National Coalition for Men et al v. Selective Service System et al
MEMORANDUM OPINIONAND ORDER GRANTING 57 MOTION for Leave to File First Amended Complaint, DENYING MOTION for leave to transfer venue.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
JAMES LESMEISTER, individually and
on behalf of others similarly situated,
SELECTIVE SERVICE SYSTEM, et al.,
August 16, 2017
David J. Bradley, Clerk
CIVIL ACTION H-16-3362
MEMORANDUM OPINION & ORDER
Pending before the court is plaintiff James Lesmeister’s motion for leave to file an amended
complaint and to transfer venue. Dkt. 57. Having considered the motion, response, and applicable
law, the court is of the opinion that the leave to amend should be GRANTED and the motion to
transfer venue should be DENIED.
This is a case about the constitutionality of the Military Selective Service Act’s requirement
for only males to register for the draft. 50 U.S.C. §§ 451–473; Dkts 1; Dkt. 57 at 3. On April 4,
2013, plaintiffs National Coalition for Men (“NCFM”) and Lesmeister filed a complaint in the
Central District of California against the Selective Service System and its Director, alleging
violations of the Fifth and Fourteenth Amendments of the Constitution and violation of
42 U.S.C. § 1983 for sex-based discrimination in the selective service registration system. Dkt. 1.
The plaintiffs argue that the Supreme Court decision upholding the constitutionality of sex-based
discrimination in the selective service system is no longer applicable because the ban on women in
combat has been lifted. Dkt. 1 (citing Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 57 (1981)).
Initially, the district court held that the case was not ripe for review. Dkt. 20. The Ninth
Circuit reversed and remanded the decision. Nat’l Coalition for Men v. Selective Serv. Sys., 640 F.
App’x 664, 665 (9th Cir. 2016). On November 9, 2016, the district court granted the defendants’
motion to dismiss the NCFM as a plaintiff without prejudice because it lacked associational
standing. Dkt. 44 at 4. Further, the court determined that venue was not proper in the Central
District of California and transferred the case to the Southern District of Texas, where the remaining
plaintiff, Lesmeister, resides. Dkt. 44 at 5.
On January 26, 2017, Lesmeister filed a motion (1) for leave to file an amended complaint
to add plaintiff Anthony Davis and to reinstate the NCFM as a plaintiff, and (3) to transfer venue to
the Southern District of California.1 Dkt. 57. The defendants responded. Dkt. 58.
II. LEGAL STANDARD & ANALYSIS
Leave to Amend
Lesmeister proposes to amend the complaint to add a new plaintiff, Anthony Davis, and to
reinstate the NCFM as a plaintiff. Dkt. 57 at 5. Davis is allegedly a member of the NCFM, and
Lesmeister argues that his membership in the NCFM gives the NCFM associational standing.
Dkt. 57 at 6–7 (citing Hunt v. Wash. State Apple Advert. Comm’n, 432 US 333, 343, 97 S. Ct. 2434
(1977)). Rule15(a)(2) allows a party to “amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Courts grant leave to amend liberally unless
the party has acted in bad faith or if granting leave to amend would cause prejudice. Jebaco, Inc.
v. Harrah’s Operating Co., Inc., 587 F.3d 314, 322 (5th Cir. 2009). Here, the defendants do not
Lesmeister also explains that he plans to omit his causes of action under the Fourteenth
Amendment and section 1983 if granted leave to file an amended complaint. Dkt. 57 at 7 n.1.
oppose Lesmeister’s motion for leave to amend.2 Dkt. 57 at 5; Dkt. 58 at 6 n.3. Lesmeister’s motion
for leave to amend (Dkt. 57) is GRANTED.
Motion to Transfer Venue
Lesmeister moves to transfer venue to the Southern District of California. Dkt. 57 at 7. The
defendants respond that the public and private interest factors do not weigh in favor of a transfer of
venue and argue that the case should remain in the Southern District of Texas. Dkt. 58.
“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 or to any
district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “The district court
has broad discretion in deciding whether to order a transfer.” Caldwell v. Palmetto State Sav. Bank
of S.C., 811 F.2d 916, 919 (5th Cir. 1987). The moving party bears the burden of showing why the
forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). In evaluating
a section 1404(a) motion to transfer, the court examines (1) whether the action “might have been
brought” in the transferee forum, and (2) whether there is “good cause” for transferring the action.
In re Volkswagen of Am. Inc., 545 F.3d 304, 312, 315 (5th Cir. 2008).
As an initial matter, the amended complaint adds plaintiffs Davis, a resident of San Diego,
California, and the NCFM, which is headquartered in San Diego, California. Dkt. 57 at 7. Thus,
with the added plaintiffs, the action “might have been brought” in the Southern District of California.
In re Volkswagen, 545 F.3d at 312; see Dkt. 58 at 6 (conceding that venue is proper in the Southern
District of California). Venue is also proper in the Southern District of Texas, because Lesmeister
resides in Houston. Dkt. 57 at 9; Dkt. 58 at 6. Therefore, the analysis depends on whether
The defendants do not concede that Davis and NCFM have standing in this matter and
reserve their right to make a future challenge to their standing. Dkt. 58 at 6 n.3.
Lesmeister has met his burden to show “good cause” for a transfer of venue. In re Volkswagen, 545
F.3d at 312
To show good cause, the movant must demonstrate that a transfer is “[f]or the convenience
of parties and witnesses, [and] in the interest of justice.” Id. at 315. In determining whether transfer
is appropriate, the court considers private and public interest factors. Id. The private interest factors
are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to
secure 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. Id. The public
interest factors are: (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. Id. Although the Supreme Court has given the court some guidance with
regard to the factors it should consider, none have dispositive weight, and “they are not necessarily
exhaustive or exclusive.” Id. (citing Gulf Oil Corp. V. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839
(1947)). The court will address Lesmeister’s choice of venue, and then the public and private
1. Plaintiff’s Choice of Venue
Lesmeister argues that his choice of venue is the Southern District of California, and
therefore, that choice should be given “substantial weight.” Dkt. 57 at 7–8 (citing Secs. Inv’r Prot,
Corp. v. Vigman, 764 F.2d 1307, 1317 (9th Cir. 1985); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389,
Lesmeister’s motion does not actually address the private and public interest factors.
Dkt. 57. However, the court will attempt to address the plaintiff’s arguments for venue transfer with
respect to the corresponding factors.
419 (6th Cir. 1998)). In the Fifth Circuit, “[t]he plaintiff’s choice of forum is clearly a factor to be
considered but in and of itself it is neither conclusive nor determinative.” In re Horseshoe Ent., 337
F.3d 429, 434 (5th Cir. 2003).
The defendants argue that Lesmeister is no longer entitled to his choice of forum, because
the case was originally filed in an improper venue. Dkt. 58 at 9. Originally, Lesmeister and NCFM
filed suit in the Central District of California, choosing it as the venue. Dkt. 1. However, neither
Lesmeister, nor the NCFM itself, is actually located in the Central District of California. Dkt. 57 at
8 (stating that the NCFM is headquartered in San Diego, which is in the Southern District of
California). “[T]he weight to be accorded [to choice of forum] may be diminished when a plaintiff
brings suit outside his home forum.” Kettler v. Presstek, Inc., 2003 WL 21788870, at *2 (N.D. Tex.
July 31, 2003); see e.g., Kervin v. Supreme Serv. & Specialty Co., No. 2:15-CV-102, 2015 WL
1540157, at *1 (S.D. Tex. Apr. 7, 2015) (Ramos, J.); Glazier Grp., Inc. v. Mandalay Corp., No.
CIV.A. H-06-2752, 2007 WL 2021762, at *15 (S.D. Tex. July 11, 2007) (Rosenthal, J.). Lesmeister
and NCFM had the opportunity to select NCFM’s home forum when they filed suit, but chose not
to. Lesmeister and NCFM also had the opportunity to amend the complaint when the Central
District of California venue was challenged, but again chose not to do so. Dkt. 44 at 4 n.4 (“The
Court notes that Plaintiffs ignored the Ninth Circuit’s clear suggestion that they amend their
The court agrees with the defendants—if the NCFM actually had a strong preference for a
Southern District of California venue, it had nearly four years before the case was transferred to this
court to seek to transfer venue to the Southern District of California, but it failed to do so. Therefore,
the court will consider the plaintiff’s venue choice as a factor, but it will not be in and of itself
determinative of the motion to transfer venue.
2. Private Interest Factors
Next, the court will address the private interest factors.
First, with respect to relative ease of access to the sources of proof, the defendants argue that
this case turns mainly on issues of law and any responsive evidence is likely located in the
Washington, D.C. region. Dkt. 58 at 7. Lesmeister makes no arguments regarding the location of
any sources of proof. Dkt. 57. Therefore, the court finds that the ease of access to the sources of
proof is a neutral factor, because any such evidence is likely to be located outside of both potential
Second, with respect to the cost of attendance for willing witnesses, the two individual
plaintiffs are Lesmeister and Davis. Dkt. 57 at 8. One witness resides in each venue, so either
Lesmeister or Davis will have to travel depending on the venue. Id. Though the plaintiffs argue that
the Selective Service has offices in California, the defendants’ witnesses will likely travel from
Washington, D.C. Dkt. 58 at 8. Therefore, both forums require travel for the defendants’ witnesses.
Id. Additionally, Lesmeister argues that California is a better venue because he predicts that an
NCFM representative from California may have to testify if the court holds a hearing regarding any
challenges to NCFM’s standing. Dkt. 57 at 8. However, the court finds that the need for an NCFM
representative’s testimony on standing is speculative, because such a matter could be decided
without a hearing. Because there is one plaintiff in Texas and two in California and the defendants’
witnesses will likely have to travel from Washington, D.C. to either forum, the court finds the cost
of travel for willing witnesses is a neutral factor.
Third, neither party raises an issue regarding the availability of compulsory process, so this
factor is inapplicable. Dkts. 57, 58.
Fourth, Lesmeister’s remaining arguments in support of transfer fall into the factor of the
“practical problems” that make the case easy, expeditious, and inexpensive. Dkt. 58 at 8–9.
Lesmeister argues that his counsel is located in Los Angeles, California and the litigation is being
supported by the NCFM, which does not have an office in Texas. Dkt. 57 at 8. However, the Fifth
Circuit has held that the location of counsel is “irrelevant and improper for consideration in
determining the question of transfer of venue.” Horseshoe, 337 F.3d at 434. Therefore, the court
will not consider the location of counsel in evaluating a venue transfer.
Further, Lesmeister argues that his lack of resources to support travel by his counsel and any
NCFM representatives should be considered. Dkt. 57 at 9 (citing Miracle v. N.Y.P. Holdings, Inc.,
87 F. Supp. 2d 1060, 1073 (D. Haw. 2000)). In Miracle, a district court noted that a large
corporation can more easily travel from New York to Hawaii than an individual plaintiff can travel
in the opposite direction. Miracle, 87 F. Supp. 2d at 1073. However, to the extent that this case is
persuasive, that same court noted that the New York to Hawaii trip is not “prohibitively expensive
or difficult.” Id. Here, unlike Miracle, the court is not being asked to make a determination
regarding the travel costs of an individual plaintiff (indeed, one of the individual plaintiffs resides
in Houston), but rather a non-profit entity, the NCFM. The court finds this relative wealth argument
unpersuasive, traveling from California to Texas is not prohibitively expensive or difficult for the
NCFM to undertake.
However, the court acknowledges that litigating the case in California will be less expensive
for the newly added plaintiffs and the defendants will have to travel to either of the two venues. So
the practical consideration of “expense” weighs slightly in favor of a venue transfer. However, there
are also concerns of “expeditiousness”— this case has been ongoing for an extended period of time,
and a third venue transfer weighs slightly against an expeditious resolution. Therefore, the court
finds that the practical considerations factor is neutral.
In summary, the court finds that the private interest factors are neutral regarding a venue
3. Public Interest Factors
Finally, the court will address the public interest factors.
a. Court Congestion
First, neither party makes an argument regarding the court congestion factor. Dkt. 57;
Dkt. 58 at 8. The speed with which a case can come to trial and be resolved can also be a factor in
assessing court congestion. Sandbox Logistics LLC v. Grit Energy Solutions LLC, No. 3:16-CV-12,
2016 WL 4400312, at *6 (S.D. Tex. Aug. 17, 2016) (Hanks, J.). In analyzing this factor, courts often
consider the median time interval from case filing to disposition. Id. In the twelve-month period
ending in December 2016, the Southern District of Texas had a median time from filing to
disposition for civil cases of 8.0 months and a median time from filing to trial for civil cases of 22.5
months. See U.S. District Courts—Combined Civil and Criminal Federal Court Management
Statistics (December 31, 2016), http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_
distprofile1231.2016.pdf. In the same time period, the Southern District of California had a median
time from filing to disposition for civil cases of 6.3 months and a median time for filing to trial for
civil cases of 28.9 months. Id. The court finds that the statistics show that these two venues are
equivalent in terms of time from filing to disposition.
Here, the court must also consider the history of this case. This case was originally brought
four years ago in the Central District of California, and survived one appeal at the Ninth Circuit.
Dkts. 57, 58. Transferring venue to yet a third forum requires another district court to address the
merits of the legal and factual issues of that case. The court finds no compelling reason to burden
a third court with this litigation. Therefore, the court finds that the congestion of courts factor
weighs against transfer.
b. Local Interest
Second, with respect to local interest, Lesmeister argues that California has a greater local
interest because it is more populous. Dkt. 57 at 10. Lesmeister argues that a larger population
means that more men in California are required to register for the selective service than the men in
Texas. Dkt. 57 at 10. The court finds this argument disingenuous. There are two individual
plaintiffs asserting an injury, one in California and one in Texas. As the defendants argue, beyond
these individualized injuries, this case is “federal in natural” and would affect residents of all states
equally. Dkt. 58 at 8. The court finds that the local interest factor is neutral.
c. Familiarity with Law and Conflict with Law
Finally, neither party makes an argument regarding the familiarity of the forum with the law
or with conflicts of law. Dkts. 57; 58. This case revolves around only federal law, so the court finds
that these factors are neutral. Dkt. 58 at 8.
In summary, the court finds the public interest factors weigh against a transfer.
Notwithstanding the plaintiff’s choice of forum, the private interest factors are neutral for a
transfer, and the public interest factors weigh against a transfer. The court finds that Lesmeister has
not met his burden of showing good cause to transfer venue. Therefore, Lesmeister’s motion to
transfer venue (Dkt. 57) is DENIED.
Lesmeister’s motion for leave to file a first amended complaint (Dkt. 57) is GRANTED.
Lesmeister’s motion for leave to transfer venue (Dkt. 57) is DENIED.
Signed at Houston, Texas on August 16, 2017.
Gray H. Miller
United States District Judge
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