Eastep v. City of Odessa, et al
REPORT AND RECOMMENDATIONS re 2 Motion to Transfer Case filed by Gary Potter, City of Odessa, Kendrick Barragan. Signed by Judge Andrew W. Austin. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
CITY OF ODESSA, OFFICER
KENDRICK BARRAGAN, AND
OFFICER GARY POTTER
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Motion to Transfer Venue Pursuant to 28 U.S.C. §
1404(a), filed on March 22, 2017 (Dkt. No. 2); Plaintiff’s Opposition to Defendants’ Motion to
Transfer Venue, filed on March 28, 2017 (Dkt. No. 4); and Defendants’ Reply to Plaintiff’s
Opposition to Defendants’ Motion to Transfer, filed on March 29, 2017 (Dkt. No. 6). The District
Court referred the above-motion to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.
I. GENERAL BACKGROUND
This lawsuit arises of an incident that occurred on December 7, 2015 in Odessa, Texas. At
the time, Plaintiff Ricky Eastep (“Eastep”) was a resident of an apartment complex located at 213
Carver Avenue, in Odessa, Texas. After returning to his apartment complex in the early morning
hours of December 7, 2015, Eastep, who is a paraplegic, wheeled himself to the front door of his
apartment and allegedly had a seizure. Defendants claim that Eastep had passed out because he was
intoxicated. Regardless, a concerned neighbor called 9-1-1. Odessa Fire Department Medics
responded to the 9-1-1 call and determined that Eastep did not need medical care and left the scene.
Shortly thereafter, Odessa Police Department Officers Gary Potter and Kendrick Barragan
(“Officers”), also responding to the 9-1-1 call, arrived at the scene and decided to arrest Eastep for
public intoxication. Eastep alleges that while Officers Potter and Barragan were attempting to lift
him out of his wheelchair and into the patrol car, they threw him on the ground breaking his femur
in the process. The Odessa Fire Department Medics returned to the scene and transported Eastep
to the local hospital. Eastep underwent surgery the following day and spent nine days in the hospital.
On January 26, 2017, Eastep filed the instant civil rights lawsuit against the City of Odessa
(“Odessa”) and Officers Potter and Barragan (collectively “Defendants”), alleging excessive force
and unreasonable seizure and arrest in violation of 42 U.S.C. § 1983, as well as state claims under
the Texas Tort Claims Act and for assault and battery.
Defendants have now filed a Motion to Transfer this case from the Austin Division to the
Midland-Odessa Division of the Western District of Texas pursuant to 28 U.S.C. § 1404(a). Eastep
opposes the Motion to Transfer claiming that he “cannot be guaranteed a fair trial in the MidlandOdessa Division.”
Standard of Review on Motion to Transfer
“For the convenience of the 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.” 28
U.S.C. § 1404(a). Section 1404(a) “is intended to place discretion in the district court to adjudicate
motions for transfer according to an ‘individualized, case-by-case consideration of convenience and
fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack,
376 U.S. 612, 622 (1964)). “There can be no question but that the district courts have broad
discretion in deciding whether to order a transfer” under § 1404(a). In re Volkswagen of Am., Inc.
(“Volkswagen II”), 545 F.3d 304, 313–15 (5th Cir. 2008) (internal quotation marks omitted), cert.
denied, 555 U.S. 1172 (2009).
The starting point on a motion for transfer of venue is determining whether the suit could
have originally been filed in the destination venue. Id. at 312. If it could have, the focus shifts to
whether the party requesting the transfer has demonstrated the “convenience of parties and
witnesses” requires transfer of the action, considering various private and public interests. See Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1974). 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.” In re Volkswagen AG (“Volkswagen I”),
371 F.3d 201, 203 (5th Cir. 2004) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6
(1981)). 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 Gilbert factors are
“appropriate for most transfer cases, they are not necessarily exhaustive or exclusive.” In fact, the
Fifth Circuit has noted “none . . . can be said to be of dispositive weight.” Volkswagen II, 545 F.3d
at 313–15 (internal quotations omitted). Despite the wide array of private and public concerns, a
court must engage in a “flexible and individualized analysis” in ruling on a motion to transfer venue.
Stewart, 487 U.S. at 29.
The plaintiff's choice of venue is not a factor in this analysis, but rather contributes to the
defendant’s burden to show good cause for the transfer. Volkswagen II, 545 F.3d at 313 & 314 n.10
(“[W]hile a plaintiff has the privilege of filing his claims in any judicial division appropriate under
the general venue statute, § 1404(a) tempers the effects of the exercise of this privilege.”). However,
“when the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the
plaintiff's choice should be respected.” Id. at 315. Moreover, “when a plaintiff is not a resident of
the chosen forum, or the operative facts underlying the case did not occur in the chosen forum, the
court will not give as much deference to a plaintiff’s choice.” Apparel Prod. Servs. Inc. v.
Transportes De Carga Fema, S.A., 546 F. Supp.2d 451, 453 (S.D. Tex. 2008).
Transfer under § 1404(a) requires a lesser showing of inconvenience than transfer based on
forum non conveniens. Volkswagen II, 545 F.3d at 314. The movant need not show the Gilbert
factors substantially outweigh the plaintiff's choice of venue—it is enough to show the new venue
is clearly more convenient than the original one. Finally, the Court notes that the “§ 1404(a) factors
apply as much to transfers between divisions of the same district as to transfers from one district to
another.” In re Radmax, Limited, 720 F.3d 285, 288 (5th Cir. 2013).
The first question the Court must address when considering a motion to transfer venue under
28 U.S.C. § 1404(a) is whether the suit originally could have been filed in the destination venue,
here, the Midland-Odessa Division of the Western District of Texas.
Venue in a civil rights action is governed by 28 U.S.C. § 1391(b), which provides that venue
is proper in a judicial district: (1) where any defendant resides; (2) where a substantial part of the
events or omissions giving rise to the claim occurred; or (3) if there is no district where the action
may otherwise be brought, in any judicial district in which any defendant is subject to personal
jurisdiction. Davis v. Louisiana State Univ., 876 F.2d 412, 413 (5th Cir. 1989); 28 U.S.C. § 1391(b).
All of the Defendants reside in the Midland-Odessa Division and all of the claims in this lawsuit
arise out of events that occurred in the Midland-Odessa Division. Accordingly, this lawsuit clearly
could have been brought in the Midland-Odessa Division. Thus, the Court must now address the
private and public factors to determine if transfer to the Midland-Odessa Division is warranted.
Private Interest Factors
The first private interest factor is the relative ease of access to sources of proof. Volkswagen
II, 545 F.3d at 315. All of the events or omissions giving rise to this lawsuit occurred in Odessa,
Texas, which is in the Midland-Odessa Division. All of the Defendants and witnesses other than the
Plaintiff are also located in the Midland-Odessa Division. Furthermore, the documents and facilities
for the City of Odessa Police Department, the Odessa Fire Department Medics and the hospital are
also located in Odessa. Accordingly, this factor weighs in favor of transfer.
The second and the third factors, the availability of compulsory process and cost of
transportation for witnesses also weigh in favor of transfer. As noted, all of the Defendants in this
case reside within the Midland-Odessa Division. Similarly, the potential fact witnesses, including
the Odessa Fire Department Medics and Eastep’s neighbors all live in the Midland-Odessa Division.
Austin is approximately 300 miles from the Midland-Odessa area. Accordingly, the Midland-Odessa
area is outside the subpoena power of the Austin Division for depositions and hearings. See FED.
R. CIV P. 45(c). As the Fifth Circuit explained in Volkswagen I, 371 F.3d at 205, if the distance
between the proposed venue and the current venue is more than 100 miles, the factor of
inconvenience increases in direct relationship to the distance traveled. As the Court reasoned:
Additional distance means additional travel time; additional travel time increases the
probability for meal and lodging expenses; and additional travel time with overnight
stays increases the time which these fact witnesses must be away from their regular
employment. Furthermore, the task of scheduling fact witnesses so as to minimize
the time when they are removed from their regular work or home responsibilities gets
increasingly difficult and complicated when the travel time from their home or work
site to the court facility is five or six hours one-way as opposed to 30 minutes or an
Id. Plaintiff has failed to identify any witnesses who reside within 100 miles of the Austin Division.
The only party or witness who does not live in the Midland-Odessa area is the Plaintiff, who now
lives in Lubbock County, Texas. However, the Austin Division is approximately 250 miles farther
from Plaintiff’s residence than the Midland-Odessa Division. Accordingly, these factors weigh in
favor of transfer.
Finally, the Court is to examine “all other practical problems that make trial of a case easy,
expeditious and inexpensive.” Volkswagen I, 371 F.3d at 203. All of the Defendants and witnesses
reside in the Midland-Odessa Division. The conduct at issue in this case occurred in the MidlandOdessa Division. There does not appear to be anything about trying the case in the Austin Division
that would make it easy, expeditious or inexpensive for anyone involved in the case. Accordingly,
this factor also supports transfer.
Public Interest Factors
The public interest factors also counsel in favor or transfer. As Defendants point out, in
2016, the Austin Division experienced the largest number of civil case filings of any division in the
Western District of Texas with 1,444 civil cases filed. In contrast, only 425 civil cases were filed
in the Midland-Odessa Division in 2016. These figures suggest that it would not be a prudent use
of judicial resources for this Court to resolve a dispute that has no real connection with this forum.
In addition, the local interest factor clearly favors transfer. Given that all of the events and
omissions giving rise to this lawsuit occurred in the Midland-Odessa Division, the citizens in that
division have a direct interest in the civil rights allegations made in this lawsuit. See Volkswagen I,
371 F.3d at 206 (finding that “the ‘local interest in having localized interests decided at home,’
weighs heavily in favor of the Western District of Texas.”); Spiegelberg v. Collegiate Licensing Co.,
402 F. Supp. 2d 786, 792 (S.D. Tex. 2005) (“Moreover, Lubbock has a strong interest in this case
because the case arises out of events occurring in Lubbock.”). Accordingly, this factor also favors
transfer. The last two public interest factors are neutral as both divisions are equally familiar with
the governing law, and there should not be any problems with conflict of laws or the application of
foreign law in this case.
Weighing all of the private and public factors, the Court finds that the Midland-Odessa
Division is clearly a more convenient venue for this case than the Austin Division of the Western
District of Texas.
Eastep does not contest any of the public and private factors discussed above. Nevertheless,
Eastep opposes the Motion to Transfer because he contends that he “cannot be guaranteed a fair trial
in the Midland-Odessa Division.” Dkt. No. 4 at 1. He claims “he left Midland/Odessa to be safer
and free from perceived and, from his perspective, realized threats made by the City of Odessa
through Officers Barragan and Potter.” Id. at p. 3. Eastep claims he chose the Austin Division
“because he is fearful of returning to the Midland-Odessa area after the incident made the basis of
this suit occurred.” Id.
Other than his subjective belief, Eastep fails to offer any evidence to support his claim he is
in danger or that he will not be able to receive a fair trial in the Midland-Odessa Division. Eastep’s
subjective opinions without any supporting evidence have little probative value. See Doe v. City of
San Angelo, 2009 WL 5033936, at *6 (N.D. Tex. Dec. 21, 2009) (”Without some empirical evidence
that plaintiff cannot receive a fair trial in San Angelo, the court is unable to conclude that the
‘interest of justice’ requires keeping this case in Dallas—a venue that has absolutely no connection
to the facts or to the parties.”); Prock v. Woodmont Sherman GP, L.L.C., 2007 WL 1079940 at *3
(E.D. Tex. Apr. 9, 2007) (mere possibility of unfairness and prejudice among potential jurors in
Sherman Division because they patronize marketplaces developed by defendant did not prevent
transfer of case to Sherman).
Moreover, this case will be litigated in Federal Court, not state court in the Midland-Odessa
area. Accordingly, any concerns regarding local prejudices will be alleviated. See Bristol-Myers
Squibb Co. v. Safety Nat. Cas. Corp., 43 F. Supp. 2d 734, 740 (E.D. Tex. 1999) (“the right of
removal was designed to protect nonresidents from the local prejudices of state courts.”).
Based upon the foregoing, the Court finds that Defendants have sustained their burden to
demonstrate that the Midland-Odessa Division is a clearly more convenient venue than the Austin
Division. Accordingly, this case should be transferred pursuant to 28 U.S.C. § 1404(a).
Accordingly, the undersigned RECOMMENDS that the District Court GRANT Defendants’
motion (Dkt. No. 2), and TRANSFER this case to the Midland-Odessa Division of the Court.
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 12th day of June, 2017.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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