Environmental, Safety & Health Consulting Services, Inc. v. Magnablend, Inc.

Filing 18

ORDER AND REASONS granting 6 Motion to Change Venue, and the matter is Transferred to USDC Northern District of Texas. Signed by Judge Ivan L.R. Lemelle on 11/9/2012. (ijg, ) [Transferred from Louisiana Eastern on 11/15/2012.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ENVIRONMENTAL, SAFEFTY & HEALTH
CONSULTING SERVICES, INC.

CIVIL ACTION

VERSUS

NO. 12-1751

MAGNABLEND, INC.

SECTION: "B" (4)

ORDER AND REASONS
Before

the

Court

is

Defendant

Magnablend,

Inc.’s

(“Magnablend”) motion to transfer this case, pursuant to 28 U.S.C.
§ 1404(a), to the United States District Court for the Northern
District of Texas (“N.D. Tx.”).

(Rec. Doc. No. 6).

Also before

the Court are Plaintiff Environmental, Safety & Health Consulting
Services, Inc.’s (“ES&H”) opposition to the motion, as well as
Magnablend’s reply in support of the motion.
17).

(Rec. Docs. No. 14 &

Accordingly, for the reasons articulated below,
IT IS ORDERED that Defendants’ Motion to Transfer (Rec. Doc.

No. 6) is GRANTED, and the above-captioned matter is TRANSFERRED to
United States District Court for the Northern District of Texas.
Cause of Action and Facts of Case:
This

case

arises

from

a

contract

dispute

over

services

rendered at a facility located in N.D. Tx., in Waxahachie, Texas.
ES&H

is

a

Louisiana

company

based

in

Houma,

Louisiana

specializes in environmental cleanup work and remediation.
Docs. No. 14 at 2, & 6-1 at 1).

that
(Rec.

Magnablend is a Texas corporation

with corporate offices located in Waxahachie, TX.

(Rec. Doc. No.

6 at 2).

On October 3, 2011, a fire at Magnablend’s Waxahacie, TX

Liquid Blending Facility (“Facility”) caused environmental hazards
and concerns.

Id.

ES&H was subsequently engaged to perform

environmental cleanup work at the Facility.
2 & 6-1 at 2).

(Rec. Docs. No. 14 at

ES&H alleges that Magnablend refuses to pay for

cleanup services rendered, and filed an action claiming breach of
contract

and

unjust

enrichment

in

the

Thirty-Second

Judicial

District Court, for the Parish of Terrebone, State of Louisiana
(“State Court”).

(Rec. Docs. No. 14 & 6-1).

Magnablend removed the case to this Court on July 5, 2012 and
filed the instant motion to transfer venue on July 12, 2012. (Rec.
Docs. No. 1 & 6).

ES&H filed their opposition to the motion on

August 14, 2012 and Magnablend filed their reply to the opposition
on August 21, 2012.

(Rec. Docs. No. 14 & 17).

concede that this Court is a proper venue.

Both parties

(Rec. Docs. No. 6-1 at

4 & 14 at 1)
Law and Analysis:
A.

Motion to Transfer - 28 U.S.C. § 1404(a)
This Court has broad discretion in deciding whether to order

a transfer pursuant to 28 U.S.C. § 1404(a).

In re Volkswagen of

America, Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc), citing
Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998)(quoting
Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 919 (5th Cir.
1987).

A district court may transfer any civil case “[f]or the

2

convenience of parties and witnesses, in the interest of justice .
. . to any other district or division where it might have been
brought.”

28 U.S.C. § 1404(a).

Section 1404(a) serves to temper

the plaintiff’s power to choose venue under the general venue
statute, 28 U.S.C. § 1391.

In re Volkswagen, 545 F.3d at 313.

The

underlying premise of the statute is to prevent plaintiffs from
subjecting defendants to venues that are inconvenient under §
1404(a).

Id.

Therefore, when the district court where the movant

seeks to have the case litigated, i.e., the “transferee” court, is
clearly more convenient than the venue chose by plaintiff, the
transfer should be granted.

Id. at 314.

The movant bears the

burden of showing that transfer is warranted.
Motor Corp., 90 F.Supp.2d. 757, 768

Mohamed v. Mazda

(E.D. Tx. 2000), citing Time,

Inc v. Manning, 366 F.2d 690 (5th Cir. 1966).
The inquiry when seeking transfer under § 1404(a) is two-fold:
“(1) whether the action sought to be transferred is one that ‘might
have been brought’ in the transferee court; and if so, (2) whether,
considering the ‘convenience of parties and witnesses' and ‘the
interest of justice’ a transfer to the proposed district is
appropriate.”

Atlantic Sounding Co., Inc. v. Steward, 2009 WL

1375699, at *1 (S.D. MS. May 15, 2009) (citing Hernandez v. Graebel
Van Lines, 761 F.Supp. 983 (E.D.N.Y. 1991).

Here, ES&H does not

dispute that E.D. Tx. is a venue where the action might have been
brought.

(Rec. Doc. No. 14).

Therefore, the Court moves to the
3

second part of the inquiry and considers the convenience of the
parties and witnesses and balances public and private factors, none
of which are of themselves dispositive, to determine whether
transfer is warranted.
The

public

In re Volkswagen, 545 F.3d at 314-316.

interest

factors

are:

(1)

the

administrative

difficulties resulting from court congestion; (2) the familiarity
of the forum with the law that will govern the case; (3) the local
interest in having localized controversies decided at home; and (4)
choice of law issues.

In re Volkswagen, 545 F.3d at 314.

In the

present matter, neither party raises issues of administrative
difficulties, nor is the Court aware of any particular problems
with court congestion arising from transfer to N.D. Tx.

Therefore

only the second, third, and fourth public interest factors need to
be addressed by this Court.
The private interest factors are: (1) the plaintiff's choice
of venue; (2) the situs of material events; (3) the cost of
obtaining attendance of witnesses and other trial expenses; (4) the
place of the alleged wrong; and (5) the possibility of delay and
prejudice if the court grants the transfer.1 Id.

1
See also In re Volkswagen 545 F.3d at 314 (stating “Although a
plaintiff's choice of venue is not a distinct factor in the venue transfer
analysis, it is nonetheless taken into account as it places a significant
burden on the movant to show good cause for the transfer.”) Id. at 314 n.10.

4

1. Public Interest Factors
a. Relationship to community and local interest2
This contract dispute arises out of services rendered by ES&H
at Magnablend’s facility in Waxahacie, Texas, which is located
within the N.D. Tx.

(Rec. Docs. No. 14 at 2 & 6-1 at 4).

Magnablend is a Texas citizen.

(Rec. Doc. No. 6-1 at 12).

The

only connection to the Eastern District of Louisiana is that ES&H
is based out of Houma, Louisiana.

(Rec. Doc. No. 14 at 11-12).

ES&H argues that this creates a “local interest” because “Louisiana
has an interest in protecting the contractual rights of its
business entities.” (Rec. Doc. No. 14 at 11).

However, the case

ES&H cites to support this proposition is discussing Louisiana’s
interest in the context of a personal jurisdiction analysis, and
not in the context of a motion to transfer venue.

Custom Fuel

Services, Inc. v. Brinkerhoff Oil Trading Co., et al., No. 87-5686,
1989 WL 104099 at *5-6 (E.D. La. Sept. 5, 1989).

Further,

Magnablend points out that ES&H’s office in the “Dallas/Fort Worth”
area, which falls within N.D. Tx., coordinated most of the work for
Magnablend.

(Rec. Doc. No. 6-1 at 10).

Magnablend also asserts

that all of the contacts and communication giving rise to the
contractual relationship between Magnablend and ES&H took place in
N.D. Tx.

(Rec. Doc. No. 17 at 2).

Therefore, because ES&H can

only argue its own citizenship in Louisiana as a “local interest,”

2

This section encompasses both public interest factors two and three.

5

the

Court

finds

underlying

the

this

is

outweighed

contractual

dispute

by

the

operative

occurring

in

N.D.

facts
Tx.

Therefore, the second and third public interest factors weigh in
favor of transfer to N.D. Tx.
b.

Choice of Law

Magnablend argues that because Texas state law is likely to
apply to this contract dispute, it would be “unfair to burden the
citizens of Louisiana with jury duty in a matter that has no
relevance ... to their state and/or their laws.” (Rec. Doc. No. 61 at 13.)

ES&H does not concede that Texas law will apply to

ES&H’s claims, and states that even if it were, “federal courts
commonly apply the law of other states and are qualified to do so.”
(Rec. Doc. No. 14 at 12).

Therefore, because it is unclear at this

stage whether Texas or Louisiana law will apply to this dispute,
the weight of this public interest factor in choosing between the
two venues is neutral.
2. Private Interest Factors
a. Plaintiff’s Choice of Venue
“...[T]he plaintiff's choice of [venue] is clearly a factor to
be considered but in and of itself it is neither conclusive nor
determinative."

In re Horseshoe Entertainment, 337 F. 3d 429, 434

(5th Cir. 2003).

Moreover, “the plaintiff's privilege of choosing

his venue, at the very least, places the burden on the defendants
to demonstrate why the forum should be changed.”

6

Time, Inc. v.

Manning, 366 F. 2d 690, 698 (5th Cir. 1966).

In the instant

action, this Court is Plaintiff ES&H’s choice of venue, and ES&H is
a Louisiana company based in Houma, Louisiana, within the Eastern
District of Louisiana.

(Rec. Docs. No. 14 at 2, & 6-1 at 1).

Therefore, this factor weighs in favor of retaining venue in this
Court.
b. Location of incident3
The location of the incident is an important factor when
determining venue. See, e.g., Holmes v. Warrior & Gulf Navigation
Co., F. Supp. 2d, 2004 WL 1774615 at *3 (E.D. La. 2004).

Here, the

contract

ES&H

dispute

arises

from

services

rendered

Magnablend at a facility located in N.D. Tx.
2 & 14).

by

for

(Rec. Doc. No. 17 at

However, ES&H asserts that the “operative facts” of this

contractual

dispute

arise

out

of

the

communications

and

negotiations between ES&H and Magnablend to arrange said services.
(Rec. Doc. No. 14 at 5).

But rather than argue that these

negotiations took place in the Eastern District of Louisiana (“E.D.
La.”), ES&H instead asserts that they involved “various judicial
districts,” including other districts within Texas, but not E.D.
La.4

Id. at 6.

Therefore, when the underlying services of the

3

This section addresses private interest factors two and four.

4

Specifically, ES&H makes the argument that key negotiations took place
in Houston, Texas and Austin, Texas, in the Southern and Western Districts of
Texas, respectively. (Rec. Doc. No. 14 at 6).

7

contract at issue occurred in N.D. Tx., and there is no connection
of the operative facts to the present venue, this factor weighs in
favor of transfer.
c. Availability of Witnesses and Parties
This factor is arguably one of the most important when
analyzing a motion to transfer. See Aland v. Faison Associates, F.
Supp., 1998 WL 355468 (N.D. Tex. 1998).

In Goodman Co., L.P. v. A

& H Supply, Inc., 396 F. Supp. 2d 766, 776 (S.D. Tex. 2005), the
Defendant argued that even if venue was proper in the Plaintiff's
chosen venue, the suit should be moved for reasons of convenience.
The court determined that even if moving the suit to Defendant's
venue was convenient to them, it would be much less convenient for
the Plaintiff.

Id.

Defendant claimed all of its witnesses were

located in Idaho and requested the transfer but all of Plaintiff's
witnesses were located in Texas.

Id.

A case should not be

transferred if the “only practical effect is to shift inconvenience
from the moving party to the nonmoving party.”

Id.

Here, both parties agree that Magnablend employees likely to
be called as witnesses are based in N.D. Tx.
6 & 14 at 10).

(Rec. Doc. No. 6-1 at

ES&H also cites several of its own employees based

in Houma, Louisiana, as witnesses who would be inconvenienced by
transfer to N.D. Tx.

(Rec. Doc. No. 14 at 10).

Yet Magnablend

counters by pointing out that many ES&H employees were able to
8

operate

out

of

ES&H’s

Dallas/Fort

Worth

office

in

order

to

negotiate the contract at issue in this dispute. (Rec. Doc. No. 61 at 9-10).

Indeed, ES&H concedes that its own employee, Jeremy

McEntire, who “engaged in the initial negotiations on behalf of
ES&H ... is located in the Northern District of Texas.” (Rec. Doc.
No. 14 at 11). ES&H also argues that “key non-party witnesses” are
located outside of N.D. Tx, and instead points out that they are
located in the Southern District of Texas, in Houston, and the
Western District of Texas, in Austin.
that

since

these

non-party

Id. at 10-11.

witnesses

(agents

of

ES&H argues
Magnablend’s

insurer and insurance broker, respectively) are more than 100 miles
outside of N.D. Tx. and E.D. La., they are outside the subpoena
power of both venues, pursuant to Fed. R. Civ. Proc. 45(c)(3)(A).
Id. at 10.

ES&H contends that this renders the convenience of the

non-party witnesses a “neutral” factor.
this conclusion.

Id.

The Court rejects

Although the non-party witnesses in Houston and

Austin may be outside the subpoena power of both N.D. Tx. and E.D.
La., it is certainly far more convenient for said witnesses to
travel the shorter distance to N.D. Tx. in Dallas than to this
Court in New Orleans.5 Therefore, combined with the fact that

5

ES&H’s statement that “[t]he distance of the Southern District of
Texas and the Western District of Texas witnesses from the Dallas area is not
much more than their distance from New Orleans,” is misleading. (Rec. Doc. No.
14 at 10), emphasis added. The distance is not only not “not much more,” it
is actually less. According to a commonly-used mapping resource: the distance

9

Magnablend’s officers are located in N.D. Tx., and a key ES&H
employee witness is located in N.D. Tx., transfer will do much more
than merely “shift the inconvenience” from one party to another; it
will significantly reduce inconvenience to both parties, as well as
to non-party witnesses. Accordingly, this factor weighs heavily in
favor of transfer.
d.

Possibility of Delay and Prejudice

When “the action is still in the early stages of litigation,
any delay resulting in the transfer to the proper forum should not
prejudice

either

party.”

Peters

v.

Milton

Hall

Surgical

Associates, No. Civ. A. 03-1254, 2003 WL 22174274, at *2 (E.D.la.
Sept. 11, 2003).

This matter is still in the early stages, having

been removed to this Court only four months ago.6
1).

(Rec. Doc. No.

Therefore, the Court finds no risk of prejudice to either

party by transfer to N.D. Tx.

between the Southern District of Texas and N.D. Tx. is approximately 240
miles, as compared to 347 miles between the Southern District of Texas and
this Court; the distance between the Western District of Texas and N.D. Tx. is
197 miles, as compared to 509 miles between the Western District of Texas and
this Court. Mileage computed by Mapquest. (Rec. Doc. No. 6-1 at 6, n.13);
See also http://www.mapquest.com; In re Extradition of Gonzalez, 52 F.Supp.2d
725, 731 at n.12 (W.D. La. 1999) (relying on Mapquest to calculate mileage,
stating “Judicial notice can be taken of facts ‘capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.’”), citing Fed. R. Evid. 201(b)(2); Marsh v. Butler, 268 F.3d
1014, 1049 at n. 3 (11th Cir. 2001).
6

A preliminary scheduling conference has not yet been set in this
matter, nor are there any other pending motions before this Court.

10

In view of all of the above articulated factors, transfer of
this action is warranted.
New Orleans, Louisiana, this 9th day of November, 2012.

____________________________
UNITED STATES DISTRICT JUDGE

11