Harris v. Blockbuster Inc

Filing 29

REPLY to Response re: 27 Second MOTION to Change Venue filed by Blockbuster Inc. (tln)

Harris v. Blockbuster Inc

Doc. 29

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION CATHRYN ELAINE HARRIS, MARIO HERRERA, and MARYAM HOSSEINY on behalf of themselves and all others similarly situated, Plaint iffs, v. BLOCKBUSTER INC. Defendant. § § § § § § § § § § § §

CIVIL ACTION NO. 2:08-cv-00155

DEFENDANT'S REPLY IN SUPPORT OF ITS AMENDED MOTION TO TRANSFER VENUE Defendant Blockbuster Inc. ("Blockbuster") files this Reply in Support of its Amended Motion to Transfer Venue ("Motion"), and states as follows: I. INTRODUCTION

In their response to Blockbuster's Motion, Plaint iffs o ffer no compelling reason why this case--a dispute between a Dallas co mpany and three Dallas plaint iffs--should proceed over 150 miles away fro m Dallas, in Marshall, Texas. None of the named parties have any particular connection to the Eastern District of Texas. Blockbuster's corporate headquarters is located just a few blocks fro m the federal courthouse in downtown Dallas, and Plaint iffs all live in Dallas County. The only connect ion between this case and the Eastern District of Texas is Plaint iffs' cho ice to file suit there. To the extent there was ever any doubt, the Fift h Circuit 's recent opinio n in In re Volks wagen, 545 F.3d 304 (5th Cir. 2008) ("Volks wagen II"), makes clear that a plaint iff's venue cho ice does not control where, as here, a clearly more convenient venue is available.

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II.

THE PRIVATE AND PUBLIC INTEREST FACTORS SUPPORT TRANSFER Alt hough the parties agree on the proper framework for analyzing Blo ckbuster's motio n

under Sect ion 1404(a), they disagree on how that standard should be applied, particularly in light of the Fift h Circuit's recent opinio n in Volkswagen II. Although Plaint iffs acknowledge that the Volkswagen II court held that a movant need only make a clear showing that the transferee court is "more convenient," they mistakenly equate this with the discredited "heavy burden" standard, suggest ing incorrectly that their cho ice o f venue is ent it led to significant deference even where, as here, there is no connection between their claims and the chosen venue. In the end, Plaint iffs cannot point to any witnesses, documents, or other sources of proof located in the Eastern District and they o ffer no convincing reason why Dallas-based part ies and third-parties flying through Dallas should be asked to assume the extra cost and burden of travelling to Marshall. A. The Private Interest Factors. The first set of factors, often referred to as the "private" or "convenience" factors, focuses primarily on the relat ive ease o f lit igat ing in the respect ive venues. See Hanby v. Shell Oil Co., 144 F. Supp. 2d 673, 676 (E.D. Tex. 2001). Here, these factors demonstrate that the Northern District is "clearly more convenient" than the Eastern District. Volkswagen II, 545 F.3d at 315. Indeed, Plaint iffs cannot ident ify a single wit ness who resides in the Eastern District. As Blockbuster pointed out in its mot ion, its likely witnesses all work at Blockbuster's corporate headquarters in downtown Dallas. Plaint iffs po int to the fact that Blockbuster has a distribut io n facilit y in the Dallas suburb o f McKinne y, Texas, but they do not (and cannot) suggest that any likely witnesses work there. Moreover, there is no dispute that all three Plaint iffs reside in Dallas Count y. Trying to minimize the importance o f this fact, Plaint iffs offer to give their depositions in Dallas, but this concessio n only serves to emphasize that this is a Dallas dispute.

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Plaint iffs are similarly unable to point to any evidence located in this District. Again, the McKinney distribution facilit y does not help them here, because there is no connect ion between it and their claims in this case. All o f the evidence relevant to Plaint iffs' claims is either in Dallas or California, not in McKinney or anywhere else in the Eastern District. Plaint iffs po int to the overall square footage of the McKinne y facilit y, but ignore the fact that none of this square footage is ho me to any o f the servers, documents, or data used to operate Blockbuster Online. See Declarat ion of Ryan Miller ("Miller Dec.") ¶ 5. The fact that Facebook is located in California also militates in favor of transfer to Dallas. Whereas Facebook's Bay Area headquarters are a direct flight to the DFW airport, the added travel to Marshall would magnify the cost and burden for any Facebook witnesses who might otherwise consider willingly participating in a trial. See Volkswagen II, 545 F.3d at 317

(explaining how such burdens adversely affect lit igants and counsel). Plaint iffs' argument that the Eastern District is not rendered inconvenient by the fact that witnesses would have to trave l "a bit further" to Marshall than to Dallas was rejected in Volkswagen II, where the Fifth Circuit made clear that the 155-mile distance between Dallas and Marshall was sufficient to render the Dallas Divisio n "clearly more convenient." See id. at 317-38. Unable to point to any wit nesses located in the Eastern District, Plaint iffs argue--relying solely on a pre-Volkswagen II district court case--that the interests of the witnesses Blockbuster ident ifies as residing in the Northern District should be disregarded simply because they are affiliated with the parties. See Ps.' Resp. at 9-10 [ECF Doc. #28]. Volkswagen II, however, made clear that the convenience o f party wit nesses is an important and appropriate considerat ion. In that case, the court examined the cost of attendance for willing wit nesses by looking at a witness list that included, amo ng others, one of the individual defendants. See 545 F.3d at 317.

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The court found that the 155-mile distance from Marshall to Dallas made Dallas a "clearly more convenience" venue for witnesses that reside in Dallas. Id. Nowhere did the court indicate that the cost of attendance or inconvenience for party witnesses should be ignored. Plaint iffs also refuse to abandon their argument that modern techno logy renders this convenience analys is less important. See Ps.' Resp. at 6-8. The Fift h Circuit squarely rejected this argument, holding that the fact "[t]hat access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous." 545 F.3d at 316. Plaint iffs' attempt to dist inguish the potential evidence at issue in this case fro m that in Volks wagen II is unavailing. The fact remains that all documents and evidence related to this lit igat ion are located outside the Eastern District of Texas. B. The Public Interest Factors. The second set of factors--the "public interest" factors--looks to promote the "fair and efficient administration of just ice." See Shoemake v. Union Pac. R.R. Co., 233 F. Supp. 2d 828, 830 (E.D. Tex. 2002). The parties here focus on the first two factors: (1) the administrative difficult ies flowing from court congestion, and (2) the local interest in resolving localized disputes at home. See id. Neither factor supports keeping this case in the Eastern District. Wit h regard to administrative issues, Plaint iffs do not dispute that this District is extremely busy. It has a higher per-judge caselo ad, both on unweighted and weighted bases. See Mot. at 14. Plaint iffs do not dispute that the Northern District has a faster median disposit ive time. See id. Plaint iffs also ignore that the Northern District, like this District, has long had a Civil Justice Expense and Delay Reduct ion Plan. In short, the Northern District has the

procedures and resources to ensure that transfer will not result in any undue delay. Plaint iffs also cannot rely on the general preference for resolving localized disputes at ho me. Their argument on this factor fails at its most basic level: this dispute is not local to the 4

Eastern District, and the Eastern District is not Plaint iffs' home. Trying desperately to establish some part icular connect ion between this dispute and the Eastern District, Plaint iffs assert that "this lawsuit invo lves vio lat ions of the rights o f numerous residents of the Eastern District" and suggest that unnamed members of their purported class reside there. See Pls.' Resp. at 3, 13 & n.30. That may be true, but it proves too much. Plaint iffs' proposed class is national in scope, and there is no indicat ion that putative class members are concentrated in the Eastern District. Plaint iffs' reasoning would apply wit h equal fo rce to virtually every judicial district in the country. It is not surprising, therefore, that the same argument was rejected in Volkswagen II, where the Fift h Circuit held that it would "stretch[] logic in a manner that eviscerates the public interest that this factor attempts to capture" to assert that the cit izens o f Marshall have an interest in a case simply because a nat ional product or service is available there. 545 F.3d at 318. As Blockbuster pointed out in its Motion, Volks wagen II's ho lding has already been applied in a nat ionwide class act ion, where a Texas district court recognized that some putative class members resided in t he transferor district, but still held that the transferee district had a greater interest in the case given the defendant's location there and the occurrence of certain underlying events in that district. See Kleiner v. Sw. Airlines Co., 2008 WL 4890590, at *5 (W.D. Tex. Nov. 4, 2008). Not surprisingly, Plaint iffs fail to address Kleiner in their Response.1 III. CONCLUSION

Because the Dallas Divisio n of the Northern District of Texas is a "clearly more convenient" forum for this case than the Eastern District of Texas, Blockbuster respectfully requests that the Court grant this Motion and transfer this case to the United States District Court for the Northern District of Texas.

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As discussed above, Plaintiffs' reliance on Blockbuster's McKinney distribution center is a red herring. None of the employees, documents, data, servers, or any other source of proof is located at this distribution center.

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Respect fully submitted,

/s/ Michael L. Raiff Michael L. Raiff State Bar No. 00784803 Frank C. Brame State Bar No. 24031874 VINSON & ELKINS L.L.P. 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 214.220.7705 214.999.7705 (fax) [e-mail] m ATTORNEYS FOR DEFENDANT BLOCKBUSTER INC. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant's Reply in Support of Its Motion to Transfer Venue was served by ECF on the 17th day of December, 2008 on counsel of record for Plaint iffs. /s/ Michael L. Raiff Michael L. Raiff

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