Puga et al v. About Tyme Transport, Inc. et al

Filing 13

ORDER DENYING TRANSFER OF VENUE denying 9 Motion to Transfer Case ; denying 10 Motion to Transfer Case.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALEXANDRO PUGA, et al,

§
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 2:15-CV-73
§
ABOUT TYME TRANSPORT, INC., et al, §
§
Defendant.
§
ORDER DENYING TRANSFER OF VENUE
This motor vehicle personal injury case was removed to this Court under diversity

jurisdiction, 28 U.S.C. § 1332. Before the Court is “Defendant About Tyme Transport,
Inc.’s Opposed Motion to Transfer Venue” (D.E. 9), along with “Defendant, Xtra Lease,
LLC’s Joinder in Motion to Transfer Venue” (D.E. 10). Defendants seek transfer from
the Corpus Christi Division to the Victoria Division of the Southern District of Texas.
For the reasons stated below, the Motion is DENIED.
The issue of transfer of venue is committed to the sound discretion of this Court.
28 U.S.C. § 1404(a); In re Volkswagen of America, Inc., 545 F.3d 304, 312 (5th Cir.
2008) (en banc) (“[W]e review only for clear abuses of discretion that produce patently
erroneous results.”). A court may transfer venue (1) for the convenience of parties and
witnesses, in the interests of justice, (2) to any other district or division where the action
might have been brought. 28 U.S.C. § 1404(a). The burden of proof is on the movant to
show good cause for the proposed transfer. Volkswagen, 545 F.3d at 314. According to
the Fifth Circuit:
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This “good cause” burden reflects the appropriate deference
to which the plaintiff's choice of venue is entitled. When
viewed in the context of § 1404(a), to show good cause
means that a moving party, in order to support its claim for a
transfer, must satisfy the statutory requirements and clearly
demonstrate that a transfer is “[f]or the convenience of parties
and witnesses, in the interest of justice.” Thus, when the
transferee venue is not clearly more convenient than the
venue chosen by the plaintiff, the plaintiff's choice should be
respected. When the movant demonstrates that the transferee
venue is clearly more convenient, however, it has shown good
cause and the district court should therefore grant the transfer.
Volkswagen, 545 F.3d at 315.
The collision at issue in this case occurred on Highway 77 in Refugio County.
Plaintiff Alexandro Puga was driving southbound in his work truck and Ronald Brown
was driving northbound in a tractor owned by Defendant About Tyme Transport, Inc.
(About Tyme), hauling a trailer owned by Defendant Xtra Lease, LLC (Xtra). According
to Plaintiffs, Brown’s tractor-trailer rig crossed the median and collided head-on with
Puga’s vehicle.

D.E. 1-3.

Plaintiffs sue About Tyme and Xtra under theories of

respondeat superior, negligence, and gross negligence.
This action “might have been brought” in the Victoria Division of the Southern
District of Texas because the incident occurred within that Division’s geographic area.
Thus the second requirement for transfer of venue is satisfied. The first prong of the test
requires an analysis and weighing of several private and public interest factors that were
first set out as governing forum non conveniens determinations and which were later
applied to transfer of venue questions. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947);
Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963).
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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) (citing Piper Aircraft, 454 U.S. at 241 n. 6, 102
S.Ct. 252, 70 L.Ed.2d 419). The public interest factors are:
“(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 in] the
application of foreign law.” Id.
Volkswagen, 545 F.3d at 315. Each factor will be discussed below. As the Fifth Circuit
observed, these factors “are not necessarily exhaustive or exclusive. Moreover, we have
noted that ‘none . . . can be said to be of dispositive weight.’ ” Id. (quoting Action Indus.,
Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004)).
PRIVATE INTEREST FACTORS
1. The relative ease of access to sources of proof
Defendants emphasize that the accident site is located in the Victoria Division.
About Tyme claims that “Most, if not all, of the witnesses in this case would live and
work in counties served by the Victoria Division. There are no known witnesses to this
accident who reside or work in the Corpus Christi Division.” D.E. 9, p. 4. About Tyme
has not identified any specific witnesses that would be required to prosecute or defend
this case that live or work in the Victoria Division.

Instead, it claims that such

unidentified witnesses and emergency response records are “likely” to be in the Victoria

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Division. Last, the vehicles involved in the collision are located in Refugio, Texas,
within the Victoria Division.
Plaintiffs respond that, as a result of the collision, Alexandro Puga was
immediately transported to Christus Spohn Memorial Hospital in Corpus Christi before
transfer to Brooke Army Medical Center in San Antonio. Thus some of the medical
records will be found in the Corpus Christi Division.

Nonetheless, most of the

emergency responder records, according to Plaintiff, are available electronically and
through simple requests. Thus their original location is of little significance in this age of
communications.
Both sides acknowledge that emergency responders were called in from Refugio
and that the vehicles are located in Refugio, Texas. That being the case, Plaintiff notes
that Refugio is located roughly half-way between Victoria and Corpus Christi, where the
respective division courthouses are located. Thus there is little advantage, if any, to
prosecuting this action in either division for access to sources of proof.
The Court finds that this factor is neutral.
2. The availability of compulsory process to secure the attendance of witnesses
A district court’s subpoena power over non-party witnesses extends to 100 miles
from where the person lives or works. Fed. R. Civ. P. 45(c)(1)(A). Neither party has
identified a specific witness who will need to be subpoenaed for trial. The Court,
however, takes judicial notice that the distance by car between the Corpus Christi and
Victoria courthouses is approximately 85 miles and that Refugio is located at roughly the
half-way point, rendering the comparative subpoena powers of the two courts neutral.
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3. The cost of attendance for willing witnesses
Again, because of the relative locations of the two courthouses and Refugio,
Texas, the Defendants have not demonstrated that the cost of attendance for willing
witnesses is greater in Corpus Christi than it would be in Victoria. Plaintiffs claim that
the Corpus Christi International Airport makes travel to Corpus Christi easier than it is to
Victoria, which does not have its own major airport. In fact, the closest such airport to
Victoria is Corpus Christi’s.
While Plaintiffs acknowledge that their residential status is in flux, they assert that
Corpus Christi is more convenient for them now and that it will remain so in the
foreseeable future.

Given that Plaintiff Alexandro Puga did receive some medical

treatment in Corpus Christi, Plaintiffs also anticipate that there will be witnesses who
reside and work in Corpus Christi for whom a transfer to Victoria would be inconvenient.
And one eyewitness to the collision, Rene Garza, is said to live closer to Corpus Christi
than to Victoria. The Court finds that this factor weighs against transfer to Victoria.
4. All other practical problems that make trial
of a case easy, expeditious and inexpensive.
While the listed factors are neither exhaustive nor exclusive, none of the parties
suggested any additional practical problems to be weighed in the transfer analysis. This
factor is neutral.
PUBLIC INTEREST FACTORS
All of the public interest factors are neutral because Defendants have not
addressed them and because the relative locations of the site of the collision and the two
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courthouses renders no appreciable differences in administrative convenience, localized
interests, familiarity with the law, or the resolution of conflicts of law.
CONCLUSION
Weighing all of the factors together, the Court concludes that they weigh against
transfer. Defendants have not demonstrated “good cause” for a transfer of the case to the
Victoria Division, which requires a showing that the transferee venue is clearly more
convenient than the current venue. The motions to transfer venue (D.E. 9, 10) are
DENIED.

ORDERED this 13th day of March, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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