Engle v. J&S Contracting, LLC et al

Filing 17

ORDER AND REASONS - IT IS ORDERED that Defendants' Alternative Motions for Transfer of Venue are GRANTED. Because this Court is transferring this case, Defendants' Motions to Dismiss on improper venue and personal jurisdiction grounds (Rec. Doc. 9 and 10 ) are DENIED AS MOOT. Accordingly, IT IS ORDERED that this action be TRANSFERRED to the Southern District of Texas. Signed by Judge Jane Triche Milazzo on 1/11/2019.(sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES ENGLE

CIVIL ACTION

VERSUS

NO: 18-4614

J&S CONTRACTING, LLC, ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court are Defendant J&S Contractors, Inc.’s (“J&S”) Motion
to Dismiss for Lack of Personal Jurisdiction and Improper Venue and
Alternative Motion for Transfer of Venue (Doc. 9) and Defendant Kirby Inland
Marine, L.P.’s (“Kirby”) Motion to Dismiss for Improper Venue and Alternative
Motion for Transfer of Venue (Doc. 10). For the following reasons, Defendants’
Alternative Motion to Transfer Venue is GRANTED, and Defendants’ other
Motions are DENIED as moot.
BACKGROUND
This personal injury suit arises out of Plaintiff Charles Engle’s fall on
Defendant Kirby’s tug, the M/V OLD PUSH (“Old Push”). On May 4, 2015,
Plaintiff was working for Defendant J&S in Freeport, Texas and moving from
a barge operated by J&S to the Old Push when he lost his balance atop the

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tug’s bulwarks and fell about three feet onto a “steel bit.” 1 The fall caused rib
fractures, spleen injuries, internal bleeding, a collapsed lung, “and injuries to
other parts of [Plaintiff’s] body.” 2 On May 3, 2018, Plaintiff filed this maritime
suit against J&S and Kirby as a Jones Act seaman seeking general and special
damages, maintenance and cure, and punitive damages.
On June 19, 2018, Defendant J&S filed its instant Motion to Dismiss or
Alternative Motion to Transfer Venue to the Southern District of Texas. 3
Defendant Kirby followed a day later by adopting J&S’s Motion and seeking to
dismiss or transfer this suit on improper venue grounds. 4 Plaintiff opposes the
Motions. 5
Because this Court finds that the interests of justice warrant transfer of
this suit to the Southern District of Texas, it need not specifically address
Defendants’ requests for dismissal of this case on personal jurisdiction and
improper venue grounds. 6 Instead, the Court will simply analyze why transfer
is warranted.
LEGAL STANDARD
“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

1
2
3
4
5
6

Doc. 12 at 2.
Id.
Doc. 9.
See Doc. 10.
See Doc. 12.
See Tappe v. DIT, LLC, No. 17-1384, 2018 WL 4402005, at *2 (W.D. La. Aug. 30, 2018)
(finding “no need to make a definitive decision as to whether this court could exercise
personal jurisdiction” over a defendant because transfer of venue was warranted), report
and recommendation adopted, No. 17-CV-1384, 2018 WL 4390748 (W.D. La. Sept. 14,
2018).

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parties have consented.” 7 District courts possess broad discretion when
deciding whether to order a transfer of venue. 8 The Fifth Circuit has held that
in the interest of respecting forum choices by plaintiffs, a party moving for
transfer must show “good cause.” 9 “When the movant demonstrates that the
transferee venue is clearly more convenient . . . it has shown good cause and
the district court should therefore grant the transfer.” 10
LAW AND ANALYSIS
Courts in the Fifth Circuit must consider eight factors—four public
factors and four private factors—when deciding whether good cause exists to
transfer a case to a different venue on convenience grounds. 11
The private interest factors are: (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 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. 12
I.

Private Factors
The application of the private factors weighs heavily in favor of

transferring this case to the Southern District of Texas.
28 U.S.C. § 1404(a).
In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (“There can be no question
but that the district courts have ‘broad discretion in deciding whether to order a transfer.’”)
(quoting Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998)).
9 Id. at 315.
10 Id.
11 See id.
12 Id. (internal citations and quotations omitted).
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8

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a. Relative Ease of Access to Sources of Proof
Defendant contends that “[a]ll potential witnesses are believed to reside
in the Southern District of Texas.” 13 This makes sense. Defendant J&S is “a
small, family-owned corporation located in Sweeny, Texas, between Galveston
and Corpus Christi,” which is in the Southern District of Texas. 14 Its yard and
dock—where Plaintiff’s fall allegedly occurred—are in the Southern District of
Texas. 15 Kirby’s principal place of business is Houston, Texas, which also is in
the Southern District of Texas. 16 Further, the hailing port of the Old Push is
in the Southern District of Texas. Finally, Plaintiff lives in the Southern
District of Texas.
Because virtually all known sources of proof are in the Southern District
of Texas and there is no reason to believe any significant portion of these
sources are in the Eastern District of Louisiana, the relative ease of access
factor weighs heavily in favor of transferring this suit. 17
b. Availability

of

Compulsory

Process

to

Secure

the

Attendance of Witnesses
Federal Rule of Civil Procedure 45(c) provides:
(1) For a Trial, Hearing, or Deposition. A subpoena may command
a person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is
employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed,
or regularly transacts business in person, if the person
Doc. 9-1 at 10.
Id. at 8.
15 Id. at 10.
16 Id.
17 Plaintiff spends much of his brief speculating about potential evidence that may be in the
Eastern District of Louisiana because Defendant Kirby has offices in Louisiana. See Doc.
12. Such speculation is insufficient to overcome the weighty showing by Defendants that
all key sources of proof in this case likely are in the Southern District of Texas.
13
14

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(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur
substantial expense.
(2) For Other Discovery. A subpoena may command:
(A)

production of documents, electronically stored
information, or tangible things at a place within 100
miles of where the person resides, is employed, or
regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected. 18
Because most—if not all—of the key people in this suit reside more than 100
miles from New Orleans, they likely would fall outside this Court’s subpoena
power. On the contrary, the Southern District of Texas likely would possess
subpoena power over all key people in this suit. Thus, this factor weighs in
favor of transfer to the Southern District of Texas.
c. Cost of Attendance for Willing Witnesses
For the same reasons as explained above, the cost of attendance for
willing witnesses likely would be significantly higher if this suit proceeded in
the Eastern District of Louisiana instead of being transferred to the Southern
District of Texas. 19
d. All Other Practical Problems That Make Trial of a Case
Easy, Expeditious, and Inexpensive
Nothing about trying this case would be easy for the parties if this suit
proceeded in the Eastern District of Louisiana. All material evidence and
people are in the Southern District of Texas. It would be more cost efficient,
more expeditious, and easier to try this case there. “When ‘the action is still in

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19

FED. R. CIV. P. 45(c).
See In re Volkswagen, 545 F.3d at 204–05 (“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.”).

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the early stages of litigation, any delay resulting in the transfer to the proper
forum should not prejudice either party.’” 20 This action is in the early stages of
litigation. No trial date has been set, and discovery has not begun. Neither
party is likely to suffer prejudice if the Court transfers this case. This factor
weighs in favor of transfer.
Thus, consideration of the private factors as a whole strongly suggests
transfer of venue is warranted in this case. 21
II.

Public Factors
The public factors also support transfer.
a. Administrative Difficulties Flowing from Court Congestion
In analyzing this factor, courts typically focus on the median disposition

time of civil suits in the relative districts. 22 Here, Defendants have not
provided evidence of the relative median disposition times of civil suits in the
two districts. Nevertheless, Defendant has shown that the Eastern District of
Louisiana has significantly more pending civil cases and significantly fewer
district judges than the Southern District of Texas. 23 As such, this favor weighs
in favor of transfer.
b. The Local Interest in Having Localized Interests Decided
at Home
“One consideration under this factor is a preference for ‘the venue in
which the events giving rise to the litigation occurred.’” 24 “A second
Norred v. Radiator Specialty Co., No. 14-936, 2015 WL 13529958, at *5 (E.D. La. Feb. 24,
2015) (Brown, J.) (quoting Roulston v. Yazoo River Towing, Inc., 2004 WL 1687232 (E.D.
La. 2004) (Vance, J.)).
21 See, e.g., Watson v. Fieldwood Energy Offshore, LLC, 181 F. Supp. 3d 402, 411–12 (S.D.
Tex. 2016) (finding that “on balance the private interest factors strongly favor transfer to
the Western District of Louisiana” in a case that involved facts analogous to this one).
22 See, e.g., Norred, 2015 WL 13529958, at *5; Watson, 181 F. Supp. 3d 402 at 412.
23 See Doc. 9-1 at 11.
24 Watson, 181 F. Supp. 3d 402 at 412 (quoting Molina v. Vilsack, 2009 WL 5214098, at *10
(S.D. Tex. Dec. 23, 2009)).
20

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consideration is resolving disputes involving local citizens in their own
locality.” 25 Here, Plaintiff and Defendants are Texas residents. Plaintiff’s
injury occurred in Texas. As such, a jury sitting in Texas would have a stronger
interest in hearing this suit than would a jury in Louisiana. This factor,
therefore, weighs in favor of transfer.
c. The Familiarity of the Forum with the Law That Will
Govern the Case
Because Plaintiff’s suit involves federal Jones Act and other maritime
claims, neither this Court nor the Southern District of Texas is more or less
familiar with the law that will govern the case. Nevertheless, Defendants
argue that Plaintiff lacks a valid Jones Act claim on the ground that he is not
a seaman and that his remaining claims may be subject to Texas law. 26 To the
extent Texas law may govern this case, this factor weighs slightly in favor of
transfer.
d. The Avoidance of Unnecessary Problems of Conflict of
Laws or in the Application of Foreign Law
There are no conflict of law issues in this case. As such, this factor is
neutral.
On balance, because there appears to be less court congestion in the
Southern District of Texas than in the Eastern District of Louisiana, a Texas
jury would have a stronger local interest in this case, and Texas law may
govern issues in this suit, the public factors weigh in favor of transfer.
Taken together, then, the private and public factors both weigh in favor
of transfer, rendering the Southern District of Texas the “clearly more

25
26

Id.
Doc. 9-1 at 12.

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convenient” venue for this suit. 27 There is no dispute about whether this case
could have been brought in the Southern District of Texas. It could have.
Accordingly, this Court finds that it is in the interests of justice to transfer this
case to the Southern District of Texas.
CONCLUSION
For the foregoing reasons, Defendants’ Alternative Motion for Transfer
of Venue is GRANTED. Because this Court is transferring this case,
Defendants’ Motions to Dismiss on improper venue and personal jurisdiction
grounds are DENIED as moot. Accordingly, it is ordered that this action be
transferred to the Southern District of Texas.
New Orleans, Louisiana this 11th day of January, 2019.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

27

In re Volkswagen, 545 F.3d at 315 (“When the movant demonstrates that the transferee
venue is clearly more convenient . . . it has shown good cause and the district court should
therefore grant the transfer.”) (emphasis added). See Norred, 2015 WL 13529958, at *6
(ordering transfer under similar facts); Watson, 181 F. Supp. 3d 402 at 413 (ordering
transfer under similar facts).

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