
at 14.) For example, cases in the Western District take a median
15

of

twenty-seven

months

to

reach

trial,

while

cases

in

the

Eastern District take a median of fifteen months. Id. Tower Loan
did not carry its burden of showing that venue in the Western
District
factor

would

weighs

result
in

in

favor

a

of

faster

adjudication.

maintaining

venue

in

Thus,
the

this

Eastern

District.
(2)

Local Interest

Tower alleges that venue is more appropriate in the Western
District because Lake Charles has a local interest in deciding
the case. (Rec. Doc. 52-1 at 6.) However, it does not explain
how this case is of interest only to Lake Charles. See id.
Instead,
simply

it

suggests

because

the

that

Lake

events

Charles

alleged

in

has
the

a

local

interest

complaint

occurred

there. See id.
Tower’s argument ignores the fact that multiple districts can
have a local interest in a case. See Wallace, 2015 WL 1970514,
at

*7.

Particularized

local

interests

are

entitled

to

more

weight than local interests that “could apply virtually to any
judicial

district

or

division

in

the

United

States.”

See

Volkswagen II, 545 F.3d at 318. The EEOC determined that this
case raises issues of “general public importance.” (Rec. Doc.
59-2.) This designation suggests that the issues raised in this
case

are

important

to

the

public

at

large,

not

only

the

residents of Lake Charles. Thus, Tower failed to show that this
16

case involves an interest localized to Lake Charles. For that
reason, this factor supports maintaining venue in the Eastern
District.
Tower failed to show that the private and public interest
factors weigh in favor of a transfer to the Western District.
Thus, the case will remain in the Eastern District.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss or,
Alternatively, to Transfer Venue (Rec. Doc. 52) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Leave to
File Reply Memorandum (Rec. Doc. 75) is DENIED as moot.
New Orleans, Louisiana this 1st day of October, 2015.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

17