Total Safety U.S., Inc. et al v. Knox

Filing 36

Memorandum and Order. Case transferred to the Corpus Christi Division. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

United States District Court
Southern District of Texas

ENTERED
December 20, 2019
David J. Bradley, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TOTAL SAFETY et al,
Plaintiffs,
vs.
ALICIA KNOX,
Defendant.

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CIVIL ACTION NO.
4:19-CV-02718
JUDGE CHARLES ESKRIDGE

MEMORANDUM AND ORDER
GRANTING MOTION TO TRANSFER VENUE
Before the Court is a motion filed by Defendant Alicia Knox
to transfer venue to the Corpus Christi Division. Dkt 10. Upon
consideration, the Court grants the motion.
1.

Background

Plaintiffs Total Safety US Inc and Total Safety On-Site
Services Inc (together, Total Safety) provide integrated industrial
safety services to the petrochemical refining, pipeline, and
industrial sectors. Both Total Safety entities are Delaware
corporations with principal places of business in Houston. Dkt 1
at 1–2. Total Safety also does business in Corpus Christi with an
office of approximately thirty full-time employees. Dkt 31 at 34.
Knox is a resident of Corpus Christi. Dkt 1 at 2. In May 2019,
Total Safety acquired Airgas On-Site Services Inc, a national
safety service provider. Knox worked for Airgas in Corpus
Christi at the time of the acquisition, but she resigned shortly
after. She continues to live in Corpus Christi and now works
there for Select Safety Service Inc, allegedly a direct competitor
of Total Safety. Dkt 1 at 6.
Total Safety alleges that Knox misappropriated confidential
business information and trade secrets. Total Safety further

alleges that Knox contacted her customers “in Corpus Christi,
Texas,” on behalf of Select Safety in violation of her
nonsolicitation agreement. Dkt 1-4 at 1 (Total Safety demand
letter prior to filing suit); see also Dkt 1 at 16.
In July 2019, Total Safety filed suit against Knox in the
Houston Division of the Southern District of Texas. Total Safety
asserts violations of the Trade Secrets Act and the Computer
Fraud and Abuse Act, misappropriation of trade secrets under
Texas law, and breach of contract. See Dkt 1.
When filing suit, Total Safety also sought preliminary and
permanent injunctive relief. Dkt 1 at 16–17. Rather than proceed
to hearing, Total Safety and Knox agreed to a preliminary
injunction to avoid unnecessary costs and fees. Dkt 12-1 at 1. On
July 30th, the Court entered the agreed preliminary injunction.
Dkt 13. Knox later brought a motion to dissolve the preliminary
injunction, which this Court denied. See Dkts 26, 35.
Knox filed the instant motion to transfer this case to the
Corpus Christi Division under 28 USC § 1404(a). On December
5th, the Court heard argument on the motion. Dkt 31 (transcript).
2.

Legal standard

District courts may transfer an action for the “convenience
of parties and witnesses” and “in the interest of justice” to any
other district “where it might have been brought.” 28 USC
§ 1404(a). Allowing the potential for transfer under § 1404 serves
to prevent a potentially unfair imposition of burden on
defendants when plaintiffs exercise their privilege under § 1391
to select venue in the first instance. See In re Volkswagen of America,
Inc, 545 F3d 304, 313 (5th Cir 2008) (Volkswagen II).
When considering a motion to transfer, the initial question is
whether the action “might have been brought” in the alternative
venue. Id at 312. If it could have been, the district court then
determines whether transfer serves the convenience of parties
and witnesses and is in the interests of justice. In re Volkswagen
AG, 371 F3d 201, 203 (5th Cir 2004) (Volkswagen I). This balance
considers a range of private and public factors, with none having
dispositive weight. Volkswagen II, 545 F3d at 315, citing Gulf Oil

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Corp v Gilbert, 330 US 501 (1947); see also Volkswagen I, 371 F3d
at 203.
The items of private-interest consideration are:
o

The relative ease of access to sources of proof;

o

The availability of compulsory process to secure the
attendance of witnesses;

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The cost of attendance for willing witnesses; and

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All other practical problems that make trial of a case
easy, expeditious, and inexpensive.

The items of public-interest consideration are:
o

The administrative difficulties flowing from court
congestion;

o

The local interest in having localized interests
decided at home;

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The familiarity of the forum with the law that will
govern the case; and

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The avoidance of unnecessary problems of conflict
of laws or the application of foreign law.

To justify transfer, the movant must demonstrate that its
preferred venue is “clearly more convenient than the venue
chosen by the plaintiff.” Volkswagen II, 545 F3d at 315. This
burden on the movant “adequately accounts for a plaintiff’s
choice of forum,” to which the venue-transfer analysis does not
otherwise accord any special deference. Ayala v Waste Management
of Arizona, Inc, 2019 WL 2085106, at *3 (SD Tex) (citations
omitted).
Whether to order transfer is ultimately within a district
court’s “broad discretion.” Volkswagen II, 545 F3d at 311
(quotations omitted).
3.

Analysis

Total Safety doesn’t dispute that it could have brought this
action in Corpus Christi. Dkt 31 at 32. And so, the Court need

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only consider whether transfer is for the convenience of the
parties and witnesses and in the interests of justice.
a.

Private factors

The private factors examine the relative burdens imposed by
geography. Texas is of course a large state, with the Southern
District of Texas being one of the largest federal divisions by land
mass in the United States:
The Southern District of Texas embraces more
than 44,100 square miles, approximately one-fifth
of the real estate in Texas. Its edge is delineated on
the southwest by 250 miles of the Rio Grande, the
river that marks the border between the United
States and Mexico. In its nearly 400-mile sweep to
the northeast from the Rio Grande, the district
encompasses a ribbon of Texas that ranges in
width from 100 to 200 miles.
Steven Harmon Wilson, The Rise of Judicial Management in the US
District Court, Southern District of Texas, 1955–2000, 1 (University
of Georgia Press 2002).
This expanse includes seven divisions spread across fortythree counties. With the repeal of § 1393 in 1988, an express
statutory requirement no longer sets the appropriate division
within a given federal district in federal civil cases. See Wright &
Miller, Federal Practice and Procedure § 3809 (4th ed). And so, a close
look is necessary to examine the increasing burdens associated
with the distance from the northernmost courthouse of the
Houston Division to those in the Galveston Division (51 miles),
the Victoria Division (128 miles), the Corpus Christi Division
(208 miles), the Laredo Division (315 miles), the McAllen
Division (348 miles), and the Brownsville Division (352 miles).
For the Fifth Circuit pragmatically recognizes that additional
distance adds not only travel time and expense but also attendant
meal and lodging expenses, while implicating time away from
work and home responsibilities. See Volkswagen I, 371 F3d at 205.
The availability of compulsory process to secure the attendance of
witnesses and the cost of attendance for willing witnesses in this instance

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both weigh in favor of transfer to Corpus Christi. Knox lived and
worked in Corpus Christi when the alleged misappropriation of
confidential information occurred. She still does. Neither Total
Safety nor Knox have yet identified solicited customers that
might be at issue. But Total Safety’s presuit demand letter
expressed concern only about customers in Corpus Christi. Dkt
1-4 at 1. And it is clear in Knox’s motion and from her counsel’s
representations at hearing that her customers were and are
exclusively within the Corpus Christi area. See Dkt 10 at 4; Dkt
31 at 25–27. As such, the core witnesses in this case—Knox’s
current and former colleagues and clients—are there.
“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 F3d at 204–05. As the Court has already
recognized, and as Knox points out, travel to Houston is over
two hundred miles each way for her and any of her witnesses.
This imposes a burden of both time and expense on many
witnesses. See RLI Insurance Co v Hunter, 2007 WL 1795714, at *1
(SD Tex) (granting transfer from Houston to Corpus Christi in
part due to travel burden).
For its part, Total Safety identifies six witnesses—four
employees and two forensic experts. Only three apparently live
in Houston. It links the other three to Houston only
euphemistically as “regularly conducting business” here or
“regularly working” within one hundred miles of the
courthouse—meaning that they actually live elsewhere. Dkt 18 at
4–5. In any event, these are all either party witnesses or retained
experts. Their convenience simply doesn’t weigh as heavily in the
balance. “The availability and convenience of nonparty witnesses
rather than that of party and expert witnesses is accorded the
greatest weight in a transfer of venue analysis.” Wimbledon Fund,
SPC v Bergstein, 2016 WL 9449785, at *3 (SD Tex); see also Ayala,
2019 WL 2085106, at *6.
The parties’ interest in an easy, expeditious, and inexpensive trial
likewise favors Corpus Christi. Total Safety argues that its choice
of venue should prevail, noting that one set of parties and
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witnesses will travel whichever courthouse hosts the litigation.
But the equities are not the same. Knox does not conduct
business in Houston. Total Safety does conduct business in
Corpus Christi, where it in fact has an office.
Ease of access to proof likewise favors transfer. Beyond
witnesses, Total Safety suggests only that the electronic and
digital evidence is in Houston. But the reason that is so is because
Knox, in Corpus Christi, complied with this Court’s preliminary
injunction and turned over the requested devices to Total Safety,
who now has them in Houston. Dkt 18 at 3. That is hardly reason
to consider such evidence as being “located” here in any
meaningful sense of convenience or the interests of justice
pertaining to venue. Regardless, these digital and electronic
records are quite easily moved, minimizing any concern about
their present, physical location. See Devon Energy Production Co, LP
v GlobalSantaFe South America, 2007 WL 1341451, at *7 (SD Tex).
b. Public factors
Administrative difficulties favor neither courthouse. The parties
offer no evidence on relative court congestion as between
Houston and Corpus Christi. Instead, Total Safety curiously
suggests that “Houston is easily accessible by both sides, and the
Court’s electronic filing system allows both sides to conveniently
file motions, responses, and pleadings.” Dkt 18 at 6. Fortunately,
the Corpus Christi Division also possesses the same technology.
The Court foresees no difficulties at trial in either location.
The forum’s familiarity with the governing law and the avoidance of
conflict of laws or foreign law issues likewise favors neither division.
The applicable law is straightforward and readily apparent.
The local interest in having localized interests decided at home is the
factor most heavily favoring transfer. “This factor generally
favors venue where the acts giving rise to the lawsuit occurred.”
Ayala, 2019 WL 2085106, *6; see also Potter v Cardinal Health 200,
LLC, 2019 WL 2150923 at *6 (ED Tex) (division within district
where injury occurred had greater local interest than division
where case filed). Quite simply, this dispute’s center of gravity is
Corpus Christi. If Knox unfairly competes, and if Total Safety
unfairly loses customers, it will happen there.
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Of particular influence here, Total Safety seeks to enjoin
Knox’s work activity in Corpus Christi. Dkt 1 at 16. It has already
obtained an agreed injunction on a preliminary basis. Dkt 13.
Total Safety concedes that at least part of any permanent
injunctive relief would last in perpetuity. Dkt 31 at 22. And any
later conduct by Knox in violation of such an injunction would
occur in Corpus Christi.
“Enforcement of an injunction through a contempt
proceeding must occur in the issuing jurisdiction because
contempt is an affront to the court issuing the order.”
Waffenschmidt v MacKay, 763 F2d 711, 716 (5th Cir 1985). As such,
this Court’s continuing oversight would impose a genuine burden
on Knox upon any mere allegation of impropriety against her by
Total Safety. For she would then have to travel two hundred
miles to Houston to defend herself regarding conduct alleged to
have occurred in the very place from which she traveled.
Knox is a resident of Corpus Christi. Insofar as it pertains to
this dispute, she appears only to have worked in Corpus Christi.
Total Safety is of course entitled to seek to enjoin any wrongful
conduct with respect to that work. But the federal court in
Corpus Christi has a far greater interest in overseeing an
injunction imposed on an area resident, and it can do so less
burdensomely than this Court.
4.

Conclusion

Knox has demonstrated that the Corpus Christi Division is
“clearly more convenient” than the Houston Division and has
shown good cause for granting a transfer under 28 USC
§ 1404(a).
The Court GRANTS the motion to transfer venue.
This action is TRANSFERRED to the Corpus Christi Division
of the Southern District of Texas.

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SO ORDERED.
Signed on December 20, 2019 at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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