Berlanga v. Basic Energy Services LP et al

Filing 17

MEMORANDUM ORDER AND OPINION granting 7 MOTION to Transfer Venue From Dallas Division to Fort Worth Division. Order transferring case to the Fort Worth Division of the Northern District of Texas. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 10/30/2017) (aaa) Modified on doc type 10/31/2017 (ykp).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOSUE BERLANGA,
Plaintiff,
v.
BASIC ENERGY SERVICES, LP,
BASIC ENERGY SERVICES, INC.,
BASIC ENERGY SERVICES, GP, LLC,
Defendants.

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CIVIL ACTION NO. 3:17-CV-0106-L

MEMORANDUM ORDER AND OPINION
Pursuant to the order of reference dated April 13, 2017 (doc. 13), before the Court for
determination is Defendants’ Opposed Motion to Transfer Venue From Dallas Division to Fort
Worth Division, filed March 20, 2017 (doc. 7).1 Based on the relevant filings, evidence, and
applicable law, the motion is GRANTED.
I. BACKGROUND
On January 10, 2017, Josue Berlanga (Plaintiff) filed suit in this division against Basic
Energy Services, LP, Basic Energy Services, Inc., and Basic Energy Services, GP, LLC alleging
violations of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq (FLMA). (doc. 1 at 1.)2
He worked for Basic Energy Services (Defendant), an oil and gas servicing company which includes
the three named defendants. (Id.; doc. 8 at 3.) Plaintiff claims that Defendant “discriminated or
otherwise retaliated” against him by threatening to “terminate employment for requesting leave to

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Amended Miscellaneous Order No. 6 provides U.S. Magistrate Judges authority to transfer actions brought by pro
se litigants to the proper or more appropriate district or division.

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Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.

care for his son[,]... taking shifts away from him for requesting leave to care for his son[,]... and by
forcing him to work ... in spite of his request for medical leave...” (doc. 1 at 2-6.)
Plaintiff resides in Fort Worth, Tarrant County, Texas. (Id. at 1). Defendant’s headquarters
is also located in Fort Worth, and is less than a mile from the courthouse for the Fort Worth
Division. (doc. 8 at 3.) Defendant contends that Plaintiff most recently worked at its location in
Bridgeport, Wise County, Texas, while he contends that he provided services through out the DallasFort Worth (DFW) metropolitan area, including Bridgeport, Alvord (Wise County), and Arlington
(Tarrant County). (docs. 8 at 3; 12-1 at 3.) All of Defendant’s documentary evidence, including
Plaintiff’s personnel file, attendance and pay records, and leave requests, is located within the Fort
Worth Division, either at its Fort Worth headquarters or in Bridgeport. (doc. 8 at 3.) All three of
Defendant’s main anticipated witnesses work in the Fort Worth Division; two of the three live in the
Fort Worth Division, while one lives in the Dallas Division. (docs. 8 at 3; 12-1 at 3-4.) One of
Plaintiff’s potential witness’ also resides in the Dallas Division. (doc. 12-1 at 4.)
Defendants move to transfer all proceedings to the Fort Worth Division under 28 U.S.C. §
1404(a). (doc. 7 at 1). The motion has been fully briefed and is ripe for decision.
II. § 1404(a)
Defendants argue that this case should be transferred to the Fort Worth Division because it
has no connection to the Dallas Division, most of the relevant factors required to be considered
under § 1404(a) favor transfer, and the Fort Worth Division is “clearly more convenient.” (doc. 7
at 10-11.) Plaintiff responds that all factors are either neutral or favor retention of the case in the
Dallas Division. (doc. 12 at 9.)
A district court may transfer any civil case “[f]or the convenience of parties and witnesses,

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in the interest of justice…to any other district or division where it may have been brought or to any
district or division to which all parties have consented.” 28 U.S.C. § 1404(a). As a threshold matter,
§ 1404(a) requires a determination of whether the proposed transferee district is one in which the
suit might have been brought. In re Horsehoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (per
curiam). Once this threshold has been met, § 1404(a) requires consideration of “the convenience of
the parties and witnesses” and “the interests of justice.” In re Volkswagen AG, 371 F.3d 201, 203
(5th Cir. 2004) (Volkswagen I); In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008)
(Volkswagen II). The movant must show that considering both the convenience of the parties and
witnesses and the interest of justice under § 1404(a), the transferee venue is “clearly more
convenient.” Volkswagen II, 545 F.3d at 315.
A.

Proposed Transferee District
For all civil actions brought in a United States district court, venue is proper in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the
State in which the district is located; (2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a substantial part of property that
is the subject of the action is situated; or (3) if there is no district in which an action may
otherwise be brought as provided in this section, any judicial district in which any defendant
is subject to the court’s personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b).
Here, Plaintiff does not dispute that he could have brought this action against Defendant in
the Fort Worth Division. (doc. 12 at 3.) Defendant’s corporate headquarters is located in Fort
Worth, which is in Tarrant County, and Plaintiff contends that he provided services in Bridgeport,
Alvord, and Arlington, which are in Wise or Tarrant County. (docs. 8 at 3; 12-1 at 3.) Both counties
are part of the Fort Worth Division. See 28 U.S.C. § 124(a)(2). At least part of the alleged events
giving rise to the lawsuit occurred in that division. (docs. 8 at 3; 12-1 at 3.)
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B.

Convenience to Parties and Witnesses
Since the proposed transferee district is one in which the suit may have been brought, the

next consideration is “the convenience of the parties and witnesses.” Volkswagen I, 371 F.3d at 203;
Volkswagen II, 545 F.3d at 315. The Fifth Circuit has adopted the forum non conveniens private and
public interest factors to determine the convenience of the parties and witnesses. Volkswagen II, 545
F.3d at 314-15, n.9 (5th Cir. 2008); see also Volkswagen I, 371 F.3d at 203.
1.

Private Interest Factors

The private interest factors consist of “(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.” Volkswagen I, 371 F.3d at 203 (citing Piper Aircraft Co. v. Hartzell
Propeller, Inc., 454 U.S. 235, 241 n.6 (1981)).
a.

Relative Ease of Access to Sources of Proof

The first private interest factor, the relative ease of access to sources of proof, weighs in
favor of transfer when evidence can be more readily accessed from the transferee district. Internet
Machines LLC v. Alienware Corp., No. 6:10-cv-023, 2011 U.S. Dist. LEXIS 66207, 2011 WL
2292961, at *5 (E.D. Tex. June 7, 2011).
Here, Plaintiff concedes that all of the relevant evidence is located within the Fort Worth
Division at Defendants’ headquarters, which is less than a mile from the Fort Worth Division
courthouse, or at their offices in Bridgeport, Texas. (docs. 7 at 5-6, 14 at 2.) He argues that the
location of the documents is inconsequential, however, and not a “substantial or logistical hurdle”
because of the interconnected nature of the two cities. (doc. 12 at 3-4.) Because Defendant’s

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headquarters is less than a mile from the courthouse, all documentary evidence can be more readily
accessed within the Fort Worth Division, so the first factor favors transfer.
b.

Availability of Compulsory Process

The second private interest factor, the availability of compulsory process to secure the
attendance of witnesses, favors transfer when a transferee district has absolute subpoena power over
a greater number of non-party witnesses. Internet Machines, 2011 U.S. Dist. LEXIS 66207, 2011
WL 2292961, at *6 (citing In re Hoffman-La Roche Inc., 587 F.3d 1333, 1336-37 (Fed. Cir. 2009)).
A district “may command a person to attend trial” by subpoena when it is “within 100 miles of
where the person resides, [or] is employed …” Fed. R. Civ. P. 45 (c)(1)(a). Both parties concede that
all currently identified witnesses are within the subpoena power of both divisions. (docs. 7 at 8, 12
at 6.) The second factor is neutral.
c.

Cost of Attendance of Willing Witnesses

The third private interest factor is the cost of attendance for willing witnesses. Volkswagen
I, 371 F.3d at 203. “The Court must consider the convenience of both the party and non-party
witnesses.” Vargas v. Seamar Divers Int’l, LLC, No. 2:10-CV-178-TJW, 2011 U.S. Dist. LEXIS
54386, 2011 WL 1980001, at *7 (E.D. Tex. May 20, 2011) (citing Volkswagen I, 371 F.3d at 204
(requiring courts to “contemplate consideration of the parties and witnesses”)). The Fifth Circuit
employs a 100-mile rule to assess the third private interest factor of cost of attendance for willing
witnesses. Volkswagen I, 371 F.3d at 204-205. “When the distance between an existing venue for
trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor of
inconvenience to witnesses increases in direct relationship to the additional distance to be traveled.”
Id. “Additional distance means additional travel time; additional travel time increases the

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probability for meal and lodging expenses; and additional travels time with overnight stays increases
the time which these fact witnesses must be away from their regular employment.” Id. at 205.
Defendant’s three main witnesses, all of whom are employees, work in the Fort Worth
Division, and two of them also live there. (docs. 8 at 3-4; 12-1 at 3-4.) Defendant’s headquarters
is less than one mile from the Fort Worth Division courthouse. (doc. 8 at 3.) Two witnesses live in
the Dallas Division. (docs. 12 at 4-6; 14 at 3.) Although the distance between the divisions is less
than 100 miles, and two witnesses live in the Dallas Division, the third factor favors transfer because
it is less time-consuming and costly for the witnesses to attend trial during the work day at the
courthouse in the Fort Worth Division, which is nearer to their work locations, than driving
approximately 30 miles across the metropolitan area to the Dallas Division courthouse.
d.

Other Practical Problems

The fourth private interest factor is a catch-all consideration that includes all other problems
that obstruct easy, expeditious, and inexpensive trials. Defendants argue that this factor favors
transfer because all witnesses will incur additional unnecessary costs and time away from work to
attend court in the Dallas Division. (Id.) Because it will be more convenient for witnesses to attend
trial in the Fort Worth Division, near their workplace, this factor favors transfer.
2.

Public Interest Factors

In addition to the private interest factors, courts must also consider the forum non conveniens
public interest factors to see if they favor transfer. Volkswagen I, 371 F.3d at 203. They 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 laws [or in] the application of

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foreign law.” Id.
a.

Court Congestion

Regarding the first public interest factor, the administrative difficulties flowing from court
congestion, see Volkswagen I, 371 F.3d at 203, both parties concede this factor’s neutrality, (docs.
7 at 9, 12 at 6-7).
b.

Local Interest

The second public interest factor is the local interest in having localized interests decided
at home. Volkswagen I, 371 F.3d at 203. This factor favors transfer if “the events giving rise to this
action occurred in [the transferee district/division]…” Volkswagen II, 545 F.3d at 315. The Fort
Worth division has a localized interest in this matter because the company alleged to have caused
the harm is located there, at least some of the alleged events happened there, and the relevant
documents and witnesses are located there. In addition, the outcome of the case will have a direct
financial impact on a party located there. Therefore, the second public interest factor weighs in favor
of transfer.
c.

Familiarity with the Governing Law and Avoidance of Conflict of Laws

The third public interest factor is “the familiarity of the forum with the law that will govern
the case,” and the fourth public interest factor is “the avoidance of unnecessary problems of conflict
of laws [or in] the application of foreign law.” Volkswagen I, 371 F.3d at 203. The parties agree that
both the Dallas and Fort Worth Divisions “have federal question jurisdiction over this case and are
equally fit to address the ... issues that will govern this case.” (docs. 7 at 10; 12 at 8.) They also
agree that there are no conflicts of law problems present in this case. (Id.) The third and fourth
public interest factors are neutral.

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C.

Interest of Justice
Analysis of the “convenience of parties and witnesses” does not end the transfer of venue

inquiry; the court should also consider the “interest of justice” under § 1404(a). See Regents of Univ.
Of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1565 (Fed. Cir. 1997). Generally, a court should transfer
a case where most of the witnesses and evidence in the case are closer to the transferee venue, with
few or no convenience factors favoring the venue chosen by the plaintiff. In re Nintendo Co., 589
F.3d 1194, 1198 (Fed. Cir. 2009). Here, because all the evidence and witnesses are closer to the Fort
Worth Division, and no factors favor the Dallas Division, the interest of justice favors transfer.
Considering the convenience of parties and witnesses and the interest of justice, Defendants
have met their burden of showing that the Fort Worth Division is “clearly more convenient” than
the Dallas Division. Volkswagen I, 545 F.3d at 315. Transfer of the action to that division is
therefore appropriate.
D.

Plaintiff’s Choice of Forum
A plaintiff’s choice of venue is not a separate factor in the transfer of venue analysis.

Volkswagen II, 545 F.3d at 314 n.10. Rather, it is “to be treated as a burden of proof question,” and
deference to plaintiff’s choice of venue is reflected in the movant’s burden to show good cause for
the transfer. See id. (citation and internal marks omitted). Less deference is given to a plaintiff’s
choice of forum “[w]hen the plaintiff is not a resident of the chosen forum, or when the operative
facts underlying the case did not occur in the chosen forum …” Kirkpatrick v. ARM WNY LLC, No.
3:15-cv-1818-L, 2015 U.S. Dist. LEXIS 72894 *7-8; Davis v. City of Fort Worth, No. 3:14-cv-1698D, 2014 U.S. Dist. LEXIS 86738 *6-7.
Here, Plaintiff does not live in the Dallas Division, he has not alleged specific events

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underlying the case occurred in that division, and he concedes that he provided services in specific
cities within the Fort Worth Division, so his choice of forum is entitled to less deference. Because
Defendants have carried their burden to show that the Fort Worth Division is “clearly more
convenient”, transfer to that division is warranted.
III. CONCLUSION
The motion to transfer is GRANTED, and this case is hereby TRANSFERRED to the
United States District Court for the Northern District of Texas, Fort Worth Division.
SO ORDERED on this 30th day of October, 2017.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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