Lugo v. The GEO Group, Inc.

Filing 18

ORDER ON MOTION TO TRANSFER VENUE to Abilene Division of the Northern District of Texas; granting 5 Motion to Change Venue.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CARLOS LUGO,
Plaintiff,
VS.
THE GEO GROUP, INC.,
Defendant.

May 05, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:17-CV-20
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ORDER ON MOTION TO TRANSFER VENUE
Pending is Defendant The GEO Group, Inc.’s (GEO’s) motion to transfer this case
to the Abilene Division of the United States District Court for the Northern District of
Texas (D.E. 5). Plaintiff Carlos Lugo (Lugo) responded (D.E. 9) and GEO replied (D.E.
13).1 For the reasons discussed below, the motion is GRANTED.
BACKGROUND
GEO owns and operates correctional facilities across the country, including the
Big Spring Correctional Center in Big Spring, Texas, which is located in the Abilene
Division of the Northern District of Texas. GEO employed Lugo as an assistant warden
there in September 2012. In February 2016, GEO launched an investigation concerning
whether Lugo had an inappropriate relationship with a subordinate. Lugo alleges that the
complaining GEO employee, Loretta Murphy, fabricated the allegations because of racial
animus. Lugo met with GEO management employees, Chris Monks and Patrick Sleffel,
and informed them that he believed he was being treated unfairly because of his race.
1

Lugo objected (D.E. 14) to the inclusion of new evidence in GEO’s reply (D.E. 13). The Court SUSTAINS the
objection and does not consider the evidence.

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The next day, Lugo was placed on administrative leave without pay pending an
investigation.
A few months later, while Lugo was home in Jim Wells County, Texas, GEO’s
Director of Investigations, Priscella Miles (Miles), called him to set up a meeting. They
met in San Antonio, where Miles works, and Miles asked Lugo to submit a written
statement, which he drafted and emailed to GEO from his residence.

GEO later

terminated Lugo’s employment.
Lugo filed this action asserting race and age discrimination and retaliation under
Title VII of the Civil Rights Act of 1964. GEO argues that the case should be transferred
to the Abilene Division of the Northern District of Texas for the convenience of the
parties and witnesses and in the interest of justice under 28 U.S.C. § 1404(a).
DISCUSSION
A. Applicable Law
One of the specific venue provisions allows actions arising under Title VII to be
brought “in any judicial district in the State in which the unlawful employment practice is
alleged to have been committed.” 42 U.S.C. § 2000e-5(f)(3). However, Title VII’s
venue provision is tempered by 28 U.S.C. § 1404(a), which “empowers a district court to
transfer ‘any civil action’ to another district court if the transfer is warranted by the
convenience of parties and witnesses and promotes the interest of justice.” Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964) (quoting 28 U.S.C. § 1404(a)); see also In re
Horseshoe Entm’t, 337 F.3d 429, 435 (5th Cir. 2003) (per curiam) (holding that district
court abused discretion by not transferring Title VII case under § 1404(a)).
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Section 1404(a) provides, “For 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 . . . .” There is no dispute that this case could
have been filed in the Abilene Division of the Northern District of Texas. The movant
has the burden of showing that an alternative forum is more appropriate for the action.
See In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) [hereinafter
Volkswagen II] (en banc). To overcome the plaintiff’s choice of venue, the movant must
show good cause for the transfer, which exists when the transferee venue is clearly more
convenient than the plaintiff’s chosen venue. Id.
Courts consider various private and public interest factors in determining whether
a transfer is appropriate. Id. The private interest factors 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.” In re
Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) [hereinafter Volkswagen I] (citing
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981)). The public interest factors
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 of laws [or in] the application of foreign law.” Volkswagen II, 545 F.3d at 315
(quoting Volkswagen I, 371 F.3d at 203).

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B. Private Interest Factors
1.

Relative Ease of Access to Sources of Proof

This factor is analyzed in light of the distance that documents, or other evidence,
must be transported from their existing location to the trial. See Optimum Power v.
Apple, Inc., 794 F. Supp. 2d 696, 701 (E.D. Tex. 2011). GEO argues that all of Lugo’s
employment records were generated from and continue to be maintained in Big Spring,
Texas (D.E. 5-1, p. 2). Big Spring is around 100 miles from Abilene and around 400
miles from Corpus Christi. Lugo argues that this case involves a minimal amount of
documentary evidence, and that because of technological advancements, the location of
his employment records is irrelevant as they can be transmitted electronically.

See

Sarmiento v. Producer’s Gin of Waterproof, Inc., 439 F. Supp. 2d 725, 732 (S.D. Tex.
2006) (“Unless the documents are so voluminous that their transport is a major
undertaking, the location of books and records is given little weight.”) Lugo also argues
that because the investigation was conducted from San Antonio, Texas and Florida, all
the relevant documents are stored there.
There is no evidence that the documentary proof in this case is so voluminous that
transportation to Corpus Christi would be impractical. Thus the Court finds that this
factor weighs in favor of the case remaining in Corpus Christi.
2.

Availability of Compulsory Process to Secure Witnesses

This factor generally applies to non-party witnesses, and “for purposes of this
factor, current employees of a party ‘should be considered party witnesses because they
can be presumed to appear willingly on behalf of their party employer.’” Coleman v.
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Trican Well Serv., L.P., 89 F. Supp. 3d 876, 883 (W.D. Tex. 2015) (quoting Vargas v.
Seamar Divers Int’l, LLC, No. 2:10-CV-178-TJW, 2011 WL 1980001, at *5 (E.D. Tex.
May 20, 2011)). A court can compel the attendance of a witness for a trial, hearing, or
deposition within 100 miles of where the witness resides, is employed, or regularly
transacts business. Fed. R. Civ. P. 45(c)(1)(A). A court can compel the attendance of a
witness for trial within the state where the witness resides, is employed, or regularly
transacts business if the witness would not incur substantial expense. Fed. R. Civ. P.
45(c)(1)(B)(ii).
Here, GEO intends to call three former employees as witnesses: (1) Loretta
Murphy, the person who reported the alleged inappropriate relationship; GEO contends
that she is medically frail and would not be willing to travel to Corpus Christi for trial;
(2) Itzel Vaquera, the person who was allegedly involved in the inappropriate
relationship; and (3) Albert Quiroz, a former correctional officer who is expected to
testify about the complaints that were received prior to Lugo’s termination, as well as
GEO’s policies and procedures. GEO also intends to call Mike Wolever, an employee of
the Federal Bureau of Prisons, to testify regarding Lugo’s employment and GEO’s
policies and procedures. These nonparty witnesses reside within the Abilene Division of
the Northern District of Texas, which is approximately 400 miles from the Corpus Christi
Division. Thus, they can be compelled to attend trial only if they would not incur
substantial expense. Travelling to Corpus Christi would require travel, meal, and lodging
expenses.

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Plaintiff identifies Al Kanahele (Kanahele), GEO’s investigator, and Priscella
Miles, GEO’s Director of Investigations, as witnesses. Both witnesses are employees of
GEO so securing their attendance at trial is not an issue considered under this analysis.
Therefore, this factor weighs in favor of transfer.
3.

The Cost of Attendance of Willing Witnesses

“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.” Volkswagen I,
371 F.3d at 204-05. The inconvenience to witnesses includes consideration of additional
travel time, meal and lodging expenses, and time away from their regular employment.
Id. at 205. Greater weight is given to the convenience of key witnesses. “In considering
the availability and convenience of witnesses, a court must concentrate primarily upon
the availability and convenience of key witnesses.”

Dupre, 810 F. Supp. at 825.

Therefore, “the convenience of one key witness may outweigh the convenience of
numerous less important witnesses.” Mid-Continent Cas. Co. v. Petroleum Solutions,
Inc., 629 F. Supp. 2d 759, 763 (S.D. Tex. 2009).
GEO intends to call nine of its Big Spring Correctional Center employees as
witnesses: Senior Warden John Oliver, Warden Lavaughn Garnto, Patrick Sleffel, Randy
Collins, Magnus Ashibuogwu, Tayler Sousa, Cristiano Tovar, Brock Royal, and Brittany
Randle. These witnesses are expected to testify about GEO’s procedures, the events
leading up to Lugo’s dismissal, and the alleged improper relationship between Lugo and

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his subordinate. GEO argues that the cost of obtaining the attendance of these witnesses
in Corpus Christi is prohibitive.
Lugo contends that Corpus Christi is more convenient for him and the two GEO
employees he intends to call to testify: (1) Kanahele who resides in California or
Florida2, and (2) Miles who resides in San Antonio, Texas. Lugo states that Corpus
Christi’s airport has more scheduled flights, destinations, and carriers than Abilene’s
small regional airport so Corpus Christi is more convenient for Kanahele. Regarding
Miles, San Antonio is 143 miles from Corpus Christi compared to 245 miles from
Abilene.
The Court find that this factor weighs in favor of transfer given the number of
witnesses who would be required to travel to Corpus Christi from Big Spring, Texas.
Transfer to the Abilene Division in the Northern District of Texas would significantly
reduce travel, meal, and lodging expenses.
4.

Other Problems that Make Trial of a Case Easy,
Expeditious, and Inexpensive

Plaintiff states that this factor is neutral. GEO contends that if trial proceeds in
Corpus Christi, many of its security personnel, including high-level employees such as
Wardens Oliver and Gartno, would be required to travel to Corpus Christi which would
disrupt operations of the 3,000-inmate Big Spring facility. The Court finds that requiring
numerous GEO employees to travel to Corpus Christi for trial would be burdensome to
GEO’s facility in Big Spring. Thus, this factor weighs in favor of transfer.
2

Lugo alleges that Kanahele resides in Florida and GEO alleges that he resides in California.

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The Court finds that the private interest factors clearly favor transfer of this case to
the Northern District of Texas, Abilene Division.
C. Public Interest Factors
1.

Administrative Difficulties Flowing from Court Congestion

The focus of this factor is “‘not whether [transfer] will reduce a court’s congestion
but whether a trial may be speedier in another court because of its less crowded docket.’”
Rosemond v. United Airlines, Inc., No. H-13-2190, 2014 WL 1338690, at *4 (S.D. Tex.
Apr. 2, 2014) (quoting Siragusa v. Arnold, No. 3:12-CV-04497, 2013 WL 5462286, at *7
(N.D. Tex. Sept. 16, 2013)). Courts often consider the median time interval from case
filing to disposition in analyzing this factor. Id.; ExpressJet Airlines, Inc. v. RBC Capital
Mkts. Corp., No. H-09-992, 2009 WL 2244468, at *12 (S.D. Tex. July 27, 2009). The
median time interval between filing and disposition in the Southern District of Texas is
23.1 months while the interval in the Northern District of Texas is 24.3 months. Because
this difference is not substantial, the Court finds that this factor is neutral.
2.

The Local Interest in Having Localized Interests Decided at Home

The local interest factor analyzes the factual connection that a case has with both
the transferee and transferor venues. Volkswagen I, 371 F.3d at 206. “The location of the
alleged wrong is of ‘primary importance’” in venue determination. Boutte v. Cenac
Towing, Inc., 346 F. Supp. 2d 922, 933 (S.D. Tex. 2004) (quoting Speed v. Omega
Protein, Inc., 246 F. Supp. 2d 668, 675 (S.D. Tex. 2003)).
Lugo contends that some of the events giving rise to his claims occurred in the
Southern District of Texas. He was in Jim Wells County when he received the call from
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Miles, and when he drafted and sent his written statement. Additionally, Lugo states that
GEO maintains several facilities within the Corpus Christi Division of the Southern
District of Texas so its employment practices impact residents here. However, the vast
majority of the events giving rise to this action occurred in Big Spring, Texas, where
Lugo was employed. The Court finds that this controversy has little connection to the
Southern District of Texas. Thus, this factor weighs in favor of transfer.
3.

The Familiarity of the Forum with the Law that Will Govern the Case

This factor does not apply to this case so it is neutral.
4.

The Avoidance of Unnecessary Problems of Conflict of Laws or in the
Application of Foreign Law

This factor does not apply to this case so it is neutral.
The Court finds that the public interest factors clearly favor transfer of this case to
the Northern District of Texas, Abilene Division.
CONCLUSION
The private and public interest factors implicated in this case clearly favor
transferring this case to the Abilene Division of the Northern District of Texas.
Accordingly, GEO’s motion to transfer (D.E. 5) is GRANTED. The Clerk is ORDERED
to transfer this case to the Abilene Division of the Northern District of Texas.
ORDERED this 5th day of May, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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