In Re: BOPCO, L.P.
Filing
39
MEMORANDUM AND ORDER granting 37 MOTION to Change Venue to Eastern District of Louisiana. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE: THE MATTER OF
BOPCO, L.P., AS OWNER AND
OPERATOR OF THE M/V MR. JOE,
PRAYING FOR EXONERATION FROM
AND/OR LIMITATION OF LIABILITY
§
CIVIL ACTION NO. H-12-1622
§
§
§
§
consolidated with
CIVIL ACTION NO. H-12-1113
MEMORANDUM AND ORDER
Pending is Plaintiff BOPCO L.P.Is Motion to Transfer Venue for
F o r u m Non Conveniens (Document No. 3 7 ) .
Claimant Ryk Frickey has
filed no response in opposition to the motion, and it is therefore
deemed unopposed. See Local Rule 7 . 4 .
After carefully considering
the motion and applicable law, the Court concludes that the case
should be transferred to the Eastern District of Louisiana.
I.
Backsround
This controversy arises from a collision in waters at Point a
La Hache, Louisiana, between the M/V MR. JOE, a vessel owned and
operated by Plaintiff BOPCO, L.P.
("Plaintiff"), and a vessel
operated by Claimant Ryk
("Claimant").
Frickey
Claimant sued
Plaintiff in state court in Harris County, Texas, alleging personal
injuries sustained in the collision. Plaintiff thereafter filed a
Complaint for Exoneration from or Limitation of Liability in the
Eastern District of LouisianaI1 which Claimant then moved to
'
Document No. 1.
di~miss.~
While Claimant's motion was pending, Plaintiff filed a
separate Complaint for Exoneration from or Limitation of Liability
in this Court.
denied
The Court in the Eastern District of Louisiana
Claimant's
motion
to
dismiss
Plaintiff's
first-filed
limitation of liability action, but transferred it to the Southern
District of Texas, holding that Rule F(9) of the Federal Rules of
Civil Procedure Supplemental Rules for Admiralty and Maritime
Claims requires a complaint to limit liability to be filed in a
district
in which
the
owner of
the vessel
has
been
sued.3
Plaintiff's two Complaints for Exoneration from or Limitation of
Liability were consolidated in the cause now before the C ~ u r t . ~
Motion to Transfer Venue
11.
A.
Standard
Plaintiff moves
to transfer this action to the Eastern
District of Louisiana pursuant to 28 U.S.C. Section 1404 (a) and
Supplemental Admiralty and Maritime Claims Rule F(9).
motion was
foreshadowed when
The present
Plaintiff unsuccessfully argued
against transfer of its limitation of liability case from the
Eastern District of Louisiana: the court there found that only this
Court--whereRule F(9) required the limitation of liability action
-
Document No. 8.
Document No. 26.
Document No. 34.
initially to have been filed--would have authority to determine
"the most convenient forum" for the a ~ t i o n . The portion of Rule
~
F(9) that now must be applied is as follows:
For the convenience of parties and witnesses, in the
interest of justice, the court may transfer the action to
any district; if venue is wrongly laid the court shall
dismiss or, if it be in the interest of justice, transfer
the action to any district in which it could have been
brought.
FED. R. CIV. P. SUPP.A.M.C. F(9) .
Rule F(9) was drafted to conform closely to the language of
the federal transfer statute, 28 U.S.C. Section 1404 (a), except
that Rule F(9) allows transfer to any district for convenience,
while Section 1404 (a) only permits transfer to a district where the
action might have been brought or where all parties consent to have
it heard.
FED. R. CIV.P. SUPP.A.M.C. F (9) advisory committee note;
28 U.S.C.
§
1404(a).
Thus, even though Rule F(9) did not allow
Plaintiff initially to file its limitation of liability claim in
the
Eastern District
of
Louisiana, once
the
case
has
been
transferred here Plaintiff may then move to send it back to that
forum for convenience.
See Matter of TLC Marine Services, Inc.,
900 F. Supp. 54 (E.D. Tex. 1995) (holding that a limitation of
liability claim that had been transferred to the Eastern District
of Texas from the Eastern District of Louisiana on the grounds that
See Order & Reasons, signed by Judge Helen G. Berrigan May
29, 2012, transferring the case to this Court.
3
there was a pending state court claim in Texas could be transferred
back where the Eastern District of Louisiana was a more convenient
forum) .
In determining whether to transfer a case for convenience,
courts look to the factors developed under Section 1404 (a). In re
Alarno Chem. Transp. Co., 323 F. Supp. 789, 791 (S.D. Tex. 1970).
Whether to transfer a case under Section 1404(a) "turns on a number
of private and public interest factors, none of which are given
dispositive weight."
In re Volkswaqen AG, 371 F.3d 201, 203 (5th
Cir. 2004). These factors include: (1) the convenience of parties
and witnesses; (2) the cost of obtaining attendance of witnesses;
(3) the availability of compulsory process; (4) the relative ease
of access to sources of proof; (5) administrative difficulties
flowing from court congestion; (6) the local interest in having
localized interests decided at home; (7) the familiarity of the
forum with the law that will govern the case and the avoidance of
unnecessary conflict of law problems; and (8) the interests of
justice in general.
See
id. (citing Piwer Aircraft Co. v. Revno,
102 S. Ct. 252, 258 n. 6 (1981)). Courts should also consider the
plaintiff's choice of forum. In re Horseshoe Entrn't, 337 F.3d 429,
434 (5th Cir. 2003).
B.
Discussion
It is uncontroverted that nearly all individuals who may
testify in this case are located in the Eastern District of
Louisiana, where the collision occurred. Moreover, those persons
actually on the scene when the accident occurred are all located in
Louisiana as is the M/V Mr. ~ o e . The operation of the M/V MR. JOE
was controlled by BOPCO1s New Orleans division at all relevant
timesI7and all witnesses with information regarding the operation,
maintenance, or repair of the M/v MR. JOE are located in the
Eastern
District
of
Louisiana.'
Claimant
received
medical
treatment from a Louisiana doctor and visited three separate
Louisiana medical
fa~ilities.~ also received medical treatment
He
from one doctor in Houston, who is the only witness identified by
either party who is located in the Southern District of Texas.''
The only other individuals related to the case who are located in
the Southern District of Texas are Claimant's attorneys, Jason
Itkin and Cory Itkin, and their residence is not a reason to retain
the case here.
See Horseshoe, 337 F.3d at 434 ("The factor of
Document No. 37, ex. B, C.
Document No. 37, ex. B, D.
Document 37, ex. D.
9
'
O
Document 37, ex. C.
Id.
'location of counsel' is irrelevant and improper for consideration
in determining the question of transfer of venue.").
Because all but one of the potential witnesses reside in
Louisiana,
their
appearances
voluntarily or at
the
for
instances of
inconvenient and expensive.
trial
in
Houston--either
their employer--would be
Moreover, unwilling witnesses from
Louisiana are beyond the subpoena power of this Court sitting in
Houston, Texas. See FED. R. CIV. P. 45(c) (3)(A)(ii); see also In re
Volkswaqen of Am., Inc., 545 F.3d 304, 316-17 (5th Cir. 2008).
There is no showing that any of the Louisiana witnesses are outside
of the subpoena power of the Eastern District of Louisiana. Thus,
the
convenience of
the
witnesses, the
cost
of
transporting
witnesses, and the availability of compulsory process all weigh
strongly in favor of transfer.
Access to documents and records also favors transfer, given
that most of the records are evidently located in Louisiana.
Plaintiff's corporate documents are kept and maintained in its New
Orleans division.''
Given that Claimant is a citizen of Louisiana,
any records he possesses that are sources of proof are most likely
easily accessed in Louisiana.
The public interest factors also support transfer to the
Eastern District of Louisiana. The collision occurred in Louisiana
waters near Pointe a la Hache, Louisiana, it involved citizens of
"
Document 37.
Louisiana, federal admiralty law applies, and no facts underlying
Claimant's injuries--forwhich limitation of liability is sought-occurred in Texas.
Under these circumstances, the citizens of
Louisiana would be expected to have a greater interest in the case
and its resolution than would the citizens of Texas.
In sum, the relevant factors and circumstances demonstrate
that this case should be transferred to the Eastern District of
Louisiana for the convenience of the parties and witnesses, and in
the interest of justice.
111. Order
It is therefore
ORDERED that Plaintiff BOPCO L.P.'s Motion to Transfer Venue
for Forum Non ~ o n v e n i e n s (Document 3 7 ) is GRANTED pursuant to
Federal Rule of Civil Procedure Supplemental Admiralty and Maritime
Claims Rule F (9) and
28 U.S.C. Section 1404 (a), and this case is
TRANSFERRED to the United States District Court for the Eastern
District of Louisiana.
The Clerk will mail a copy of this Order of Transfer to the
Clerk of the United States District Court for the Eastern District
of Louisiana, and shall notify all parties and provide them with a
true copy of this Order.
The Clerk will enter this Order and send copies to all counsel
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