Doe I et al v. Marine-Lombard
Filing
39
AMENDED ORDER & REASONS: Denying 12 MOTION to Transfer Case filed by Juana Marine-Lombard as set forth in document. Signed by Judge Carl Barbier on 11/8/16.(sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JANE DOE I, ET AL.
CIVIL ACTION
VERSUS
NO: 16-14876
JUANA MARINE-LOMBARD
SECTION: “J” (4)
AMENDED ORDER AND REASONS
On November 4, 2016, this Court issued an Order and Reasons
on
Defendant’s
Motion
to
Transfer
Venue
(R.
Doc.
35)
which
inadvertently included the wrong names of the parties in the
caption.
This Court now issues this Amended Order and Reasons
with the correct names of the parties in the caption.
This order
does not change the substance of the Court’s previous ruling.
Before the Court is a Motion to Transfer Venue (R. Doc. 12)
filed by Defendant, Juana Marine-Lombard, in her Official Capacity
as Commissioner, Louisiana Office of Alcohol and Tobacco Control
(Defendant), and an Opposition thereto (R. Doc. 20) filed by
Plaintiffs, Jane Doe I, Jane Doe II, and Jane Doe III (Plaintiffs).
Having considered 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 arises from an Act passed by the Louisiana
legislature and signed into law by the governor of Louisiana, John
1
Bel Edwards.
On or about June 5, 2016, Governor Edwards signed
into law Act No. 395.
Act No. 395 amended and reenacted two
statutes, La. Rev. Stat. 26:90(E) and 286(E), by introducing agebased restrictions to the statutes.
The newly amended language in
both statutes reads as follows:
Subject to the provisions of Subsection D of this
Section, entertainers whose breasts or buttocks are
exposed to view shall perform only upon a stage at least
eighteen inches above the immediate floor level and
removed at least three feet from the nearest patron and
shall be twenty-one years of age or older.
La. Rev. Stat. § 26:90(E) and 286(E) (effective Aug. 1, 2016).
Plaintiffs’ complaint alleges that the effect of the amendment was
to create an age restriction for erotic dancing that did not
previously exist. The complaint further alleges that prior to
enactment of Act No. 395, a person only needed to be eighteen years
old to be an erotic dancer.
Act No. 395 became effective on August 1, 2016. The Louisiana
Office of Alcohol and Tobacco Control (ATC), the agency tasked
with enforcing Act No. 395, began enforcing the Act throughout
Louisiana, except for the City of New Orleans (New Orleans).
Instead, the ATC planned to begin enforcing Act No. 395 in New
Orleans on October 1, 2016.
Three erotic dancers 1 who are under the age of twenty-one but
older than eighteen filed a complaint on September 22, 2016 against
1
Plaintiffs filed a Motion to Proceed Pseudonymously (R. Doc. 2) which is
currently pending before this Court.
2
Juana Marine-Lombard, in her Official Capacity as Commissioner,
Louisiana
Office
of
Alcohol
and
injunctive and declaratory relief.
Tobacco
Control
(R. Doc. 1, at 19).
requesting
All three
Plaintiffs are women who are residents of Louisiana and who were
employed as erotic dancers prior to the enforcement of Act No.
395.
The Plaintiffs are twenty, nineteen, and eighteen years of
age, respectively.
Two of the three Plaintiffs reside in New
Orleans, and one Plaintiff is a resident of Baton Rouge.
Two of
the Plaintiffs were employed as erotic dancers in Baton Rouge.
These Plaintiffs allege that when Act No. 395 became effective on
August 1, 2016, they were forced to stop working as erotic dancers,
and instead worked as “shot girls,” which the Plaintiffs allege is
a less lucrative position.
One of the Plaintiffs is employed as
an erotic dancer in New Orleans.
Plaintiffs’ complaint alleges that Act No. 395 violates the
First and Fourteenth Amendments to the United States Constitution
and Article I, § 2 and § 3 of the Louisiana Constitution.
The
complaint also alleges that Act No. 395 violates Plaintiffs’ rights
to
contract
under
Article
I,
§
10(1)
of
the
United
States
Constitution and Article I, § 23 of the Louisiana Constitution.
Plaintiffs bring a facial challenge to the constitutionality of
Act No. 395 and request a declaration that Act No. 395 violates
the United States and Louisiana Constitutions.
Plaintiffs also
filed a Motion for Preliminary Injunction (R. Doc. 4-2) and Motion
3
for Expedited Consideration (R. Doc. 5) requesting that the Court
grant a preliminary injunction precluding Defendant from enforcing
Act No. 395 in New Orleans.
Construing the Motion for Preliminary
Injunction (R. Doc. 4-2) as a request for a Temporary Restraining
Order, this Court temporarily restrained Defendant from enforcing
Act No. 395 anywhere within the state of Louisiana pending further
Order of this Court on September 30, 2016.
(R. Doc. 10, at 2).
On October 5, 2016, Defendant filed the instant Motion to
Transfer Venue (R. Doc. 12), requesting the Court to transfer the
action to the United States District Court for the Middle District
of Louisiana (Middle District).
thereto on October 18, 2016.
Plaintiffs filed an Opposition
(R. Doc. 20).
The motion is now
before the Court on the briefs and without oral argument.
DISCUSSION
Defendant requests a transfer to the Middle District pursuant
to 28 U.S.C. § 1404(a).
This statute provides the Court with
discretion to transfer any civil action to another district “for
the convenience of the parties and witnesses, in the interest of
justice.”
28 U.S.C. § 1404(a).
District courts have broad
discretion when making this determination.
In re Volkswagen of
Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (Volkswagen
II).
The party requesting a venue transfer must make a threshold
4
showing that venue is proper in the transferee venue, 2 and also
must show “good cause” for the transfer.
Volkswagen II, 545 F.3d at 315 n.10.
28 U.S.C. § 1404(a);
Good cause exists when the
movant demonstrates that the requested venue is “clearly more
convenient” than the venue chosen by the plaintiff.
Id. at 315.
But “when the transferee venue is not clearly more convenient than
the venue chosen by the plaintiff, the plaintiff’s choice should
be respected.”
Id.
Therefore, the relevant inquiry is whether the requested
venue, here the Middle District, is clearly more convenient than
the Eastern District. To determine the relative convenience of
the venues, the Fifth Circuit has adopted a list of private and
public interest factors to be weighed. Volkswagen II, 545 F.3d at
315 (adopting factors first articulated in Gulf Oil Corp. v.
Gilbert, 330 U.S. 501 (1949) in the context of forum non
conveniens). The private interest factors are:
(1)
(2)
(3)
(4)
the relative ease of access to sources of proof;
the availability of compulsory process to secure
the attendance of witnesses;
the cost of attendance for willing witnesses; and
all other practical problems that make trial of a
case easy, expeditious and inexpensive.
Volkswagen II, 545 F.3d at 315 (line breaks added).
The public
interest factors are:
(1)
(2)
(3)
the administrative difficulties flowing from court
congestion;
the local interest in having localized interests
decided at home;
the familiarity of the forum with the law that will
govern the case; and
2
Plaintiffs do not dispute that the Middle District would be a proper venue
for this action. The dispute here is whether Defendant has established good
cause for transfer to the Middle District.
5
(4)
Id.
are
the avoidance of unnecessary problems of conflict
of laws [or in] the application of foreign law.
(brackets in original) (line breaks added).
“not
necessarily
dispositive.
Id.
exhaustive
or
exclusive,”
These factors
and
none
are
The Court will address each in turn.
Private Interest Factors
Defendant points to a number of facts supporting her argument
in favor of transfer.
First, Defendant, who is the Commissioner
of the agency responsible for enforcing Act No. 395, works in the
ATC headquarters located in Baton Rouge.
Additionally, two of the
three
clubs,
Plaintiffs
work
in
Baton
Plaintiffs resides in Baton Rouge.
Rouge
and
one
of
the
Defendant also notes that the
Louisiana Legislature enacted Act No. 395 in Baton Rouge.
The fact that Act No. 395 was passed in Baton Rouge is
unlikely to appreciably affect the access to sources of proof.
When analyzing access to sources of proof, courts look to which
party is most likely to have the bulk of relevant documents, and
therefore which venue is most likely to contain the documents.
Broussard v. First Tower Loan, LLC., 135 F. Supp. 3d. 540, 546
(E.D. La. 2015).
Defendant avers that all of the documentary
evidence regarding the enactment of Act No. 395 is located in the
Middle District.
Plaintiffs counter that they present a purely
legal challenge in this case, and therefore do not intend to
request an evidentiary hearing, seek discovery from Defendant, or
6
call any Louisiana state officials as witnesses.
Accordingly,
access to the documentary evidence does not appear important in
this case, and this factor is neutral.
Neither
does
the
private
interest
of
availability
compulsory process weigh in favor of transfer.
of
Defendant argues
that because so many of the potential witnesses reside or work in
Baton
Rouge,
transfer
to
the
Middle
District
convenient and less costly for the witnesses.
would
be
more
Indeed, the venue
with “absolute subpoena power for both deposition and trial” is
the preferred venue.
See Volkswagen II, 545 F.3d at 316.
Federal
Rule of Civil Procedure 45(c)(1) provides that a subpoena may
require attendance of a “trial, hearing, or deposition . . . within
100 miles of where the person resides, is employed, or regularly
transacts business in person . . . .”
All the potential witnesses
mentioned by Defendant reside or work in the Baton Rouge area.
Because Baton Rouge is less than 100 miles from the Eastern
District, these potential witnesses would be subject to compulsory
process.
As such, this factor does not weigh in favor of transfer.
See Fund for Louisiana’s Future v. La. Bd. of Ethics, No. 14-0368,
2014 WL 1514234, at *13 (E.D. La. Apr. 16, 2014) (noting that the
Middle District and Eastern District are “only 82 miles apart” as
a reason for denying a motion to transfer venue).
Moreover, the cost of attendance of willing witnesses is not
a factor in this analysis because Defendant has not specifically
7
identified any nonparty witnesses who may be subject to excess
cost in the current venue.
While the costs of nonparty witnesses
is an important factor, the burden is on the party moving for
transfer to “specifically identify the key witnesses and outline
the substance of their testimony.”
Broussard, 135 F. Supp. 3d. at
547 (internal citations omitted).
Defendant has not identified
any nonparty witnesses.
This factor does not weigh in favor of
transfer.
The
final
private
interest
factor,
which
takes
into
consideration “practical problems” with the current venue, does
not appear to be present here.
Defendant makes a vague reference
to transfer to the Middle District being less costly for the
Plaintiffs.
But because only one of the Plaintiffs resides in
Baton Rouge and the other two reside in New Orleans, it is not
clear how transfer to the Middle District would result in less
costly adjudication.
Thus, this is a neutral factor.
Public Interest Factors
The first factor, court congestion, does not strongly weigh
in
favor
of
transfer.
Defendant
does
not
assert
that
the
adjudication process is likely to move more quickly in the Middle
District, but does point to some data suggesting that on the
aggregate, Middle District judges have significantly fewer civil
actions pending than the judges of the Eastern District.
However,
this public interest factor is more speculative than other factors
8
and should not alone outweigh other factors.
F. Supp. 3d at 548.
See Broussard, 135
Because there is no strong indication that
this case would move more quickly in the Middle District, this
factor is neutral.
The second factor is the local interest in having localized
interests decided at home.
Defendant asserts that the Middle
District has a greater interest in resolving claims that arise in
its district without explaining the nature of this heightened
interest.
It is true that Act No. 395 was passed in Baton Rouge,
and that the agency tasked with enforcing the Act also has its
main office in Baton Rouge.
But the Eastern District has at least
as great an interest in resolving this case.
Plaintiffs point out
that most adult entertainment venues in Louisiana are located in
New Orleans, and two of the three Plaintiffs in this case reside
in New Orleans.
See McNiece v. Jindal, No. 97-2421, 97 WL 767665,
at *2 (E.D. La. Dec. 9, 1997) (stating, in a denial of a motion to
dismiss for improper venue, that “[The governor] should be apprised
that his decisions and their enforcement have effects throughout
the State of Louisiana, not just in the Middle District where his
office is located”).
Thus, this factor is neutral.
The final two public interest factors are not present in this
case.
The Middle and Eastern Districts are equally familiar with
the law governing this case, and the parties have not raised a
conflict of laws issue.
Therefore, the Court concludes that
9
Defendant has failed to demonstrate that the private and public
interest factors weigh in favor of transfer to the Middle District.
The Middle District is not clearly more convenient than the Eastern
District.
Thus, the case will remain in the Eastern District.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Transfer Venue
(R. Doc. 12) is DENIED.
New Orleans, Louisiana this 8th day of November, 2016.
__________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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