Kervin v. Supreme Service & Specialty Company, Inc.

Filing 26

ORDER TO TRANSFER CASE to Eastern District of Louisiana; granting 22 Unopposed MOTION to Transfer Case to Eastern District of Louisiana (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BRANDON KERVIN, et al,
Plaintiffs,
VS.
SUPREME SERVICE & SPECIALTY
COMPANY, INC.,
Defendant.

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§ CIVIL ACTION NO. 2:15-CV-102
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ORDER TRANSFERING CASE
This cause is before the Court on the unopposed motion of Defendant Supreme Service
& Specialty Company, Inc. (“Supreme”) seeking the transfer of this Fair Labor Standards Act
(FLSA) collective action to the Eastern District of Louisiana pursuant to 28 U.S.C. §1404(a) for
the convenience of parties and witnesses and in the interest of justice. The motion is well-taken
and due to be granted for the reasons set forth below.
BACKGROUND FACTS
Plaintiff Brandon Kervin (“Kervin”) asserts overtime claims under the FLSA on behalf of
himself and all other allegedly similarly-situated workers who were employed by Supreme all
over the country. Kervin lives in a town named Minden located in Webster Parish, Louisiana.
[Doc.1 ¶2.1] Supreme’s principal place of business is located in Houma, Terrebonne Parish,
Louisiana. [Doc.1 ¶2.3] Supreme has approximately 450 employees operating from ten facilities
across the United States. [Doc.1 ¶5.1] In particular, Supreme has operations/facilities located in
Broussard, Houma, and Shreveport, Louisiana, and in Alice, Houston, Mineral Wells, Odessa,
and Refugio, Texas. [Doc.1 ¶5.2] Supreme’s workers are geographically dispersed, residing and
working in different states across the country. Many of these workers do not have fixed work
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locations, and may work in different states across the country in the course of a given year.
[Doc.1 ¶6.16] In particular, Kervin and other employees in allegedly similar jobs were required
to work throughout the States of Louisiana, Texas, and New Mexico. [Doc.1 ¶5.5]
LEGAL STANDARD
A district court is authorized, “[f]or the convenience of the parties and witnesses, in the
interest of justice,” to transfer any civil action to any other district or division where the suit
might have been brought. 28 U.S.C. § 1404(a). The goal of this provision is to “prevent the waste
of time, energy[,] and money and to protect litigants, witnesses, and the public against
unnecessary inconvenience and expense.” Shoemaker v. Union Pacific R.R. Co., 233 F. Supp. 2d
828, 829 (E.D. Tex. 2002) (citing Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)).
Two factors in the present case discount the usual weight given to the plaintiff’s initial
choice of forum. First, Kervin elected to file this lawsuit in a federal district court division
located approximately 479 miles from his home town of Minden, Louisiana, rather than in his
home forum of the Western District of Louisiana. See Kettler v. Presstek, Inc., No. CIV. A. 3:03CV-0846-, 2003 WL 21788870, at *2 (N.D. Tex. July 31, 2003) (“[Plaintiff’s] home forum is …
located in the Western, not the Northern, District of Texas. …. Kettler has filed suit outside his
home forum, and his choice is therefore accorded reduced weight.”). Second, Kervin has not
filed only an individual lawsuit, but instead has asserted an FLSA collective action.

A

“plaintiff's choice of venue is generally accorded less deference when the plaintiff seeks to
represent a class of individuals.” Vassallo v. Goodman Networks, Inc., No. 5:14-CV-743-DAE,
2015 WL 502313, at *2 (W.D. Tex. Feb. 5, 2015) (citing Koster v. Am. Lumbermens Mut. Cas.
Co., 330 U.S. 518, 524 (1947)) (reasoning, in the context of the doctrine of forum
nonconveniens, that “where there are hundreds of potential plaintiffs, all equally entitled
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voluntarily to invest themselves with the ... cause of action ... the claim of any one plaintiff that a
forum is appropriate ... is considerably weakened”).1
As the party seeking transfer to another venue, Supreme bears the burden of
demonstrating that the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th
Cir. 1966). To prevail on a motion to transfer venue for the convenience of the parties under
§1404(a), the movant must demonstrate that the balance of convenience and justice weighs in
favor of transfer. See In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.2004); McPherson v.
Leam Drilling Systems, LLC, No. 2:14–CV–00113, 2014 WL 4063983, at *3 (S.D. Tex. Aug. 15,
2014); Blake vs. Archer Drilling LLC, No. 2:14-CV-120, 2014 WL 3696280, at *1 (S.D. Tex.
July 23, 2014); West v. Oil States Industries, Inc., No. 2:14–CV–126, 2014 WL 3696345, at *1
(S.D. Tex. July 23, 2014).
This Court has discretion to determine whether a transfer pursuant to §1404(a) is proper
based on an “individualized case-by-case consideration of convenience and fairness.”
Shoemaker, 233 F. Supp. 2d at 829 (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988)). The threshold determination under § 1404(a) is whether the action could have been filed
in the judicial district to which the transfer is sought. In re Volkswagon AG, 371 F.3d at 203. If
the Court determines the action could have been filed in the judicial district to which the transfer
is sought, the Court must next determine whether the transfer furthers the convenience of the

1

Accord Mateos v. Select Energy Servs., L.L.C., 919 F. Supp. 2d 817, 821 (W.D. Tex. 2013) (“A number of courts
have held that a plaintiff's chosen forum is accorded less weight when the plaintiff seeks to represent a class of
individuals.”) (citing In re Warrick, 70 F.3d 736, 741 n. 7 (2d Cir.1995)) (“It is true ... that the plaintiff's choice of
forum is a less significant consideration in a (here, putative) class action than in an individual action.”); Lou v.
Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (“when an individual brings a derivative suit or represents a class, the
name plaintiff's choice of forum is given less weight”); Espenscheid v. DirectSat USA, LLC, 708 F. Supp. 2d 781,
787 (W.D.Wis. 2010) (“because plaintiffs have brought this action in the hopes of representing a proposed national
class, their choice of forum is entitled to less deference than it would be in an individual action”); see also Earley v.
BJ's Wholesale Club, Inc., 2007 WL 1624757, *2 (S.D.N.Y. June 4, 2007) (finding in purported FLSA nationwide
collective action that a “plaintiff's choice of forum is a less significant consideration in a (here, putative) class action
than in an individual action”).

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parties and witnesses considering certain private and public interest factors. 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.”
Id. 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 governing the case; and (4) the avoidance of unnecessary problems of
conflict of laws or in the application of foreign law. Id.
ADDITIONAL FACTS
Supreme’s senior officers and owners are Thomas Fanguy (President) and Robert Fanguy
(Vice-President). Thomas Fanguy is a resident of Chavin, which is a suburb of Houma,
Louisiana, and he works at the company’s Houma corporate headquarters. Robert Fanguy is a
resident of Abbeville, Louisiana, and he works at the company’s facility in Broussard, Louisiana.
Fredrick Bourgeois, the company’s Corporate Controller, reports to the company’s President and
is also a resident of Houma, Louisiana. (Bourgeois Decl. ¶¶2-3)
Supreme’s Human Resources Director, Lawrence Robinson, reports to the Corporate
Controller. He is a resident of New Orleans, Louisiana. The company’s Chief Operating
Officer-US Land, Jay Davis, reports to Vice-President Robert Fanguy. He lives in Katy, Texas,
and works in Houston, Texas. The company’s Transportation Coordinator, Robert McDonald,
who will likely be a witness for Supreme in this lawsuit lives in Midlothian, Texas, and has an
office there where he works some of the time. The company has no senior level officers or senior
managerial employees who live or work within 100 miles of Corpus Christi, Texas. (Bourgeois
Decl. ¶3)
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All of Supreme’s payroll, personnel, tax, and accounting records are maintained at the
company’s Houma, Louisiana corporate headquarters. (Bourgeois Decl. ¶2) All decisions about
salaries, wages, bonuses, pay rates, and compensation structures for the company’s employees
are made by President Fanguy and Corporate Controller Bourgeois at the company’s
headquarters in Houma, Louisiana. (Id. ¶3Supreme has a district manager based in Alice, Texas,
but decisions about these pay issues are not made at the district manager level.) (Id.)
Kervin was employed by Supreme as a pump operator. (Bourgeois Decl. ¶4) During the
three year period prior to February 2015, Supreme employed 128 pump operators including
Kervin. (Id. & Exh.1) According to Supreme’s personnel/payroll records, of these 128 pump
operator employees, 53 live in Louisiana, six live in Oklahoma, thirteen live in Corpus Christi,
Texas, and the remaining 56 live elsewhere in Texas. (Id. & Exh.1)
ANALYSIS
As discussed below, Kervin’s claims could have originally been filed in the Eastern
District of Louisiana, the four private interest factors favor transfer, and two of the four public
interest factors favor transfer, while the other two public interest factors are neutral or not
implicated in this matter.
A.

Appropriate Venue
Under 28 U.S.C. §1391(b)(1), venue is proper in any district where the defendant resides.

Where there is a corporate defendant like Supreme, under 28 U.S.C. §1391(c) and (d), venue is
proper in any judicial district of a state where personal jurisdiction over the corporate defendant
may be obtained. Thus, venue is proper in the Eastern District of Louisiana because Supreme has
its principal place of business in that district.

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B.

Private Interest Factors
1.

Relative ease of access to sources of proof

The Eastern District of Louisiana courthouse is located in New Orleans which is
considerably closer to Supreme’s corporate headquarters than the 528 miles from Houma to
Corpus Christi, Texas. The Eastern District courthouse is more conveniently located to
Supreme’s upper level managers Fanguy, Bourgeois, and Robinson. Supreme’s payroll/personnel
records also reflect that a minority of the potential members of the putative class reside in the
Corpus Christi division while an overwhelming majority reside quite far from this division. Of
the 128 pump operators employed by the company in the last three years, only 38 reside in the
Corpus Christi division (29.7%).2 In contrast, 53 workers (including Kervin) live in Louisiana
(41.4%), and the remaining 37 workers live in Texas outside this division or in Oklahoma
(28.9%). The total of workers living outside this division (90) represents 70.3% of the potential
putative class. Compare McPherson, 2014 WL 4063983, at *4 (“211 of the potential class
members live in the Houston Division. This amounts to 20% of the putative class. The Houston
Division is the location with the largest concentration of potential class members.”).
In Blake, this Court ruled this factor weighed in favor of transfer because “relative to
Corpus Christi, Houston is the location of more putative class members and potential witnesses”.
2014 WL 3696280, at *2. The same result should be reached in this case. Kervin, the decisionmaker officials, and 41.4% of the putative class / potential witnesses live in Louisiana, while
none of the decision-makers and only a relatively small minority of putative class members live
in the Corpus Christi division.

2

Thirteen live in Corpus Christi, ten live in Alice, six live in San Diego, three live in Kingsville, two live in
Robstown, and one employee each lives in Ben Bolt, Concepcion, Falfurrias, and Orange Grove.

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All of Supreme’s payroll, personnel, tax, and accounting records which may be relevant
to the challenged payroll decisions in this case are maintained at Supreme’s Houma, Louisiana
corporate office in the Eastern District of Louisiana. In the similar FLSA collective action case,
McPherson, this Court found “a significant portion of the proof in this case will come from the
records of the Defendant, including Defendant’s policies relating to employee compensation,
employee classification, job descriptions, personnel records, payroll records and other records
relating to the Defendant’s business practices” and that transfer to the Houston division was
appropriate because those records were maintained at the company’s operational headquarters in
Conroe, Texas, not at the drilling sites in the Corpus Christi division. 2014 WL 4063983, at *4.
This Court likewise found this factor weighed in favor of transfer in West because the relevant
payroll/personnel records were located in the defendant’s Pennsylvania corporate office rather
than in the Corpus Christi division. 2014 WL 3696345, at *1.
2.

Availability of compulsory process to secure the attendance of witnesses

Supreme has advised it is not aware of any non-party witnesses other than putative class
members who would have to be compelled by subpoena to testify. The fact that 70.3% of the
potential putative class lives outside of this division “is important to the issue of compulsory
process”, as this Court held in McPherson, when considering the fact that 211 potential class
members lived in the Houston division not the Corpus Christi division. 2014 WL 4033983, at *4.
3.

Cost of attendance for willing witnesses

The Fifth Circuit has adopted a “100 mile” rule, which provides “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.” In re Volkswagen of America, Inc., 545 F.3d at 317 (citing In
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re Volkswagen I, 371 F.3d 201, 204-205 (5th Cir. 2004)). “Additional distance means additional
travel time; additional travel time increases the probability for meal and lodging expenses; and
additional travel time with overnight stays increases the time which fact witnesses must be away
from their regular employment.” Id. The Fifth Circuit also recognizes that witnesses may suffer
personal costs associated with being away from family and community. Id.
In Blake, this Court ruled “[t]he expenses Defendant’s Houston employees would incur
by travelling to Corpus Christi for trial clearly favors transfer” to the Houston division. 2014 WL
3696280, at *3.

In West, this Court likewise ruled that, because the plaintiffs resided in

Pennsylvania and the corporate defendant’s managerial employees worked at the corporate
headquarters in Pennsylvania, the proposed Pennsylvania forum was more convenient for all
potential witnesses. 2014 WL 3696345, at *2. Indeed, as the Court noted, “[p]laintiffs would
have to travel a significant distance to Corpus Christi as they do not reside in this Division.” Id.
In McPherson, this Court similarly considered that most of the putative class and all of the
employer’s managers lived near Houston and held “[t]he additional travel expenses of the six
potential class members who reside in the Corpus Christi division is clearly outweighed by the
number of potential class members who live in the Houston Division.” 2014 WL 4033983, at *4.
Due to the location of Kervin’s residence, the residence of Supreme’s corporate decisionmakers, and the large majority of the putative class, the Eastern District of Louisiana is a more
convenient forum for potential willing witnesses. This factor heavily favors transfer of the case.
4.

Other practical problems

This action has a strong connection to Louisiana because Supreme is headquartered there,
the challenged payroll decisions were made there, Kervin lives there, the largest single
percentage of putative class members live there, and a great bulk of the sources of documentary
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and testimonial evidence are located there. The connection to Corpus Christi is weak because,
aside from the small percentage of putative class members who live in the division, no evidence
relevant to this case has a Corpus Christi nexus. Since this case is in the earliest stage, no
practical problems, including undue delay would arise from a transfer. Given that Kervin could
easily have filed this case in the Eastern District of Louisiana which is located significantly
closer to his home than this Court, there is nothing to indicate that a transfer to Louisiana would
unfairly shift the burden of inconvenience to him. Plaintiffs’ counsel has also indicated that
while his office is located in Corpus Christi, he is able to travel by air to New Orleans in the
event of a transfer of the case. This Court found these same considerations favored transfer in the
FLSA collective action cases, McPherson, 2014 WL 4063983, at *5; Blake, 2014 WL 3696280,
at *4; and West, 2014 WL 3696345, at *3.
C.

Public Interest Factors
1.

Administrative difficulties flowing from court congestion

The Eastern District of Louisiana has twelve active district judges and three district
judges on senior status.3 In contrast, the undersigned is the only active district judge in this
Division and is responsible for handling almost all cases filed in the Corpus Christi Division due
to a long-running judicial vacancy.4 This Court noted this public interest factor favored transfer
in the three near factually identical FLSA cases of Blake, 2014 WL 3696280, at *4, West, 2014
WL 3696345, at *3, and McPherson, 2014 WL 4063983, at *5.

3

http://en.wikipedia.org/wiki/United_States_District_Court_for_the_Eastern_District_of_Louisiana#Current_judges

4

See General Order 2014-16 (12/30/2014). Senior Judge Hilda Tagle receives 20% of the new civil cases filed in
this division, excluding 28 U.S.C. §2255 cases, while Senior Judge Hayden Head and Senior Judge Janis Graham
Jack are taking only 28 U.S.C. §2255 civil cases filed in this division. Id.

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2.

Local interest in having localized interests decided at home

In Blake, this Court ruled as follows concerning this second public interest factor:
“Houston has a stronger relationship to this case given that Defendant is headquartered there,
Plaintiff did and does live there, and the decisions about the pay practices at issue were made
there.” 2014 WL 3696280, at *5. The same can be said of the present case – Louisiana has a
stronger connection to this case because Supreme is headquartered in Louisiana, Kervin did and
does live in Louisiana, and the decisions about the at-issue pay practices were made in
Louisiana. Louisiana has seen a comparable amount of oil and gas exploration, drilling, and
production as south Texas, and thus the potential jurors in the Eastern District of Louisiana
should have a familiarity with the business and live in the same communities as a significant
number of the putative class members. The single largest percentage of the putative class resides
in Louisiana, and thus the residents of that state have a local interest having lawsuits involving
their neighbors heard in their home state. The corporate officials of Supreme likewise have a
local interest in defending their actions and decisions before the residents of the state where they
live.
3.

Familiarity of the forum with the law that will govern the case

A Louisiana federal court would be just as familiar with the FLSA and just as competent
to hear this type of FLSA claim as this Court. This factor is neutral.
4.

Avoidance of unnecessary conflict of law or application of foreign law problems

This factor is neutral because this case does not present any conflicts of laws or foreign
law issues.

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CONCLUSION
This case could have been filed in the Eastern District of Louisiana. The majority of the
relevant private and public factors weigh heavily in favor of transferring this case to the Eastern
District of Louisiana for the convenience of parties and witnesses. Kervin’s attorney does not
oppose the transfer. Supreme’s motion to transfer to that forum is GRANTED. The Clerk is
directed to transfer this case and all filed materials to the Clerk of the Eastern District of
Louisiana.

ORDERED this 7th day of April, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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