Dale v. EQUINE SPORTS MEDICINE AND SURGERY et al

Filing 27

Memorandum Opinion and Order: Came on for consideration the motion of plaintiffs, William 0. Dale ("Dale") and A. James Streelman ("Streelman"), for change of venue pursuant to 28 U.S.C. § 1404(a). The court, having consid ered the motion, the response of defendants, Equine Sports Medicine & Surgery Race Horse Service, PLLC, ("ESMS") and Dr. Boyd Clement ("Clement"), the record, and applicable authorities, finds that the motion 25 should be denied. (Ordered by Judge John McBryde on 4/5/2016) (hth)

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IN THE UNITED STATES DISTRICT i COURT
NORTHERN DISTRICT oF TExA!s
FORT WORTH DIVISION
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WILLIAM 0. DALE, ET AL.

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Plaintiffs,

APR - 5 2016

CJ FlU\, V.S.DISTi<lCT COlJ!{T
By

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EQUINE SPORTS MEDICINE &
SURGERY RACE HORSE SERVICE,
PLLC ET AL .

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vs.

FJ tF.D

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NO. 4:15-CV-825-A

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Defendants.

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiffs, William
0.

Dale ("Dale") and A. James Streelman ("Streelman"), for change

of venue pursuant to 28 U.S.C.

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1404(a). The court, having

considered the motion, the response of defendants, Equine Sports
Medicine & Surgery Race Horse Service, PLLC,

("ESMS") and Dr.

Boyd Clement ("Clement"), the record, and applicable authorities,
finds that the motion should be denied.
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Background
On October 30, 2015, plaintiff Dale filed his complaint for
damages from veterinary malpractice/negligence, alleging that
Clement, a veterinarian/employee of ESMS, failed to meet the
standard of care in treating a horse named Rawhide Canyon; that
Rawhide Canyon was treated at the ESMS facility in Weatherford,
Texas; and that ESMS sought to euthanize Rawhide Canyon.

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Having twice filed defective motions for leave to amend,
Dale ultimately obtained permission to file his amended complaint
adding Streelman as a plaintiff and correcting the name of ESMS.
The first amended complaint was filed January 22, 2016.
On February 22, 2016, the court signed an order setting a
schedule and providing special pretrial instructions. The case is
set for jury trial in December 2016.
II.
Grounds of the Motion
Plaintiffs seek a transfer of venue to the United States
District Court for the District of New Mexico, alleging that the
subject matter of this controversy arises solely out of
activities that occurred in Ruidoso, New Mexico, in 2013. They
say that they learned, while attempting to serve Clement, that
Clement's "primary residency" is in Albuquerque. Further, their
primary third-party witness, John Stinebaugh, resides in El Paso,
but spends substantial time in Ruidoso training racehorses.
III.
Applicable Legal Principles
The pertinent statute provides:
For the convenience of the 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 or to any district or
division to which all parties have consented.

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28 U.S.C.

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1404(a). Whether a motion to transfer venue should be

granted lies within the court's sound discretion. Time Inc. v.
Manning, 366 F.2d 690, 698

(5th Cir. 1966).

The court considers both public and private factors in
determining whether a transfer should be ordered. The private
interest factors are:
of proof;

(1) the relative ease of access to sources

(2) the availability of compulsory process to secure

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 of
Am., Inc., 545 F.3d 304, 315
factors are:

(5th Cir. 2008). The public interest

(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 or application of
foreign law. Id.
The burden rests on the moving party to show that the
initial choice of forum should be disturbed. Mannatech, Inc. v.
K.Y.C., Inc., No. 3:06-CV-0813-P, 2006 WL 2216033, at *2

(N.D.

Tex. Aug. 3, 2006). The moving party must make a particularized
showing why transfer is necessary and the court may not transfer
a case where the result is merely to shift the inconvenience of

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venue from one party to the other. Fowler v Broussard, No. 3:00CV-1878-0, 2001 WL 184237, at *6

(N.D. Tex. Jan. 22, 2001).

IV.
Analysis
Here, defendants do not dispute that the action could have
been filed in the District of New Mexico. However, Dale chose
this forum and the reasons given for now wanting to transfer seem
contrived. Plaintiffs say that they learned while serving process
that Clement resides in New Mexico. But, defendants accepted
service (even though service of Clement appears deficient) and
filed their answer expeditiously. Further, Clement says by
affidavit that he is opposed to the transfer. The other purported
reason for the transfer is that the trainer of Rawhide Canyon
resides in El Paso, which is close to New Mexico. Defendants
assert that the trainer really resides in San Antonio. In any
event, plaintiffs surely would have known where to find their
witness at the time the lawsuit was filed. Neither of these
reasons is persuasive.
The private factors do not weigh in favor of transfer. The
ESMS clinic is in the Northern District of Texas and the
pertinent medical records are here. In re Volkswagen, 545 F.3d at
316. There is no reason to believe that the parties cannot
produce witnesses for trial here. The cost of requiring ESMS's

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witnesses to travel to New Mexico for trial and the impact on its
business are factors that weigh against transfer. In re
Volkswagen AG, 371 F.3d 201, 204-05

(5th Cir. 2004). And,

contrary to plaintiffs' argument, the location of their counsel
is not a factor to be counted. In re Horseshoe Entm't, 337 F.3d
429, 434

(5th Cir. 2003). In addition, plaintiffs' decision to

seek a new forum is not entitled to great deference. See Hillard
v. Guidant Corp., 76 F. Supp. 2d 566, 569-70

(M.D. Pa. 1999).

The public factors likewise do not weigh in favor of
transfer. The case has already been set for trial and will be
tried in a substantially shorter time than is typical for a case
in New Mexico. Further, although plaintiffs now focus on events
that occurred in New Mexico, they have pleaded that Rawhide
Canyon was treated in the Northern District of Texas. Doubtless,
the citizens of this district have as much an interest in the
case as do the citizens of New Mexico. The parties dispute which
state's substantive law will apply, but the court has no reason
to believe that application of foreign law would be difficult
should it be determined to apply. The court is certainly familiar
with the law of negligence.
In sum, it appears that a transfer would merely shift
inconvenience from one side to the other.

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v.
Order
The court ORDERS that plaintiffs' motion for change of venue
be, and is hereby, denied.
SIGNED April 5, 2016.

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