Hibbard v. Target Corporation et al

Filing 31

MEMORANDUM AND ORDER DENYING 27 MOTION to Change Venue to Houston Division (Signed by Judge Gregg Costa) Parties notified.(dwilkerson, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
AMY HIBBARD,
Plaintiff,
VS.
TARGET CORPORATION, et al,
Defendants.

§
§
§
§
§
§
§
§

CIVIL ACTION NO. 3:12-CV-344

MEMORANDUM AND ORDER
More than eight months after filing their answers in this case, Defendants
Target Corporation and Bell Sports, Inc. seek a transfer to the Houston Division on
convenience grounds. See 28 U.S.C. § 1404. This Court recently addressed
similar intradistrict transfer issues in Perry v. Autocraft Invs., Inc., 2013 WL
3338580 (S.D. Tex. July 2, 2013), in which, like here, the plaintiff’s residence,
injury, and treatment were all in the Houston Division. In Perry, these facts led the
Court to conclude that the convenience of the witnesses, sources of proof, and local
interest factors favored Houston. See id. at *2–3. Although each factor did not
weigh heavily because of the proximity of the Galveston and Houston courthouses,
the combined weight of those factors overcame the single court-congestion factor
favoring Galveston to warrant transfer. See id. at *3.

1/4

But there is one glaring difference between this case and Perry. The Perry
defendant filed the motion to transfer with its answer, and this Court entered the
transfer order before ever issuing a schedule or holding a hearing. Although a
section 1404 transfer order “can technically be made at any time,” Mohamed v.
Mazda Motor Corp., 90 F.Supp. 2d 757, 760 (E.D. Tex. 2000), a party should
make the motion with “‘reasonable promptness’ and a movant’s delay weighs
against granting transfer.” Software Rights Archive, LLC v. Google, Inc., 2010 WL
2950351, at * 4 (E.D. Tex. July 22, 2010) (quoting Peteet v. Dow Chem. Co., 868
F.2d 1428, 1436 (5th Cir. 1989)). Courts consider delay under the Volkswagen
convenience factor that takes account of “practical problems that make trial of a
case easy, expeditious and inexpensive,” In re Volkswagen of Am., Inc., 545 F.3d
304, 315 (5th Cir. 2008) (en banc). See ICHL, LLC v. NEC Corp. of Am., 2009
WL 1748573, at *2 (E.D. Tex. June 19, 2009) (“The last catch-all private interest
factor has been applied in this Court to include the plaintiff’s choice of forum, the
possibility of delay and prejudice if transfer is granted, and the place of the alleged
wrong.” (citations omitted)). Courts have found that delays in filing a section 1404
motion of shorter length than the delay in this case weigh against transfer. See,
e.g., Konami Digital Entm’t Co. v. Harmonix Music Sys., Inc., 2009 WL 781134, at
*7 (E.D. Tex. Mar. 23, 2009) (motion to transfer venue filed six months after
complaint filed); N2 Consulting, LLC v. Engineered Fastener Co., 2002 WL
2/4

31246770, at *2 (N.D. Tex. Oct. 2, 2002) (same). The current scheduling order’s
deadline for discovery and dispositive motions is a little more than three months
away. Docket Entry No. 20. Transferring to Houston, where the case would
require a new scheduling order and trial setting, at this late stage is therefore likely
to cause significant delay. See N2 Consulting, 2002 WL 31246770 at * 4 (noting
that more “favorable docket conditions” would not exist in the transferree court
when the discovery deadline was three months away and the motions deadline four
months away); FTC v. Multinet Mktg., LLC, 959 F. Supp. 394, 395–96 (N.D. Tex.
1997) (“A change of venue now is likely to upset the discovery and trial schedule
and waste judicial resources.”).

The Volkswagen interest in “expeditious and

inexpensive” litigation thus weighs against transfer.
With this new factor favoring Galveston in the mix, the Court finds that the
overall balance differs than it did in Perry. Convenience of the witnesses and
sources of proof favor Houston, though not substantially so given that the
difference is one of approximately 50 miles. Houston has a stronger local interest
in the case than Galveston. But court congestion and the delay resulting from
transfer favor Galveston. Because the weight of the factors favoring Houston is
close to those favoring Galveston, Defendants have not met their burden of
showing that the Houston Division would be “clearly more convenient.”

3/4

Volkswagen, 545 F.3d at 315. The Motion to Transfer Venue (Docket Entry No.
27) is DENIED.
SIGNED this 30th day of August, 2013.

_________________________________
Gregg Costa
United States District Judge

4/4