Ross Neely Systems Inc v. Navistar Inc et al

Filing 282

Memorandum Opinion and Order denying 278 Emergency MOTION to Stay Proceedings, or in the Alternative, for a Transfer of Venue (See order for specifics) (Ordered by Magistrate Judge David L Horan on 4/22/2015) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROSS NEELY SYSTEMS, INC.,

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Plaintiff,
V.
NAVISTAR, INC., ET AL.,
Defendants.

No. 3:13-cv-1587-M-BN

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
EMERGENCY MOTION FOR A STAY OF THE PROCEEDINGS OR,
IN THE ALTERNATIVE, FOR A TRANSFER OF VENUE
Plaintiff Ross Neely Systems, Inc. has filed an Emergency Motion for a Stay of
the Proceedings, or, in the Alternative, for a Transfer of Venue. See Dkt. No. 278.
Plaintiff requests that this Court enter an order staying all proceedings in this action
until the United States Judicial Panel on Multidistrict Litigation (“JPML”) rules on the
motion filed by interim lead counsel in In re Navistar Maxxforce Engines Marketing,
Sales Practices & Prods. Liab. Litig., MDL No. 2590, to reconsider the JPML’s previous
decision to decline to transfer this case to the Northern District of Illinois so that it
may be coordinated with other cases involving similar facts and claims. Plaintiff asks,
in the alternative, this Court to transfer the case to the Northern District of Illinois of
its own accord under 28 U.S.C. § 1404(a).
For the reasons explained below, the Court DENIES the motion.
Background
Plaintiff filed this action against Defendants on April 24, 2013. See Dkt. No. 1.
1

The Court issued its scheduling order on January 31, 2014, setting the case for a jury
trial on the Court’s two-week docket beginning February 17, 2015. See Dkt. No. 26.
Defendants later sought to have the case transferred to a Multidistrict Litigation
(“MDL”) docket and, on October 10, 2014, filed an Emergency Motion To Stay
Proceedings Pending Rulings by the Judicial Panel on Multidistrict Litigation MDL.
No. 2590. See Dkt. No. 76; Dkt. No. 278-4. Plaintiff opposed this case’s transfer to an
MDL docket, among other reasons, “due to its advanced procedural posture,” Dkt. No.
278-3; see also Dkt. No. 278-5; Dkt. No. 281 at 24-25 of 26, and opposed Defendants’
motion to stay, see Dkt. No. 82. The Court denied the motion to stay on October 17,
2014. See Dkt. No. 96.
Defendants filed their Motion for Summary Judgment in this case on November
17, 2014. See Dkt. No. 113.
On December 12, 2014, the JPML issued its Transfer Order in MDL No. 2590,
in which the JPML decided not transfer this case to an MDL docket, noting:
Plaintiff in the Northern District of Texas Ross Neely action, listed on
Schedule B, opposes inclusion of that action in any centralized litigation
due to its advanced procedural posture. Navistar concedes that exclusion
of the Ross Neely action may be warranted, but several plaintiffs argue
that all the actions, including Ross Neely, should be centralized.
....
We conclude that the Northern District of Texas Ross Neely action
listed on Schedule B should not be included in the centralized
proceedings. Discovery in that action has reached an advanced stage, and
trial is set to begin just over two months from now (though counsel
represented at oral argument that this date could be pushed back
somewhat). Pretrial activities in the Ross Neely action thus are nearing
completion, and its inclusion in the MDL will unnecessarily delay the
resolution of that action. Any discovery obtained in the Ross Neely action
can be made available to the parties in the centralized proceeding.
2

Dkt. No. 278-3.
On January 7, 2015, following very active motion practice regarding discovery
matters, the Court entered an Order Continuing Trial and Modifying Scheduling
Orders, which extended the discovery deadline to April 30, 2015, along with various
expert-related deadlines, and continued the trial setting to United States District
Judge Barbara M.G. Lynn’s two-week docket beginning June 15, 2015. See Dkt. No.
159.
On March 4, 2015, on Plaintiff’s opposed motion, the Court extended (and
compressed) several expert-related deadlines, with the intention of preserving the June
15, 2015 trial setting. See Dkt. No. 210.
On March 6, 2015, Plaintiff filed its response to Defendants’ Motion for
Summary Judgment [Dkt. No. 113], after several extensions of the response deadline.
See Dkt. No. 218. On March 20, 2015, Defendants filed their reply in support of their
Motion for Summary Judgment, which is now ripe for decision. See Dkt. No. 234.
As of today, the discovery deadline remains April 30, 2015, and trial is still set
for June 15, 2015. See Dkt. No. 159.
On April 21, 2015, after suggesting in an April 14, 2015 telephone conference
with the Court that such a motion may be coming, Plaintiff filed its Emergency Motion
for a Stay of the Proceedings, or, in the Alternative, for a Transfer of Venue. See Dkt.
No. 278. Plaintiff’s motion explains that interim lead counsel in MDL No. 2590 filed
a motion with the JPML on April 20, 2015, seeking “to transfer this case to the
Northern District of Illinois so that it may be coordinated with other cases involving
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similar facts and claims” and that the JPML “recently issued an accelerated briefing
schedule to ensure that the matter will be briefed and heard” by May 28, 2015. Id. at
1, 4; see also Dkt. No. 278-2. In support of its stay request, Plaintiff asserts:
As the Court knows, this case involves hotly contested and heavily
litigated issues of law and fact, and ongoing discovery—including expert
discovery—and motion practice related thereto. Many if not most of these
issues, and much of this discovery, will be duplicated and litigated in the
MDL. The sole purpose of this motion is to avoid unnecessary duplication
of effort and expenditure of time and resources by the courts and the
parties, and promote the “just and efficient” conduct of this litigation. See
28 U.S.C. § 1407(a); see also Fed. R. Civ. P. 1 (noting that the Federal
Rules should be construed to secure the “just, speedy, and inexpensive
determination of every action and proceeding”).
....
This case was the sole exception [to the JPML’s decision to transfer
all then-pending related cases]. Ross Neely initially opposed the inclusion
of this case in the MDL, as it had “advanced farther than any of the other
actions.” The Panel agreed, concluding that “the Ross Neely action …
should not be included in the centralized proceedings.” But as the Court
knows, this matter is no longer scheduled to be tried in February.
Moreover, the transferee judge overseeing the MDL—Judge Joan B.
Gottschall—has jump-started the coordinated proceedings by setting
forth a number of deadlines for discovery, briefing, and the filing of a
consolidated master complaint. Given the accelerating pace of the MDL,
Judge Gottschall inquired whether Ross Neely’s exclusion from the MDL
still “makes the most sense.”
In addition, Ross Neely is currently: (i) preparing to take
depositions of additional Navistar representatives and experts, all of
which would be a common benefit to the other cases pending in the MDL;
(ii) preparing to file yet another motion to compel production and for
sanctions against Navistar for failing to comply with the Court’s Order
Granting in Part and Denying in Part Plaintiff’s Motion to Compel
Production from Defendants, Motion to Overrule Objections and Motion
for Sanctions (Dkt. No. 126); and (iii) facing the likelihood that it will be
forced yet again to seek a continuance of the trial of this case as a result
of Navistar’s continued failure and refusal to make full and complete
production of those documents sought by Ross Neely and ordered by the
Court to be produced.1 Accordingly, Ross Neely now believes that
coordination with the other cases in the MDL would minimize the costs
of litigation for all parties, and would also preserve judicial resources.
4

Dkt. No. 278 at 1-4 (citations and footnotes omitted). Plaintiff explains that it
“previously opposed being brought into the MDL because of its impending trial setting
(then set in February of 2015) and because of the advanced stage of its discovery,” but
that, “[w]ith the MDL Court now revisiting why Ross Neely has not been included in
the MDL and faced with the likelihood of additional delays in this matter, Ross Neely
has withdrawn its opposition to being included in the MDL.” Dkt. No. 280 at 2.
Plaintiff’s motion also contends that, “[a]lthough Plaintiff has consistently
avoided seeking a continuance of this matter, Defendants’ late and incomplete
production of discovery originally requested over one year ago has forced Plaintiff’s to
seek the original continuance of the trial in this case”; that, “[a]s Plaintiff has rushed
to review the more than 1.3 million pages of documents that Defendants produced only
after they ordered to do so by the Court, it has become obvious that there is still a
significant number of documents missing from Defendants’ production, for which
Plaintiff will now be forced to seek another order compelling production”; and that,
“[a]ssuming the Court will once again order Defendants to produce those documents
sought by Plaintiff, said production would likely take place on the eve of the trial of
this matter unless Plaintiff seeks yet another continuance in order to complete
discovery.” Dkt. No. 278 at 4 n.1. Plaintiff asserts that “[a]ll of the issues in controversy
in this case and much of this discovery, will be duplicated and litigated in the MDL”
and that Plaintiff “is seeking this relief to avoid what is becoming unnecessary
duplication of effort and expenditure of time and resources by the courts and the
parties, and to promote the just and efficient conduct of this litigation.” Dkt. No. 280
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at 2.
Defendants oppose a stay of proceedings or transfer or venue. See id. at 11; Dkt.
No. 280. Defendant argues that this emergency motion “is an about-face from the
position Plaintiff has consistently held throughout this lawsuit, as a blatant last-ditch
effort to avoid the June 15, 2015 trial setting.” Dkt. No. 280 at 2. Defendant notes that,
“[i]n October 2014, Plaintiff opposed the inclusion of this lawsuit in the MDL which
was formed as MDL No. 2590 (the ‘MDL’) based largely on the amount of discovery
that had already occurred, along with the motion practice that had taken place, the
Court’s familiarity with the case and the fact that it had been pending for 18 months”
but, “[s]ix months, 1.3 million pages of document production, numerous depositions and
various motions later, Plaintiff now seeks to move this lawsuit into the MDL less than
two months before trial, in the middle of expert depositions, nine days before the close
of discovery and when Defendants’ Motion for Summary Judgment is ripe for ruling”
and after “Plaintiff opposed the inclusion of this lawsuit in the MDL and compelled
Defendants to expend exorbitant resources on the defense of this lawsuit.” Id. at 2-3.
Defendant contends that “[t]o stay the proceedings at this stage would both prejudice
Defendants and reward Plaintiff’s manipulation and delay tactics.” Id. at 3.
Defendants oppose Plaintiff’s transfer request as “baseless” and notes that, “[a]s
Plaintiff is well aware and has pointed out on numerous occasions, this lawsuit has
been pending in this Court for two years and this Court is familiar with the facts, legal
issues and specificities involved in the suit.” Id. at 8. Defendants assert that “[t]o
transfer venue at this stage less than two months from trial would create a waste of
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time, energy and money both for the Court and the parties, and would cause
unnecessary inconvenience and expense.” Id.
Defendants contend that Plaintiff’s emergency motion “is the latest in a series
of delay tactics employed by Plaintiff to prevent the Court from ruling on Defendants’
Motion for Summary Judgment or proceeding to trial;” that “[t]ransferring the lawsuit
to the MDL is no longer an appropriate route as this lawsuit is ready for trial”; and
that “[t]here is accordingly no risk of duplication or inconsistent rulings, and the stay
and transfer of venue should be denied.” Id.
Legal Standards
“[T]he power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). The Court therefore has a “discretionary power to stay proceedings before it in
the control of its docket and in the interests of justice,” McKnight v. Blanchard, 667
F.2d 477, 479 (5th Cir. 1982). But, although the Court possesses “broad discretion in
this area, such control is not unbounded.” Wedgeworth v. Fibreboard Corp., 706 F.2d
541, 545 (5th Cir. 1983). “Proper use of this authority ‘calls for the exercise of
judgment, which must weigh competing interests and maintain an even balance.’” Id.
(quoting Landis, 299 U.S. at 254-55). “The proponent of a stay bears the burden of
establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997).
“In striking this balance when a motion to transfer has been filed before the
JPML, district courts generally consider three factors: (1) the potential prejudice to the
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non-moving party; (2) the hardship and inequity to the moving party if the action is not
stayed; and (3) the judicial resources that would be saved by avoiding duplicative
litigation if the cases are in fact consolidated.” Esquivel v. BP Co. of N. Am., Civ. A.
Nos. B-10-236, B-10-227, & B-10-237, 2010 U.S. Dist. LEXIS 110015, at *9 (S. D. Tex.
Oct. 14, 2010) (internal quotation marks omitted).
28 U.S.C. § 1404(a) provides 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.” In applying Section
1404(a), the Court must first determine “whether the judicial district to which transfer
is sought would have been a district in which the claim could have been filed.” In re
Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). Once this initial
determination is made, the Court
turn[s] to the language of § 1404(a), which speaks to the issue of “the
convenience of parties and witnesses” and to the issue of “in the interest
of justice.” The determination of “convenience” turns on a number of
private and public interest factors, none of which [is] given dispositive
weight. The private concerns include: (1) the relative ease of access to
sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing witnesses;
and (4) all other practical problems that make trial of a case easy,
expeditious and inexpensive. The public concerns include: (1) the
administrative difficulties flowing from court congestion; (2) the local
interest in having localized interests decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the avoidance
of unnecessary problems of conflict of laws of the application of foreign
law.
Id. (citations omitted).
Transfer of venue under Section 1404(a) is at the Court’s discretion, considering
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“‘[a]ll relevant factors to determine whether or not on balance the litigation would more
conveniently proceed and the interests of justice be better served by transfer to a
different forum.’” El Chico Restaurants of Texas, Inc. v. Carroll, No. 3:09-cv-2294-L,
2010 WL 2652286, at *2 (N.D. Tex. June 29, 2010) (quoting Peteet v. Dow Chem. Co.,
868 F.2d 1428, 1436 (5th Cir. 1989)).
A plaintiff’s original choice of forum is entitled to some deference, which dictates
that the moving party must “demonstrate[] that the transferee venue is clearly more
convenient.” In re Volkswagen of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008)
(“Volkswagen II”). But, while a plaintiff’s choice of forum “should be respected” unless
“the transferee venue is clearly more convenient,” Plaintiff’s “choice of forum ... is not
an independent factor within ... the § 1404(a) analysis.” Id. at 314 n.10, 315. Rather,
as noted above, “a plaintiff’s choice of venue is to be treated as a burden of proof
question.” Id. at 314 n.10 (internal quotation marks omitted). But, where a plaintiff is
the movant seeking a Section 1404(a) transfer, courts have explained that “the burden
should be at least as heavy on a plaintiff who seeks to change the forum that he or she
had selected as it is when the defendant is the moving party,” although, “[a]t the same
time, as with all Section 1404(a) determinations, the particular circumstances
surrounding the transfer motion must be considered by the district judge.” United
Galvanizing, Inc. v. Imperial Zinc Corp., Civ. A. No. H-08-0551, 2010 WL 4393990, at
*3 (S.D. Tex. Oct. 29, 2010) (internal quotation marks and citations omitted)).
The United States Court of Appeals for the Fifth Circuit has required that
“[p]arties seeking a change of venue should act with reasonable promptness.” Peteet,
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868 F.2d at 1436 (internal quotation marks omitted). The Fifth Circuit has also
recently explained that, in the Section 1404(a) analysis, “[t]he delay associated with
transfer may be relevant ‘in rare and special circumstances,’ and [that the Fifth Circuit
has] have found such circumstances present where a ‘transfer [of] venue would have
caused yet another delay in [an already] protracted litigation.’” In re Radmax, Ltd., 720
F.3d 285, 289 (5th Cir. 2013) (quoting In re Horseshoe Entm’t, 337 F.3d 429, 435 (5th
Cir. 2003); Peteet, 868 F.2d at 1436). But the Fifth Circuit clarified that “garden-variety
delay associated with transfer is not to be taken into consideration when ruling on a
§ 1404(a) motion to transfer,” for, “[w]ere it, delay would militate against transfer in
every case.” Id.
Analysis
Motion to Stay Proceedings
In support of a stay pending the JPML’s decision on the motion to reconsider its
original transfer order, Plaintiff asserts that “[c]ourts in this Circuit routinely grant
stays pending a decision by the JPML regarding whether or not to transfer a case”;
that “any risk of prejudice is minimized by the JPML’s decision to issue an accelerated
briefing scheduling, which ensures that the matter will be decided in the next few
weeks”; that “[a] stay of the proceedings increase[s] efficiency and consistency,
particularly when the transferor court believes that a transfer order is likely and when
the pending motions raise issues [] likely to be raised in other cases as well”; that
“courts recognize that it makes no sense to continue with proceedings when there is a
risk that the court will soon lose jurisdiction over the matter in the near future”; and
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“that these considerations merit a stay of the proceedings pending the JPML’s
decision,” because “[s]uch a stay would avoid piecemeal litigation, as well as the
needless waste of judicial and party resources.” Dkt. No. 278 at 5-6 (internal quotation
marks and citations omitted).
The Court disagrees. At this time, this case – after the Court’s and the parties’
expending considerable resources – is in essentially the same position as it was when
the JPML decided in December 2014 not to transfer the case to the MDL court. Trial
is less than two months away, as it was then. Defendants’ summary judgment motion
is now ripe and pending. Discovery will close less than 10 days after the emergency
motion’s filing. Depositions have been taken throughout this week. And,
notwithstanding Plaintiff’s explanation for the expected length of and delay involved
in a stay, the JPML apparently will not decide the MDL plaintiffs’ motion to reconsider
until at least May 28, 2015, which is more than a few weeks away but only a few weeks
before this case is set for trial.
This Court cannot, and will not attempt to, predict how the JPML will rule on
the motion to reconsider its previous decision not to transfer this case. Obviously,
“[w]hether a case is to be transferred to an MDL docket is not [this Court’s] decision
to make.” In re Rolls Royce Corp., 775 F.3d 671, 682 (5th Cir. 2014). But the JPML
observed then – and this Court observes that it is just as true now – that discovery in
this case “has reached an advanced stage, and trial is set to begin just over two months
from now” and that “[p]retrial activities in [this] action thus are nearing completion.”
Dkt. No. 278-3. On the basis of those considerations as the case stood in December
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2014, the JPML concluded that this case’s “inclusion in the MDL will unnecessarily
delay the resolution of [this] action.” Id. And the JPML – anticipating that discovery
would go forward in this case, likely in advance of discovery in the MDL docket – noted
in its Transfer Order that “[a]ny discovery obtained in the Ross Neely action can be
made available to the parties in the centralized proceeding.” Id.
Under these circumstances, the Court concludes that the filing of a motion to
reconsider that order does not justify staying discovery or any other proceedings in this
matter or holding off on decisions on other pending motions. Neither does the fact that
Plaintiff’s counsel again invokes the volume of Defendants’ document production –
which Plaintiff asked for (and then some) – or that Plaintiff may yet file another
motion to compel. If such a motion is filed, it may or may not be granted, and, if it is
granted, that may or may not justify or require a continuance of the June 15, 2015 trial
date. But, even if both of those possible events come to pass, the JPML’s December
2014 Transfer Order even expressly contemplated the possibility of a short continuance
of the trial date that was then – as it is now – just over two months away, and yet the
JPML still determined that this case’s inclusion in the MDL docket would
unnecessarily delay its resolution. See Dkt. No. 278-3.
Under the circumstances laid out above, the Court further finds that a stay
would prejudice Defendants in their interest in having Plaintiff’s claims resolved
sooner than later now that “[t]he expenses that Defendants sought to avoid by
including this lawsuit in the MDL have now been incurred.” Dkt. No. 280 at 6. At the
same time, Plaintiff has shown no hardship and inequity that it will face if the action
12

is not stayed, where Defendants, not Plaintiff, are parties to the other cases pending
in the MDL docket and they alone among the parties in this case face, as Plaintiff itself
points out, any risk of inconsistent judgments. And, finally, where depositions are
currently being taken and almost all completed, and where the Court has already
expended significant resources in resolving the motions and disputes in this matter to
date, the Court finds that relatively minimal, if any, judicial resources would be saved
by avoiding duplicative litigation (such as on summary judgment or challenges to
expert witnesses) if the cases are in fact consolidated.
The Court concludes that Plaintiff has failed to justify its eleventh-hour request
for a stay, which the Court finds – in the exercise of its judgment and discretion, after
weighing all of the competing interests and circumstances – should be, and is, denied.
Motion for a Transfer of Venue
In support of its alternative request for a Section 1404(a) transfer of venue to the
Northern District of Illinois, Plaintiff correctly notes that this Court can transfer the
case regardless of the JPML’s decision on the MDL plaintiffs’ motion to reconsider and
that this case could have been brought in the Northern District of Illinois, because that
is Navistar International’s principal place of business. See Dkt. No. 278 at 7 & n.3.
Plaintiff asserts that “[t]he only remaining question, therefore, is whether the transfer
would promote the ‘convenience of the parties and witnesses’ and serve ‘the interests
of justice,’” which Plaintiff contends it would. Id. (quoting 28 U.S.C. § 1404(a)).
The Court disagrees.
Plaintiff failed to act with reasonable promptness in seeking a change of venue.
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See Peteet, 868 F.2d at 1436. Again, the case has been pending for almost two years,
discovery closes on April 30, 2015, a summary judgment motion is ripe and pending,
and trial is set for June 15, 2015. The asserted economies of consolidating pretrial
proceedings in this case with those in other cases are, by the terms of Plaintiff’s
argument, no more true now than last year when Plaintiff opposed transfer to an MDL
docket or in the four months since the JPML decided not to transfer this case, during
which time Plaintiff has not requested a transfer of venue.
Plaintiff admits that, if the Court transfers the case under Section 1404(a),
Plaintiff “will likely file a motion with the transferee judge so that it may join the
MDL.” Dkt. No. 278 at 7 n.3. The alternative transfer motion appears to be, at its core,
an effort to have this Court preempt the JPML’s decision.
But, whatever Plaintiff’s motivation for now seeking a transfer of venue, it
cannot be said that Plaintiff acted with reasonable promptness as to this matter.
See Peteet, 868 F.2d at 1436 (“Second, Dow’s motion to transfer venue would have
caused yet another delay in this protracted litigation. Dow’s motion to transfer venue
was not filed until eighteen months after the case was remanded to the Eastern
District of Texas. Parties seeking a change of venue should act with reasonable
promptness.” (internal quotation marks and citations omitted)); United Galvanizing,
2010 WL 4393990, at *3-*5 (“The fact that United Galvanizing waited so long to move
to transfer, and did not do so until just over a month before the Texas trial setting,
weighs against viewing the motion as motivated by seeking a single forum in which to
resolve the claims. The delay in moving to transfer weighs heavily against granting the
14

motion.”); Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 760 (E.D. Tex. 2000)
(“Of course, crafty litigants can’t ambush their opponents with a tactical Section
1404(a) transfer motion on the eve of trial. A motion to transfer should be made with
reasonable promptness. Reasonable promptness? What’s that? If a litigant resisting
transfer successfully shows the Section 1404(a) transfer motion is a dilatory tactic, or
that it would be prejudiced solely because of the delay in bringing the motion, then the
litigant moving for transfer has failed to show reasonable promptness in bringing his
transfer motion.” (internal quotation marks and citations omitted)).
Plaintiff, anticipating this objection, explains that “Navistar may complain that
this motion comes too late, but that argument would not consider the MDL context
present here. Since all the cases in the MDL share overlapping facts and intersecting
legal claims, any costs Navistar expended here necessarily reaped benefits that can be
used in other MDL cases as well.” Dkt. No. 278 at 8. But that response does not
account for, as noted above, Defendants’ having an interest in having Plaintiff’s claims
resolved sooner than later, particularly after the resources that have been expended
in this case already to get to the point where pretrial proceedings are rapidly coming
to an end. And the JPML itself, again, already noted that costs expended in discovery
in this case can reap benefits in the MDL cases without the need for transferring this
case into the MDL docket. See Dkt. No. 278-3.
The Court finds that Plaintiff’s failure to move to transfer with reasonable
promptness weighs against granting its Section 1404(a) transfer motion.
Requesting transfer at this late date – apparently for purposes of consolidation
15

into the MDL docket – would also certainly delay resolution of this already protracted
litigation. This, then, appears to be one of the rare and special circumstances in which
delay is relevant to the Section 1404(a) analysis and weighs against transfer. See
Radmax, Ltd., 720 F.3d at 289; accord United Galvanizing, 2010 WL 4393990, at *5
(“This transfer request was on the eve of trial. Before this court reset the bench trial,
this case was set for trial on September 23. Trial is now set for November 29. The
Illinois litigation was stayed for an extended period and there has been relatively little
progress by the parties in that case. This case appears to be the unusual case in which
transfer will clearly result in a delay in the trial. To the extent this factor deserves
weight, it is, like the other factors, against transfer.”).
In the face of these considerations, Plaintiff notes that Defendants themselves
once sought transfer to an MDL docket in the Northern District of Illinois, even though
the case was then at an advanced stage, and Plaintiff asserts that, “as time has
progressed, it has become increasingly clear that transfer will reduce, not increase, the
costs of litigation.” Dkt. No. 278 at 8. Plaintiff contends that “[e]xperts have just been
identified and are soon to be deposed, and this will consume significant time, energy,
and cost for all parties”; that “[a]t least some of these costs will need to be duplicated
in the MDL, and there is no reason why they should be repeatedly expended in several
jurisdictions”; and that there is no “reason why multiple judges should be required to
issue rulings on the same questions that are sure to arise in parallel cases.” Id.
Plaintiff also notes that “[t]he Fifth Circuit has listed a number of additional
factors that may be considered, although none are dispositive,” which “include the
16

relative ease of access to sources of proof; the availability of ” and “compulsory process
to secure attendance of witnesses; the cost of attendance for willing witnesses; all other
practical problems that make trial of a case easy, expeditious and inexpensive; the
administrative difficulties flowing from court congestion; the local interest in having
localized interests decided at home; the familiarity of the forum with the law that will
govern the case; and the avoidance of unnecessary problems of conflict of law, or in the
application of foreign law.” Id. at 7-8 n.4. Without any explanation or argument,
Plaintiff “respectfully submit[s] that all these factors weigh towards the Northern
District of Illinois,” stating that “that is why Navistar asked the JPML to transfer this
case to that venue.” Id.
Turning to the private and public interest factors that the Fifth Circuit has
articulated, the Court finds that these factors are either neutral in the Section 1404(a)
analysis here or, on balance, weigh against transfer to the Northern District of Illinois.
As to the relative ease of access to sources of proof, records of both Plaintiff and
Defendants have been at issue in this case. See, e.g., Dkt. No. 92; Dkt. No. 246. And,
while Navistar International has its principal office in Lisle, Illinois, Plaintiff’s
principal offices are in Birmingham, Alabama, and Navistar, Inc. has an office in the
Northern District of Texas, in Garland, Texas. See Dkt. No. 30 at 1; Dkt. No. 32 at 2.
But discovery is largely completed in this case because of its advanced stage, and, in
any event, “access to business records, given electronic data transfer, is a slight weight
on the scale.” United Galvanizing, 2010 WL 4393990, at *4 (citing Volkswagen II, 545
F.3d at 316); see also Radmax, 720 F.3d at 288 (explaining that, “as we clarified in
17

Volkswagen II, the question is relative ease of access, not absolute ease of access”). This
factor appears to be neutral as between this Court and the Northern District of Illinois.
As to Navistar witnesses who reside or work in Illinois, there may or may not
be an advantage to proceeding in the Northern District of Illinois in light of the
availability of compulsory process to secure the attendance of witnesses and the cost
of attendance for willing witnesses. But cf. RPost Holdings, Inc. v. StrongMail Systems,
Inc., No. 2:12-cv-515, 2013 WL 4495119, at *4 (E.D. Tex. Aug. 19, 2013) (“Although the
court must consider the convenience of both the party and nonparty witnesses, it is the
convenience of non-party witnesses ... that is the more important factor and is accorded
greater weight in a transfer of venue analysis.”) (internal quotation marks omitted).
But, even as to these factors, the Court can give little weight to Plaintiff’s simply
asserting, without more, that they weigh in favor of transfer where Plaintiff chose to
file suit in Dallas, has not previously raised any concerns about trying its case in this
Court in light of any costs or other practical problems that make trial of a case easy,
expeditious, and inexpensive, and, even now, primarily seeks a stay, not transfer, in
the hope of transfer to an MDL docket in which the Illinois court is presiding over
consolidated pretrial proceedings but will not, without further action by other courts,
itself conduct any trial of a case transferred under Section 1407(a). See 28 U.S.C. §
1407(a); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 28 (1998).
Turning to the public interest factors, the Court again finds that the lateness of
this motion’s filing negates any weight that might be accorded to administrative
difficulties flowing from relative court congestion between this Court and the Northern
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District of Texas. Again, this case has certainly received the Court’s attention, as the
docket reflects, and is set for trial in less two months.
Plaintiff has not explained how there is any issue with this Court’s familiarity
with the law that will govern the case – which the parties’ summary judgment briefing
acknowledges to be Texas law – or how transfer to the Northern District of Illinois is
necessary to avoid any unnecessary problems of conflict of laws. The Court finds that
these factors are either neutral or weigh against transfer. And Plaintiff offers no
explanation for how any local interest in Illinois in having the issues in this case
decided in that state weighs in favor of transfer in the face of these other
considerations.
Finally, courts have held that the existence of related litigation in a transferee
court can weigh strongly in favor of transfer. See, e.g., DataTreasury Corp. v. First
Data Corp., 243 F. Supp. 2d 591, 594 (5th Cir. 2003). But the Court finds that even this
factor does not, on balance, tip the scale in favor of transfer where pretrial proceedings
in this case are almost over, where Plaintiff’s primary stated interest is in joining this
case to the MDL docket for pretrial proceedings, and where the Plaintiff – which is an
unusual, though not impermissible, Section 1404(a) movant after having itself selected
this Texas forum – waited so long to seek to have this case transferred to be
consolidated with the MDL cases. Cf. United Galvanizing, 2010 WL 4393990, at *3-*4
(noting that, where “suit originally was brought in the only forum in which several
defendants could be joined and some of them thereafter are dropped from the case,”
“the burden on the plaintiff in justifying transfer should be less than if the initiating
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party merely has had second thoughts” (internal quotation marks and citations
omitted)).
The Court finds that, on balance, this case would not more conveniently proceed
in, and the interests of justice would not be better served by transfer to, the Northern
District of Illinois and therefore will deny Plaintiff’s motion for a transfer of venue
under Section 1404(a).
Conclusion
The Court DENIES Plaintiff’s Emergency Motion for a Stay of the Proceedings,
or, in the Alternative, for a Transfer of Venue [Dkt. No. 278].
SO ORDERED.
DATED: April 22, 2015

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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