Dahl v. Petroplex Acidizing, Inc.
ORDER DENYING 7 MOTION TO DISMISS by Magistrate Judge Gregory J. Fouratt. (gbg)
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 1 of 14
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
DARVIN DAHL, individually and on
behalf of all those similarly situated,
Civ. No. 22-252 GJF/KRS
PETROPLEX ACIDIZING, INC.,
ORDER DENYING MOTION TO DISMISS
THIS MATTER is before the Court upon Defendant’s Motion to Dismiss [ECF 7]
(“Motion”). The Motion is fully briefed. See ECFs 14 (“Response”), 18 (“Reply”). As discussed
below, the Court concludes that (1) it has personal jurisdiction over Defendant, (2) venue is proper
in this District, and (3) venue should not be transferred to the Western District of Texas. The Court
will therefore DENY the Motion.
Plaintiff’s Complaint [ECF 1] alleges that he was “employed by Defendant within . . . the
three-year period preceding the [April 2022] filing of [his] Complaint.” Compl. at ¶ 2.1. The
Complaint further alleges that, “within the actionable time period,” Defendant required Plaintiff
and other similarly situated employees to “perform[ ] acidizing services” in “the oil fields in
various states including Texas and New Mexico.” Id. at ¶¶ 2.3, 2.4. In addition, Plaintiff and the
other “Acidizer/Treater” employees all allegedly “work[ed] long hours in the field”—as they “all
worked in excess of 40 hours each week and were often scheduled to work 12 hour shifts for weeks
at a time.” Id. at ¶¶ 5.20, 5.24 (emphasis added). Moreover, Defendant allegedly failed to pay
Plaintiff and the other Acidizer/Treaters “at the statutory rate of one and one-half times their
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 2 of 14
regular rate of pay for all hours worked more than forty (40) in a workweek.” Id. at ¶¶ 2.4, 7.3,
8.8; see also id. at ¶ 5.25 (alleging Defendant instead paid these employees “on a salary-plus-dailyrate system”).
Plaintiff further alleges that he and the other Acidizer/Treaters performed such underpaid
overtime work “in the state of New Mexico.” Id. at ¶¶ 2.2, 2.3, 3.1–3.3, 6.2. Consequently, the
Complaint includes a cause of action under the New Mexico Minimum Wage Act, NMSA 1978,
§§ 50-4-19 to 50-4-30, for the repeated instances in which Plaintiff and the other Acidizer/Treaters
allegedly “worked more than 40 hours in one or more individual workweeks in the state of New
Mexico” without receiving the required overtime payments. Compl. at ¶¶ 5.20, 6.2, 8. Plaintiff’s
remaining cause of action is brought under the Fair Labor Standards Act, 29 U.S.C. §§ 201 to 219,
for the instance in which he and the other Acidizer/Treaters performed underpaid overtime work
“at any location in the United States.” Compl. at ¶¶ 2.4, 6.5, 7.
Defendant “is a Texas corporation with its principal place of business in Odessa, Texas,”
and Defendant “has a yard in Lovington, New Mexico.” Mot. at 1–2, 4. Defendant’s Chief
Executive Officer (CEO) attested in an affidavit that “[w]hile [Defendant] does some work in New
Mexico, the majority of the work, roughly 75-80%, is performed in Texas.” ECF 7-1 at ¶ 6. The
CEO further represented that (1) “while working for [Defendant]” Plaintiff lived in Texas and
“primarily worked in Texas” and (2) “most of the Acid Treaters/Supervisors live and work in
Texas, approximately 76% over the last three years”—whereas “[o]nly approximately 24% of the
Acid Treaters/Supervisors over the last three years worked in New Mexico.” Id. at ¶¶ 7, 8, 12, 13.
Defendant now requests that the Court dismiss this case for either (1) lack of personal
jurisdiction or (2) improper venue. Mot. at 3–4; Reply at 2. “[A]lternatively,” Defendant requests
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 3 of 14
that “venue be transferred to the United States District Court for the Western District of Texas,
Midland-Odessa Division.” Mot. at 3–4.
II. PARTIES’ PRIMARY ARGUMENTS
A. Defendant’s Contentions
Defendant contends that the Court lacks “specific personal jurisdiction” over Defendant
because, “while [Defendant] has a yard in Lovington, New Mexico, it does not have sufficient
minimum contacts with the state.” Id. at 4; Reply at 1–6. Defendant argues that “[t]he amount of
work performed by [Plaintiff] in [New Mexico] would have been so insubstantial as to prohibit
. . . personal jurisdiction” because (1) “[o]nly a small percentage of [Defendant’s] business is
conducted in New Mexico, less than 25% on average each year”; (2) “Plaintiff primarily worked
for Defendant in Texas” and “lived in Texas throughout his employment with Defendant”; and
(3) “Plaintiff has failed to controvert [such factual assertions, which are found in] Defendant’s
affidavit.” Mot. at 4; Reply at 1–5.
Defendant next asserts that venue is improper because Plaintiff “cannot show that a
substantial part of the events that give rise to his claims occurred in New Mexico.” Mot. at 4;
Reply at 2, 4. Defendant incorporates the same points it made regarding personal jurisdiction to
further argue that “[t]he amount of work performed by [Plaintiff] in [New Mexico] would have
been so insubstantial” so as to render venue in this District improper. Mot at 4; Reply at 2–5.
Finally, Defendant submits that “[e]ven if venue is proper in New Mexico, this Court
should transfer the case to the Western District of Texas, Midland-Odessa division because New
Mexico is an inconvenient forum.” Mot at 5–8; Reply at 5–8. Defendant specifically argues that
venue here is inconvenient because (1) Plaintiff lives in Texas, and thus his chosen forum should
be given less deference; (2) the majority of both Plaintiff and Defendant’s work occurred in Texas;
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(3) a number of Defendant’s witnesses (including four potential key witnesses), as well as
Defendant’s records, are in Texas; (4) travel to Las Cruces, New Mexico (over 300 miles from
Odessa, Texas) would increase costs (e.g., gasoline and hotel expenses and travel time); and
(5) “[t]he median time from filing to disposition for civil cases in the Western District of Texas
was 8.2 months, but it was 10 months in the District of New Mexico.” Mot at 5–8; Reply at 5–8.
B. Plaintiff’s Contentions
For his part, Plaintiff responds that he has made the required “prima facie showing that
personal jurisdiction exists.” Resp. at 6–7. Plaintiff argues that such jurisdiction exists in light of
his allegation that “he performed work in New Mexico”—specifically, that he (along with other
Acidizer/Treaters) repeatedly worked over 40 hours per week in New Mexico without proper
payment for overtime. Id. at 6 (citing Compl. at ¶¶ 8.1–8.10); see also id. (noting that Defendant
was served with process in, and has a physical presence in, New Mexico). Plaintiff similarly
contends that venue in this District is proper because he “plead[ed] that he performed work in
[New Mexico] for which he was not properly compensated in violation of, among other things,
New Mexico law.” Id. at 7 (citing Compl. at ¶¶ 3.1–3.3, 8.1–8.10). Finally, Plaintiff asserts that
“for essentially the[se] same reasons” venue should not be transferred for the convenience of
parties and their witnesses—particularly as “[Plaintiff] chose to file suit in this Court” and
convenience considerations do not “strongly favor” Defendant. Id. at 8.1
Plaintiff also requests that, if the Court is “considering dismissal under Rule 12(b)(2)” for lack of jurisdiction, the
Court (1) “defer ruling on [Defendant’s Motion] until trial” and (2) “permit [Plaintiff] to conduct jurisdictional
discovery and, perhaps, hold an evidentiary hearing if the evidence adduced so warrants.” Resp. at 5–6, 8. The Court,
however, is unpersuaded that it should wait until trial to decide the Motion. In addition, by denying the Motion, the
Court obviates Plaintiff’s need for jurisdictional discovery.
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 5 of 14
III. APPLICABLE LAW
A. Personal Jurisdiction
“[A] federal district court’s authority to assert personal jurisdiction in most cases is linked
to service of process on a defendant ‘who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located.’” Walden v. Fiore, 571 U.S. 277, 283
(2014) (quoting Fed. R. Civ. P. 4(k)(1)(A)). “[I]n addition to satisfying this state law requirement,
the exercise of personal jurisdiction must not offend the due process clause of the Fourteenth
Amendment.” United States v. Botefuhr, 309 F.3d 1263, 1271 (10th Cir. 2002) (quotation
omitted). But “[b]ecause New Mexico’s long-arm statute has been interpreted to extend ‘as far as
constitutionally permissible,’” Good v. Fuji Fire & Marine Ins. Co., 271 F. App’x 756, 759 (10th
Cir. 2008) (unpublished) (quoting Tercero v. Roman Catholic Diocese, 132 N.M. 312, 316 (N.M.
2002)), the personal jurisdiction analysis “collapses into a single due process analysis under the
Constitution.” Botefuhr, 309 F.3d at 1271 (quotation omitted).
1. Sufficient Minimum Contacts
“Consistent with due process, a court may exercise specific personal jurisdiction over a
non-resident defendant only when that defendant has the requisite ‘minimum contacts’ with the
forum state, such that having to defend the lawsuit there would not ‘offend traditional notions of
fair play and substantial justice.’” Eighteen Seventy, LP v. Jayson, 32 F.4th 956, 965 (10th Cir.
2022) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).2 “[T]he Supreme Court
has instructed that the ‘minimum contacts’ standard requires, first, that the out-of-state defendant
Because the Court concludes that it has specific jurisdiction over Defendants, it need not address whether it also
might have “general jurisdiction over [them].” Eighteen Seventy, 32 F.4th at 965 n.8 (emphasis added) (observing
that “the relevant inquiry in [the general jurisdiction] context is whether a defendant was ‘essentially at home’ in a
forum state” (quotation omitted)).
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 6 of 14
must have ‘purposefully directed’ its activities at residents of the forum state, and second, that the
plaintiff’s injuries must ‘arise out of’ [a] defendant’s forum-related activities.’” Dudnikov v. Chalk
& Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)).
Although the “purposefully directed” analysis “can appear in different guises,” “[i]n all
events, the shared aim of ‘purposeful direction’ doctrine has been said by the Supreme Court to
ensure that an out-of-state defendant is not bound to appear to account for merely ‘random,
fortuitous, or attenuated contacts’ with the forum state.” Id. (quoting Burger King, 471 U.S. at
475) (observing that courts sometimes ask “whether the nonresident defendant ‘purposefully
directed’ its activities at the forum state” or “‘purposefully availed’ itself of the privilege of
conducting activities or consummating a transaction in the forum state”). Next, “[t]he import of
the ‘arising out of’ analysis is whether the plaintiff can establish that the claimed injury resulted
from the defendant’s forum-related activities.” Compañía de Inversiones Mercantiles, S.A. v.
Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 1269, 1284 (10th Cir. 2020) (quotation
omitted). Finally, “[i]f the defendant’s actions create sufficient minimum contacts, the court must
then consider whether the exercise of personal jurisdiction over the defendant offends traditional
notions of fair play and substantial justice.” Eighteen Seventy, 32 F.4th at 966 (alterations and
Courts consider five factors in analyzing whether the exercise of personal jurisdiction “comport[s] with fair play and
substantial justice:” “(1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute, (3) the
plaintiff’s interest in receiving convenient and effective relief, (4) the interstate judicial system’s interest in obtaining
the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental
substantive social policies.” Hood v. Am. Auto Care, LLC, 21 F.4th 1216, 1227 (10th Cir. 2021) (quotations omitted).
Nevertheless, “instances where the exercise of personal jurisdiction offends fair play and substantial justice are rare.”
Compañía, 970 F.3d at 1289 (quotation omitted); see also Hood, 21 F.4th at 1227 (“[W]here a defendant who
purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling
case that . . . other considerations would render jurisdiction unreasonable.” (quoting Burger King, 471 U.S. at 477)).
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 7 of 14
2. Plaintiff’s Burden at the Pleading Stage
Plaintiffs “bear the burden of establishing personal jurisdiction.” Id. at 964. “[A]t this
early stage in the litigation, in the absence of an evidentiary hearing, [plaintiffs] need only make a
prima facie showing of personal jurisdiction.” Id.
“In other words, the plaintiff may defeat a
motion to dismiss by presenting evidence—either uncontested allegations in its complaint or
evidence in the form of an affidavit or declaration—that if true would support jurisdiction over the
defendant.” Id. (quotation omitted). “This showing is ‘light.’” Racher v. Lusk, 674 F. App’x 787,
789 (10th Cir. 2016) (unpublished) (quoting Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th
Cir. 1995)). Furthermore, “[a]ll factual disputes are resolved in favor of the plaintiff[ ] when
determining the sufficiency of this showing.” Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th
“Of course, even if personal jurisdiction is contested and found initially on the pleadings
and by affidavit, it may be reviewed again at subsequent stages in the trial court proceedings as
Dudnikov, 514 F.3d at 1069–70 n.3; see also FDIC v. Oaklawn
Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (observing that “whatever degree of proof is
required initially, a plaintiff must have proved by the end of trial the jurisdictional facts by a
preponderance of the evidence” (quotation omitted)).5
“Few such solicitous rules apply in the district court when personal jurisdiction is assessed in an evidentiary hearing
or at trial; in such cases, the plaintiff generally must establish, by a preponderance of the evidence, that personal
jurisdiction exists.” Dudnikov, 514 F.3d at 1070 n.4.
The Court finds that, at this early stage in the proceedings, neither an evidentiary hearing nor jurisdictional discovery
is necessary to resolve the Motion. See, e.g., Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1140 (10th Cir.
2009) (noting that “district courts generally have broad discretion to manage their dockets” (quotation omitted)).
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 8 of 14
1. Where Venue is Proper
The question of venue “is generally governed by 28 U.S.C. § 1391.” Atl. Marine Constr.
Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 55 (2013). In relevant part, this statute
provides that “[a] civil action may be brought in . . . a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred.” § 1391(b)(2). “Under [this]
provision, venue is not limited to the district with the most substantial events or omissions.”
Emp’rs. Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1165 (10th Cir. 2010) (emphasis in
original). This provision “instead ‘contemplates that venue can be appropriate in more than one
district . . . [and] permits venue in multiple judicial districts as long as a substantial part of the
underlying events took place in those districts.’” Id. at 1166 (quoting Gulf Ins. Co. v. Glasbrenner,
417 F.3d 353, 356 (2d Cir. 2005)).
Pursuant to § 1391(b)(2), courts “conduct a two-part analysis when reviewing challenges
to venue.” Id. “First, [courts] examine the nature of the plaintiff’s claims and the acts or omissions
underlying those claims.” Id. “Second, [courts] determine whether substantial ‘events material to
those claims occurred’ in the forum district.” Id. (quoting Gulf Ins., 417 F.3d at 357). And if “a
substantial part of the events or omissions giving rise to the claim occurred” in the forum district,
§ 1391(b)(2), then “venue is proper.” Atl. Marine, 571 U.S. at 56.
2. Transferring Venue
Even if venue is proper, courts may still consider “a motion to transfer [venue] under
[28 U.S.C.] §1404(a).” Id. at 59. This provision states in relevant part that “[f]or 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.” § 1404(a) (emphasis added).
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“But courts have considerable discretion in determining whether or not to grant a transfer.”
Stephens v. Alliant Techsystems Corp., 714 F. App’x 841, 845 (10th Cir. 2017) (unpublished); see
also Palace Expl. Co. v. Petroleum Dev. Co., 316 F.3d 1110, 1121 (10th Cir. 2003) (observing
that the Tenth Circuit “will not overturn [a transfer] decision unless it was a clear abuse of
discretion”); Bartile Roofs, 618 F.3d at 1170 (concluding that “the district court did not abuse its
discretion in denying [a] motion to transfer” because the denial did not qualify as “arbitrary,
capricious, whimsical, or manifestly unreasonable” (quotation omitted)).
“[A] district court considering a §1404(a) motion . . . must evaluate both the convenience
of the parties and various public-interest considerations.” Atl. Marine, 571 U.S. at 62. In the Tenth
Circuit, courts weigh various “discretionary factors” when evaluating the convenience of parties
and witnesses, including in relevant part:
(1) the plaintiff’s choice of forum;
(2) the accessibility of witnesses and other sources of proof, including the
availability of compulsory process to insure attendance of witnesses;
(3) the cost of making the necessary proof;
(4) relative advantages and obstacles to a fair trial;
(5) difficulties that may arise from congested dockets; and
“Unless the balance is strongly in favor of the movant, the plaintiff's choice of forum should rarely be disturbed.”
Bartile Roofs, 618 F.3d at 1167 (quotation and alterations omitted). “The plaintiff's choice of forum receives less
deference, however, if the plaintiff does not reside in the district.” Id.
“The convenience of witnesses is the most important factor in deciding a motion under § 1404(a).” Bartile Roofs,
618 F.3d at 1169 (quotation omitted). “To demonstrate inconvenience, the movant must (1) identify the witnesses
and their locations; (2) indicate the quality or materiality of their testimony; and (3) show that any such witnesses
were unwilling to come to trial, that deposition testimony would be unsatisfactory, or that the use of compulsory
process would be necessary.” Id. (quotation and alterations omitted).
“[T]he record [should] contain . . . evidence concerning the potential costs of litigating the case in [the current
forum].” Bartile Roofs, 618 F.3d at 1169.
“When evaluating the administrative difficulties of court congestion, the most relevant statistics are the median time
from filing to disposition, median time from filing to trial, pending cases per judge, and average weighted filings per
judge.” Bartile Roofs, 618 F.3d at 1169.
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(6) all other considerations of a practical nature that make a trial easy, expeditious
Bartile Roofs, 618 F.3d at 1167. The “party moving to transfer a case pursuant to § 1404(a) bears
the burden of establishing that the existing forum is inconvenient.” Scheidt v. Klein, 956 F.2d 963,
965 (10th Cir.1992). “Merely shifting the inconvenience from one side to the other, however,
obviously is not a permissible justification for a change of venue.” Id. at 966.
A. The Court Has Personal Jurisdiction over Defendant
As explained below, the Court concludes that Plaintiff has satisfied his “light” burden,
Wenz, 55 F.3d at 1505, of making a “prima facie showing of personal jurisdiction” over Defendant.
Eighteen Seventy, 32 F.4th at 964. In other words, Plaintiff has put forth “uncontested allegations”
that “if true would support jurisdiction over [Defendant].” Id.
Plaintiff has alleged that he and the other Acidizer/Treaters performed underpaid overtime
work “in the state of New Mexico”—specifically by repeatedly “work[ing] more than 40 hours in
one or more individual workweeks” in New Mexico. Compl. at ¶¶ 2.2, 2.3, 3.1–3.3, 5.20, 6.2, 8.
Although Defendant asserts that it conducts “roughly 75-80%” of its work outside of New Mexico,
ECF 7-1 at ¶ 6, Defendant cites to no authority suggesting that a business cannot have “sufficient
minimum contacts” with a state unless a certain threshold percentage its overall work was
performed in that forum. See Mot. at 3–4; Reply at 3–5. Furthermore, the “sufficient minimum
contacts” standard does not ask what percentage of a particular business’s overall activity is
performed in a forum state—but rather whether that business “purposefully directed its activities
at the forum state.” Dudnikov, 514 F.3d at 1071 (emphasis added). In addition, Defendant does
not contest the allegation that it employed Plaintiff to work in New Mexico—or that it required
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 11 of 14
Plaintiff to work “in excess of 40 hours each week” while he worked in this state. See, e.g., ECF
7-1 at ¶ 8 (asserting only that “Plaintiff primarily [but not exclusively] worked for Defendant in
Texas” (emphasis added)).
Assuming these allegations to be true, Eighteen Seventy, 32 F.4th at 964, the Court finds
that Defendant purposefully directed its activities at New Mexico. In other words, Defendant’s
contacts with New Mexico—e.g., employing Plaintiff and others to work in New Mexico oilfields
for over 40 hours a week on repeated occasions, see Compl. at ¶¶ 2.2, 2.3, 3.1–3.3, 5.20, 6.2, 8—
were not “merely random, fortuitous, or attenuated contacts.” Dudnikov, 514 F.3d at 1071
(quotation omitted). Indeed, the fact that Defendant maintains an operational yard in Lovington,
New Mexico undergirds the Court’s finding that Defendant purposefully directed substantial
activities at New Mexico oil fields and the revenue sources they offer.10 The Court further finds
that Plaintiff’s alleged injuries (e.g., underpayment for the overtime hours he worked in New
Mexico) arose out of his “forum-related activities”—namely, working in oilfields in New Mexico
for Defendant. Id. (quotation omitted). Accordingly, the Court concludes “the exercise of personal
jurisdiction over [Defendant]” does not “offend[ ] traditional notions of fair play and substantial
justice.” Eighteen Seventy, 32 F.4th at 966. Consequently, Defendant is subject to this Court’s
specific personal jurisdiction.
B. Venue Is Proper in This District
The Court concludes that “a substantial part of the events or omissions giving rise to
[Plaintiff’s] claim occurred” in New Mexico. 28 U.S.C. § 1391. As noted, although the majority
For instance, assuming Defendant earns 20 to 25 percent of its revenue from New Mexico, this translates into at
least $100,000 to $125,000 per year in revenue that Defendant is alleged to have earned from employing people like
Plaintiff to work in New Mexico. See Compl. at ¶ 4.5 (alleging that Defendant meets the Fair Labor Standards Act
requirement of having an “annual gross volume of sales made or business done of not less than $500,000” (quoting
29 U.S.C. § 203(s)(1)) (bracket omitted)).
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 12 of 14
of both Plaintiff and Defendant’s work occurred in Texas, Defendant’s alleged activities in New
Mexico were substantial. Specifically, the allegation that Defendant required Plaintiff to work in
New Mexico oilfields for over 40 hours a week on repeated occasions (without proper overtime
payment) is a “substantial part” of Plaintiff’s wage-and-hour claims. See also Bartile Roofs, Inc.,
618 F.3d at 1165–66 (noting that “venue is not limited to the district with the most substantial
events or omissions” and that “venue can be appropriate in more than one district”). The Court
therefore holds that venue is proper in the District of New Mexico.
C. Venue Should Not Be Transferred
As with virtually every oilfield-based wage-and-hour case filed in this Court in the last
fifteen years, this case offered at least two possible venues: the Districts of New Mexico and
Western Texas. As explained below, the Court will exercise its discretion to deny Defendant’s
request that venue be transferred to the Western District of Texas “[f]or the convenience of parties
and witnesses.” 28 U.S.C. § 1404(a).
Defendant has not met its “burden of establishing that the [District of New Mexico] is [so]
inconvenient” that a discretionary transfer of venue is necessary. Scheidt, 956 F.2d at 965. First,
although Plaintiff might not reside in New Mexico, he did choose this forum. And this choice is
entitled to at least some amount of deference—albeit “less deference” than the nearly-controlling
deference that would exist if he resided here—but deference nonetheless. Bartile Roofs, 618 F.3d
at 1167. Next, although a trial in Midland, Texas would provide some convenience to those Texasbased parties and witnesses (particularly in terms of travel time and gasoline and hotel expenses),
Defendant has not specifically identified which if any particular witnesses(es) would (1) be
“unwilling to come to trial,” (2) provide “deposition testimony [that] would be unsatisfactory,” or
(3) require “compulsory process.” Id. at 1169 (emphasis added); see Mot. at 6 (generally
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suggesting that (unnamed) non-party witnesses, e.g., 17 former “Acid Treaters/Supervisors,”
might require compulsory attendance at a deposition or trial). Furthermore, Defendant concedes
that it “does not anticipate any issue with being able to obtain a fair trial” in this District. Id. at 7.
Lastly, although “[t]he median time from filing to disposition for civil cases in the Western District
of Texas” is almost two months faster than in this District, Defendant has not explained how this
general statistical difference meaningfully affects its litigation strategy in this case. Id. at 7–8.
The Court pauses to observe that the applicable provision of §1404(a) was enacted in 1948
and has not been amended since then.11 In the meantime, courts and litigants have learned to
leverage technological advances to increase the speed and decrease the inconvenience of litigation.
Electronic filing, remote or video-conferenced depositions and hearings, and the modern
“paperless” office are only a few examples. Furthermore, although wage-and-hour cases typically
last longer than other civil cases because of their collective/class certification dimensions, the
parties’ consent to a magistrate judge as the trial judge will ensure this case moves with greater
In sum, after considering the pertinent “discretionary factors,” Bartile Roofs, 618 F.3d at
1167, the Court concludes that venue should remain in this District.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [ECF 7] is
In 2011, §1404(a) was amended to also allow the transfer of venue “to any district or division to which all parties
have consented”—but this provision is not applicable to the instant dispute.
Case 2:22-cv-00252-GJF-KRS Document 23 Filed 01/19/23 Page 14 of 14
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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