Safety Kleen Systems, Inc v. McCoy Freightliner, Inc.

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 26 Report and Recommendations, 19 Motion to Change Venue filed by McCoy Freightliner, Inc.. Defendants Motion to Transfer Venue (Dkt. #19) is DENIED. Signed by Judge Michael H. Schneider on 5/23/11. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERM AN DIVISION

SAFETY-KLEEN SYSTEMS, INC.

v.
MCCOY FREIGHTLINER, INC.

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Case No. 4:10-CV-608
(Judge Schneider/Judge Mazzant)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On April 11, 2011, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendant’s Motion to Transfer Venue (Dkt. #19) should
be DENIED.
On April 28, 2011, Defendant McCoy Freightliner, Inc. (“McCoy”) filed objections to the
Magistrate Judge’s report and recommendation. In the report and recommendation, the Magistrate
Judge properly determined that McCoy failed to show that the Southern District of West Virginia
is a clearly more convenient forum and that transfer for the convenience of the parties is warranted.
See RR (Dkt. #26) at 11. As noted by the Magistrate Judge, McCoy spent less than three pages
discussing the convenience factors in its motion and failed to provide sufficient information for the
Magistrate Judge to find in McCoy’s favor. Id. For example, McCoy argues that the Magistrate
Judge erred in finding the “relative ease of access to sources of proof” factor was neutral. See
Objections (Dkt. #27) at 7. However, McCoy never addressed this factor in its motion.

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McCoy also argues the Magistrate Judge erred in finding the “availability of compulsory
process” factor was neutral. Id. at 9. However, as the Magistrate Judge notes, neither party
identified any non-party witnesses residing in either district, and McCoy’s general allegation that
unnamed non-party witnesses exist is not enough. See RR (Dkt. #26) at 9. McCoy never mentions
any non-party witnesses until its Reply, and the Court agrees with the Magistrate Judge that
arguments not addressed in the original motion will not be considered. Id.
The Court also disagrees with McCoy’s objection to the Magistrate Judge’s finding that the
“local interest” factor was neutral. McCoy argues that the Magistrate Judge found this factor
disfavored transfer solely because the Plaintiff’s headquarters is located in this District. Objections
(Dkt. #27) at 10. However, the Magistrate Judge considered the fact that Plaintiff’s headquarters is
located in this District as well as a permissive forum selection clause providing this Court
jurisdiction. See RR (Dkt. #26) at 11. McCoy cites the Court to no authority, and the Court is aware
of none, stating the Court may not consider the location of the Plaintiff’s corporate headquarters in
the transferor district and the presence of a forum selection clause naming the transferor district in
its analysis of the convenience factors. While not dispositive by any means, having Plaintiff’s
corporate headquarters located in this District does in fact give this District some interest in having
a dispute involving the Plaintiff decided here.
In addition to objecting to the Magistrate Judge’s findings regarding the transfer of this case
based upon the convenience factors, McCoy also argues the Magistrate Judge erred in not agreeing with
McCoy that this case should be transferred based upon an improper venue argument. See Objections
(Dkt. #27) at 4. Again, as the Magistrate Judge notes, McCoy failed to raise this argument until its
Reply brief was filed. See Reply (Dkt. #25) 4-5; RR (Dkt. #26) at 11. Further, McCoy’s argument
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that venue is not proper in this District is incorrect. As the Magistrate Judge discussed, the forum
selection clause here is permissive. RR (Dkt. #26) at 7. While disputes between these parties are
not required to be brought in Texas, the clause does state that McCoy submits to the jurisdiction of
Courts in Texas. Venue is proper “in the judicial district where the defendant resides, or where the
defendant has committed acts of infringement and has a regular and established place of business.”
28 U.S.C. § 1400(b). A corporate defendant, like McCoy, “reside[s] in any judicial district in which
it is subject to personal jurisdiction at the time the action is commenced.” See 28 U.S.C. 1391(c).
Therefore, because the forum selection clause gives the Court jurisdiction over this matter, venue
is also proper.
Based upon the reasons stated herein, the Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct, and the objections are without merit. Therefore, the
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Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and
conclusions of this Court.
It is, therefore, ORDERED that Defendant’s Motion to Transfer Venue (Dkt. #19) is
DENIED.
It is SO ORDERED.
SIGNED this 23rd day of May, 2011.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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