Guzman v. Hacienda Records and Recording Studio, Inc.
Filing
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MEMORANDUM AND ORDER denying 4 Motion to Transfer Case.(Signed by Judge Gregg Costa) Parties notified.(arrivera, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
JOSE O. GUZMAN,
Plaintiff,
VS.
HACIENDA RECORDS AND
RECORDING STUDIO, INC., et al,
Defendants.
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CIVIL ACTION NO. 6:12-CV-42
MEMORANDUM AND ORDER
Plaintiff Jose Guzman filed this copyright infringement action involving
Tejano music in the Victoria Division of the Southern District of Texas.
Defendants seek an intradistrict transfer either south on Highway 77 to Corpus
Christi or north on Highway 59 to Houston.
Because the Court finds that
Defendants’ proposed venues are not clearly more convenient than Victoria, it
DENIES Defendants’ motion.
I.
BACKGROUND
Guzman filed this case on September 20, 2012, claiming that Defendants
Hacienda Records and Recording Studio, Inc., Hacienda Records, L.P., Latin
American Entertainment, LLC, Richard Garcia, and Roland Garcia, Sr. violated his
copyright to the musical composition “Triste Adventurera,” alternatively known as
“Cartas De Amor.” Docket Entry No. 1 ¶ 11. According to Guzman, Hacienda
Records and Recording manufactured and distributed records containing his
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original lyrics and music. Docket Entry No. 1 ¶ 16. Guzman describes the
individual defendants as “savvy business people” closely associated with
Hacienda, each with “several decades of experience in the Tejano music industry”
and each well aware of their obligations to a copyright holder. Docket Entry No. 1
¶¶ 12, 18. He claims they are liable contributorily, vicariously, or by virtue of
direct benefit received, for Hacienda’s infringement. Docket Entry No. 1 ¶ 18.
Defendants filed a Motion to Transfer Venue, arguing that because all
parties reside in the Corpus Christi Division, it is a more convenient forum.
Docket Entry No. 4 ¶ 21. In their reply brief, Defendants filed a supplemental
request to transfer the case to the Houston Division, which they claim is more
convenient because it is where counsel for both parties work and similar cases are
pending there. Docket Entry No. 6 ¶¶ 6–7.
II.
MOTION TO TRANSFER VENUE
“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 transfer statute is intended to save “time,
energy, and money while at the same time protecting litigants, witnesses, and the
public against unnecessary inconvenience[s].” Republic Capital Dev. Grp., L.L.C.
v. A.G. Dev. Grp., Inc., No. H-05-CV-1714, 2005 WL 3465728, at *8 (S.D. Tex.
Dec. 19, 2005) (citing Van Dusen v. Barrack, 376 U.S. 612 (1964)).
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The
plaintiff’s choice of venue is given some weight, however, especially when he
resides in the district where the case is filed. Accordingly, a district court should
deny transfer “when the transferee venue is not clearly more convenient than the
venue chosen by the plaintiff.” In re Volkswagen of Am., Inc. (Volkswagen II), 545
F.3d 304, 315 (5th Cir. 2008) (en banc).
A. Transfer to Corpus Christi Division
The Court first addresses Defendants’ initial request to transfer to the Corpus
Christi Division. The first question is whether the venue to which transfer is
sought is one in which the claim could have been filed. See Volkswagen II, 545
F.3d at 312. As Defendants all reside in Corpus Christi, located in the Southern
District of Texas, it is undisputed that this suit could have been brought in that
division. See 28 U.S.C. § 1391(b)(1); Docket Entry No. 4 at 1–2.
Having established this threshold fact, the Court now weights the following
private and public interest factors to determine whether transfer is warranted.
The private concerns 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.’
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Volkwagen II, 545 F.3d at 315 (quoting In re Volkswagen of Am., Inc. (Volkswagen
I), 371 F.3d 201, 203 (5th Cir. 2004)) (citations omitted). Because Defendants
request transfer to a courthouse located less than 100 miles away, the convenience
factors may carry less weight. See Jennings v. Contract Consultants, Inc., No.
3:07-CV-0539-L, 2008 WL 977355, at *4 (N.D. Tex. Apr. 8, 2008) (“When the
cities are closely located . . . the convenience factor usually becomes less
important.”).
1. Private Interest Factors
With respect to the private factors, the first—the parties’ interest in
easy access to sources of proof—weighs slightly in favor of transfer. Defendants
reside in Corpus Christi and most evidence involving sales information is located
in Hacienda’s Corpus Christi offices. Docket Entry Nos. 3; 4 at 2. And despite
Guzman’s initial claim that he “is not tied to Corpus Christi,” his counsel stated at
the scheduling conference that he is a resident of Nueces County, of which Corpus
Christi is the county seat. Docket Entry No. 5 at 6.
The increase in convenience which transfer would achieve is minimal,
however, for two reasons. First, the Victoria federal courthouse is less than 90
miles from the Corpus Christi federal courthouse. Any burden of transporting
evidence to Victoria is thus slight, and Defendants have not established that
retaining the case in Victoria will inconvenience the parties to an extent that
transfer is justified. See Jennings, 2008 WL 977355, at *4 (denying intradistrict
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transfer from Dallas to Fort Worth because “inconvenience [would not be] of the
magnitude that justifies a transfer”); Smith v. Colonial Penn Ins. Co., 943 F. Supp.
782, 784–85 (S.D. Tex. 1996) (denying intradistrict transfer from Galveston to
Houston because inconvenience caused would be “minimal at best in this age of
convenient travel”). Further, the electronic nature of much of the discovery will
render the burden imposed, already slight, nearly nonexistent.
See Tapia v.
Dugger, No. SA-06-CA-0147-XR, 2006 WL 2620530, at *4 (W.D. Tex. Sept. 7,
2006) (“Technological advances in copying, storing, and transferring data,
however, limit the weight to be given the accessibility and location of sources of
proof in the § 1404(a) analysis.”).
The second private concern—the availability of compulsory process to
secure witness attendance—is not a factor. Whether the case is in the Victoria or
Corpus Christi Division, the parties have the same power to serve subpoenas
anywhere in the Southern District. Fed. R. Civ. P. 45(b)(2)(A) (permitting service
of subpoena at any place “within the district of the issuing court”). While nonparty
witnesses may have grounds to quash trial subpoenas if they reside more than 100
miles from the courthouse, see Fed. R. Civ. P. 45(c)(3)(B)(iii), Defendants have
identified no nonparty witnesses. To the extent some exist who reside in Corpus
Christi, they would not be able to challenge a subpoena to attend trial less than 100
miles away in Victoria.
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The third private factor, the cost of attendance for willing witnesses, leans
only slightly in favor of Corpus Christi. While the parties reside in the Corpus
Christi Division, the relatively short distance between Corpus Christi and Victoria
means that this inconvenience amounts to a witness having to drive little more than
an hour to court and use half a tank of gas for the roundtrip. The distance between
this Division and the Corpus Christi Division does not break the Fifth Circuit’s
100-mile threshold at which “the factor of inconvenience to the witnesses
increases.” Volkwagen II, 545 F.3d at 317 (quoting Volkwagen I, 371 F.3d at 204–
05). It is true that this factor may be afforded greater weight when the witnesses
are “key” parties or “key” nonparties. See Xtreme Industries, LLC v. Gulf Copper
& Mfg. Corp., No. H-10-2488, 2010 WL 4962967, at *4 (S.D. Tex. Dec. 1, 2010)
(“[T]he relative convenience to key witnesses and key nonparty witnesses is
accorded greater weight in the venue transfer analysis.”) (citing Mid-Continent
Cas. Co. v. Petroleum Solutions, Inc., 629 F. Supp. 2d 759, 763 (S.D. Tex. 2009)).
Defendants, however, have not identified any nonparty witnesses who would suffer
inconvenience from a Victoria trial, and they have not summarized the expected
testimony of party witnesses to provide a sense of those who are most vital.
The Court does not find any other practical problems that would make trial
in Corpus Christi easier, more expeditious, or less expensive.
Defendants argue
that “the location of the alleged infringer’s principal place of business is often [a]
critical and controlling consideration” in venue determinations for intellectual
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property cases. Docket Entry No. 4 ¶ 14 (quoting Spiegelberg v. The Collegiate
Licensing Co., 402 F. Supp. 2d 786, 791–92 (S.D. Tex. 2005)). The authority they
rely on, however, was decided before the Fifth Circuit's en banc clarification of the
relevant venue transfer considerations in Volkswagen II and is distinguishable on
other grounds.1 See Volkswagen II, 545 F.3d at 315 (using exclusive language in
setting out the factors).
The private convenience factors thus favor Corpus Christi, but not
significantly. Perhaps the most telling demonstration of the minimal degree of
inconvenience that a Victoria forum poses is Defendants’ alternative argument that
the case should be transferred to Houston. On all the factors that Defendants say
favor a Corpus forum, Houston would be more inconvenient than Victoria because
it is farther from the witnesses and sources of proof. Defendants’ eagerness to
litigate in Houston, which they stated was their first choice at the scheduling
conference, shows that the minimal distance between Victoria and Corpus Christi
poses, at most, a minor inconvenience.
2. Public Interest Factors
The public interest factors offset the private factors’ slight preference
for Corpus Christi.
Victoria has the least congested docket in the Southern
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The Spiegelberg decision contemplated an interdistrict transfer from Houston to Lubbock
involving a much greater distance. Spiegelberg, 402 F. Supp. 2d at 788. Plaintiff was not a
resident of the District in which the case was filed, and thus his choice of forum was entitled to
less deference. Id. at 792–93. Finally, the allegedly infringing goods in that case were sold from
one retail location in Lubbock. Id. at 788.
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District, both in terms of civil and combined caseloads, with 145 cases pending as
of December 2012 (63 of which are civil cases), compared to 954 pending in
Corpus Christi (311 of which are civil cases). Thus, this case would likely proceed
to trial more speedily in Victoria.
As for the other public interest factors, while Corpus Christi may have a
local interest in determining a copyright case in which the alleged infringing and
infringed parties reside in its area, this controversy is not as localized as some other
infringement cases. See Spiegelberg, 402 F. Supp. 2d at 788, 792 (holding that
controversy involving alleged infringement by party selling from a particular retail
store was “local to Lubbock”). It is doubtful that Hacienda’s alleged distribution
of the allegedly infringing materials was limited to the Corpus Christi Division.
Finally, the federal nature of copyright law ensures that any court in the Southern
District, or in the Fifth Circuit for that matter, will have the same relative
familiarity with the governing law. With the private and public interests balancing
each other out, Defendants have not met their burden of showing that a Corpus
Christi forum would be clearly more convenient.
B. Transfer to Houston Division
Alternatively, Defendants seek transfer to the Houston Division. The Court
first notes that this request was not made until Defendants’ reply brief, a vehicle by
which new arguments—let alone new motions—may not be asserted. See Hon.
David Hittner, Federal Civil Procedure Before Trial § 12:107.2 (5th Cir. ed. 2011)
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(raising new arguments in a reply brief “deprives [the Court] of the adversary
exchange that sequential briefing is designed to accomplish”).
But because
Defendants could arguably file a second motion to transfer venue after losing the
Corpus Christi one, the Court will nonetheless address the requested transfer to
Houston. Id. § 4:776 (emphasizing that a § 1404(a) motion to transfer “technically
can be made at any time”) (emphasis in original).
Defendants’ primary argument for Houston is that counsel for both parties
are located in the Houston division, making it less costly and more convenient to
have the case pending there.2 Docket Entry No. 6 ¶ 7. But Fifth Circuit law is
clear that location of counsel is not a relevant factor in the venue transfer analysis.
See In re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003) (per curiam).
With the convenience of counsel out of the equation, none of the relevant
factors favor Houston. And the convenience of the witnesses and less congested
docket favor Victoria. The Houston Division is not a clearly more convenient
venue for this case.
III.
CONCLUSION
For these reasons, litigating this case in the Corpus Christi Division or the
Houston Division would not be clearly more convenient than doing so in the
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Defendants, claiming that similar litigation between the two attorneys is pending before Judge
Rosenthal in the Houston Division, also argue that transfer there would allow the case to be
heard by a judge familiar with some of the legal and factual issues. Docket Entry 6 ¶ 6. But the
cases before Judge Rosenthal involve disputes between different parties about different songs
with different facts, rendering consolidation or treatment as “related cases” unwarranted.
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Victoria Division. Accordingly, Defendant’s Motion to Transfer Venue (Docket
Entry No. 4) is DENIED.
SIGNED this 19th day of February, 2013.
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