Milbauer v. Newscan Media Corporation
MEMORANDUM ORDER AND OPINION denying 19 MOTION to Transfer Case to Houston Division (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
May 18, 2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
NEWSCAN MEDIA CORPORATION
David J. Bradley, Clerk
CIVIL ACTION NO. 3:16-cv-235
MEMORANDUM ORDER AND OPINION
DENYING MOTION TO TRANSFER VENUE
Plaintiff, Kimberly Milbauer, filed this lawsuit on September 1, 2016, complaining
of age and race discrimination by her former employer, Newspan Media Corporation.
Milbauer is a resident of Denton County, Texas. Newspan is a Texas corporation.
Newspan has filed a motion to transfer this case to the United States District Court
for the Southern District of Texas, Houston Division. Dkt. 19. Newspan alleges that
transfer of this case is warranted because Houston is a clearly more convenient venue
under 28 U.S.C. § 1404(a). Milbauer is opposed to the transfer.
To support its motion, Newspan contends that: its offices are somewhere in
“Houston, Texas;” that “all of Defendants’ books, records, and witnesses are located in
the Houston, Division;” the attorneys in this case office in Houston; witnesses Newspan
is “likely to call” are located “in and around” the City of Houston, Texas; the costs of
subpoenas to secure the attendance of witnesses will be higher if this case is tried in
Galveston; willing witnesses will have to travel more miles to get to the Galveston
Courthouse than the Houston Courthouse; Newspan will have to provide meals and
lodging for witnesses if the case is tried in Galveston; both sides will incur additional
legal fees if this case is tried in Galveston; and that cases are proceeding to trial faster in
Houston than in Galveston. To support the motion, Newspan attached the Declaration of
Mario Duenas, the President of Newspan. Dkt. 19-1. However, that declaration is based
almost entirely on statements and conclusions that Mr. Duenas has heard from his
attorneys about the case, and it is substantially duplicative of the motion to transfer itself.
A docket control order has been entered in this case, and trial is set for March
STANDARD FOR CONVENIENCE TRANSFERS
28 U.S.C. § 1404(a) allows a district court to transfer a civil action “for the
convenience of parties and witnesses, in the interest of justice ... to any other district or
division where it might have been brought.” The statute is intended to save “time, energy,
and money while at the same time protecting litigants, witnesses, and the public against
unnecessary inconvenience.” Republic Capital Dev. Grp., L.L.C. v. A.G. Dev. Grp., Inc.,
No. H–05–1714, 2005 WL 3465728, at *8 (S.D. Tex. Dec. 19, 2005). Motions to transfer
venue under § 1404(a) are committed to the sound discretion of the district court. Jarvis
Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988). The party seeking
transfer has the burden of showing good cause for the transfer. In re Volkswagen of Am.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc). The burden on the movant is
“significant,” and for a transfer to be granted, the transferee venue must be “clearly more
convenient than the venue chosen by the plaintiff.” Id.
A threshold question for a district court considering a motion to transfer venue
under 28 U.S.C. 1404(a) is whether the suit could have been filed in movant’s desired
transfer venue. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004); see also Wells v.
Abe’s Boat Rentals Inc., No. CIV.A. H–13–1112, 2014 WL 29590, at *1 (S.D. Tex. Jan.
3, 2014). The parties agree that the Southern District of Texas is the proper venue for
this dispute, and Plaintiff does not dispute that the case could have been brought within
the Houston Division.
Next, the Court must determine whether on balance the transfer would serve “the
convenience of parties and witnesses” and “the interest of justice” under 28 U.S.C.
§1404(a) by weighing a number of private and public interest factors. In re Volkswagen
Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008). The private concerns 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. The public concerns 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 of the application of foreign law. Id. No one
single factor is given dispositive weight. See Wells, 2014 WL 29590 at *1 (quoting
Action Indus., Inc. v. U.S. Fidelity & Guar. Co., 258 F.3d 337, 340 (5th Cir. 2004)). The
Court analyzes these factors below.
The Court first considers the private interest factors: relative ease of access to
sources of proof; the availability of compulsory process to secure the attendance of
witnesses; the cost of attendance for willing witnesses; and all other practical problems
that make trial of a case easy, expeditious and inexpensive.
There is relatively little actual evidence brought forward to support the motion to
transfer. For example, Newspan does not specify the address of the office from which
the “books and records” it plans to use will originate, nor does it explain how transferring
these “books and records” to the Houston Courthouse, located in the midst of a congested
city with construction, traffic snarls, and limited parking, is “clearly more convenient”
than transferring them to the Galveston Courthouse, which has free parking and notably
less traffic congestion and construction. Similarly, there is no actual evidence about
Newspan’s planned trial witnesses, what they may say, whether they will indeed need to
stay in either Houston or Galveston hotels, and what the attendant costs may be.
Although Newspan makes mention of witnesses, it has not shown the likelihood that any
of such witnesses may actually be called at trial, or the relevance of their testimony.
Compare, e.g., Grayson v. Wood Group PSN, Inc, No. 3:15–cv–0035, 2017 WL 914993
(S.D. Tex. March 8, 2017) (listing the names, addresses, job descriptions, and potential
relevance at trial of several proposed witnesses, and discussing whether each is within the
subpoena power of the various federal courts). The Court also notes that, other than mere
distances, there is no actual evidence about the relative convenience of travel for the
witnesses, the cost of transportation, or the disruption of their lives if the case were in
Houston versus Galveston. Given the relatively close distances, and taking judicial notice
of the realities of traffic conditions and construction in the greater Galveston/Houston
metropolitan area, this is just not enough.
Next, the Court considers the public interest concerns, including the administrative
difficulties flowing from court congestion, the local interest in having localized interests
decided at home, the familiarity of the forum with the law that will govern the case, and
the avoidance of unnecessary problems of conflict of laws of the application of foreign
law. As to these factors, Newspan cites the anecdotal experience of its counsel with one
case in the Houston Division to contend that cases proceed to trial faster in Houston than
in Galveston. Again, this is not just enough.
After full consideration of the motion, the briefing in response, and the record of
this case as a whole, the Court finds that Newspan has failed to carry its burden of
showing that transfer of this case to Houston would be clearly more convenient.
Accordingly, Newspan’s motion to transfer venue is DENIED.
SIGNED at Galveston, Texas, this 18th day of May, 2017.
George C. Hanks Jr.
United States District Judge
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