Walker et al v. Stroman et al

Filing 22

ORDER DENYING 11 Motion to Transfer Case. Signed by Judge Sam Sparks. (dm)

TO

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

17

28 P

1:

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JL3RT

A

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DARYLE WALKER, MICHAEL WOODS, DON
FOWLER, DAVID CEPEDA, KEVIN RASH,
RICHARD KREDER, GREG CORRALES,
BOBBY JOE SAMFORD, JTMMY SPENCER,
JR., CRAIG RODAHL, ARLEY HARRIS, III,
and RICHARD DAULEY,
Plaintiffs,

Case No. A-17-CA-235-SS

-vs-

BRENT STROMAN, MANUEL CHAVEZ,
ABELINO "ABEL" REYNA, CITY OF WACO,
TEXAS, MCLENNAN COUNTY, TEXAS,
ROBERT LANNING, JEFFREY ROGERS,
PATRICK SWANTON, STEVEN SCHWARTZ,
and CHRISTOPHER FROST,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically, Defendants Brent Stroman, Manuel Chavez, Abelino "Abel" Reyna, City of Waco,
Texas, McLennan County, Texas, Robert Lanning, Jeffrey Rogers, and Patrick Swanton's Joint

Motion to Transfer Venue [#11] and Plaintiffs' Response [#17] in opposition. Having considered
these documents, the case file as a whole, and the applicable law, the Court enters the following

opinion and order.

Background
This is a

§

1983 action arising from a violent incident at a Twin Peaks restaurant in Waco,

Texas on May 17, 2015.

See

Am. Compl. [#1] ¶ 1. That day hundreds of motorcycle club members

/

gathered at the restaurant for a Texas Confederation of Clubs & Independents (COC) meeting. See
Id.

¶ 27. During the COC meeting, shooting broke out between some of the bikers. See

Id.

¶ 28.

Law enforcement officers responded to the violence with their own gun fire. See id. ¶J 2 8-29. Once
the shooting ceased, nine individuals lay dead and at least twenty were injured. See Id. ¶ 28. Based
on a single affidavit, law enforcement officials arrested 177 persons, including Plaintiffs Daryle

Walker, Michael Woods, Don Fowler, David Cepeda, Kevin Rash, Richard Kreder, Greg Corrales,
Bobby Joe Samford, Jimmy Spencer, Jr., Craig Rodahl, Arley Harris III, and Richard Dauley

(collectively, Plaintiffs), and detained a number of other bikers. See Id.

¶11

5 1-52.

While a grand

jury in McLennan County indicted over 100 of those arrested for the felony of Engaging in
Organized Criminal Activity with the Intent to Commit or Conspire to Commit Murder, Capital
Murder, or Aggravated Assault, Plaintiffs have not yet been indicted. See Id. ¶J 2, 30.

Plaintiffs brought this suit against Defendants Stroman, the Chief of the Waco Police
Department (WPD); Chavez, a WPD police officer; Reyna, the District Attorney of McLennan
County, Texas; the City ofWaco, Texas; McLennan County, Texas; Robert Lanning, Assistant Chief

of Police for the WPD; Jeffrey Rogers, a WPD police officer; Patrick Swanton, a WPD police office;
Steven Schwartz, a special agent employed by the Texas Department of Public Safety (DPS); and

Christopher Frost, a special agent employed by DPS (collectively, Defendants). See Id. ¶J 15-24.
In their complaint, Plaintiffs claim they were wrongfully arrested in violation of their Fourth and

Fourteenth Amendment rights and alleging Defendants conspired to deprive them of those rights.
See Id.

¶IJ

263-295. Specifically, Plaintiffs argue the arrest warrant Defendants obtained was based

on a "template" affidavit which failed to provide any particularized facts, contained false and

materially misleading statements, and conflicted with evidence showing Plaintiffs were not involved
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in the violence. See id. ¶J 56-67,266-67. Instead of particularized facts, Plaintiffs state their arrests
were "based on motorcycle club association and/or clothing, patches, key chains, etc. that Defendants
arbitrarily decided reflected 'support" for two of the rival biker clubs involved in the shooting. Id.

¶ 50.
Defendants now move to transfer venue from the Austin Division of the Western District of
Texas to the Waco Division. See Mot. [#111 at

1.

In support, Defendants allege the following venue

facts:

All Defendants work arid reside within McLennan County, Texas, which the Waco
Division serves. See id. [#11-1] Ex. D-1 (Reyna Affidavit); id. [#11-2] Ex. D-2
(Stroman Affidavit).
The Twin Peaks restaurant is located in McLennan County. See id. [#11] ¶ 2.05.
The bikers' arrests, detention, prosecution, and Grand Jury indictments occurred in
McLennan County. See id.

All of the records and evidence retained and/or considered by the Waco Police
Department, McLennan County Criminal District Attorney's Office, the state courts,
and the McLennan County Grand Jury are located in Waco. See id. ¶ 2.07.
The "vast majority ofpotential witnesses reside in McLennan County," including law
enforcement officials, prosecutors, judicial persoimel, and residents of McLennan
County. See id. ¶ 2.08.
The federal courthouse in Waco is approximately 100 miles closer to the Waco
Police Department and the Criminal District Attorney's Office than the Austin
federal courthouse. See id. ¶J 2.09-2.10.

Proceedings in the Austin Division would burden Defendants, witnesses, and the
offices they serve, both in terms of time and expense. See id. ¶ 2.11.

Keeping the cases in the Austin Division interferes with Defendants' counsels' ability
to effectively represent their clients. See id.
In response, Plaintiffs assert the following facts relevant to venue:

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Potential witnesses reside across Texas. See Resp. [#17-1] Ex. P-i (Uribe Affidavit)
¶fJ 2, 8. In particular, of the 244 bikers arrested or detained, only 53 are from Waco;
the rest reside in a number of different cities and regions throughout Texas. See id.
Similarly, the law enforcement personnel involved in the investigation included
Department of Public Safety (DPS) officers from its Austin headquarters and
surrounding cities. See Id ¶11 2, 7.
Significant evidence is located in Austin and in other parts of Texas other than Waco.
See Id. [#111 at 3-6. DPS officers obtained video recordings of the incident which
are likely kept at DPS headquarters in Austin. See id. at 5. Both DPS and the
Attorney General's Office of Texas maintain gang databases, which, along with
personnel familiar with the databases, are likely located in the agencies' Austin
headquarters. See id. at 5-6. Other law enforcement officials from across Texas may
be involved in cell phone and computer analysis. See Id. at 5. Finally, officers from
the FBI San Antonio office as well as agents from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives Austin Field Office may have relevant knowledge. See id.
The Waco community has been saturated with articles and statements prejudicing
Plaintiffs. See id. at 6-8.

Analysis
I.

Standard for Transfer Under § 1404(a)
Defendants move to transfer this case for the convenience of parties and witnesses under 28

U.S.C.

§

1404(a). Section 1404(a) provides: "For the convenience of the parties and witnesses, in

the interest ofjustice, 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 Duren v. Barrack, 376 U.S. 612, 622 (1964)). Because a plaintiff
has the privilege of choosing the venue in which to file, the defendant bears the burden of proving
a transfer of venue would be "clearly" more convenient for the parties and witnesses and in the

interest of justice. See In re Volkswagen of Am. Inc., 545 F.3d 305, 315 (5th Cir. 2008) ("In re
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Volkswagen II"); Schexnider v. McDermott mt '1, Inc., 817 F.2d 1159, 1163 (5th Cir. 1987) ("[T]here

is ordinarily a strong presumption in favor of the plaintiff's choice of forum that may be overcome

only when the private and public interest factors clearly point towards trial in the alternative

forum.").
The preliminary question under

§

1404(a) is whether the action "might have been brought"

in the destination venue. In re Volkswagen II, 545 F.3d at 312. After determining the suit could

have been filed in the destination venue, the Court weighs the parties' private interests in
convenience and the public interest in the fair administration ofjustice. Gulf Oil Corp.

v.

Gilbert,

330 U.S. 501, 508 (1974). The private interest factors are: "(1)the relative ease of access to sources

ofproof; (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, 371 F.3d 201, 203 (5th Cir. 2004) ("In re
Volkswagen 1") (citing Piper Aircraft Co.

v.

Reyno, 454 U.S. 235, 241 n.6 (1981)). The public

interest factors include: "(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.. . ." Id Although these private and public factors apply to most transfer cases, "they are not
necessarily exhaustive or exclusive," and no single factor is dispositive. In re Volkswagen II, 545
F.3d at 315.

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II.

Application
A.

Destination Venue

The Court turns first to the preliminary question of whether the suit could have been filed

originally in the destination venue. Id. at 312. An action may be brought in the district in which a
substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C.

§ 139 1(b)(2).

There is no dispute the events leading to Plaintiffs' claim arose within the Western District of Texas.
Thus, this case could have properly been brought in any division, including the Waco Division,

within the Western District of Texas.
B.

Private Interest Factors
1.

Relative Ease of Access to Sources of Proof

To demonstrate transfer will result in more convenient access to sources of proof, a movant

must identify the sources of proof with specificity. J2 Glob. Commc 'ns, Inc.

v.

Protus IF Sols., Inc.,

No. CIV A 6:08-C V-21 1, 2009 WL 440525, at *2 (E.D. Tex. Feb. 20, 2009) (citing examples of

movants identifying "sensitive [and bulky] physical evidence and a crash site"). Further, this factor
is not generally given much weight in the

§

1404 analysis given the ease in which information can

be transferred with today's technology. See Mateos v. Select Energy Servs., L.L.C., 919 F. Supp. 2d
817, 822 (W.D. Tex. 2013).

Defendants do not identify specific evidence, stating instead that "[t]he records, information,
evidence, and documentation of the Waco Police Department, McLennan County Criminal District

Attorney's Office, the state courts, and the McLennan County Grand

Waco.

. .

Jury

are all located in

." Mot. [#111 ¶ 2.07; see J2 Glob., 2009 WL 440525, at *2 ("[O]ther than generally

referring documents, [Defendants] have not identified any specific evidence, physical or

otherwise."). Defendants' general statement fails to show transfer would make access to these
sources of proof more convenient.'
Because Defendants have not specified any reason why transferring this case to the Waco
Division would make access to particular sources of proof more convenient, the Court finds this

factor is neutral.
2.

Availability of Compulsory Process

The second factor refers to Federal Rule of Civil Procedure 45, which addresses the court's

subpoena power. Under that Rule, the court can compel a person to attend a trial, hearing, or
deposition within 100 miles ofwhere the person resides, is employed, or regularly transacts business.
FED.

R.

CIV. P.

45(c)(1)(A). The court can also require parties or party officers to attend a trial,

hearing, or deposition anywhere in the state where the person resides, is employed, or regularly

conducts business.

FED.

R. CIV. P. 45(c)(1)(B)(i). Finally, the court can require a nonparty witness

to travel more than 100 miles within the state where they reside, are employed, or regularly transact
business only if they would not, as a result, incur "substantial expense."

FED.

R. Civ. P.

45(c)(1)(B)(ii).
Defendants argue transfer is warranted because Defendants and potential nonparty witnesses,

including "law enforcement officers, prosecutors,.

. .

judicial personnel," and eye-witnesses, reside

in McClennan County within the Waco Division's subpoena power. Mot. [#11] ¶ 2.08. But

Plaintiffs claim the majority of potential nonparty witnesses do not reside in the Waco area.

See

Plaintiffs, on the other hand, do reference specific sources of proof located in Austin: video evidence
obtain by DPSwhich allegedly shows Plaintiffs did not participate in the violenceand evidence related to gang
databases maintained by DPS and the Attorney General's Office. See Resp. [#17] at 5-6. This evidence will likely
be kept and maintained at the respective agencies' Austin headquarters. See id.

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Resp. [#17] at 3-5. Rather, of the 244 bikers who were arrested or detained, 24 reside in counties

served by the Austin Division and 159 reside in counties served by the Southern District of Texas,
the Northern District of Texas, and the Eastern District of Texas.

See

id.

at 4. Plaintiffs also allege

law enforcement officials involved in the investigation came from around the state, including Austin.
See

id.

at 5, 10 ("DPS officers from Austin outnumber Waco DPS officers almost 2 to 1.").

Party witnesses fall within both the Austin and Waco Divisions' subpoena power under Rule
45(c)( 1 )(B)(i): Plaintiffs and Defendants reside in Texas and thus can be required to attend a trial
anywhere in Texas.

See FED. R.

Civ. P. 45(c)(l)(B)(i). Similarly, the scale is likely balanced with

regard to nonparty witnesses. The Waco and Austin Division will both have power to compel some
nonparty witnesses who live within 100 miles or who will not incur "substantial expense," but not
See FED.

others.2

3.

R. Civ. P. 45(c)(1)(A), (B)(ii). Thus, the Court finds this factor is neutral.

Cost of Attendance for Willing Witnesses

"When a movant claims that transfer is warranted for the convenience of witnesses, the
movant must specifically identify the key witnesses and outline the substance of their testimony."
Mateos, 919 F.

Supp. 2d at 823 (internal quotations and citation omitted). Courts generally apply

the 100-mile rule when evaluating this factor: "[w]hen 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."

2

Neither party provides a list of potential nonparty witnesses or their addresses. Thus, the Court's
analysis rests on the resident data provided by Plaintiffs, showing how many bikers and DPS officers reside in
cities and/or areas throughout Texas (i.e. Houston, East Texas). See Resp. [#17] at 3-5. The Court acknowledges
this data does not allow for precise application of the 100-mile rule.

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In re Volkswagen I, 371 F.3d at 204-05. Yet this factor can be neutral if the transferee division is
not a convenient forum for all witnesses. J2 Glob., 2009 WL 440525, at *4

Neither party submitted a list of key witnesses with summaries of those witnesses' relevant

knowledge. Defendants broadly state, "Defendants and many witnesses reside within the Waco
Division and will have to travel to Austin from the Waco area each day to attend trial, and/or incur

the expense of lodging to stay in Austin.. . ." Mot. [#11] ¶ 4.04. But Plaintiffs have alleged the

majority of potential nonparty witnesses reside outside of Waco in counties across the state. See
Resp. [#17] at 3-5. Many of these witnesses will be similarly inconvenienced if this case is heard
in Waco. Either forum, then, will be inconvenient for some witnesses.

Defendants argue the requirement to identify specific material witnesses is not part of the
venue statute and such a requirement in this case, where "much of the information is part of ongoing

criminal investigations and prosecutions,

.

.

.

would require the law enforcement officers or

prosecutors sued to file in the public record information protected under the law enforcement
privilege in order to obtain a transfer of venue." Mot. [#11] at 1-2. The Court agrees the venue
statute does not explicitly state such a requirement. See 28 U.s.c. § 1404. Numerous district courts
within Texas, however, have addressed a defendant's identification of key witnesses while analyzing
this factor. See, e.g., Tapia v. Dugger, No. CIVA SAO6-CA-0147-XR, 2006 WL 2620530, at *4
(W.D. Tex. Sept. 7, 2006) ("The moving party must specifically identify the witnesses and outline

the substance of their testimony."); Dupre

v.

Spanier Marine Corp., 810 F. Supp. 823, 825 (S.D.

Tex. 1993) ("[T]the moving party must do more than make a general allegation that certain key

witnesses are needed.

. . .

The movant must specifically identify the key witnesses and outline the

substance of their testimony."); Empty Barge Lines II, Inc.

v.

Dredge Leonard Fisher, 441 F. Supp.

2d 786, 793 (E.D. Tex. 2006) ("Conclusory allegations are not

sufficientthe moving party must

identify the key witnesses to be called and present a generalized statement of what their testimony

would include.") (internal quotations and citation omitted).

Still, the Court acknowledges

Defendants' right to protect certain information under the law enforcement privilege. See In re US.

Dep't ofHomeland Sec., 459 F.3d 565, 569 (5th Cir. 2006).
But even disregarding Defendants' failure to provide a list of key witnesses, Defendants have

not shown the cost of attendance factor weighs in favor of transfer. While Defendants state

"[a]lmost all potential law enforcement witnesses and prosecutor witnesses that either side could
possibly call to testify reside in McLennan County," Plaintiffs have shown that a number of potential

witnesses reside within the Austin Division and other parts of Texas. Mot. [#11] ¶ 1; Resp. {#17]
at 3-5; see also Zurich Am. Ins. Co.

v.

Tejas Concrete & Materials Inc., 982 F. Supp. 2d 714, 726

(W.D. Tex. 2013) ("Although a defendant can assert that the cost of obtaining the attendance of

witnesses will be substantially less in the forum it proposes, courts recognize that the chosen forum
is rarely the least expensive venue for every individual affiliated with the case."). Therefore,

transferring the case to the Waco Division would only shift the burden from the Waco witnesses to
the Austin and other Texas witnesses. See id. ("[G]iven that there are likely a substantial number

of witnesses in both the Western District of Texas and the Southern District of Texas, the only
practical effect of transfer would be to impermissibly shift inconvenience from the moving party to
the non-moving party.").

For these reasons, the Court finds Defendants have failed to show transfer to the Waco
Division will be more convenient for the witnesses than the Austin Division. This factor is neutral.

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All Other Practical Problems

4.

Defendants assert appearances in the Austin Division of Defendants and Waco law
enforcement officers will burden and impair the activities of the Waco Police Department and the
Waco Criminal District Attorney's Office. See Mot. [#11] ¶J 2.11, 4.05. This same argument,

however, also applies to the law enforcement officer witnesses who reside in Austin and across
Texas. See Resp. [#171 at 4-5. The Court finds this argument does not weigh in favor of transfer.

Plaintiffs suggest a jury pool in the Waco Division will be unfairly biased due to the publicity

surrounding the shooting.

See

id.

at 6-8, 13-14, 16. Indeed, there is no denying the extensive public

coverage of this incident, especially with regard to the underlying criminal

case.3

The Court agrees

with Defendants, however, that this is not the appropriate time for the Court to determine whether
pretrial publicity has unfairly prejudiced or tainted the jury. See Broussard v. State Farm Fire &
Cas. Co., 523 F.3d 618, 631(5th Cir. 2008) (describing district judge's decision to reserve ruling on

motion to transfer venue until he conducted voir dire to determine if publicity unfairly prejudiced
the jury.); Davis

v.

City of Fort Worth, No. 3:14-CV-1698-D, 2014 WL 2915881, at

5

(N.D. Tex.

June 25, 2014) (finding a tainted jury was not a reason to decline to transfer the case); Thurmondv.

Compaq Computer Corp., No.

1

:99-CV-07 11 (TH), 2000 WL 33795090, at * 13 (E.D. Tex. Mar. 1,

2000) ("[V]oir dire is the cure for any [jury] 'bias' that may result from exposure to pre-trial

publicity.") (internal citation omitted). Thus, the Court finds the existence ofpretrial publicity does

not weight in favor or against transfer.

It is likely that no court will be able to determine the impartiality of a jury pool until the underlying
criminal proceeding has been resolved.

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In sum, Defendants have failed to show any of the private factors weight in favor of transfer

to the Waco Division.
C.

Public Interest Factors
1.

Administrative Difficulties Flowing from Court Congestion

Defendants state, "based on the discussions had during a previous hearing it appears that the
Austin Division is significantly more congested than the Waco Division and that, therefore, this

factor weighs in favor of transfer." Mot. [#111 ¶ 4.06. Defendants do not cite a particular hearing or
any specific testimony. The Court concludes that data is not available to compare administrative
difficulties between divisions within the Western District of Texas. Cf Rosemondv. UnitedAirlines,
Inc., No. CIV.A. H-13-2190, 2014 WL 1338690, at *4 (S.D. Tex. Apr. 2, 2014) (comparing the

median time interval from filing of case to disposition between district courts). Thus, the Court finds
this factor is neutral.
2.

Local Interest in Having Localized Interests Decided at Home

Both the Austin and Waco Divisions have a local interest in adjudicating a case that involves
and affects residents from both cities as well as other parts of the state. The tragic events at the Twin

Peaks restaurant have undoubtedly impacted communities throughout Texas where detained or arrested
bikers and the law enforcement officials involved in the investigation reside. See Resp. [#17 at 3-6.
Some of these areas are served by the Austin Division, some by the Waco Division, and some by

neither. Because both divisions have an interest in adjudicating this case, this factor is neutral.
3.

Familiarity of the Forum with the Law that Will Govern the Case

Neither division is more or less familiar with the law that will govern this case. This factor is
also neutral.

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4.

Avoidance of Unnecessary Problems of Conflict of Laws

This case does not involve any conflict of laws issues that would make this case better suited
for either the Austin or Waco Division. This factor is neutral.

Conclusion
The Court finds, based on its analysis of both private and public interest factors, the Austin

Division is just as convenient to the parties and witnesses than the Waco Division. Because
Defendants have not shown the Waco Division would be a clearly more convenient forum or transfer
is in the interest ofjustice, Plaintiffs' initial choice ofvenue in the Austin Division will be respected.

Accordingly,
IT IS ORDERED that Defendants Stroman, Chavez and Reyna's Joint Motion to

Transfer Venue [#11] is DENIED.
SIGNED this the

2day of June 2017.

44,L1

U
SAM SPARKS
UNITED STATES DISTRICT JUDGE

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