CSFB 1998-C2 TX Facilities LLC v. Rector et al

Filing 14

Memorandum Opinion and Order denying 5 Motion to Dismiss for Lack of Personal Jurisdiction and Alternative Motion to Transfer Venue. (Ordered by Judge Barbara M.G. Lynn on 3/5/2015) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CSFB 1998-C2 TX FACILITIES, LLC,

§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
WALTER W. RECTOR and
SHIRLEY RECTOR;
Defendants.

Civil Action No. 3:14-cv-4142

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Shirley Rector’s Motion to Dismiss for Lack of
Personal Jurisdiction and Alternative Motion to Transfer Venue [Docket Entry #5]. For
the reasons stated herein, the Motions are DENIED.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff CSFB 1998-C2 TX Facilities, LLC (“Plaintiff”) brings this action against
Defendants Walter W. Rector (“Mr. Rector”) and Mr. Rector’s wife, Shirley (“Mrs.
Rector”), to recover on a guaranty executed by Mr. and Mrs. Rector in Arizona in 2005.
The relevant events that gave rise to the guaranty and this suit are described below.
Plaintiff is a Texas domestic limited liability company.1 Mrs. Rector claims that
Plaintiff is a Texas resident that is managed by a non-member, LNR Partners, LLC, also a

1

Docket Entry #1-3 (Pl. Orig. Pet.) ¶ 3; Pl. App. 1 ¶ 2 (Aff. of Kevin Coscia). By
“domestic,” the Court assumes Plaintiff is an entity “formed under [the Texas Business
Organizations Code (“TBOC”)]” or Plaintiff’s “internal affairs are governed by [the
TBOC].” See Tex. Bus. Orgs. Code § 1.002(17) (defining “domestic” under the TBOC).
1

Texas limited liability company, based in Miami, Florida.2 The Rectors are residents of
Arizona.3
On or about September 9, 1998, Midstar Properties, Ltd. (“Midstar Properties”), a
Texas limited partnership, executed a “Deed of Trust Note,” payable to Credit Suisse
First Boston Mortgage LLC (“Credit Suisse”) for a $37 million principal loan, plus
interest, to acquire and operate two properties in Dallas County, Texas and a property in
Tarrant County, Texas (collectively, “the Trust Property”).4 The Deed of Trust Note was
secured by the “Deed of Trust, Assignment of Leases and Rents and Security Agreement”
(“the Security Instrument”), which was recorded in Dallas County and Tarrant County.5
The Court will refer to the Deed of Trust Note and Security Instrument collectively as the
“Loan Documents.” On November 25, 2002, Credit Suisse assigned its rights in the Loan
Documents to JP Morgan Chase Bank (“JP Morgan”).6
On May 13, 2005, Midstar Properties sold the Trust Property to Bromont Pavilion
Midstar Master, L.P., a Delaware limited partnership (“Bromont Pavilion”).7 Mr. Rector
operated the Trust Property as an employee of Bromont Pavilion.8 In connection with the
sale to Bromont Pavilion, JP Morgan required Mr. and Mrs. Rector to execute and deliver
a guaranty, and they did so on May 13, 2005, obligating themselves to unconditionally
guarantee full payment and performance of the obligations contained in the guaranty,

2

Def. Br in Support ¶ 17; Pl. App. 1 ¶ 2.
Docket Entry #1-3 ¶¶ 4–5.
4
Id. ¶ 8.
5
Id. ¶ 9.
6
Id. ¶ 11.
7
Id. ¶ 13.
8
Docket Entry #1-3 ¶ ¶ 4; Pl. Resp. Br. ¶ 14.
3

2

including, but not limited to, repayment to JP Morgan of $1.6 million owed under the
Loan Documents.9
JP Morgan was required by the guaranty to first exercise its remedies against the
Trust Property, after which it could recover a portion of any deficiency, not exceeding
$1.6 million, from Mr. and Mrs. Rector.10 The guaranty also contained a Texas choiceof-law provision, which stated that the guaranty “shall be governed by and construed in
accordance with the laws in the State in which the real property encumbered by the Deed
[of] Trust is located and the applicable laws of the United States of America.”11
On March 4, 2011, JP Morgan assigned the Loan Documents to Bank of New
York Mellon Trust Company, N.A., a National Banking Association, as Trustee for the
Registered Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-C2 (“BNYMT”).12 On April 2, 2014,
BNYMT assigned the Loan Documents to Plaintiff.13 All of the assignments were
recorded in Dallas and Tarrant Counties, Texas.14
On August 20, 2013, Bromont Pavilion and the Rectors were given notice of
default and a demand for full payment, because Bromont Pavilion had not made certain
installment payments required by the Loan Documents.15 Bromont Pavilion and the
Rectors did not pay the amounts then due.16 On April 15, 2014, Plaintiff notified
Bromont Pavilion and the Rectors that the Trust Property would be sold at a non-judicial
9

Id. ¶ 14.
Id.
11
Pl. App. 135.
12
Id. ¶ 15.
13
Id. ¶ 16.
14
Id. ¶¶ 11, 13, 15, 16.
15
Id. ¶ 18.
16
Id. ¶ 19.
10

3

foreclosure sale, which ultimately occurred on July 1, 2014.17 Plaintiff alleges that after
the sale it is owed a deficiency of $17.869 million, plus interest that has accrued since
July 1, 2014, $1.6 million of which is owed by the Rectors pursuant to the guaranty.18
On October 21, 2014, Plaintiff filed suit against Mr. and Mrs. Rector in Dallas
County, Texas, seeking to recover $1.6 million under the guaranty, plus interest.19 Mrs.
Rector filed a Special Appearance, and subject thereto, a Motion to Dismiss, and Answer,
in which she claimed she was entitled to an offset against the asserted deficiency under
Section 51.003 of the Texas Property Code.20
On November 20, 2014, Mr. and Mrs. Rector removed the suit to this Court.21
Thereafter, Mrs. Rector filed a Motion to Dismiss for Lack of Personal Jurisdiction and
an Alternative Motion to Transfer Venue, arguing that she lacks sufficient minimum
contacts with Texas for this Court to exercise personal jurisdiction over her.22 Plaintiff
then filed its Response, and Mrs. Rector filed her Reply on January 5, 2015.23
RULE 12(b)(2) LEGAL STANDARD
A court may properly exercise personal jurisdiction over a non-resident defendant
when (1) the defendant is subject to personal jurisdiction under the laws of the state in
which the federal court sits; and (2) the exercise of jurisdiction comports with the Due
Process Clause of the United States Constitution. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472–74 (1985). The Texas long-arm statute authorizes personal jurisdiction

17

Id. ¶ 19, 21.
Id. ¶ 22.
19
See generally Docket Entry #1-3.
20
Id. at 138 ¶ 23.
21
Docket Entry #1.
22
Docket Entry # 6.
23
Docket Entry # 8; Docket Entry #10.
18

4

over a non-resident defendant to the extent permissible under the Due Process Clause.
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (citing Tex. Civ. Prac. & Rem.
Code § 17.041). “Exercising personal jurisdiction over a nonresident defendant is
compatible with due process when (1) that defendant has purposefully availed [herself] of
the benefits and protections of the forum state by establishing minimum contacts with the
forum state, and (2) the exercise of jurisdiction over that defendant does not offend
traditional notions of fair play and substantial justice.” Panda Brandywine Corp. v.
Potomac Electric Power Co., 253 F.3d 865, 867 (5th Cir. 2001) (per curiam).
A non-resident defendant has sufficient minimum contacts with the forum state
when she “purposefully avails [herself] of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla,
357 U.S. 235, 253 (1958). The defendant’s availing activities must be such that she
“should reasonably anticipate being haled into court” in the forum state. World–Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Minimum contacts may give rise to general or specific jurisdiction. Clemens v.
McNamee, 615 F.3d 374, 378 (5th Cir. 2010). “General jurisdiction exists when a
defendant’s contacts with the forum state are unrelated to the cause of action but are
‘continuous and systematic.’” Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir.
1999). On the other hand, “[f]or the court properly to assert specific personal
jurisdiction, the defendant must have ‘purposefully directed’ [her] activities at residents
of the forum, and the litigation must result from alleged injuries that ‘arise out of or relate
to’ the defendant’s activities directed at the forum.” Archer & White, Inc. v. Tishler, No.

5

3:03–CV–0742–D, 2003 WL 22456806, at *2 (N.D. Tex. Oct. 23, 2003) (Fitzwater, J.)
(citing Burger King Corp., 471 U.S. at 472).
“A single act by the defendant directed at the forum state can be enough to confer
personal jurisdiction if that act gives rise to the claim being asserted, [but] entering into a
contract with an out-of-state party, without more, is not sufficient to establish minimum
contacts.” Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999). Rather, “a court must
evaluate ‘prior negotiations and contemplated future consequences, along with the terms
of the contract and the parties’ actual course of dealing . . . .’” Id. (citing Burger King
Corp., 471 U.S. at 479).
It is the plaintiff’s burden to establish minimum contacts. WNS, Inc. v. Farrow,
884 F.2d 200, 203 (5th Cir. 1989). Unless the court conducts an evidentiary hearing, the
plaintiff need only make a prima facie case that personal jurisdiction is proper. Central
Freight Lines Inc. v. APA Transport Corp., 322 F.3d 376, 381 (5th Cir. 2003). The court
must accept as true uncontroverted factual allegations in the complaint and resolve all
factual disputes in the parties’ affidavits in favor of the plaintiff. Alpine View Co. Ltd. v.
Atlas Copso AB, 205 F.3d 208, 215 (5th Cir. 2000). However, the court is not to credit
uncontroverted conclusory allegations. Panda Brandywine Corp., 253 F.3d at 869.
ANALYSIS
I.

Minimum Contacts
The Court will limit its analysis to specific jurisdiction because Plaintiff does not

dispute that Mrs. Rector lacks the necessary “continuous and systematic” contacts with
Texas to be subject to general jurisdiction in this forum.

6

Plaintiff alleges that Mrs. Rector has sufficient minimum contacts with Texas
because her contacts with the forum give rise to the claims in this action. Specifically,
Plaintiff argues that Mrs. Rector executed the guaranty to ensure payment of a loan on
three Texas properties, and that in entering into that transaction, Mrs. Rector availed
herself of the benefits and protections of Texas law. Plaintiff further contends that the
quality, not the quantity, of Mrs. Rector’s contacts with Texas is controlling, and that her
execution of a broad guaranty with a Texas choice-of-law provision is sufficient to bring
Mrs. Rector within this Court’s specific jurisdiction.
The Court agrees, and finds that Mrs. Rector’s execution of the guaranty to
facilitate the purchase of three Texas properties, coupled with the guaranty’s expansive
scope and inclusion of a Texas choice-of-law clause, is sufficient to establish the
necessary minimum contacts for specific jurisdiction. Mrs. Rector’s contacts with Texas
are the very contacts that give rise to this suit.
In Marathon Metallic Building. Co. v. Mountain Empire Construction Co., the
Fifth Circuit found the court had specific jurisdiction over the out-of-state resident,
Ginther, as a result of his having entered into a broad guaranty relating to a business
transaction with Marathon, a Texas company in the business of manufacturing and selling
prefabricated buildings. 653 F.2d 921, 923 (5th Cir. 1981). Ginther, an officer of
Mountain Empire Construction Company, a Colorado corporation, executed the guaranty
and forwarded it to Texas, after which Mountain Empire and Marathon entered into a
contract governing Mountain Empire’s distribution of Marathon’s products in Colorado.
Id. The contract between Mountain Empire and Marathon included a Texas choice-oflaw clause and provided for the delivery of goods f.o.b. Houston.

7

Marathon filed suit against Ginther, who moved to dismiss the suit for lack of
personal jurisdiction. The Fifth Circuit found the minimum contacts were present
because Ginther, a corporate officer, director, and shareholder of Mountain Empire,
issued the guaranty to Marathon, which was described in the guaranty as being based in
Houston, Texas. Id. at 923. The Court explained that the guaranty plainly contemplated
credit advances to Mountain Empire from Texas, and title to the goods was taken in
Texas. Id. The foregoing had the cumulative effect of making Texas a reasonably
foreseeable forum to Ginther. Id.
In Bank of America v. Weiss, the court found that loan documents relating to
Texas property, which included a guaranty and Texas choice-of-law provision, should
have alerted the guarantor defendant that she would potentially be sued in Texas. No.
4:10-CV-283-A, 2010 U.S. Dist. LEXIS 107971, at *10 (N.D. Tex. Oct. 8, 2010). The
court found the guarantor defendant waived certain benefits and protections otherwise
available under Texas law when she executed the guaranty, which should have further
alerted her that she would be subject to litigation in Texas. Id. at 10–11.
Like the guarantor defendants in Marathon and Weiss, Mrs. Rector entered into a
broad guaranty, with a Texas choice-of-law provision, to enable a business entity—
Bromont Pavilion—to do business in Texas. The guaranty itself, including its Texas
choice-of-law provision, and acknowledgement that the Trust Property consisted of
“certain real property situated in Tarrant and Dallas Counties,” should have alerted Mrs.
Rector that she would be subject to suit in Texas.24 The obligations guaranteed by Mrs.

24

Pl. App. 125.
8

Rector describe her potential liability for claims relating to the Trust Property.25 It should
have been foreseeable to Mrs. Rector that she might be required to litigate such claims in
Texas, where the Trust Property was located.
The guaranty in Weiss is startlingly similar to that at issue here. The guaranty
here and Weiss guaranty read:
Guarantors hereby, jointly and severally, irrevocably and unconditionally
guarantee to Lender and its successor and assigns the payment and performance
of the Guaranteed Obligations as and when the same shall be due and payable, by
lapse of time, by acceleration of maturity or otherwise. Guarantors hereby, jointly
and severally, irrevocably and unconditionally covenant and agree that they are
liable for the Guaranteed Obligations, each as primary obligor.26 (The guaranty ¶
1.01).
Guarantor hereby irrevocably and unconditionally guarantees to Lender and its
successors and assigns the payment and performance of the “Guaranteed
Obligations” (as herein defined) . . . .
Weiss, 2010 U.S. Dist. LEXIS 107971, at *4. The guaranty in Weiss and the guaranty
executed by Mrs. Rector also contain identical “nature of guaranty” clauses, which
describe the guaranties as “irrevocable, absolute, continuing guaranty of payment and
performance and not a guaranty of collection.”27 Finally, the “Governing Law”
provisions are also similar. The Weiss guaranty states:
This guaranty shall be governed by and construed in accordance with the laws of
the State in which the real property encumbered by the Security Instrument is
located . . . .
The instant guaranty states:

25

See Pl. App. 125–127 ¶ 1.02 (describing potential liability for intentional waste,
misappropriation of personal property from the Trust Property, conversion of insurance
proceeds paid by reason of any damage relating to the Trust Property, and failure to remit
security deposits collected with respect to the Trust Property).
26
Pl. App. 126.
27
Compare Weiss, 2010 U.S. Dist. LEXIS 107921, at *5, with Pl. App. 127 ¶ 1.03.
9

This guaranty shall be governed by and construed in accordance with the laws of
the State in which the real property encumbered by the Deed of Trust is located
and the applicable laws of the United States of America.28 (The guaranty ¶ 5.03).
The Court finds that, like the guaranties in Weiss and Marathon, the guaranty executed by
Mrs. Rector should have alerted her that she might need to defend a lawsuit in Texas
related to the guaranty, and it is not unfair to require her to do so.
Mrs. Rector notes that, unlike the guarantor defendants in Marathon and Weiss,
she was not an officer or shareholder in the principal, Bromont Pavilion. However, her
husband operated the Trust Property on behalf of Bromont Pavilion, which, in the Court’s
view, makes Texas a sufficiently foreseeable forum for Mrs. Rector. When Mrs. Rector
executed a personal guaranty that facilitated her husband’s business in Texas, she
“engaged in personal and affirmative action that resulted in, at the least, a minimum
contact with Texas.” See Marathon, 653 F.2d at 923.
Mrs. Rector also notes that she and her husband executed their guaranty in
Arizona, JP Morgan, a North Carolina bank, facilitated the transaction, and Plaintiff is
managed by LNR Partners, a Miami-based entity. She argues that the only connection to
Texas is the Trust Property, which is located in Texas.
Mrs. Rector, in effect, concedes the point—the essence of this dispute is the
breach of the guaranty, which she voluntarily entered into knowi.ng it related to Texas
properties and had a Texas choice-of-law clause. The residency of other parties does not
factor into the analysis of whether she has sufficient contacts to be sued here.29

28

Pl. App. 135.
Each of the authorities relied on by Mrs. Rector is distinguishable as not involving a
guaranty relating to real property in the forum state, which is the contact on which this
Court principally relies. See Credit Commercial De France, S.A. v. Morales, 195 S.W.3d
209, 220–22 (Tex. App.—San Antonio 2006, pet. denied) (holding there was no specific
29

10

II.

Traditional Notions of Fair Play and Substantial Justice
“Once a plaintiff has established minimum contacts, the burden shifts to the

defendant to show the assertion of jurisdiction would be unfair.” Wien Air Alaska, Inc. v.
Brandt, 195 F.3d 208, 215 (5th Cir. 1999). If minimum contacts have been established,
the defendant must make a “compelling case” that an exercise of jurisdiction would
offend “traditional notions of fair play and substantial justice.” Burger King Corp., 471
U.S. at 477. “It is rare to say the assertion is unfair after minimum contacts have been
shown.” Wien Air Alaska, Inc., 195 F.3d at 215 (citation omitted).
“In determining whether the standard has been met, courts are to consider (1) the
burden on the defendant having to litigate in the forum, (2) the forum state’s interests in
the lawsuit, (3) the plaintiff’s interests in convenience and effective relief, (3) the judicial
system’s interest in efficient resolution, and (4) the state’s interest in furthering
fundamental social policies.” Fairchild v. Barot, 946 F. Supp. 2d 573, 581 (N.D. Tex.
2013) (Lynn, J.).
For reasons already discussed as part of the minimum contacts analysis, the Court
is not persuaded that it would be unjust or unfair to subject Mrs. Rector to personal
jurisdiction in Texas. The burdens imposed by travel to and from a forum are not
enough, standing alone, to make the exercise of specific jurisdiction unreasonable. See
Auto Wax Co., Inc. v. Marchese, No. 3:01-CV-2571-M, 2002 WL 1558376, at *18–19

jurisdiction over foreign defendants who entered into a repurchase agreement with a
Texas corporation that called for performance in France); Gustafson v. Provider
Healthnet Servs., Inc., 118 S.W.3d 479, 481 (Tex. App.—Dallas 2003, no pet.) (holding
there was no specific jurisdiction over a Michigan employee who breached a
confidentiality agreement with a Texas-based company); Reyes v. Marine Drilling Cos.,
944 S.W.2d 401, 404 (Tex. App.—Houston [14th Dist.] 1997, no writ) (finding a
personal injury defendant lacked minimum contacts with Texas because there was no
evidence the negligence occurred in Texas).
11

(N.D. Tex. July 15, 2002). Furthermore, Texas has more than an attenuated interest in
the outcome of this case. The Trust Property is located in Texas, Texas law governs the
guaranty pursuant to a Texas choice-of-law provision, and Mrs. Rector has requested an
offset under the Texas Property Code.
MOTION TO TRANSFER VENUE
Alternatively, Mrs. Rector asks the Court to transfer this action to the District of
Arizona, where she resides. Although the District of Arizona would be a more
convenient venue for Mrs. Rector, it is not a more convenient venue for this lawsuit, and
therefore, Mrs. Rector’s Alternative Motion to Transfer Venue is DENIED.
I.

Legal Standard
The Court may, “[f]or the convenience of the parties and witnesses” and in “the

interest of justice,” transfer the case to any district in which the case could have been
brought under 28 U.S.C. § 1391. 28 U.S.C. § 1404(a). The Court has broad discretion in
determining whether to transfer. In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th
Cir. 2008) (en banc) (“Volkswagen II”). The Fifth Circuit requires courts to consider a
variety of public and private factors in making the decision to transfer. Action Indus.,
Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004).
The private interest factors are: “(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.” In re Volkswagen AG, 371 F.3d 201,
203 (5th Cir. 2004) (“Volkswagen I”). The public interest factors include: “(1) the
administrative difficulties flowing from court congestion; (2) the local interest in having

12

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 [or in]
the application of foreign law.” Id. The Fifth Circuit has explained that a plaintiff’s
choice of venue is not determinative in the analysis, but the plaintiff’s choice of venue
should be respected if the transferee venue is not clearly more convenient. Volkswagen
II, 545 F.3d at 314–15.
II.

Analysis
Plaintiff does not dispute that this suit could have been brought in the District of

Arizona, which satisfies the requirement of 28 U.S.C. § 1404(a).
A. Private Interest Factors
1. Relative Ease of Access to Sources of Proof
Mrs. Rector argues that evidence will be more accessible and less expensive to
obtain in Arizona, where the guaranty was executed, and where she and her husband
reside. Plaintiff responds that none of the sources of proof are located in Arizona.
Plaintiff notes that the Trust Property is in Texas, the foreclosure was conducted in
Texas, and the foreclosure paperwork is in Texas. Finally, Plaintiff argues that Mrs.
Rector and her husband have raised a defense of offset that requires a determination of
the fair market value of the Trust Property under the Texas Property Code. See Tex.
Prop. Code § 51.003. The evidence relating to such a determination would all be in
Texas, where the Trust Property is located.
The Court finds that this factor weighs against transfer. Although two significant
witnesses, the Rectors, are in Arizona, Mrs. Rector has failed to identify any specific
documentary evidence that is more easily accessible in Arizona. In contrast, Plaintiff has

13

identified documents in Texas associated with the Texas foreclosure that will likely be
necessary to determine the fair market value of the Trust Property. Plaintiff also points
out that expert testimony may be necessary to establish the fair market value of the Trust
Property, and an appraiser will likely reside in Texas. In the Court’s view, the documents
and expert testimony will be the most relevant proof, and will be easier to access in
Texas.
2. Availability of Compulsory Process
Mrs. Rector does not identify any potential witnesses to be subpoenaed in this
action, thus the issue of compelling third-party witnesses to appear in Texas does not
support transfer. See Magana v. Toyota Motor Corp., No. 3:10-CV-1451-B, 2010 WL
5108850, at *2 (N.D. Tex. Dec. 6, 2010 (“The party seeking the transfer must specify
clearly . . . the key witnesses to be called and their location and must make a general
statement of what their testimony will cover.”).
3. Cost of Attendance for Willing Witnesses
Mrs. Rector argues that requiring her to litigate in Texas will increase her attorney
fees and costs. On the other hand, Plaintiff, a Texas limited liability company managed
by another Texas limited liability company headquartered in Miami, will be engaging in
out-of-state litigation whether this action is in Texas or Arizona. Plaintiff responds that
any potential expert witness regarding the fair market value of the Trust Property will
likely be in Texas, where the Trust Property is located. Furthermore, Plaintiff presents
evidence that it is cheaper and more convenient for its witnesses to travel from Miami to
Dallas than from Miami to Phoenix because the former route has more flights at cheaper
rates. See Pl. App. 139–53.

14

The Court finds that the cost of attendance of willing witnesses weighs against
transfer because, again, Mrs. Rector has only identified herself and Mr. Rector as
witnesses who will be financially inconvenienced by keeping this action in Texas.
Although it is true that Plaintiff’s witnesses will need to travel out-of-state, that travel
will be shorter and less expensive if this action remains in Texas. In short, transferring
this suit to Arizona will only shift the financial burden and inconvenience from
Defendants to Plaintiff, and Plaintiff has identified third-party witnesses—appraisers of
the Trust Property—that will likely be in Texas. Therefore, this factor weighs against
transfer.
4. Other Practical Problems
This factor is neutral because the parties have not briefed any additional practical
problems that do not otherwise fall within one of the other private or public factor
categories.
B. Public Interest Factors
1. Court Congestion
Mrs. Rector does not address this factor, and Plaintiff provides evidence that the
average time to dispose of civil cases in the Northern District of Texas is 6.4 months,
while the average time to disposition in Arizona is 7.7 months. Because Mrs. Rector has
not shown that trial will be speedier in Arizona, this factor weighs against transfer. See
In re Genetech, Inc., 556 F.3d 1338, 1347 (5th Cir. 2009).
2. Local Interest
Mrs. Rector argues that Arizona has a strong interest in protecting the rights of its
citizens. However, Plaintiff argues that Texas has an even greater interest in enforcing

15

the offset provision under the Texas Property Code and adjudicating rights relating to real
property located in Texas. The Court agrees. This forum has a sufficiently strong
interest in deciding this dispute concerning the guaranty, which is governed by Texas law
and relates to Texas property. This factor weighs against transfer.
3. Familiarity with Forum Law and Avoiding Problems of
Conflict of Laws
Mrs. Rector does not address this factor. Because the choice-of-law provision in
the guaranty provides that Texas law applies to this dispute, the Court finds it unlikely
that a choice-of-law issue will arise in either forum. However, this Court no doubt has a
greater familiarity with Texas law than does an Arizona court. Thus, this factor weighs
against transfer.
Because the balance of public and private factors weigh against transfer, the Court
will not transfer this action to the District of Arizona under the 28 U.S.C. §1404(a)
factors.
CONCLUSION
For the reasons provided herein, the Court DENIES Defendant Shirley Rector’s
Motion to Dismiss and DENIES Defendant Shirley Rector’s Alternative Motion to
Transfer Venue.
SO ORDERED.
March 5, 2015.

_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

16