Miller et al v. Paschall Truck Lines, Inc. et al
ORDER by Magistrate Judge Gregory B. Wormuth denying 17 Motion to Change Venue. (jls)
Case 1:20-cv-00303-GBW-SCY Document 35 Filed 07/21/20 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SHONDA R. MILLER, et al.,
PASCHALL TRUCK LINES, INC., et al.,
Civ. No. 20‐303 GBW/SCY
ORDER DENYING TRANSFER OF VENUE
THIS MATTER comes before the Court on Defendant Paschall Truck Lines, Inc.’s
Motion to Transfer Venue to the Western District of Kentucky. Doc. 17. Having
reviewed the Motion, the attendant briefing (docs. 22, 27, 30, 32, 34), and all applicable
law, the Court will DENY Defendant’s Motion for the following reasons.
Plaintiff1 was hired by Defendant Paschall Truck Lines, Inc. (“PTL”) as a
commercial truck driver on April 10, 2019. Doc. 1 at ¶ 17. Plaintiff began her
employment with a mandatory training period in which she drove with a trainer,
Defendant Coyle Robertson. Id. at ¶ 18, 32. Plaintiff and Defendant Robertson were
assigned to carry a load from Illinois to California beginning on April 29, 2020. Id. at ¶
For ease of reference, the Court refers to Plaintiff Shonda Miller simply as “Plaintiff.” Although Plaintiff
is joined in this suit by her husband, Treavather Miller, the bulk of the claims are asserted by Plaintiff
alone, and the central factual allegations concern Plaintiff’s employment with PTL. See generally doc. 1.
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42. On May 2, 2019, at a truck stop in Moriarty, New Mexico, Plaintiff alleges that
Defendant Robertson sexually assaulted her. Id. at ¶ 44–46. Plaintiff reported the
sexual assault to PTL that same day. Id. at ¶ 49.
Plaintiff filed suit against PTL and Defendant Robertson on April 3, 2020. She
brings one claim for sexual harassment under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq., as well as claims for assault and battery, negligent hiring and
supervision, intentional infliction of emotional distress, and loss of consortium. Id. at
¶¶ 60–87. Plaintiff alleges that PTL is vicariously liable for Defendant Robertson’s
actions as his employer and/or principal. Id. at ¶¶ 71, 82.
PTL filed the present motion on June 2, 2020, seeking transfer to the Western
District of Kentucky, in which PTL has its principal place of business. Doc. 17. Plaintiff
responded in opposition to transfer, to which PTL filed a reply. Docs. 22, 27. Plaintiff
sought leave to file a surreply to PTL’s reply, which this Court granted. Doc. 33.
Plaintiff’s surreply was filed July 10, 2020. Doc. 34.
Defendant Robertson has not yet filed an answer to Plaintiff’s complaint nor
indicated any position on PTL’s motion. According to both Plaintiff and PTL,
Defendant Robertson resides in Denison, Texas, which is roughly equidistant from
Albuquerque, New Mexico and Paducah, Kentucky. Doc. 17 at 8; doc. 22 at 9. For
purposes of this motion, the Court assumes that neither forum is particularly
convenient to Defendant Robertson.
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“For the convenience of parties and witnesses, in the interest of justice,” the
Court may grant a transfer of venue to any other district court in which the action might
have been brought. 28 U.S.C. § 1404(a). The movant “bears the burden of establishing
that the existing forum is inconvenient.” Chrysler Credit Corp. v. Country Chrysler, Inc.,
928 F.2d 1509, 1515 (10th Cir. 1991). “Unless the balance is strongly in favor of the
movant the plaintiff’s choice of forum should rarely be disturbed.” Scheidt v. Klein, 956
F.2d 963, 965 (10th Cir. 1992) (quoting William A. Smith Contracting Co. v. Travelers Indem.
Co., 467 F.2d 662, 664 (10th Cir. 1972)) (alteration removed). Additional factors for
deciding a venue transfer request include:
the accessibility of witnesses and other sources of proof, including the
availability of compulsory process to insure attendance of witnesses; the
cost of making the necessary proof; questions as to the enforceability of a
judgment if one is obtained; relative advantages and obstacles to a fair
trial; difficulties that may arise from congested dockets; the possibility of
the existence of questions arising in the area of conflict of laws; the
advantage of having a local court determine questions of local law; and 
all other considerations of a practical nature that make a trial easy,
expeditious and economical.
Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (quoting
Chrysler Credit Corp., 928 F.2d at 1516).
A. Venue Under Title VII
Title VII contains a specific venue provision allowing claims to be brought in
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any judicial district in the State in which the unlawful employment
practice is alleged to have been committed, in the judicial district in which
the employment records relevant to such practice are maintained and
administered, or in the judicial district in which the aggrieved person
would have worked but for the alleged unlawful employment practice,
but 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). Plaintiff asserts that venue is proper in the District of
New Mexico as the district in which an alleged unlawful employment practice—
sexual assault by a supervisor—was committed. Doc. 22 at 5. Defendant asserts
that venue is proper in the Western District of Kentucky under every possible
basis, as the district (1) in which Plaintiff’s employment was allegedly unlawfully
terminated, (2) in which PTL maintains and administers its employment records,
(3) which was Plaintiff’s official work location, and (4) in which PTL has its
principal office. Doc. 17 at 6; doc. 27 at 2.
PTL brings the present motion pursuant to 28 U.S.C. § 1404(a) (which applies to
discretionary transfers from one proper venue to another) rather than 28 U.S.C. §
1406(a) (which applies to transfers based on improper venue). Doc. 17 at 1. In fact, in its
motion, PTL seems to concede that the District of New Mexico is a proper venue. Id. at
6 (“[E]ach of the remaining three venue provisions [i.e., other than the one placing venue
in the District of New Mexico] clearly point to the Western District of Kentucky as the
proper venue for this action.”) (emphasis added). In its reply, however, PTL appears to
argue that transfer to the Western District of Kentucky is mandated by Title VII. Doc. 27
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at 1–3.2 However, in opposing Plaintiffs’ request to file a surreply, PTL characterized its
position as arguing only that venue in the Western District of Kentucky is permitted by
Title VII. Doc. 32 at 3 (“Title VII instructs that this case could have been filed in . . . the
Western District of Kentucky[.]”) (emphasis added). Although the Court shares
Plaintiffs’ confusion about PTL’s position, it takes PTL at its final word and assumes
that PTL is not contesting that venue is proper in the District of New Mexico.
While not arguing improper venue, PTL nonetheless asserts that Title VII’s
venue provision is relevant. PTL adopts an apparently novel argument: Four out of
four3 possible bases for venue point to the Western District of Kentucky, while only one
out of four points to the District of New Mexico; therefore, transfer to the Western
District of Kentucky is appropriate. Doc. 17 at 6; doc. 27 at 2. The Court can find no
legal authority (and PTL cites none) to support a majority‐rules approach to venue
under Title VII. Cf. E.E.O.C. v. Plains Pipeline, L.P., 2020 WL 1450547, at *2 (D.N.M. Mar.
Because there is some confusion about PTL’s position, the Court will highlight those portions of PTL’s
reply that particularly seem to argue that venue is improper in the District of New Mexico. At one point,
PTL states, “Each of these options [from Title VII’s venue provision] point[s] to the Western District of
Kentucky—not the District of New Mexico.” Doc. 27 at 2 (emphasis added). PTL then states, “Plaintiff
cannot rely on any of the other Title VII venue factors to support [her] claim that venue is otherwise
appropriate in New Mexico. As such, Title VII instructs this Court to grant PTL’s Motion[.]” Id.
(emphasis added). PTL later argues that, “in the event the Court somehow finds” that venue is appropriate
in New Mexico, transfer “should still be granted pursuant to 28 U.S.C. § 1404(a).” Id. at 3 (emphasis
PTL accuses Plaintiff of “muddy[ing] the waters” by focusing on the events that allegedly occurred in
New Mexico. Id. at 2. In fact, it is PTL that muddies the waters by repeatedly relying on case law finding
improper venue in a motion ostensibly seeking discretionary transfer. See, e.g., id. at 8–10 (comparing the
present motion to three separate cases against PTL in which a court found the original venue improper).
3 In its motion, PTL argued only that three of the four bases for venue point to Kentucky. Doc. 17 at 6.
PTL added the fourth basis for venue in its reply. Doc. 27 at 2.
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25, 2020) (rejecting “the false notion that venue can only exist in one judicial district” in
Title VII actions). Whether venue is subject to the general provision in 28 U.S.C. § 1391
or a specific provision such as 42 U.S.C. § 2000e‐5(f)(3), the appropriate analysis for a
discretionary § 1404 transfer is the multifactor test laid out in Chrysler and Bartile Roofs.
B. Transfer Under 28 U.S.C. § 1404(a)
The Court turns now to the requirements for a discretionary transfer under §
1404(a). Plaintiffs do not contest that this action could have been brought in the
Western District of Kentucky. Doc. 22 at 6 n.2. Thus, the only remaining question is
whether the balance of factors favors transfer. The Court addresses only those factors
relied on by the parties and therefore declines to consider possible concerns about the
enforceability of a judgment or obstacles to a fair trial.
1. Plaintiff’s Chosen Forum
Although the plaintiff’s choice of forum “should rarely be disturbed,” it receives
less deference if the plaintiff does not reside in the district. Bartile Roofs, 618 F.3d at
1167–68. As Plaintiffs are residents of South Carolina, their choice of venue in the
District of New Mexico receives less deference. Nonetheless, the fact that Plaintiffs
reside closer to Kentucky than New Mexico does not override their choice of forum.
Plaintiffs’ residency in South Carolina renders this factor neutral, but the burden
remains on PTL to establish that the other factors are in its favor.
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2. Accessibility of Witnesses and Other Sources of Proof
Aside from the plaintiff’s choice, the convenience of the witnesses is the most
important factor. Bartile Roofs, 618 F.3d at 1169. The movant must identify the
witnesses, indicate “the quality or materiality of the testimony of said witnesses,” and
establish that necessary witnesses would be unwilling to come to trial without the use
of compulsory process and that testimony by deposition would be unsatisfactory.
Scheidt, 956 F.2d at 966 (citation omitted). The convenience of non‐party witnesses
weighs more heavily under this factor than the convenience of the parties. Mandel v.
Hafermann, 2020 WL 2849928, at *4 (D. Utah June 2, 2020) (citing Anza Tech., Inc. v.
Xilinx, Inc., 2017 WL 4864947, at *8 (D. Colo. Oct. 27, 2017)). Similarly, the convenience
of a party’s employees carries little weight because the party “is able, indeed, obligated
to procure the attendance of its own employees for trial.” Vega v. Craftworks Restaurants
& Breweries Grp., 2019 WL 6893038, at *5 (D. Colo. Dec. 18, 2019) (citation omitted); see
also Navajo Nation v. Urban Outfitters, Inc., 918 F. Supp. 2d 1245, 1257 (D.N.M. 2013).
PTL lists nine witnesses who reside over a thousand miles away from
Albuquerque, New Mexico but within five hundred miles of Paducah, Kentucky. Doc.
17 at 9. The majority of these witnesses reside within fifty miles of Paducah. Id. Seven
of these witnesses are PTL’s own employees, but two are former employees. Doc. 17‐1
at ¶ 22. Plaintiff lists at least fifteen non‐party witnesses who reside over a thousand
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miles away from Paducah but within fifty miles of Albuquerque. Doc. 22 at 9. Clearly,
one party’s witnesses will be inconvenienced by this trial no matter where it takes place.
The Court is unconvinced of the “quality or materiality” of some of the parties’
witnesses. Testimony that is cumulative of other evidence or described in a vague or
repetitive manner may be discounted. Bryant v. Allianz Life Ins. Co. of N. Am., 2010 WL
3174749, at *3 (D. Colo Aug. 10, 2010). PTL’s witnesses—all current or former
employees—appear likely to offer overlapping and therefore potentially cumulative
testimony. See, e.g., doc. 28‐1 at ¶ 22 (describing Mr. Burkeen as “also involved” in
investigating Plaintiff’s report and “also [having] knowledge of PTL’s employment
policies, procedures, and business practices”) (emphasis added). Several of Plaintiff’s
potential witnesses are also likely to offer cumulative testimony, such as the three
witnesses from the Moriarty Police Department and the two witnesses from the
Moriarty Fire Department. Doc. 22 at 9. Additionally, some of Plaintiff’s listed
witnesses are records custodians, whose testimony “is typically rendered unnecessary
by virtue of Fed. R. Evid. 902 (allowing as evidence self‐authentication of public
documents) or by stipulation.” E.C.C. Movers LLC v. Fairpoint Comms., Inc., 2019 WL
1936322, at *3 (W.D.N.Y. May 1, 2019). Even if every single witness listed by the parties
provides material and noncumulative testimony, neither party establishes that
depositions would be inadequate in every instance.
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As both parties observe, the distance between the two venues means that some
witnesses will be out of reach of each court’s subpoena power under Federal Rule of
Civil Procedure 45(c). Neither party alleges that their respective witnesses are
unwilling to come to trial without the aid of compulsory process, although the Court
assumes that the great distance between the two forums will make voluntary
attendance at trial less likely. PTL should have no trouble bringing its own employees
to trial. See Navajo Nation, 918 F. Supp. 2d at 1257. However, two of PTL’s witnesses are
former employees and therefore beyond its power of compulsion. Doc. 17‐1 at ¶ 22.
Moreover, one of the former employees appears to have material firsthand information
that may be unavailable to other witnesses. According to the affidavit supplied by PTL,
Mr. Long made key decisions in the handling of Plaintiff’s report of sexual assault and
personally communicated with both Plaintiff and Defendant Robertson. Doc. 28‐1 at ¶¶
Plaintiff’s witnesses are all individuals whom Plaintiff encountered only briefly,
thus Plaintiff lacks the power to compel them to travel over a thousand miles to aid her
case. Plaintiff further argues that depositions would be inadequate for at least some of
the New Mexico witnesses, as they are necessary to establish Plaintiff’s credibility. “The
preference for a witness’s attendance at trial is axiomatic.” Garcia‐Martinez v. City &
Cty. of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004) (internal quotation marks omitted);
see also United States v. Harrison, 296 F.3d 994, 1007 (10th Cir. 2002) (noting the “strong
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preference for in‐person testimony” expressed in the Federal Rules of Evidence). The
preference for in‐person testimony is especially strong where key factual issues turn on
credibility. Garcia‐Martinez, 392 F.3d at 1191; Wolfkiel v. Krug, 2012 WL 3245962, at *3 (D.
Colo. Aug. 7, 2012). Based on PTL’s answer to Plaintiff’s complaint, PTL intends to
dispute the allegation of sexual assault. See doc. 15 at ¶ 61. Additionally, PTL indicates
that one of its witnesses has “key knowledge of Plaintiff’s allegations, demeanor, and
emotional state as he was contacted by Plaintiff immediately after the alleged event.”
Doc. 27 at 4. Thus, it appears that PTL intends to put Plaintiff’s credibility at issue.
Accordingly, witnesses who observed Plaintiff’s demeanor and emotional state in
person immediately after the alleged sexual assault would be critical to Plaintiff’s case.
Based on the above findings, each party has at least one witness whose presence
at trial will likely be both important to the party’s case and difficult to procure without
compulsory process. “Merely shifting the inconvenience from one side to the other,
however, obviously is not a permissible justification for a change of venue.” Scheidt, 956
F.2d at 966 (citation omitted). Moreover, “it would be unfair to force [one party] to
present a significant portion of their case by deposition.” Cook v. Atchison, Topeka &
Santa Fe Ry. Co., 816 F. Supp. 667, 669 (D. Kan. 1993) (citation omitted). While PTL will
be able to bring at least some of its witnesses to trial, Plaintiff is unlikely to be able to do
the same without compulsory service. Accordingly, the accessibility of the witnesses
slightly favors remaining in the District of New Mexico.
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3. Costs of Proof
Just as some party’s witnesses will be inconvenienced by litigating in a distant
forum, so too will some party experience increased costs. PTL emphasizes the travel
costs it will incur if the case remains in New Mexico, while Plaintiff emphasizes the cost
of preserving and presenting her witnesses’ testimony if the case is transferred. Doc. 17
at 10; doc. 22 at 12, 14. Neither party puts forth any evidence estimating the cost of
litigating in one forum over the other. See Bartile Roofs, 618 F.3d at 1169 (rejecting
assertion of increased costs unsupported by evidence). The Court anticipates that PTL’s
added travel costs would probably exceed Plaintiff’s added deposition costs. However,
absent evidentiary support, this factor only slightly favors transfer.
4. Difficulties Arising from Congested Dockets
The parties present contrasting arguments concerning congested dockets. PTL
relies on the District of New Mexico’s two judicial vacancies and widely publicized
levels of congestion. Doc. 17 at 11; see Plains Pipeline, L.P., 2020 WL 1450547, at *4;
Immigration Cases, Judicial Vacancies Tax New Mexico Courts, Wall Street Journal (Oct. 19,
mexico‐courts‐11571493600. Plaintiff looks to statistics published by the Administrative
Office of the U.S. Courts, which show equivalent levels of congestion between the two
courts. Doc. 22 at 20; see U.S. District Courts–Combined Civil and Criminal Federal Court
Management Statistics (December 31, 2019), U.S. Courts,
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While it is true that the District of New Mexico carries a heavy load of criminal
cases and has had two judicial vacancies pending for over a year, the parties have
consented to trial before a magistrate judge, whose docket is unburdened by criminal
trials and who has the capacity to bring this case to trial far sooner than the Western
District of Kentucky’s average 46.8 months, see doc. 22 at 20. The Court does not find
that congestion in the District of New Mexico merits transfer.
5. Conflicts of Law & Questions of Local Law
Plaintiff argues that potential conflict‐of‐law issues and questions of local law as
to her state‐law claims weigh against transfer, emphasizing differences in the laws of
Kentucky and New Mexico. When a § 1404 transfer is granted, the transferee forum
must apply the law of the transferor forum. Van Dusen v. Barrack, 376 U.S. 612, 639
(1964); Ferens v. John Deere Co., 494 U.S. 516, 524–25 (1990). Were the Court to grant
transfer, the Western District of Kentucky would be required to apply New Mexico law
to Plaintiff’s state‐law claims.4 Furthermore, the federal courts are qualified to apply
various states’ laws. Bartile Roofs, 618 F.3d at 1169. The Court does not find any reason
to believe that the Western District of Kentucky would be unable to apply the correct
The Court expresses no opinion on how New Mexico law would apply to the specific claims and
defenses in this case.
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law to Plaintiff’s state‐law claims. Conflicts of law are a neutral factor here. See
Butikofer v. Nygren, 2016 WL 7190556, at *7 (D. Utah Dec. 12, 2016).
“When the merits of an action are unique to a particular locale, courts favor
adjudication by a court sitting in that locale.” Bartile Roofs, 618 F.3d at 1170. However,
questions of local law carry little weight when it comes to adjudicating familiar
common‐law claims. Presidential Hosp., LLC v. Wyndham Hotel Grp., LLC, 333 F. Supp. 3d
1179, 1235 (D.N.M. 2018). Plaintiff’s state‐law claims are all common‐law torts that are
not unique to New Mexico. Plaintiff argues that Kentucky’s law on vicarious liability is
generally more favorable to employers than New Mexico’s, but she does not indicate
that New Mexico’s law on vicarious liability is unique among the states. Doc. 22 at 18.
Nor does she identify any other unique feature of New Mexico law that would counsel
against placing this case in the hands of a federal court sitting in another state.
The Court finds that conflicts of law and questions of local law carry little to no
weight in the analysis.
6. Balance of Factors
The exceptional distance between the two possible forums makes the present
motion a difficult one to resolve. Factor by factor, neither party’s preferred venue has
an overwhelming claim to convenience or the interests of justice. In the absence of
factors strongly favoring the movant, Scheidt, 956 F.2d at 965, this case shall remain in
Plaintiff’s chosen forum.
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For the foregoing reasons, Defendant PTL’s Motion to Transfer Venue to the
Western District of Kentucky (doc. 17) is DENIED.
IT IS SO ORDERED.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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