Matirne v. Advancial Federal Credit Union

Filing 16

MEMORANDUM RULING. IT IS ORDERED that Advancial's 8 Motion to Change Venue pursuant to 28 U.S.C. § 1404(a) is GRANTED, and this case is transferred to the United States District Court for the Northern District of Texas, Dallas Division. Signed by Magistrate Judge Patrick J Hanna on 2/21/2018. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
KATHY MATIRNE

CIVIL ACTION NO. 6:17-cv-01531

VERSUS

UNASSIGNED DISTRICT JUDGE

ADVANCIAL FEDERAL CREDIT
UNION

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Currently pending is the motion to transfer venue pursuant to 28 U.S.C. §
1404(a), which was filed on behalf of the defendant, Advancial Federal Credit Union.
(Rec. Doc. 8). The motion is opposed. For the reasons set forth below, it is ordered
that the motion be granted.
BACKGROUND
The plaintiff, Kathy Matirne, claims that she should have received overtime
pay when she worked as a business relations officer for the defendant, Advancial
Federal Credit Union, for nine years preceding December 5, 2016. In her complaint,
she asserted a Fair Labor Standards Act claim against her former employer, and
brought her complaint not only on her own behalf but also on behalf of all other
similarly-situated employees, expressly including but not limited to other persons
who worked for Advancial as business relations officers after June 14, 2014.

Advancial now seeks to have this lawsuit transferred to the United States
District Court for the Northern District of Texas, Dallas Division, arguing that
transfer is appropriate for the convenience of the parties and witnesses and in the
interest of justice and that the suit could have been brought originally in the proposed
transferee forum.
LAW
I.

AND

ANALYSIS

THE STANDARD FOR CHANGE OF VENUE UNDER SECTION 1404(A)
It is well settled that the decision to transfer a case pursuant to 28 U.S.C. §

1404(a) is a matter within the trial court's discretion.1 Section 1404(a) reads as
follows: “For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it
might have been brought or to any district or division to which all parties have
consented.” Therefore, the preliminary question in a Section 1404(a) analysis is
whether the action “might have been brought” in the destination venue.2
Advancial does not dispute that venue is proper in the Western District of
Louisiana; however, Advancial seeks to have the action transferred to the Northern

1

Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988); Bearden
v. United States, 320 F.2d 99, 101 (5th Cir. 1963), cert. denied, 376 U.S. 922 (1964).
2

In re Volkswagen of America, Inc., 545 F.3d 304, 312 (5th Cir. 2008).

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District of Texas, Dallas Division, where venue is also proper under 28 U.S.C. §
1391(b)(2), arguing that the destination venue would be more convenient. The
plaintiff does not dispute that venue is proper in the Northern District of Texas but
argues that the case should remain in the Western District of Louisiana where the
lawsuit was filed, downplaying the defendant’s concerns regarding the relative
convenience of the two forums without arguing that the Western District of Louisiana
is a more convenient forum for anyone other than the current plaintiff. Having
established that the plaintiff could have filed this suit in the proposed alternative
venue, the court must now evaluate whether a transfer is warranted “for the
convenience of parties and witnesses, in the interest of justice.”
The moving party bears the burden of proving that a change of venue is
warranted.3 A defendant moving for a venue transfer under Section 1404(a) must
show good cause for the transfer.4 To do so, the moving party must demonstrate that
the action could have been brought in the destination venue and also clearly
demonstrate that a transfer is for the convenience of parties and witnesses, in the

3

In re Volkswagen, 545 F.3d at 315; Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.

1966).
4

In re Volkswagen, 545 F.3d at 315, citing Humble Oil & Ref. Co. v. Bell Marine Serv.,
Inc., 321 F.2d 53, 56 (5th Cir. 1963).

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interest of justice.5 “Thus, when the transferee venue is not clearly more convenient
than the venue chosen by the plaintiff, the plaintiff's choice should be respected.
When the movant demonstrates that the transferee venue is clearly more convenient,
however, it has shown good cause and the district court should therefore grant the
transfer.”6
While the plaintiff's choice of venue is accorded some deference,7 the plaintiff's
choice of venue is not treated as a distinct factor in the Section 1404(a) analysis.8
Instead, the plaintiff's venue choice corresponds to the burden that the moving party
must meet in order to demonstrate that the transferee venue is clearly more
convenient.9
The Fifth Circuit adopted the private interest factors and public interest factors
set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) (“the Gilbert factors”), for
determining whether a Section 1404(a) venue transfer is for the convenience of

5

In re Volkswagen, 545 F.3d at 315.

6

In re Volkswagen, 545 F.3d at 315.

7

In re TS Tech USA Corp., 551 F.3d 1315, 1320 (5th Cir. 2008), citing In re Horseshoe
Entertainment, 337 F.3d 429, 434-35 (5th Cir. 2003).
8

In re TS Tech, 551 F.3d at 1320; In re Volkswagen, 545 F.3d at 314 n. 10.

9

In re TS Tech, 551 F.3d at 1320; In re Volkswagen, 545 F.3d at 314 n. 10.

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parties and witnesses and in the interest of justice.10 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.11 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.12 These factors are neither exhaustive nor
exclusive and no one of them is dispositive.13
II.

APPLICATION OF THE LEGAL STANDARD IN THIS ACTION
Since it is undisputed that venue would be proper in either the Western District

of Louisiana or the Northern District of Texas, the only issue before this Court is
whether a transfer is “for the convenience of parties and witnesses, in the interest of
justice.” Accordingly, each of the Gilbert factors will be analyzed.

10

In re Volkswagen, 545 F.3d at 315.

11

In re Volkswagen, 545 F.3d at 315.

12

In re Volkswagen, 545 F.3d at 315.

13

In re Volkswagen, 545 F.3d at 315.

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A.

THE PRIVATE INTEREST FACTORS
1.

THE RELATIVE EASE OF ACCESS TO SOURCES OF PROOF

This factor examines the location of documents and physical evidence.14
Advancial conceded that this factor is likely neutral since the relevant payroll records
are stored electronically and may be accessed as easily from Texas as from Louisiana.
The plaintiff did not disagree.
2.

THE AVAILABILITY OF COMPULSORY PROCESS TO SECURE THE
ATTENDANCE OF WITNESSES

Rule 45(b)(2) of the Federal Rules of Civil Procedure allows a federal court to
compel a witness's attendance at a trial or hearing by subpoena, but Rule 45(c) limits
that power by restricting the court’s subpoena power to those witnesses who work or
reside less than 100 miles from the courthouse. Advancial argued that all witnesses
with personal knowledge concerning the issues presented in this lawsuit, including
Advancial’s processes and procedures regarding payroll classification, time keeping,
and payroll payment, are located in and around Dallas, Texas. Advancial also
represented that all persons who might meet the proposed class definition – other than
the plaintiff already named in this lawsuit – are located in Dallas or Houston.
Therefore, trial subpoenas for those witnesses to travel more than one hundred miles

14

In re Volkswagen, 545 F.3d at 316.

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to attend court in Louisiana would be subject to being quashed. The plaintiff’s
response to this argument was that any additional plaintiff who opts into the suit and
the defendant’s witnesses would all appear voluntarily at trial. That, however, is not
a foregone conclusion. There is a substantial risk that the appearance of witnesses
could not be assured at trial. The court, therefore, finds that this factor weighs in
favor of transfer.
3.

THE COST OF ATTENDANCE FOR WILLING WITNESSES

The distance between the place where a witness lives or works and the place
where the case will be tried is directly proportional to the witness’s cost of attendance
at trial. “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 these fact witnesses must be away from
their regular employment.”15 The Fifth Circuit has established a “100–mile rule” for
determining the convenience of the transferee district to the witnesses and parties.
“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 the convenience to
witnesses increases in direct relationship to the additional distance to be traveled.”16

15

In re Volkswagen AG, 371 F.3d 201, 205 (5th Cir. 2004).

16

In re Volkswagen AG, 371 F.3d at 204-05.

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Some courts have suggested that the primary focus should be on the cost to be
incurred by key non-party witnesses.17
Advancial stated in its briefing that Dallas is approximately four hundred miles
from Lafayette, and the plaintiff did not object to that estimation. As this lawsuit is
currently configured, the plaintiff is the only person who would not incur significant
travel costs for trial. All other potential plaintiffs as well as the witnesses likely to
appear on behalf of the defendant would be required to incur such costs. The only
non-party witness mentioned in the parties’ briefing is the plaintiff’s former
supervisor, who allegedly is now retired and lives in Florida and would incur travel
costs regardless of where the trial is ultimately held.
A party seeking transfer based on convenience of the witnesses must clearly
specify the key witnesses to be called and must make a general statement of what
their testimony will cover.18 While Advancial has not done so with specificity, this
Court interprets the declaration submitted by Advancial in support of the motion as
representing that Advancial will likely call witnesses at trial who are current or
17

See, e.g., Broussard v. First Tower Loan, LLC, 135 F.Supp.3d 540, 547 (E.D. La.
2015); Frito-Lay North America, Inc. v. Medallion Foods, Inc., 867 F.Supp.2d 859, 870-71 (E.D.
Tex. 2012).
18

See, e.g., Southern Investors II v. Commuter Aircraft Corp., 520 F.Supp. 212, 218
(M.D. La. 1981); AllChem Performance Products, Inc. v. Oreq Corp., No. 2:11-CV-3577-D, 2013
WL 180460, at *4 (N.D. Tex. Jan. 17, 2013) (quoting 15 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3851, at 221-22 (3d ed.2007)).

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former employees with knowledge about the way the plaintiff was paid. The plaintiff
did not identify any likely witnesses other than herself. Given the nature of the claim
asserted in her complaint, however, it is likely that she too would be relying on the
testimony of Advancial’s current or former employees to prove her position at trial.
Therefore, the convenience to those persons is important, and this Court concludes
that Advancial has shown that this factor weighs in favor of transferring this case to
the Northern District of Texas.
4.

ALL OTHER PRACTICAL PROBLEMS

Neither Advancial nor the plaintiff identified any other practical problems that
the court should consider.
B.

THE PUBLIC INTEREST FACTORS
1.

THE ADMINISTRATIVE DIFFICULTIES FLOWING FROM COURT
CONGESTION

This factor favors a district that can bring a case to trial faster.19 Advancial
suggested that this factor is neutral, and the plaintiff did not address it. Therefore,
this Court finds that it is neutral. However, this Court notes that the current judicial
vacancies in the Western District of Louisiana could play a role in delaying the

19

See In re Genentech, Inc., 566 F.3d 1338, 1347 (5th Cir. 2009).

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resolution of this lawsuit. As indicated in the suit caption, above, this case is
currently assigned to “Unassigned District Judge.”
2.

THE LOCAL INTEREST
DECIDED AT HOME

IN

HAVING LOCALIZED INTERESTS

This factor analyzes the “factual connection” that a case has with the transferee
venue and also with the transferor venue.20 Advancial argued that this factor weighs
in favor of transfer to the Northern District of Texas because that is the place where
the defendant is headquartered and has many business locations. The plaintiff did not
address this factor. This Court consequently concludes that this factor favors transfer.
3.

THE FAMILIARITY OF THE FORUM WITH THE GOVERNING LAW

Advancial suggested that this factor is neutral because federal law will be
applied in resolving the parties’ dispute. The plaintiff made no argument regarding
this issue. The undersigned is confident that the two venues are equally familiar with
the governing law and finds that this factor is neutral.
4.

THE AVOIDANCE OF UNNECESSARY PROBLEMS OF CONFLICT
OF LAWS OR IN THE APPLICATION OF FOREIGN LAW

Advancial mentioned this factor in passing, stating that it is neutral and failed
to identify any conflicts of law or foreign law issues. The plaintiff did not address
this issue. Accordingly, this Court finds that this factor is neutral.
20

See In re Volkswagen AG, 371 F.3d at 206.
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CONCLUSION
Advancial identified three factors that it argues favor transfer of this action to
the Northern District of Texas, Dallas Division. The plaintiff argued that the
requested transfer would make the trial more convenient and less expensive for the
defendant, but less convenient and more expensive for her. This Court must weigh
the requisite factors and reach a conclusion that serves both the convenience of the
parties and the interest of justice. Viewing the plaintiff’s complaint in a light most
favorable to her, there is a likelihood that additional plaintiffs will be added to the
suit. But all of the potential additional plaintiffs live in Texas. Therefore, it is not
only the defendant but also the potential plaintiffs who would find litigating this case
in Texas to be more convenient. Furthermore, the factors that Advancial identified
as favoring a transfer of this case are important ones. In sum, this Court is persuaded
that it would be more convenient for the parties in general and would serve the
interest of justice for all parties and potential parties if this case were litigated in the
proposed alternate forum. Accordingly,
IT IS ORDERED that Advancial’s motion to transfer venue pursuant to 28
U.S.C. § 1404(a) (Rec. Doc. 8) is GRANTED, and this case is transferred to the
United States District Court for the Northern District of Texas, Dallas Division.

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Signed at Lafayette, Louisiana on February 21st, 2018.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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