Strehl et al v. Zale Corporation et al

Filing 18

MEMORANDUM OPINION AND ORDER TRANSFERRING CASE: This action will be transferred under the undersigned's authority granted by Rule 2(a)(3) of the Court's Miscellaneous Order No. 6 to the District of Colorado on 4/27/2017, the fourteenth d ay after the date of entry of this order, to allow any party to file an objection to Judge Godbey under FRCvP 72(a). If an objection is filed, the order of transfer is stayed pending further order of the Court. (Ordered by Magistrate Judge David L. Horan on 4/13/2017) (twd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NORMAN STREHL AND REGINA
STREHL,
Plaintiffs,
V.
ZALE CORPORATION d/b/a Zales
Outlets AND CRAIG REALTY GROUP
d/b/a Outlets at Silverthorne,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

No. 3:17-cv-222-N-BN

MEMORANDUM OPINION AND ORDER TRANSFERRING CASE
Plaintiffs Norman and Regina Strehl, husband-and-wife citizens of Arkansas,
allege that, while they were on vacation in Silverthorne, Colorado, on December 26,
2015, Regina slipped, fell, and injured herself while entering a Zales Outlet jewelry
store located at The Outlets of Silverthorne, an open-air outlet mall. See Dkt. No. 3.
This pro se tort action, filed in January 2017, is based on that incident, and the
Strehls have sued Zale Corporation, a Delaware corporation with its corporate offices
in Irving, Texas, in the Dallas Division of this district, and Craig Realty Group, a
California corporation, alleged to own, develop, and manage The Outlets at
Silverthorne. See id.
This case has been referred to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference
from United States District Judge David C. Godbey.
Both defendants have answered. See Dkt. Nos. 8 & 15. And Craig Realty has

moved to transfer this case, under 28 U.S.C. § 1404(a), to the District of Colorado. See
Dkt. Nos. 7 & 8. The Strehls have filed a response in opposition to that motion. See
Dkt. No. 14. Craig Realty has filed a reply brief. See Dkt. No. 17. And, while Zale
Corporation has not weighed in on the pending motion to transfer, its answer asserts
that venue is not proper in this district. See Dkt. No. 15 at 1, 2-3, & 9.
For the reasons explained below, Craig Realty’s motion to transfer should be
granted, and this action should be transferred to the District of Colorado.
Legal Standards and Analysis
Section 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
-2-

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
“‘[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 Tex., 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 Am., 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,” a plaintiff’s “choice of forum ... is not
an independent factor within ... the § 1404(a) analysis.” Id. at 314 n.10, 315. Rather,
“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).
As an initial matter, the Court determines that this action could have been
brought in the District of Colorado. Civil diversity actions, such as this one, may be
brought in “a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred,” among other locations. 28 U.S.C. § 1391(b)(2); see,
e.g., Osgood v. Discount Auto Parts, LLC, 981 F. Supp. 2d 1259, 1264 (S.D. Fla. 2013)
-3-

(“Here, Plaintiff’s accident occurred in Lake City, which is located in the Middle
District of Florida. Thus, this case could have been brought there in the first instance.”
(citing 28 U.S.C. § 1391(b)(2)); cf. Dover v. Resort Cos., Inc., Civ. No. 2:12-cv-03785
(WJM), 2013 WL 827432, at *1 (D.N.J. Mar. 6, 2013) (“[U]nder 28 U.S.C. § 1391(b)(2),
venue is proper only in the Western District of Virginia, as the only event giving rise
to the claim – Derrick Dover’s alleged slip and fall – occurred in Rockingham,
Virginia.”).
The Fifth Circuit’s convenience factors also weigh in favor of transferring the
action to the District of Colorado, as the only connection to this district is that one of
the defendants has its corporate offices here.
That Zale Corporation is headquartered in this district may implicate a local
interest, but, because this litigation concerns a slip-and-fall at an outlet mall in
Colorado, and because there are no allegations connecting Zale Corporation executives
(or other employees located at its headquarters) to the Strehl’s suit, this case does not
meet the public concern that there is a local interest in having localized interests
decided at home. See Abstrax, Inc. v. Hewlett-Packard Co., No. 2:14-cv-158-JRG, 2014
WL 5677834, at *6 (E.D. Tex. Nov. 4, 2014) (“HP contends that the Northern District
of California has a greater local interest in this case because HP maintains its
corporate headquarters in that District. However, HP has failed to show that its
employees or offices in the Northern District of California have a particular connection
to this case.”); Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods.,No. 3:09-cv488-D, LLC, 2009 WL 2634860, at *8 (N.D. Tex. Aug. 26, 2009) (recogniz[ing] that
-4-

[plaintiff’s] corporate headquarters are located in this district, [but noting that] this
case is different in that the location of [plainitff’s] most relevant ‘local interest’ appears
to be [its office in] Neenah, Wisconsin”); see also Butorin on behalf of KBR Inc. v.
Blount, 106 F. Supp. 3d 833, 843 (S.D. Tex. 2015) (“There may be some local interest
in this controversy, since KBR’s principal executive offices are in Houston, Texas.
However, the issues in this case relate to stockholders from many different places, so
the court finds that this factor weighs only slightly in favor of retention.”).
In contrast to the weak connection to this district, an overwhelming number of
the private and public interest factors favor the District of Colorado.
Where the accident occurred, Silverthorne, Colorado is some 68 miles from the
federal courthouse in Denver, see Dkt. No. 17 at 3 & 5, and, therefore, not only is the
District of Colorado more convenient and less costly for many willing witnesses, but,
as Craig Realty notes, “the medical records and documents, initial healthcare
providers, police investigators, and other witnesses are within the 100 mile subpoena
power of the court for record retrieval, depositions, hearings, and trial,” id. at 5 (citing
FED. R. CIV. P. 45(c)).
While the Strehls argue that other witnesses, including medical providers “who
will testify concerning the ongoing extent of [Regina’s] injuries and her ongoing pain
and suffering ... are located in Little Rock, Arkansas,” not in Colorado, Dkt. No. 14 at
2, such providers, to the extent that the Strehls cannot compel their cooperation, are
outside of this Court’s subpoena power, and there has been no showing as to these
witnesses that Denver is more difficult a venue to reach than Dallas. Cf. Bennett v.
-5-

Moran Towing Corp., 181 F. Supp. 3d 393, 399 (S.D. Tex. 2016) (“Medical providers are
key witnesses in a personal injury case and Moran Towing has offered no evidence
establishing that the medical treaters will voluntarily attend trial without a subpoena
or that they are hired expert witnesses. While Moran Towing argues that obviously
Bennett has the power to compel his doctor to testify in Connecticut it offers no
authority for how this can be done in the absence of such evidence. Accordingly, the
Court finds that this factor weighs against transfer.” (citations omitted)).
In addition, as Colorado law governs this diversity action, see, e.g., Abramov v.
Otis Elevator Co., No. 3:11-cv-440-D, 2011 WL 5081560, at *8 (N.D. Tex. Oct. 25, 2011)
(“[B]ecause this court’s jurisdiction is based on diversity of citizenship, the forum
state’s choice of law rules apply. Under Texas choice of law rules, the law of the state
with the most significant relationship to the controversy governs in a tort action.”
(respectively citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941); Gutierrez
v. Collins, 583 S.W.2d 312, 318 (Tex. 1979))), a transfer also helps ensure that a forum
that is familiar with the governing state law will try the dispute and avoids potential
conflict of law issues, see Ferens v. John Deere Co., 494 U.S. 516, 530 (1990) (noting
that “‘there is an appropriateness in having the trial of a diversity case in a forum that
is at home with the state law that must govern the case, rather than having a court in
some other forum untangle problems in conflicts of laws, and in law foreign to it’”
(quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947))).

-6-

In light of the private and public interest factors implicated, the Court finds that
it would be in the interest of justice to transfer the action under Section 1404(a).
Conclusion
This action will be transferred under the undersigned’s authority granted by
Rule 2(a)(3) of the Court’s Miscellaneous Order No. 6 to the District of Colorado on
April 27, 2017, the fourteenth day after the date of entry of this order, to allow any
party to file an objection to Judge Godbey under Federal Rule of Civil Procedure 72(a).
If an objection is filed, the order of transfer is stayed pending further order of the
Court.
SO ORDERED.
DATED: April 13, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

-7-