Barker et al v. Halliburton Company et al

Filing 19

RESPONSE in Opposition re 17 MOTION to Change Venue and 18 MOTION dismiss filed by Tracy K Barker, Galen D Barker. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D)(Kelly, Lannie) Modified on 6/20/2007 (bjc, ).

Barker et al v. Halliburton Company et al

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Case 1:07-cv-00294-TH

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS (B E A U M O N T DIVISION) T R A C Y K., AND GALEN D. BARKER § P la in t if f s , § § v s. § § H A L L IB U R T O N COMPANY d/b/a § K B R KELLOGG BROWN & ROOT § (KBR); KELLOGG BROWN & ROOT§ S E R V IC E S , INC.; KELLOGG § B R O W N & ROOT INTERNATIONAL,§ IN C .; KELLOGG BROWN & ROOT, § LLC; KELLOGG BROWN & ROOT, § INC.; KELLOGG BROWN & ROOT, § S . de R.L.; KELLOGG BROWN & § R O O T (KBR), INC.; KBR § T E C H N I C A L SERVICES, INC.; § A L I MOKHTARE; SERVICE § E M P L O Y E E S INTERNATIONAL, § IN C .; and THE UNITED STATES OF § A M E R IC A § D efen d a n ts. §

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J U R Y TRIAL DEMANDED

P L A IN T IF F 'S RESPONSE TO DEFENDANTS KBR, HALLIBURTON, A N D SEII'S MOTION TO DISMISS OR TRANSFER FOR IMPROPER V E N U E , OR, IN THE ALTERNATIVE, TRANSFER IN THE INTERESTS O F JUSTICE AND FOR THE PARTIES' CONVENIENCE T racy and Galen Barker now respond to the captioned motion filed on behalf o f Defendants, KBR, Halliburton, and SEII.

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P R O C E D U R A L FACTS Im m ed iately upon learning that the defendant's motion had been filed, and w ith the belief that the motion was frivolous, counsel for the Plaintiffs contacted co u n sel for the defendants and urged them to withdraw the motion, citing the d e f en d a n t's own brief as authority for filing in the Eastern District. In response, d efen d an t's counsel simply forwarded a copy of the 5 th Circuit opinion in In re: H o rsesh o e Entertainment, 337 F.3d 429. (Exhibit A) S T A N D A R D OF REVIEW 1. V en u e lies in the sound discretion of the District Court, and will not

b e overturned absent an abuse of that discretion. Horseshoe Entertainment, at 429.

V E N U E FACTS 2. T h e Eastern District of Texas is clearly a "judicial district in the

state." Despite Defense Counsel's protestations against having this matter heard in th is court, the very venue provisions cited by counsel in its motion, clearly support v e n u e in this forum (Defendant's Motion at 5). 3. As stated so eloquently by defendants: "the Barkers bring claims

u n d e r Title VII, for which Congress has adopted special venue provisions: Such actio n may be brought in any judicial district in the State in which the unlawful
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em p lo ym en t practice is alleged to have been committed . . . or . . ." Defendants M o tio n in Barker, at 5. 4. Defendants were not only aware of this special venue provision at the

tim e they filed the instant motions, but it was brought to their counsel's attention in an effort to avoid the unnecessary hearing on this matter ­ to no avail. Instead, D e fe n d a n ts merely provided a copy of the Horseshoe Entertainment case: which o n ly further supports the Plaintiff's choice of venue in the Eastern District. 5. Defendant's entire motion rests on the notion that this cause "could

h av e been brought" in the Southern District. That is irrelevant to the analysis of w h eth er it could also have been brought in the Eastern District ­ as Plaintiffs have ch o sen to do. a. As pointed out by the Defendants, a plaintiff's choice of forum

is "highly esteemed." b. As for convenience of the parties, Defendant's complain about

tr a v e lin g a whopping 78 miles to this courthouse (Exhibit B). Undersigned co u n sel spends nearly an hour each way per day driving to and from his o f f ice, the extra few minutes on the road should not factor in to this eq u atio n . In fact, it is interesting that the 78 mile distance is within the 100 m ile radius of the subpoena power of this court, which distinguishes it from
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th e inconvenience the court found in Horseshoe Entertainment! Horseshoe E n terta in m e n t, 431. It is far easier to navigate the stretch of Interstate 10

th a n the treacherous metropolis that is greater Houston. Therefore, even as to convenience of the parties ­ the peaceful trek to Beaumont mitigates in fav o r of the Eastern District. c. The location of the personnel records relevant to his case is

o n ly relevant if we were bogged down with a 1970's type mentality ­ when actu al paper documents had to be lugged around from location to location. H o w ev er, when the entirety of Halliburton's personnel files, and certainly th o s e related to this case can be contained on a contact disc not much larger th a n the credit cards in my wallet or on a flash drive the size of my little f in g e r (Exhibit C), it should not matter where these records are "m a in ta in e d . " In fact, I will voluntarily offer to transfer the records once d ig itally recorded ­ personally for the benefit of the "burdened" defendants. d. The factor of "location of counsel," despite the Defendants'

assertio n s to the contrary, is irrelevant. Horseshoe Entertainment, at 434. However, even if it were relevant ­ as defendants assert, one of defendant's o w n counsel (in fact a signatory to the instant motion) offices in Beaumont, T e x a s ­ the situs of this Court.
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6.

Defendants feign a concern that a trial in Beaumont would be

"co n trary to the interests of justice and fundamentally unfair," What is fu n d am en tally unfair, and contrary to the interests of justice is to have Halliburton, o n e of the largest employers in Houston, (Exhibit D) to be defending itself in the v ery city where it is headquartered, where it has such an enormous economic and p h ila n th r o p ic presence, and where so many potential jurors are either directly or in d irectly affected by its successes and failures. It far better serves the interests of ju stice to have this case heard by an impartial coalition of jurors, which can be b etter found in the Eastern District. 7. As to the Defendant's motion to dismiss, this Court should deny that

o u trig h t. Defendant completely ignores the fact that this case was filed against m u ltip le defendants, and that dismissal of this case now would work a procedural b a r (the statute of limitations) as to several of them. Plaintiff cannot conceive of a m o re "adverse affect" than a total procedural bar to prosecution. WHEREFORE, Plaintiffs pray that the Defendants' KBR, Halliburton, and S E II's Motion to Dismiss or Transfer for Improper Venue, or, in the Alternative, T r a n s fe r in the Interests of Justice and for the Parties' Convenience, be, in all th i n g s , denied, and that Defendants be ordered by pay the costs and attorneys' fees asso ciated with responding to this frivolous motion.
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R esp ectfu lly submitted, /s/ L. Todd Kelly L . Todd Kelly T HE KELLY LAW FIRM, P.C. T ex as Bar No. 24035049 O n e Riverway, Suite 1150 H o u sto n , Texas 77056 T el. [phone] F ax . [phone] P a u l Waldner V ICKERY, WALDNER & MALLIA, L.L.C. T ex as Bar No. 20679800 O n e Riverway, Suite 1150 H o u sto n , Texas 77056 T el. [phone] F ax . [phone] & Stephanie M. Morris A TTORNEY AT LAW M e m b e r of D.C. and PA. Bars 1 6 6 0 L. Street, N.W., Suite 506 W ash in g to n , D.C. 20036 T el. [phone] F ax . [phone] A TTORNEYS FOR PLAINTIFF, JAMIE JONES AND JOSEPH DAIGLE

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C ERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the attached document was filed electro n ically by using the CM/ECF and/or by First Class Mail on the following co u n sel of record, this 20 th day of June, 2007: S h a d o w Sloan, Esq. S ta te Bar No. 18507550 F ed era l ID No. 11372 V . Loraine Christ S ta te Bar No.: 24050417 F ed era l ID No.: 611166 V INSON & ELKINS, LLP F ir st City Tower 1 0 0 1 Fannin Street, Suite 2300 H o u sto n , Texas 77002-6760 (7 1 3 ) 758-3822 ( 7 1 3 ) 615-5933 (fax) & M EHAFFY WEBER M .C . Carrington, Of Counsel S ta te Bar No.: 03880800 P o st Office Box 16 B ea u m o n t, Texas 77704 (4 0 9 ) 835-5011 ( 4 0 9 ) 835-5177 (fax) /s/ L. Todd Kelly

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