Faulstick v. Southern Tire Mart, LLC

Filing 15

ORDER & REASONS: granting 6 MOTION to Transfer Venue filed by Southern Tire Mart, LLC., Case transferred to the Southern District of Mississippi, Hattiesburg Division. Signed by Judge Carl Barbier on 4/4/13.(sek, )[Transferred from Louisiana Eastern on 4/4/2013.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FAULSTICK

CIVIL ACTION

VERSUS

NO: 12-2903

SOUTHERN TIRE MART, LLC.

SECTION: "J” (3)

ORDER AND REASONS
Before

the

("Southern

Court

Tire")'s

are

Defendant

Motion

to

Southern

Transfer

Venue

Tire

Mart,

LLC

Doc.

6),

(Rec.

Plaintiff Albert Faulstick's opposition to same (Rec. Doc. 8),
Defendant's

reply

thereto

(Rec.

Doc.

11),

and

Plaintiff's

surreply (Rec. Doc. 14). Defendant's motion was set for hearing
on March 13, 2013, on the briefs. The Court, having considered
the

motion

and

memoranda

of

counsel,

the

record,

and

the

applicable law, finds that Defendant's motion should be GRANTED
for the reasons set forth more fully below.
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
1

the

witnesses”

when

such

a

transfer is “in the interest of justice.” 28 U.S.C. § 1404(a).
Such

transfers

are

left

to

“‘the

sound

discretion

of

the

transferring judge.’” Mills v. Beech Aircraft Corp., Inc., 886 F.
2d 758, 761 (5th Cir. 1989)(quoting Jarvis Christian College v.
Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988)). 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).

In

making

such

a

determination, the transferring judge may consider the private
and public interest factors. In re Volkswagen of Am., Inc., 545
F.3d 304, 315 (5th Cir. 2008)(“Volkswagen II ”).
The private interest factors a court should consider include:
(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.” In re Volkswagen AG, 371 F.3d
201, 203 (5th Cir. 2004) (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

2

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

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)).
The Court, in its discretion, finds that the above-captioned
matter should be transferred to the United States District Court
for the Southern District of Mississippi, Hattiesburg Division.1
Plaintiff’s

complaint

indicates

that

this

suit

could

have

originally been brought in the Southern District of Mississippi.
In

particular,

Plaintiff

and

Defendant

are

both

citizens

of

Mississippi and the underlying events in this case all occurred
in

Mississippi

namely,

in

Marion

County.2

Likewise,

as

the

1

Because the Court's determination that this action should be transferred
to the Southern District of Mississippi, Hattiesburg Division under 28 U.S.C. §
1404(a) is dispositive, it does not address the question of whether or not venue
was proper in the Eastern District of Louisiana under 28 U.S.C. § 1391.
2

This is an employment discrimination case. The underlying events in this
case refer to Defendant's alleged October 1, 2011 demotion of Plaintiff from copilot to back-up pilot, and its alleged December 31, 2011 termination of
Plaintiff. Compl., Rec. Doc. 1, pp. 2, 3, ¶¶ 8, 15. As alleged, these took place
by phone in Mississippi. Any changes to documents/personnel records were recorded
in Defendant's office located at 529 Industrial Park Road, Columbia, Marion

3

Complaint states and Defendant argues, the primary witnesses to
be

called

in

this

case

are

all

residents

of

Marion

County,

Mississippi.3 Furthermore, while the Court takes into account
Plaintiff's argument that it will be more convenient for him to
travel to New Orleans than to Hattiesburg, it also notes that the
difference in the travel distance is a mere 14.68 miles as the
crow flies. As Defendant has pointed out, Plaintiff routinely
traveled

to

Hattiesburg

while

employed;

therefore,

any

county, Mississippi 39429. See Def.'s Mot. to Transfer, Rec. Doc. 6, pp. 1–2, ¶
4. Likewise, Defendant's have asserted that the decision to terminate Plaintiff
was made in Marion County, Mississippi. Def.'s Mot. to Transfer, Rec. Doc. 6, p.
2, ¶ 5. Consequently, the Court notes that this not only indicates that the suit
could have been filed in the Southern District of Mississippi originally, but
moreover, it also supports Defendant's contention that all evidence relevant to
this suit is located in Mississippi, not Louisiana.
3

The primary fact witnesses in this case are all employees of Southern
Tire and work in Southern Tire's Marion County office. Def.'s Mot. to Transfer,
Rec. Doc. 6, p. 2, ¶ 5; Pl.'s Opp, Rec. Doc. 8, pp. 5-6 (discussing the residency
and employment location of the fact witnesses and failing to contest that they
reside in Marion County, Mississippi). Likewise, while the Court acknowledges
Plaintiff's argument that his proposed expert witness resides in this district,
there is at least some authority suggesting that the “witness convenience factor”
should only be applied to fact witnesses, and not to expert witnesses. See
Cormier v. Blue Marlin Support Servs., LLC, No. 11-3170, 2012 WL 3027099, at *3
n.7 (E.D. La. July 24, 2012); McDonough Marine Serv. v. Royal Ins. Co., No.
00–3134, 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”).
Furthermore, the number of fact witnesses residing in Marion County, Mississippi
(three to four) far outnumber the one proposed expert witness 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]”).

4

inconvenience
inconveniences

to

Plaintiff

that

the

is

minor

aforementioned

in

comparison

fact

to

witnesses

the
would

suffer. See Def.'s Reply, Rec. Doc. 11, p. 4. Based on these
facts, the Court finds that the above-referenced private and
public interest factors weigh in favor of transfer and, moreover,
the interest of justice so requires it. Accordingly,
IT IS HEREBY ORDERED that Defendant's motion is GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter be
TRANSFERRED to the United States District Court for the Southern
District of Mississippi, Hattiesburg Division.
New Orleans, Louisiana this 4th day of April, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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